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Event Governance Civil Justice

Supreme Court At a Crossroads Judicial Engagement VS. Judicial Restraint: What Should Conservatives Prefer?

Thursday February 2017


Clark Neily Senior Attorney, Institute for Justice
Mark Pulliam Lawyer and Contributing Editor, Library of Law and Liberty; Contributor, City Journal

On February 9, 2017, the Manhattan Institute hosted two experienced litigators—Clark Neily and Mark Pulliam—to explain and debate judicial engagement.

With a new Republican administration in Washington—and a GOP Senate majority—conservatives have the opportunity to reshape the Supreme Court for a generation. But what sorts of justices should conservatives want? The legal right today is broadly divided into two camps: Those who support a more engaged judiciary that vigorously enforces enumerated as well as unenumerated constitutional rights to overturn state and federal legislation and those who believe in a judiciary that takes a more limited view of the constitutional text.

To examine this divide, we have invited two experienced litigators who fall on each side of the debate. Clark Neily, as an attorney with the Institute for Justice, has made a career out of challenging the constitutionality of laws and regulations. In his book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, Mr. Neily has called for "meaningful judicial engagement," arguing that "the structure of the Constitution rejects reflexive deference to the legislative branch." Contributing editor to the Library of Law and Liberty and longtime lawyer Mark Pulliam, in contrast, has derided judicial engagement as "faux originalism." According to Mr. Pulliam, the approach preferred by Mr. Neily and various libertarian academics would, at worst, "unmoor constitutional law from the text of the Constitution and empower unelected judges to be society’s Platonic Guardians."

Please join us for this important debate, moderated by the Manhattan Institute’s director of legal policy, James Copland, on the proper role of judges in America’s constitutional republic.