In his Jorde Symposium Essay, Judge Richard Posner identifies three forms of judicial restraint. He then argues that the third type, Thayerian judicial restraint characterized by a strong reluctance to declare legislative or executive action unconstitutional unless the unconstitutionality is so clear that it is not open to rational question, has disappeared because constitutional theory renders judges both certain that constitutional questions have right answers and confident that they are able to discern them. In this Essay, I respond by suggesting that Thayerian restraint has not disappeared. Rather, it has been transformed from a type of individualized self-restraint in which a lone jurist, reasoning from first principles, decides to forbear into a more systemic rule of constitutional adjudication that permeates the two most prevalent forms of contemporary constitutional litigation: habeas corpus petitions and damages actions. In habeas cases, federal courts will forbear from overturning state court convictions simply because constitutional errors occurred; they will intervene only when the state courts were unreasonably wrong. In a similar vein, in § 1983 and Bivens actions, qualified immunity doctrine means that federal courts will conclude that an official violated the Constitution, but will then grant judgment to the official anyway because, at the time of the underlying events, unconstitutionality was open to debate.

This Essay then turns to a possible tension between Thayerian restraint and another type of judicial restraint Judge Posner identifies in his Essay. Thayerian restraint tells judges to uphold a law if they can discern any constitutional basis for its enactment. Type (2) restraint, by contrast, directs judges to defer to the political branches. I show that the current marriage equality litigation potentially implicates both types of restraint: can, or should, a judge rely on a reason the government has affirmatively repudiated as the basis for upholding a statute?



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