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The Wages of Crying ‘Restraint’

How John Roberts ended up as America’s Big Chief.

By From the September 2012 issue

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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.

The Rehnquist Court was harshly condemned by the left as engaging in “conservative judicial activism,” a charge designed to wound conservatives, as well as hold them up as hypocrites. (Never mind that progressives were happy to invalidate laws.) The cries from the left became even more shrill when, in the 2000 case of U.S. v. Morrison, the Rehnquist Court invalidated the Violence Against Women Act’s creation of a federal civil cause of action for “gender-motivated violence.” The 5 to 4 decisions in Lopez and Morrison, liberals cried, threatened to undo the New Deal and return us to the bad old days of the Nine Old Men.

Nonsense. The Rehnquist Court continued to operate within what some have called the “New Deal settlement,” but it offered a new and different interpretation of the terms of that understanding. Ninety- nine percent of law professors taught that the New Deal established an unlimited power of Congress to regulate the national economy, or anything that affects the national economy—which is anything— provided that Congress did not violate the express constraints imposed by such provisions as the First Amendment or the Equal Protection and Due Process Clauses. For them, the enumerated powers scheme of Article I provided no such judicially enforceable limits.

But the New Deal and Warren Courts had never actually said all this. Indeed, when faced with the prospect of explicitly allowing Congress the plenary power to regulate any economic matter in Wickard v. Filburn (1942), the New Deal justices blinked. Instead, they issued an opinion allowing Congress to reach so far as to restrict the amount of wheat a farmer could grow to feed his own livestock, but still insisting that there were limits beyond which Congress could not go. The Rehnquist Court conservatives simply followed this lead.

Metaphorically speaking, rather than interpret the New Deal jurisprudence as giving Congress a blank check, the Rehnquist Court conservatives interpreted it instead as establishing a high-water mark of federal power. Any congressional power that the New Deal and Warren Courts had upheld to date was still kosher. But if Congress stepped beyond these powers, it would face a burden of justification, lest its powers be construed as unlimited.

Just as lower courts began to act on this understanding, however, the Court decided Gonzales v. Raich, a case in which I represented Angel Raich and Diane Monson, who challenged whether the federal Controlled Substances Act could be constitutionally applied to marijuana grown at home for their own medical use as authorized by state law. Justices Scalia and Kennedy crossed over to join the four liberal dissenters in Lopez and Morrison to hold that Congress could reach this seemingly local and noneconomic activity.

Writing for the majority, Justice Stevens purported to stay within the confines of Lopez and Morrison by using a 1966 Webster’s Dictionary definition of “economic” that included the production of commodities. Therefore, Angel and Diane’s activities were economic in nature. But it was considered The Rehnquist Court was harshly condemned by the left as engaging in “conservative judicial activism,” a charge designed to wound conservatives, as well as hold them up as hypocrites. (Never mind that progressives were happy to invalidate laws.) The cries from the left became even more shrill when, in the 2000 case of U. S. v. Morrison, the Rehnquist Court invalidated the Violence Against Women Act’s creation of a federal civil cause of action for “gender-motivated violence.” The 5 to 4 decisions in Lopez and Morrison, liberals cried, threatened to undo the New Deal and return us to the bad old days of the Nine Old Men.

Nonsense. The Rehnquist Court continued to operate within what some have called the “New Deal settlement,” but it offered a new and different interpretation of the terms of that understanding. Ninety- nine percent of law professors taught that the New Deal established an unlimited power of Congress to regulate the national economy, or anything that affects the national economy—which is anything— provided that Congress did not violate the express constraints imposed by such provisions as the First Amendment or the Equal Protection and Due Process Clauses. For them, the enumerated powers scheme of Article I provided no such judicially enforceable limits.

But the New Deal and Warren Courts had never actually said all this. Indeed, when faced with the prospect of explicitly allowing Congress the plenary power to regulate any economic matter in Wickard v. Filburn (1942), the New Deal justices blinked.Instead, they issued an opinion allowing Congress to reach so far as to restrict the amount of wheat a farmer could grow to feed his own livestock, but still insisting that there were limits beyond which Congress could not go. The Rehnquist Court conservatives simply followed this lead.

Metaphorically speaking, rather than interpret the New Deal jurisprudence as giving Congress a blank check, the Rehnquist Court conservatives interpreted it instead as establishing a high-water mark of federal power. Any congressional power that the New Deal and Warren Courts had upheld to date was still kosher. But if Congress stepped beyond these powers, it would face a burden of justification, lest its powers be construed as unlimited.

Just as lower courts began to act on this understanding, however, the Court decided Gonzales v. Raich, a case in which I represented Angel Raich and Diane Monson, who challenged whether the federal Controlled Substances Act could be constitutionally applied to marijuana grown at home for their own medical use as authorized by state law. Justices Scalia and Kennedy crossed over to join the four liberal dissenters in Lopez and Morrison to hold that Congress could reach this seemingly local and noneconomic activity.

Writing for the majority, Justice Stevens purported to stay within the confines of Lopez and Morrison by using a 1966 Webster’s Dictionary definition of “economic” that included the production of commodities.Therefore, Angel and Diane’s activities were economic in nature. But it was considered Highly significant that, in his concurring opinion, Justice Scalia asserted that the Court should defer to Congress’s assertion that regulating even local noneconomic activity was “essential” to its comprehensive regulation of interstate commerce.

