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.
A man of faith in a godless age is hitting Americans where it hurts.
Mr. and Mrs. American Spectator Reader, let P.J. O’Rourke talk sense to your kids.
In Britain, defending your property can get you life.
It won’t take long for conservatives to scratch this presidential wannabe off their 2008 scorecard.
Was the President done in by the economy, or by the politics of the economy?