Feature
The Wages of Crying ‘Restraint’
How John Roberts ended up as America’s Big Chief.
Here is what 30 years of “judicial conservatism” have gotten us: John Roberts’ decision upholding Obamacare.
For three decades, conservatives have advocated “judicial restraint.” They have attacked unelected, lifetime-appointed judges for interfering with the will of the people as manifested in statutes enacted by Congress or the states. Judges who invalidate laws are called “activist.” Judges should “defer” to the more democratic legislature. Striking down a law as unconstitutional is called “legislating from the bench.” The power of judicial review, some conservatives insist, is nowhere to be found in the Constitution and was invented by Chief Justice John Marshall in Marbury v. Madison.
The irony here is that every one of these charges is a holdover from the 1910s–30s, when political “progressives” and populists leveled them at the “Nine Old Men” of the Supreme Court for using what progressives derisively called the “horse and buggy Constitution” to thwart their political agenda. “Deference” and “restraint” were the watchwords of how good judges were supposed to behave when legislatures, for example, enacted laws to benefit unions at the expense of employers.
Given the composition of unions in those days, this meant benefitting whites at the expense of blacks, men at the expense of women, and large industrialists who could enter labor agreements at the expense of mom-and-pop small businesses.Above all, it meant protecting public over private “power,” while assuming that democratic legislatures always acted to protect the public good. Never mind that many of these laws directly benefitted powerful businesses at the expense of their smaller competitors.
In the face of the growing popularity of progressive measures, and especially in the wake of the Great Depression, the Supreme Court gradually relented. Justices appointed by progressive presidents Woodrow Wilson and Herbert Hoover—yes, Hoover was a progressive—first began relaxing the constraints on government power in the early 1930s. Even before the New Deal, these justices adopted a “presumption of constitutionality” by which legislatures were given the benefit of the doubt.
Eventually, these justices were joined or replaced by nominees selected by Franklin Roosevelt based on their willingness to uphold the New Deal. (Which they did.) The Commerce Clause— when combined with the Necessary and Proper Clause power “to make all laws which shall be necessary and proper for carrying into execution” the commerce power—became seemingly unlimited.Even the liberty to grow wheat on one’s own farm to feed one’s own livestock could be restricted as a “reasonable means” of regulating interstate commerce.In the 1950s, the Warren Court made the “presumption of constitutionality” irrebuttable for any law that did not violate an “express prohibition” of the Constitution, such as those in the Bill of Rights.
But even before the Warren Court arrived, the New Deal justices became divided on the judicial enforcement of some of those “express prohibitions.” In the 1940s, those New Deal justices who were more inclined to protect these rights were dubbed by progressive historian Arthur Schlesinger Jr. “judicial activists”—apparently the first time this term of opprobrium was used. Why? Because they abandoned the progressives’ previous tenet of judicial restraint.In the 1950s and ’60s, the Warren Court’s “liberals” began to expand the protections of the Equal Protection clause and the rights of criminal defendants under the Fourth and Fifth Amendments over the objections of their more “conservative” New Deal brethren, who continued to urge judicial restraint. All of this was then amped up in the 1960s and ’70s, when the Court cited an unenumerated “right of privacy” to protect the use of contraceptives and the right of a woman to obtain an abortion.
For 150 years, the Constitution had been construed as creating islands of government power in a sea of liberty; now it was being construed as creating islands of discrete “fundamental rights” in a sea of otherwise unlimited legislative power. Rather than challenge this constitutional inversion, however, political conservatives attacked the Court for creating and protecting any “islands” at all.
Adopting the progressives’ idea of judicial conservatism as their own, these political conservatives condemned the judicial protection of rights as activism.This gave them a ready-made charge that avoided the need to address the correctness or incorrectness of any particular ruling: All they had to say was that unelected judges were thwarting the will of the People. In other words, like the progressives, conservatives were able to replace discussion of the substance of constitutional decisions with charges about the proper role of judges. Judges, rather than the Constitution itself, became the main focus of their critique.
