On the Originalism blog, law professor Mike Ramsey has an excellent post on Linda Greenhouse’s recent piece, “A Chief Justice Without a Friend.” I think that I agree with every, or nearly every, syllable of his account of the larger points Greenhouse gets wrong:
(1) The idea that conservatism (in the good old days) meant judicial restraint oversimplifies. Mainstream conservative legal thought has always called for judges to invalidate statutes and executive actions that violate the Constitution. It’s true that conservatives centrally objected to activist decisions from the Warren and early Burger courts. But modern conservative criticism of the Court has always focused on judges making up things that weren’t there and ignoring things that were. And conservative Justices have not hesitated to act against unconstitutional laws; Justice Scalia, for example, has been at the forefront of enforcing separation of powers, federalism, speech rights, gun rights, and property rights — and criticizing the Court when it failed to do so — since his appointment (as, mostly, has the Chief Justice). There’s nothing new about conservatives calling for judges to find things unconstitutional.
(2) A libertarian strand of conservative legal thought, sympathetic to Lochner and an aggressive view of the Ninth Amendment, is also a long-standing phenomenon. I agree with Greenhouse that it has gotten somewhat stronger recently and that George Will’s conversion to it is noteworthy. But it remains a minority in conservative legal thought, and many intellectual leaders on the right — including Scalia — reject it without incurring much wrath from conservative commentators.
(3) In any event, the (supposed) rise of Lochner-inspired libertarian thought has nothing to do with the conservative Obamacare-driven criticism of Chief Justice Roberts. The conservative critique of Roberts isn’t that he should be doing something beyond “calling balls and strikes”; it’s that he isn’t calling the balls and strikes correctly. Things that aren’t taxes shouldn’t be called taxes just because it’s convenient; statutes should be read as they are written, not the way the Court wishes they had been written. As I’ve said, I think these criticisms are overblown, but in any event they aren’t at all related to a supposed new embrace of Lochner.
Greenhouse, I think, is trying to create a scare narrative of a radical shift in conservative objectives that has left the cautious Chief Justice behind. But I see little ground for it; the fundamental principles of conservative legal thought are roughly what they’ve been for a long time, and apart from a couple of aberrational cases they are consistent with the Chief’s views as well.