From Bork To Willett

Is the conservative legal movement going libertarian?

- Damon Root

WHEN PRESIDENT RONALD Reagan nominated Robert Bork to the U.S. Supreme Court in 1987, he said his nominee was “widely regarded as the most prominent and intellectually powerful advocate of judicial restraint.”

It was no exaggeration. Bork routinely preached the virtues of a judiciary that’s deferential to lawmakers, arguing that in the vast majority of cases, “the only course for a principled Court is to let the majority have its way.”

Where Bork led, most conservatives were ready to follow. Judicial deference, or restraint, became a rallying cry on the legal right.

That philosophy still holds sway in some quarters today. But it’s increasingly under fire from legal thinkers who want the courts to play a more aggressive role in defense of individual liberty and against overreaching majorities.