In short, the philosophy of “judicial restraint” was easy for conservative politicians and commentators to apply. Whenever a court invalidated a statute they liked as unconstitutional, they could loudly object without needing to know anything about the merits of a particular ruling. Like Republicans generally (think Eisenhower, Nixon, and Ford), those who leveled this charge operated within the boundaries of discourse established by the progressives and New Dealers.
THEN CAME RONALD REAGAN. The Reagan Revolution was a watershed because, for the first time in 50 years, progressivism was challenged.(Which is why Reagan was so despised and feared.)Reagan not only questioned deeply held progressive assumptions, but also, by winning election and reelection, shook the belief that such assumptions were politically inevitable. Reagan and the Reaganites did not question the philosophy of judicial restraint. But this did not mean that nothing changed.
In the 1980s and ’90s, Reagan-appointed judges borrowed from the method of the progressives and Began creating “islands” of their own to shield states from the sea of federal power. This was called the “New Federalism.” Then, in 1995, perhaps coincidentally the year after the Gingrich revolution in the House, the five conservative justices on the Rehnquist Court did something new: For the first time since the 1930s, they found a limit to the power of Congress under the Commerce Clause.
In U.S. v. Lopez, the Court invalidated the Gun- Free School Zones Act, which made it a federal crime to possess a gun within 1,000 feet of a school. Chief Justice Rehnquist asserted the “first principle” that the federal government is one of limited and enumerated powers. Since the New Deal, he said, the Supreme Court had allowed Congress to regulate wholly intrastate activity, but only when this intrastate activity was “economic” in nature. Because the act of possessing a gun was not economic, it was beyond the power of Congress. Otherwise, Congress would be deemed to have a general police power by which any intrastate activity could be regulated.
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aware| 9.28.12 @ 6:36AM
"As president, Mitt will nominate judges in the mold of Chief Justice Roberts..."
Pasted directly from mittromney.com
I just love when the stupid Statists are hoisted on their own petard.
PCPSmokerII| 9.28.12 @ 10:01PM
Time to leave that shit behind, you worthless punk. If Obama wins, because of assholes like you, we'll get more Elena Kagans. Wake the fuck up, Ron Paul kook.
aware| 9.29.12 @ 7:10AM
Leave it behind? Maybe you should tell your "champion", he's the one saying it. You just can't face the horrible reality that the worst days of your life are just about on you. And you deserve it along with the rest of the Americanus Boobus.
Surely you smart "conservatives" can manage to drag your banker stooge over the finish line without us "kooks". After all, you're always claiming to be the "majority". Prove it.
I woke up about 10 years ago when I realized both Democrats and Republicans are all part of the same criminal gang, and that "elections" have absolutely no chance of changing that.
But be my guest, keep trying the same old thing and expecting different results.
PCPSmokerII| 9.30.12 @ 3:09PM
No conservative, no liberty loving libertarian, no one who is not a leftist would ever refer to a candidate as a "banker stooge."
America's worst days are ahead, I see that very clearly. But with kooks and shit like you the job just went from hard to impossible.
aware| 10.1.12 @ 6:26AM
You obviously don't know who actually runs this nation. You think a President, any President, has control over the economy? You still believe in "We the People" after TARP? After QE infinity? After years of ZIRP?
Yes the worst is yet to come, no matter election outcomes, but you have wasted a few years already by not educating yourself as to how and why. You are enmeshed in the false paradigm of Left/Right but why did the "Right" expand the Welfare State under Bush and the "Left" expand the Police State under Obama? What is your explanation for this?
Don't you even notice that no matter which "side" wins the grip on your throat tightens? Or that the explosive growth of the Leviathan has been unhindered for a hundred years?
Yet you still play the game controlled by a Shadow Elite with outcomes predetermined? Always "hoping" that the next election will make a difference even as the last one didn't? You can't face the fact that you are powerless against wickedness in high places.
