My general view on the Supreme Court is that it should do less. That nouveau libertarian George Will criticized the Court for resorting to “judicial minimalism” to achieve unanimity. But I, for one, find the Chief Justice’s emphasis on achieving modest but sustainable results refreshing. Judicial minimalism is generally better than the other extreme more characteristic of our time—judicial maximalism.
In some ways, my view is the opposite of that of the outstanding libertarian constitutional scholar Randy Barnett. Randy wants to combine the spirit of Lochner with the spirit of Roe to achieve a kind of consistent judicial activism based on the presumption of liberty on both the economic and the personal autonomy fronts. I doubt there’s a constitutional warrant for either kind of activism. As far as I can tell, our Framers made judicial review legal, but they also thought that in order for it to be safe, it would have to be rare.