Is the U.S. Supreme Court a court? On the one hand, the answer seems obvious. It says so right in there in the name. Plus, the justices wear those funny robes. Strong evidence, I admit. On the other hand, see every Supreme Court decision involving constitutional law over the past century and a half. I could rest my case there, but I haven’t gotten to the point yet. If the Supreme Court is a court, it is a weird one, and that often creates a great deal of confusion about how the Court does or should operate.
Generally speaking, we might think that a key characteristic of a court is that it resolves disputes in accord with some pre-established set of legal rules. It is not clear that the Supreme Court actually does that. The justices have relatively little interest in resolving disputes, and they have little concern for pre-established legal rules.
Let’s unpack that a bit.
In my previous post, I noted that the distinction between a tax and a regulation was well understood by the American revolutionaries. The distinction had to do with the purpose of the law. A tax was a law that was designed to raise money to pay for government, and a regulation was designed to influence (or regulate) human actions. To be sure, taxes do influence behavior, and many regulations do raise revenue, but those features are incidental to their purpose. Hence the colonists thought it would be legal for Parliament to regulate trade by making foreign molasses more expensive in the colonies, but Parliament could not legally impose a duty on foreign molasses if the main purpose of that duty was to raise revenue.
Tories, according to the American definition of the term, claimed that this was a distinction without difference. From their perspective, all laws that raise revenue were equally legal, regardless of the purpose of the law. For their part, the American Whigs said that the difference between a tax to raise revenue and a duty to regulate trade was obvious and important. Their constitutionalism focused on ends as much as it focused on means. Because the government existed, in part, to secure property, it was unconstitutional for Parliament to tax the colonists without their consent.
In the course of his thoughtful discussion of Chief Justice Roberts’ reported change of mind on NFIB v. Sebelius, Mike Rappaport makes what seems, at first glance, to be an unassailable assertion: A justice ought not to consider extraneous circumstances surrounding a decision, such as its effect on his or her reputation. Instead: “The decision is supposed to be based on a justice’s view of the law.”
But closer inspection reveals tension between that premise and the doctrine of judicial restraint, which I recently argued in this space was theoretically but not inherently compatible with the philosophy of originalism that Rappaport, like Justices Scalia and Thomas, espouses. If Federalist 78 is to be believed, a justice ought very much to consider circumstances beyond his or her narrow reading of the law.
Jeff Rosen’s May 4th column in The New Republic has sparked a lively discussion on this blog, the VC, and elsewhere. The article consists of two very unequal parts, because Rosen’s wind up is disproportionately long in comparison with his pitch. He leads off with a critique of Circuit Judge Janice Brown’s concurring opinion in Hettinga v. United States, available here, then lurches into a description of a “Constitution-in-exile movement” said to be made up of judges and think-tank activists hoping to “resurrect” pre-New Deal legal doctrines in order “to dismantle the post–New Deal regulatory state.”
In Rosen’s view, the “Constitution-in-exile movement” has brought about a schism among conservative jurists over an issue Rosen thinks is crucial to one of Chief Justice Roberts’ ambitions: bringing greater unity to the Court. That issue is adherence to a philosophy of “judicial restraint” that in Rosen’s opinion characterized an older generation of conservative jurists. Rosen worries that today, even “relative moderates” may be tempted to abandon that philosophy.