It’s been a rough few days for opponents of President Obama’s Affordable Care Act. Where the presence of a supposedly “conservative” majority seemed to assure them that the law would most certainly be struck down, the most odious part — the individual mandate — wound up being upheld in a decision written by none other than one of the conservative Supreme Court justices considered most likely to tear it down. Now conservatives are trying to figure out how to prevent this from happening ever again.
Marc Thiessen’s take echoes one of the more popular arguments that Roberts’s “flip” was really about getting swayed by the liberal academic establishment. He’s right to note that conservatives have failed to push the Supreme Court towards its proper role as a check on the other two branches of government. But in citing “judicial restraint” as the answer, Thiessen appears to have missed the question. Do we want a judiciary that strikes down bad law, or do we want one that allows the government to define for itself new and expansive roles in our lives?
When Roberts was nominated to serve on the court, Bloomberg News reported that Bush had selected a judge who was said to “strictly interpret the Constitution and not legislate from the bench.” Sen. John Cornyn, R-Texas, said that Roberts was “a known quantity.” In other words, the Once and Future Chief Justice was considered no particularly big risk because all his views (including his judicial philosophy) were thought to be known. (A hilarious line from the same article says that Roberts’s reasoning was comparable to Stephen Breyer, “in the sense that Breyer is not easily classified as a conservative or a liberal because he’s so bright, and his reasoning is so crisp, that it is hard to describe him.” Well, then.)
The vetting measured for only certain attributes: restraint and a general fidelity to the Constitution. The Affordable Care Act ruling certainly revealed fidelity didn’t take priority over restraint. In this case, Roberts had tightened his restraints so that he could only bend over backwards to accommodate the legislature.
Restraining the judiciary even in the face of clear congressional overzealousness means giving up on the Constitution. While going out of his way to limit the Commerce Clause as the avenue through which the other two branches could expand their roles, such a move yields little material limitation on the growth of government. He merely rearranged the deckchairs on the Titanic.
In cases such as these, where the judiciary fails to play its designated role, the absence is palpable. Nature abhors a vacuum, and the definition of judicial restraint creates such a one by directing judges to voluntarily abstain in areas where other coequal branches of government do not. Thus, those coequal branches become a bit more coequal, armed with populist mandates and unchecked spending power. The judiciary takes a back seat.
And what a back seat. In his decision, Roberts argued that ”every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” But what about saving the Constitution from a statute?
For that, look at the actual hero of judicial restraint, Oliver Wendell Holmes, who held in Buck v. Bell that the federal government could compel sterilization of the “unfit.” Holmes, finding that it was in the state’s interest to have an “unfit” citizen sterilized, closed his 1927 decision by saying that “three generations of imbeciles are enough.” Justice Pierce Butler, a Catholic, did not write a dissenting opinion.
The sterilization statute wasn’t repealed until 1974. For 50 years, generations of “restrained” jurists allowed the United States to operate under the belief that state-sanctioned eugenics was constitutional. (This decision was nearly overturned with Skinner, but it didn’t properly stop government-mandated sterilizations.)
This is a strange foundation for a conservative judicial philosophy, because Tea Party activists and conservative intellectuals have expressed exasperation over the judiciary’s refusal to reject laws that expanded the role of the federal government. In fact, this is why Justice Clarence Thomas has been hailed as one of the most consistent justices in favor of liberty. Thomas’s (short but sweet) opinion in Citizens United v. FEC is a perfect example of the kind of constitutional interpretation that rejects the growth of the state at the individual’s expense. Here is his closing paragraph:
I cannot endorse a view of the First Amendment that subjects citizens of this Nation to death threats, ruined careers, damaged or defaced property, or pre-emptive and threatening warning letters as the price for engaging in “core political speech, the ‘primary object of First Amendment protection.’” … Accordingly, I respectfully dissent from the Court’s judgment upholding BCRA §§201 and 311.
Organizations such as the Institute for Justice have been educating the public on the need for an “engaged judiciary,” rather than a restrained one. The distinction is between more decisions like Thomas’s — swatting down growth of government where necessary — and decisions like Roberts’s, which wholly change the text of laws to support his interpretation.
The point is, if picking Roberts was regrettable, perhaps conservatives’ approach to picking justices will change. Maybe it’s time to get more clear on what to look for in a potential justice. ”Judicial engagement” itself may be a black box leading to popular laws getting struck down. But given last week’s unpleasant surprise, it may be the only way to ensure a court willing to observe its proper role.
J.P. Freire is the editor of Doublethink. You can follow him on Twitter at @JPFreire.
Source: AFF Doublethink Online | Joseph Hammond
Source: AFF Doublethink Online | Emma Elliott Freire