On the recently concluded National Review cruise, Andrew McCarthy twice declared his willingness to stomach the occasional unpalatable result in constitutional adjudication, so long as the attendant reasoning was in accord with sound conservative principles and demonstrated appropriate judicial modesty.
This markedly contrasted with the approach favored by many on the right, which measures the “goodness” of any judicial decision strictly according to the bottom-line result. Was something touched or touted by former President Obama razed to the ground? Was something helpful to the advancement of a conservative agenda — however defined — given a green light?
Such an impatient “results now” approach is diametrically opposed to judicial conservatism and is also self-defeating. Even if the courts have been too “activist” in a left-leaning direction, an abrupt tit-for-tat switch of results merely because of a change in judicial personnel would only reinforce the insidious view that the courts are nothing more than political actors. That would allow a revitalized judicial imperialism to lie in wait for the next round of judicial appointments.
Beyond interpreting and applying federal statutes in everyday litigation, federal courts have a limited mission in our constitutional scheme: to contain federal legislative and executive action (and all state action) within constitutional limits. This power of judicial review, while supreme when a constitutional issue is present, does not exist at all in its absence. But judges have the final say on that threshold question too, and they have not always resisted the temptation to expand the zone in which they are all-powerful as opposed to powerless and then (not coincidentally) to impose their own policy preferences.
Nonetheless, even judges dedicated to policymaking masquerading as constitutional adjudication labor under significant structural restraints. Unlike executive- and legislative-branch actors, judges cannot set an agenda, let alone promise to deliver on one. Federal courts can exercise their awesome powers only after others (in the private or public sectors) initiate what Article III of the Constitution calls “cases or controversies.” And suit must be commenced in a court with jurisdiction over both the parties and the subject matter, according to rules set out in duly enacted laws.
The federal courts have sometimes enlarged their sphere of influence simply by broadening the definition of what constitutes a “case or controversy.” But, to the chagrin of both political and judicial activists, the Supreme Court has also sometimes narrowed its own powers, and those of the lower federal courts, by adjusting the definition in the other direction. The same ebb and flow can be seen as well in decisions interpreting the statutes granting and withholding jurisdiction.
Decisions narrowing federal judicial power stand at the opposite end of the spectrum from judicial imperialism. They illustrate the best instincts of judicial conservatism in action and are sometimes referred to as calls to judicial modesty or judicial deference to the elected branches. But as McCarthy suggested on the high seas, faithful observance of these principles of judicial conservatism can sometimes lead to unlovely results.
Consider National Federal of Independent Business v. Sebelius (2012), where Chief Justice John Roberts famously penned an opinion, parts of which were joined by four justices here and a different set of four justices there, upholding the Affordable Care Act requirement that certain individuals purchase a prescribed health-insurance policy or pay a small sum into the U.S. Treasury. This drew howls of protest from many on the right: Roberts was a traitor to the conservative cause; Roberts was trying to maintain good standing with the editorial board of the New York Times and keep the Georgetown cocktail-party invites coming; Roberts should be impeached.
This is wrong. Looked at as anything other than a purely results-oriented political decision — which conservatives should not want federal judges to be making — the Roberts opinion in the Obamacare case not only reached an important and far-reaching conservative result, but it did so by employing precepts of judicial modesty dating back almost 200 years.
In the powerful first portion of his opinion, Chief Justice Roberts found that Congress did not have power under the Commerce Clause to command individual citizens to purchase health insurance. This was a stunning conservative victory: The Supreme Court had never struck down a federal statute as exceeding Congress’s commerce clause powers since early in the New Deal. Well, hardly ever.
It is true, said Roberts, that Congress can regulate activities that merely “affect” or have a “substantial effect” on interstate commerce, even if that effect can only be felt by aggregating tiny intrastate and non-market activities. That was the holding in Wickard v. Filburn, the infamous 1942 case in which a farmer was punished for growing too much wheat to suit the federal government, even though the wheat would be consumed on his own farm. But in the Obamacare case, there was no “activity,” even in the aggregate, that Congress could “regulate.”
Congress can comprehensively “regulate” commerce, yes; but it cannot direct citizens to engage in commercial activities they have chosen not to engage in. If Congress could punish the failure to purchase insurance, then it could require citizens to purchase wheat or healthy veggies, or anything else that might affect commerce.
Results-oriented conservatives either forgot about the superb result that Chief Justice Roberts reached in the first part of his Sebelius opinion or ignored it altogether, because they cared only about the case’s overall final result. That result was Roberts’s finding that the constitutionality of the individual mandate could be — and therefore must be — saved by construing it as a tax on the failure to purchase insurance rather than a regulation punishing the failure to purchase insurance with a fine. As a tax, the individual mandate might have been unwise or unfair or worse, but it was constitutional.
This result may not have been pleasant for conservatives, but the approach was a classic example of judicial deference, incontrovertibly established deep in the fabric of federal court jurisprudence. Not a single justice disagreed that in order to give maximum scope to the elected branches, the judicial branch must choose a reading that renders a law constitutional if such a “saving construction” is “fairly possible,” even if it is not the more natural or straightforward interpretation.
Thus, the disagreement between Chief Justice Roberts and dissenting Justices Scalia, Kennedy, Thomas, and Alito was neither a matter of constitutional principle nor a matter of avoiding judicial imperialism. The disagreement was over whether the proposed saving construing was “fairly possible” in this one case, or was instead a “judicial rewriting of the statute,” which all agree would take deference too far.
The argument was technical, but the Chief Justice had slightly the better of it, if only because of the boost he must be given from the conservative principle of judicial modesty. It is significant, surely, that citizens subject to the mandate were referred to in the law as “taxpayers,” who would remit payment to the Internal Revenue Service. Low-income taxpayers who were not required to file tax returns anyway, moreover, would be immune from the mandate. Perhaps most important, taxing (as opposed to forbidding) the failure to take action is common, although it most often takes the form of adjusting deductions or credits (think not buying a house, not having children, and buying something other than municipal bonds).
Conservatives: Don’t blame John Roberts for Obamacare. Blame the Democratic Congress that rammed it through, and the Republican Congress that refused to tear it down.