Bench Memos

Phantom Threat

For some years now, The New Republic’s Jeffrey Rosen has been warning about the threat of conservative judicial activism from adherents to the supposed “Constitution in Exile” movement.  As Orin Kerr and others have argued, this movement is largely a phantom of Rosen’s (and Cass Sunstein’s and Jeffrey Toobin’s) imagination.  In Kerr’s words, if it exists at all, it “consists of three dudes meeting for dinner once in a while.”   

In this New Republic essay, Rosen argues that “even if Barack Obama gets to appoint the next justice or two,” Chief Justice Roberts’s preference for narrow opinions is “the only thing standing between [liberals] and a Court eager to roll back progressive reforms.”  According to Rosen, Roberts’s approach is holding back “conservative extremists like Clarence Thomas, who are eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power wherever possible.”  Rosen imagines that if Roberts’s approach fails, “sweeping conservative opinions by polarized 5-4 majorities” would strike down “many of the health care and environmental reforms that progressives hope for from a Democratic president and Congress.”  Anticipating the revival of Lochnerism, Rosen credits warnings that legislation requiring employer-provided health insurance might be deemed to violate “an unwritten guarantee of freedom of contract” and that tax policies and environmental regulations might be ruled unconstitutional takings.  “[O]nly if Roberts continues to promote narrow opinions that appeal to the center” can these results be avoided. 

There would appear to be some glaring defects in Rosen’s thesis: If there is any evidence that any justice is “eager to press the limits of the so-called Constitution in Exile, resurrecting limits on federal power wherever possible,” Rosen doesn’t provide it.  One justice, Justice Thomas, has set forth a limited view of Congress’s Commerce Clause power, but I’m not aware (please correct me if you think I’m wrong) that he has written anything supportive of a revival of Lochnerism or of aggressive use of the Takings Clause against the regulatory state.  Much to the dismay of Kerr’s “three dudes meeting for dinner once in a while,” Justice Scalia (in his concurring opinion in Gonzales v. Raich) has adopted a far more expansive reading of the Commerce Clause power.  In addition, Scalia has been an ardent critic of the “substantive due process” theory underlying Lochnerism, and I don’t believe he’s ever applied the Takings Clause beyond real property.  Nor is there anything in Roberts’s or Alito’s record, much less Kennedy’s, that suggests an inclination towards undoing the New Deal. 

How would this sudden 5-member anti-New Deal majority develop?  How is it that Roberts, Scalia, Kennedy, and Alito would adopt Thomas’s Commerce Clause view, not to mention embrace positions that Thomas has never adopted?  Rosen doesn’t explain. 

Rosen somehow sees this dire threat even if Obama is elected.  But I’m willing to bet that if John McCain is elected president and replaces all five of the “mystery” justices—Stevens, Kennedy, Souter, Ginsburg, and Breyer—the number of justices who embrace the phantom Constitution in Exile movement will be zero.

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