Aristocat| 9.29.12 @ 6:12AM
"So, perhaps Conservatives did make a tactical mistake in not pointing out the real issue - Federal Supremecy at the expense of Constitutional Federalism. But, that doesn't get Roberts and the Progressives off the hook."
Yes, just so...It was a big mistake to focus on the mandate...the entire law was unconstitutional for many reasons....
Roberts will go down in history as a coward and a traitor...He took an oath to uphold the Constitution, not to please the NY Times...
Shame on you Roberts, you pathetic coward.
Martin kzovich| 9.28.12 @ 7:17AM
So in essence all the Left has to do is bark and Jophnny Baby jumps. How pathetic is that ?
Alej| 9.28.12 @ 9:02AM
"...Supreme Court could only muster four votes to invalidate a law that five justices had concluded exceeded the enumerated powers of Congress, because the fifth vote buckled under the self-imposed duty of judicial restraint. "
The fifth buckled by virtue of a telephone call from the Oval Office.
TLP| 9.28.12 @ 10:29AM
The Contest is at Mr. Purple's House.
Who Knows?| 9.28.12 @ 10:30AM
Who decides where each justice sits or stands in those pictures of the nine lawyers, called the SCOTUS?
The Chief?
Indy| 9.28.12 @ 11:00AM
So much for calling balls and strikes...
JP| 9.28.12 @ 11:11AM
I think Mr. Barnett confuses judicial restraint with federal restraint. For, beginning with FDR almost all SCOTUS opinion's expanded the reach of the federal government. Whether the Court used "penumbras" to remove federal constraints, or endorsed the growth of federal powers, the results were the same - increased federal power at the expense of the states and individuals. In some exceptions, usually those dealing with "expression" (ie porn), the Courts were Libertarians. But, even in those cases, the Courts made clear the supremecy of the federal government over all others. The Federal Judiciary, when it does defer to Congress, does so at the expense of the local and state governments and individuals. It rarely, if ever, does the opposite.
Robert's in no way showed restraint, as he gave Congress the right to force individuals into commerce in order to meet illusuory demands of "general welfare". And Roberts knows has well as anyone that "the people" didn't want ObamaCare; but Progressives did.
So, perhaps Conservatives did make a tactical mistake in not pointing out the real issue - Federal Supremecy at the expense of Constitutional Federalism. But, that doesn't get Roberts and the Progressives off the hook.
C. Vernon Crisler | 9.28.12 @ 1:55PM
Yes, this was such a stupid article I stopped reading it halfway through. Do AmSpec editors no longer look at what its contributors are writing?
Judicial restraint as conservatives use it means restrained by the Constitution, the exact opposite of Progressive extravagance. The nitwit Roberts simply failed to do his Constitutional duty.
Gary B| 9.28.12 @ 10:05PM
Yes, exactly!
Gary B| 9.28.12 @ 10:09PM
And, how many times, especially in California, have the people had a referendum (direct democracy) overturned by a non-elected panel of "judges" who twisted the law like a pretzel to assure a progressive outcome? As Sarah Palin like to say, "How's that workin' for ya'?"
RCV| 9.30.12 @ 4:30PM
A little contradictory, no? If Judges owe their first allegiance to upholding the Constitution, then they must strike down laws which violate it, whether enacted by a legislative majority or a majority of voters.
Stan Redmond| 9.28.12 @ 12:06PM
Justice Roberts is in the same category of of Bart Stupak when it comes to people that disgust me. Spineless wimps that helped pass one of the most dangerous and liberty stealing laws ever to fall on this country.
Gary B| 9.28.12 @ 10:10PM
Roberts is damned lucky he lives in a civilized country.
PolishKnight| 9.28.12 @ 3:02PM
As upset as I was at the Robert's ruling, I also looked at it philosophically as him telling a harsh truth we need to deal with:
If Democrats win enough elections and pack enough immigrants and welfare recipients into the voting booths, then the Holy Constitution isn't going to save us and we don't exist to protect it. We're what matters. And the left, to their credit, is good about reminded their identity groups of their interests.
