Daniel Horowitz’s Stolen Sovereignty: How to Stop Unelected Judges from Transforming America (2016), published before the presidential election, is proving to be prescient—even prophetic.
What to make of Donald Trump’s interview with CBS’s Lesley Stahl last week?
Presidential debates neither are nor ought to be midterm exams. The people who administer midterms do not necessarily possess political wisdom (see “Wilson, Woodrow”), and the people who excel at taking them may be better at demonstrating technical detail than prudential judgment (see above). Thus questions that make a candidate stumble—and that can win the journalistic brass ring for the moderator, namely, instigating news—tend not to be as valuable as those that prompt reflection and reveal a mind at work.
At The Huffington Post, Evan Bernick has offered a thoughtful reply to my suggestion that judicial deference to Congress differs categorically from judicial deference to the administrative state, arguing instead that the real problem is deference simply: “Judicial deference of any kind sees judges elevating will over the reasoned judgment that judges who draw their power from Article III must exercise.”
This usefully identifies the core of the issue. If federal judges actually possessed all the power Bernick says Article III assigns them, there would be less constitutional basis for constraining their authority. If they do not, the issue is whether they can commandeer it.
Michael Ramsey and Chris Green have made thoughtful comments on The Originalism Blog on my post asserting a tension between original intent and judicial restraint. (Briefly, I argued that originalism does not necessarily entail restraint and might often counsel the opposite, so that judicial conservatives ultimately have to choose between them.)
Ramsey observes, persuasively, that the tension I asserted is equally a tension for liberals, who must also choose between their calls for a living constitution and judicial restraint; otherwise it is “hard to take their calls for judicial restraint seriously.” I agree. Many if not most calls for judicial restraint are opportunistic. That said, judicial conservatives who have argued most pointedly for tethering constitutional interpretation to foreseeable principle bear, I would argue, a particular burden not to succumb to that temptation.
For the bulk of the last generation, a conjunction of conservative legislatures and liberal courts enabled judicial conservatives to avoid a theoretical tension it is now time to confront: that between original intent and judicial restraint.
The tension was alleviated by the fact that, given the blend of conservatism in the electoral branches and liberalism on the bench, advocates of original intent and judicial restraint reached the same conclusions in 99 cases of 100: If majorities made decisions compatible with constitutional originalism and courts were inclined to overturn them—see Roe v. Wade as the paradigmatic example—the natural default for conservatives was judicial restraint. Conservatives, led intellectually by Judge Robert Bork, preached a doctrine of deference to majorities.
Beneath the variegated opinions on health care issued by a divided Supreme Court, a shared subplot lurks: the strange and contentious fate of broccoli in a free republic. The conservative justices utilized the specter of a broccoli mandate to argue that the requirement to purchase health insurance exceeds Congress’ powers under the commerce clause. Justice Ruth Bader Ginsburg, writing for the minority on that issue, was at pains to say the analogy was inapt. Yet all sides are falling prey to a fallacy that illustrates the Court’s lofty self-image as the Platonic protector not just against abuse but against absurdity too.
Call it the reductio ad constitutionatum: the suggestion that a power is unconstitutional if it could be absurdly applied. In political argument, the reductio ad absurdum—questioning a premise by showing that it leads to absurd consequences—is legitimate. In judicial reasoning, though, it is less useful. Its unstated assumption is that the courts exist to protect us against our own acts of silliness—a vast understanding of judicial power. Even Earl Warren might blush.
It was June 1793, a summer of discontent for the nascent opposition in Washington, and Thomas Jefferson had a problem: A political adversary in Virginia was rumored to be contemplating a run for the House of Representatives. Jefferson, concerned that the House provided a powerful perch, hit on the idea of banishing the adversary to a political backwater instead. “Hence,” he wrote at the time, “I think nothing better could be done than to make him a judge.”
It was many years later, but on the question of whether the bench supplied a platform for power, the target of Jefferson’s machinations—John Marshall—laughed last. Still, Jefferson’s assumption that the bench was a political wasteland from which no influence could be exerted illustrates a perspective missing in constitutional considerations over the Affordable Care Act. The question the Court must answer is not merely whether the law is constitutional—the topic of virtually all the questions the justices asked—but also whether that decision is one for the judiciary to make.