Judge Garland’s “Restraint” and the Anti-Politics of the Administrative State

Judge Merrick Garland (Photo by Chip Somodevilla/Getty Images)

Judge Merrick Garland may be the best for which constitutionalists can reasonably hope with a President Clinton or President Trump in the offing, but there is no basis on the record presented thus far for the popular press’ breathless conclusion—see, for example, here and here—that he believes in judicial restraint rightly, which is to say politically, understood.

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Lab Rat America

As the Democratic convention rhetoric solidifies into cigarette ash and economic performance figures assail us, one line from President Obama’s speech should continue to intrigue and horrify us. Dealing with what he describes as decades-old challenges “will require common effort, shared responsibility, and the kind of bold, persistent experimentation that Franklin Roosevelt pursued during the only crisis worse than this one.”

Experimentation? Did Obamacare grant him a medical license? Did he at least obtain a human subject release form? All he knows is that he must be the total (“bold, persistent”) master of the situation. Whether we are the subjects of behavioral economics or of happiness commissions or rats in a maze is of no matter.

But there is far more here than Obama’s apparent admission of ignorance—it is his vision of a scientific controlled experiment that most alarms.  Such “bold, persistent experimentation” requires a tyranny. The subjects of experiments, no more than inmates in a prison, may not control their treatment. Scientific utopias demand elimination of freedom, as we know from dystopian speculations from Plato through Bacon to Skinner.

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