BuckeyeBlog

Case Western Reserve law professor Jonathan Adler was a guest on a recent Buckeye Voices discussing the Ohio Supreme Court. He now has this excellent article on National Review Online discussing many of the same issues related to Ohio’s highest court.  Adler points out that the court currently has a majority of justices who exercise modesty and restraint on the bench.  Unlike a decade ago, the court now decides cases pursuant to the dictates of Ohio’s statutes and Constitution, as opposed to deciding cases on the basis of their own personal policy preferences. Two of the justices making up this new majority are up for reelection in 2008.

Adler writes:

In choosing between two incumbent justices and their challengers, Ohioans will decide whether they like the Supreme Court’s turn toward judicial modesty. At stake is whether the current trends on the Ohio supreme court are likely to continue. However Ohioans decide, it could affect Ohio’s legal system for years to come.”

I recorded a Buckeye Voices podcast with Case Western Reserve University Law Professor Jonathan Adler today. He and his wife, Christina, provide an in-depth analysis of the Ohio Supreme Court’s recent evolution in this new paper recently published by the Federalist Society.

The Adlers make a persuasive case that the Ohio Supreme Court has dramatically improved over the last decade, due in large part to activist justices retiring and voters replacing them with justices who exercise restraint from the bench.

Blogger-extrordinaire-and-pretty-good-law-professor-to-boot Glenn Reynolds tells Heller celebrants, “Don’t get cocky.”

Reynolds argued that the Heller litigation was a mistake, on the grounds that there would not be five votes to protect the Constitution on the Supreme Court. (I agreed, and was scared to death Heller would be an outright loss.) He was wrong on that point (as was I), but not by much. (The problem is Justice Kennedy. The NRA, in a stunt, filed suit to overturn the Chicago gun ban the day Heller came down. Can Kennedy be counted upon? Hardly. Moreover, who knows what the court will look like one to 10 years hence? All of these cases can be, indeed must be, litigated over a long time period to get a ruling out of the high court. But the state of individual rights is precarious, and remains as likely to be lost as affirmed in the years to come.)

But here’s an interesting point in his column: Limiting the Commerce Clause is another fundamentally important legal action to take, one that will take years to implement. The Rehnquist Court threw the door to this wide open. What’s missing, Reynolds argues, is the hordes of public interest lawyers to make sure the judiciary follows through:

In the 1990s the Supreme Court decided a series of cases narrowing Congress’ powers to regulate all sorts of things under the rubric of “interstate commerce.” But there were no hordes of public-interest lawyers to pick up on those decisions and bring new cases in the lower courts.

Without that pressure, the lower courts were free to ignore the Supreme Court’s efforts to cut back on federal meddling - and that’s what they did, to the point that some called it a “constitutional revolution where no one showed up.”