With Chief Justice Rehnquist and Justices O’Connor and Thomas now in the minority, it looked like the demise of New Federalism. After Raich, and the replacement of two of the Raich dissenters with Justices Roberts and Alito, the law professors reverted to their original position: They had been right all along. Congress did have a plenary power to regulate the national economy or any activity it deemed to be related thereto. The New Federalism of the Rehnquist Court had been a blip. Lopez and Morrison at best were merely a symbolic limit on congressional power. So long as Congress regulated broadly enough, there was no activity it could not reach.

ENTER THE PATIENT PROTECTION and Affordable Care Act (ACA) of 2010. Clearly this was a “comprehensive” scheme of economic regulation.Clearly the mandate requiring every American to purchase health insurance was a “rational” means to execute this scheme, and was indeed “essential” to its operation. Clearly, then, this was an entirely constitutional exercise of congressional power. So said 99 percent of all law professors, who characterized any claim to the contrary as “frivolous.” As they had cried after Lopez, a decision to invalidate the ACA would be a radical departure from precedent and represent a return to the bad old days before the New Deal.

But the challengers to the Affordable Care Act insisted that the individual insurance mandate was an “unprecedented” exercise of federal power, which in truth it was. Never before had Congress compelled Americans to engage in economic activity so as to regulate it. Because it was unprecedented, it went beyond the powers that had been upheld by the New Deal and Warren Courts. As a case of first impression, no existing legal precedent need be reversed, and no other existing statute was called into question. Moreover, the rationale used by the government to justify this power would, if accepted, authorize a general federal police power, which would repudiate the first principle that the federal government was one of limited and enumerated powers. In this respect, a decision invalidating the individual mandate would have been a very limited constitutional ruling, but it would have avoided a constitutional catastrophe by preserving the scheme of limited, enumerated congressional powers.

In sum, the challengers asserted the Rehnquist Court’s understanding of the New Deal as the highwater mark of federal power beyond which any claim of a new power needed to be justified. The defenders of the law were unable to present any credible limiting principle on the exercise of this new power. And it did not hurt that the Affordable Care Act was a very unpopular law, made even more unpopular by the public perception that the individual insurance mandate was unconstitutional.

And so it came to pass that, in NFIB v. Sebelius, the constitutional theory held by 99 percent of all law professors—that Congress had a plenary power to adopt any means to effectuate a scheme of economic regulation—could not command five votes on the Supreme Court. Instead, five justices affirmed the position that 1) the commerce power of Congress was limited, 2) the Court would enforce these limits, 3) the individual insurance mandate exceeded these limits, and 4) the Necessary and Proper Clause did not provide an escape from these limits. Compelling individuals to engage in economic activity was an “improper” means of executing Congress’ power over interstate commerce. As an added bonus, the Court also held 7–2 that Congress had exceeded its spending power when it threatened to withhold all Medicaid funding from States that did not “agree” to a massive expansion of the program.

All this was a vital victory for the Constitution, especially because accepting the government’s theory for the mandate’s constitutionality would have been disastrous. But having affirmed all this, the conservative philosophy of judicial restraint kicked in to deprive us of our objective: getting rid of Obamacare.

According to reports, having voted to invalidate the individual insurance mandate in the first conference vote after oral argument, Chief Justice Roberts changed his vote to uphold the law. And he changed his vote only after the Court was bitterly attacked by the left when, after oral argument, it appeared that the ACA was in trouble. On the Monday following argument, President Obama complained that “for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint— that an unelected group of people would somehow overturn a duly constituted and passed law.”

Later, the critics’ fire was trained on Roberts in particular. After praising the “judicial restraint” favored by some conservatives, Jeffrey Rosen wrote in the New Republic: “This, then, is John Roberts’ moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace.” Were the Roberts Court to invalidate the ACA in a 5–4 vote, “then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure.” Not only that, but “by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance.”

SO THERE YOU HAVE IT. Chief Justice Roberts, whom Rosen now calls the “big Chief,” picked the New Deal model of judicial restraint over holding Congress to its enumerated powers. After finding the mandate unconstitutional under the Commerce and Necessary and Proper clauses, he then gave the statute a “saving construction” by eliminating the “requirement” part and upholding the remaining “penalty” as a tax because it was too low to coerce compliance. So, instead of unconstitutionally requiring all Americans to buy insurance, which he admitted was the obvious and natural reading of the statute, Roberts rewrote the law to give Americans the “option” of buying insurance or paying the “tax.” According to Rosen, “Roberts had decided to protect the long-term institutional interests of the Court rather than embrace the conservative ideological agenda in its most radical dimensions.”

So the good news is that, 70 years after the New Deal, there were just four votes for the progressive’s vision of unlimited federal power to address any national problem. But the bad news is that, some 30 years after Ronald Reagan started nominating judges to the bench, the 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. That a majority of Americans believed that the mandate was unconstitutional, and that the Court would so rule, was not ultimately as important as what Jeff Rosen and others on the left would say.

Now we will have an election to decide the ultimate fate of Obamacare. But this election should also be about who will be selected to serve on the Supreme Court. Should Republican presidents continue to nominate judicial conservatives who are enthralled with the New Dealers’ mantra of judicial restraint? Or should they nominate constitutional conservatives who believe that it is not “activism” for judges to enforce the whole Constitution? All future nominees should be vetted not only for their views on the meaning of the Constitution, but for their willingness to enforce that meaning.

For over two years, the nation was given a wonderful lesson in constitutional law: the enumerated powers have limits that Congress can exceed. In June, the electorate was given a different lesson in judicial philosophy: judicial restraint in enforcing these limits is no virtue. In November and beyond, we will see how well these lessons were learned.

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About the Author
Randy E. Barnett is the Carmack Waterhouse Professor of Legal Theory at the Georgetown University Law Center, where he teaches constitutional law and contracts.