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Bench Memos

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The Chief Justice and Judicial Restraint



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Jumping off Ed Whelan’s excellent post, I have heard a number of people argue that we shouldn’t have been all that surprised by the chief justice’s decision because he is easily classified as the sort of conservative who believes in a very robust application of what is often called “judicial restraint.”  Steven Teles — author of the excellent book The Rise of the Conservative Legal Movement — provided as good a summary of the argument as I’ve seen in writing:

One way to think about Roberts’ decision-making is that he really is a Reagan Justice Department-era conservative (I wrote about the Reagan DOJ in an article in Studies in American Political Development called “Transformative Bureaucracy”). That era of conservatives were pissed off at the activist judiciary that brought us school busing and other forms of what they took to be social engineering (which explains Roberts’ very blunt ruling in Parents Involved) and an inversion of American federalism. But that generation of conservatives were basically followers of Justice Frankfurter, and they tended to argue that it was 1960s/70s judicial liberalism that they were against, which they claimed was a kind of Lochnerism of the left. That kind of judicial conservatism—which was really Robert Bork’s style of conservatism, and the origin of his version of originalism—is in very stark contrast to legal libertarianism that inspired the case against the ACA.

Roberts went quite far in the direction of validating the constitutional sense of the case against the ACA, but what caused him to come down where he did is an entirely different mood than the folks who brought this case. In short, Roberts is not a conservative cut from the Randy Barnett/Richard Epstein cloth, which is comfortable with quite sweeping uses of judicial power to limit government. Roberts is sympathetic but simply lacks the taste for the jugular that they have, either as a result of his role as Chief Justice or his prudential sense of how far it is reasonable for the Court to go in using its power.

Teles’s explanation for Roberts’s behavior appeals to those of us who have followed the development of the conservative legal movement and the ideas that animated it. But I don’t find it persuasive, primarily because it requires one to assume that the NFIB case was approached differently by two kinds of “conservatives.”

The former, represented in this taxonomy by Robert Bork, tend to be most concerned with what Ross Douthat handily called the “judicial usurpation of politics” and are therefore skeptical of legal strategies that require judges to strike democratically enacted laws. The latter, represented by Randy Barnett, are cast as libertarian advocates who would like more judicial policing of the Constitution’s limits on the more democratic branches.

There is some truth, of course, to the fact that some libertarians and some conservatives have different approaches to the role of judges in society. But those differences shouldn’t surprise or alarm anyone, and, for two reasons set forth below, I really don’t think they can be used to explain the chief justice’s opinion.

First, and most obviously, the chief justice was not joined in his opinion by Justice Alito, another “Reagan Justice Department-era conservative.” Outside of the Supreme Court, opponents of the law included a number of former Reagan DOJ officials — David Rivkin, Lee Casey, Mike Carvin, Stephen Calabresi, just to name a few. And that’s not to mention the head of Reagan’s DOJ, former attorney general Ed Meese. It is possible that the chief justice is the only one of those people who has remained true to the ideas that once motivated Reagan-era conservative lawyers. But doesn’t it seem far more likely that those who agree with Teles were simply unaware of the extent to which many Reagan-era lawyers would be willing to enforce the Constitution’s boundaries when a law like the ACA presented itself?  

Second, no one will ever know exactly what motivated Chief Justice Roberts, but the evidence suggests that he was far more motivated by concerns for the Court as an institution and for himself as chief justice. Teles allows for this possibility, but I would have distinguished that set of considerations from the broader set of considerations one could throw in the “judicial restraint” basket, if only because I’ve never known them to be a significant part of the conservative approach to legal issues.  



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