Bench Memos

The Changing Conservative Legal Movement?

In an interesting and provocative Public Discourse essay today, Joel Alicea argues that the “brutal” reaction of legal conservatives to the Chief Justice’s Obamacare opinion shows that “the conservative legal movement’s conception of judicial restraint has changed, departing from the view it held when it emerged from the constitutional wilderness to which it had been banished during the Warren Court.”

In the early years of the conservative legal movement that arose in response to the Warren Court, Alicea explains, deference to legislative majorities was the movement’s “primary commitment,” and judicial restraint “used to mean that a judge should bend over backwards to avoid striking down a law.” But now, he argues, the emphasis has shifted, and the concept of judicial restraint has been transformed among legal conservatives to mean “adherence to the original meaning [of the Constitution]: no more but also no less.” (Emphasis in original.)

Alicea’s essay is intelligent and nuanced, but I think that he overstates his case.

First, I think that the hostile reaction of many conservatives to the Chief’s opinion is attributable  to the widespread perception (accurate or not) that his reliance on the taxing power rests on an implausible reconception of the mandate as a tax and/or to the widespread perception (again, accurate or not) that the Chief changed his bottom-line position on the mandate for non-legal reasons. I strongly suspect that many conservatives would have readily accepted, or at least been much less harsh about, an opinion by the Chief that held that the Commerce Clause provides a sufficient basis for the mandate (especially if there was no reason to think that he might have changed his position in the midst of the Left’s intimidation campaign).

Second, I’m not persuaded that the dissenters actually “express a different view of restraint.” As Alicea acknowledges at one point, the dissenters think that the Chief’s reconception of the mandate as a tax “stretch[es] the language of the statute far beyond what the dissenters believe is reasonable.” If (as seems to me to be the case) that’s the real dividing point between the Chief and the dissenters, then it’s not that the Chief and the dissenters adopt different conceptions of judicial restraint but rather that they differ on how the same conception ought to apply.

Third, given the intensity of the political debate over Obamacare, it wouldn’t be surprising if the hostile reaction of some legal conservatives to the Chief’s opinion has been colored by their strong political opposition to Obamacare. If so, that would complicate the task of extracting any broader lessons about changing conceptions of judicial restraint.

More broadly, I hope that Alicea is wrong that many legal conservatives now regard “judicial restraint” simply as “adherence to the original meaning: no more but also no less.” The problem with that conception, in my judgment, is that it gives too much authority to justices to impose their best guesses as to what constitutional provisions mean. As I see it, judicial restraint necessarily supplements original-meaning jurisprudence: in those cases in which original-meaning methodology does not yield a sufficiently clear answer to a constitutional question, judges have no authority to override democratic enactments. There’s plenty of room for reasonable dispute over how to define the requisite level of clarity, but it’s a mistake to collapse judicial restraint into nothing more than a justice’s best read on original meaning.

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