When it comes to the issues, it’s much harder than it should be
to find substantive differences between President Obama and Mitt
Romney. One potential difference is in the two candidates’
potential Supreme Court nominations. This is important; there will
almost certainly be some turnover in the next four years. Justice
Breyer is a spry 73, while Scalia and Kennedy are 76, and Ginsburg
is 79. That’s four potential picks right there. But again, the
differences between Romney and Obama’s possible selections are
overhyped. Both men would seek the same dominant trait in their
nominees: deference.
If the Supreme Court’s health care ruling showed us anything, it
is that the Court, contrary to claims by partisans both right and
left, will do almost anything to defer to the other branches. Some
pundits, such as New York Times columnist David Brooks,
praised what they see as judicial restraint on the part of
Chief Justice John Roberts, who argued that the mandate falls
within Congress’ power to “lay and collect Taxes.” Progressives and
conservatives alike claim to disdain judicial activism.
Of course, both sides’ cries of judicial activism are really
shorthand for “I disagree with this decision.” Many cases derided
as judicial activism have in fact involved the Court striking down
unconstitutional actions by the other branches.
All judicial activism is not the same. The Court should not
legislate from the bench. But the very core of the Supreme Court’s
job description is to say “no” when Congress passes blatantly
unconstitutional legislation, such as restrictions on political
speech or a health care bill that defines
inactivity—failing to buy health insurance—as “interstate
commerce.”
Judicial deference to the government’s other branches is
routinely touted as virtuous. We saw a great example of this in
Elena Kagan’s Senate confirmation hearing. As she told the Senate
Judiciary Committee:
“I would go back I think to Oliver Wendell Holmes on this.
He was this judge who lived in the early 20th Century — hated a
lot of the legislation that was being enacted during those years
but insisted that if the people wanted it, it was their right to go
hang themselves. Now, that‘s not always the case but there is
substantial deference due to political branches.”
Justice Kagan is correct that the Court shouldn’t decide cases
based on the Justices’ personal views of what constitutes good
policy. But they do have an obligation to base their decisions on
the limits placed upon the federal government by the
Constitution.
No matter which party is in power, Congress and the White House
often overstep their constitutional authority. From the political
speech restrictions in McCain-Feingold to the Washington, D.C.,
handgun ban, examples of the Supreme Court striking down
unconstitutional legislation are not hard to find. That is the kind
of judicial activism we need more of.
Unfortunately, as the health care decision shows, we don’t get
enough of it. That is partly because the political branches pick
who sits on the bench. No president would nominate a judge who
might nullify his administration’s signature achievements. No
senator would vote to confirm a judge who might strike down an
important bill that she wrote. There is a selection bias favoring
judges who will defer to the political branches of government. As
Georgetown University law professor Randy Barnett told The Wall
Street Journal, “If I want to bet actual money, I’ll always
bet the court upholds anything Congress does.”
Instead of looking to Oliver Wendell Holmes, the Court should
recall the lesson of the Marbury v. Madison decision of
1803. In that case, Chief Justice John Marshall asserted the
Court’s authority to strike down unconstitutional laws. “It is
emphatically the province and duty of the Judicial Department to
say what the law is,” he wrote in the decision.
The Supreme Court badly needs a dose of judicial activism. But
there is a difference between activism motivated by political
concerns and activism motivated by constitutional ones. Justices
should not base their decisions on the merit of a law, but they
obviously should base them on a law’s constitutionality. When
Justices seek ways to stretch the meaning of the constitution to
the point of absurdity, as Roberts and others have done, they are
not doing their job.
That doesn’t mean they should legislate from the bench. It means
they need to say “no” when Congress and the president go too far. A
weak court isn’t virtuous; it’s just weak.