When the left has successfully taken over government, and the electorate, then they define what the Constitution really means. Deal with it.
Thom| 9.28.12 @ 4:07PM
If the existing Constitution/Bill of Rights were submitted for ratification through the existing amendment process today it would not pass. If everything up to but not including the 16th amendment and beyond were submitted it wouldn't make it out of Congress. The check and balance provided by the "several states" (9th/10th Amendments) was mostly destroyed in the 1860s; the 17th amendment destroyed the rest of the "several states" powers and purpose. The 16th amendment destroyed the central concept of a "republic" and invalided the 13th amendment prohibition on involuntary servitude. The Equal Protection Clause of the 14th amendment is moot once you start treating a person's economic output separately/differently from other property rights and citizens. All the rest is just icing on a melting cake whose foundation has been undermined by a century of lawyer-istic complexity worship and made meaningless to the common men of our time and alien to the common men that ratified the documents in the first place.
The Supreme Court is a useless appendage in a "Democracy".
C. Vernon Crisler | 9.28.12 @ 5:24PM
'The check and balance provided by the "several states" (9th/10th Amendments) was mostly destroyed in the 1860s'
Not correct...
Alej| 9.28.12 @ 9:32PM
Bullshit, Crisler. Abraham Lincoln.
You want to debate more ? The bastard turned federalism into what we have today. Centralized government. I hope he's burning in hell.
PCPSmokerII| 9.28.12 @ 9:59PM
Go read your racists Ron Paul newsletter, you worthless piece of shit. I hope you and your mother die of cancer. Son of a whore.
aware| 9.29.12 @ 7:13AM
Yeah, a perfect example of the intellectual aspects of modern conservatism. A Dittohead no doubt.
RCV| 9.30.12 @ 4:34PM
Which is why, Alej, the majority of the American people - who don't consider Abraham Lincoln "a bastard", but instead regard him as one of a handful of the greatest Presidents - will continue to reject the political views of you and your ilk.
Thom| 9.29.12 @ 12:18PM
How many of the Southern States voted for the 13, 14, 15th amendments? The Constitution starts out stating the Federal powers are limited to what is enumerated and the 9th and 10th amendments add a punctuation mark to that along with 73 years of practice before 1860. What took place between 1861 and 1865 is just a Mob four times more powerful telling 11 of those “several states” that all the words about limited Federal powers and rights reserved to the “states” along with their sovereign state governments were just a bunch of hooey. They really didn’t mean what they signed in 1787 and 1791 was the message loud and clear. The “several states” created and ratified the documents that founded the Federal system without a gun being put to their heads and a boot on their necks. Those understandings died along with over 620,000 men because the clearly written words in the Constitution meant nothing when put to the test. It has been downhill for the “several states” ever since. Numbers of men with arms means something not words is what the “rule of law” means today.
Thom| 9.28.12 @ 6:23PM
When has the “several states” since the 1860s won a Court argument about powers reserved to the “states” that aren’t enumerated in the Federal Constitution? Just one meaningful case Vern.
Trinacria| 9.28.12 @ 6:38PM
If I chip in a grand for the Am Spec fundraiser, will someone please hire an editor for Mr. Barnett?
Additionally, would someone please kindly inform Mr. Barnett that judicial restraint refers not to "restraint" from ruling against congressional legislation, but rather the obligation to review the legality of such legislation with due regard to the boundaries of the Constitution. In other words, judicial restraint - properly understood - should have "restrained" Justice Roberts from straying from the Constitutional question at hand to salvage legislation that couldn't be supported by the defendant's argument.
PCPSmokerII| 9.28.12 @ 9:52PM
Borning, long, and stupid. Mark Levin said it best. Robert's decision (unspecified federal tax, labels, not tax for the purpose of anti injection, tax for mandate) is incoherent. Then again, taking freedoms away from free people has no legal or morale rationale.
Fuck Barnet. He's a scumbag.