Randy Barnett also points out that the “conservative” idea of “judicial restraint” is a New Deal-era doctrine holding that federal judges should defer to Congress over the clear meaning of the Constitution. “In Gonzales [the decision empowering the feds to ban medical marijuana], Justice Scalia endorses the Roosevelt New Deal Court’s approach to [the Necessary and Proper Clause,] while Justice Thomas endorses Madison’s approach. To the extent that we can predict justices Roberts and Alito will side with Roosevelt/Scalia over Madison/Thomas, then their appointments represent the triumph (once again) of Rooseveltian judicial restraint over the text and original meaning of … Continue reading Re: Everything you need to know about Judge Alito