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The Rise of Judicial Restraint?
Michael Ramsey

Judicial restraint – by which I mean judicial deference to the constitutional judgments of the political branches – is suddenly a hot topic.  In January, when Newt Gingrich argued that a constitutional judgment of the executive and legislative branches should outweigh the judgment of the Supreme Court, he was widely criticized.  But since then, we have seen, first, the publication of J. Harvie Wilkinson’s elegant defense of judicial restraint (which everyone should read), and second, a widespread embrace of judicial restraint on the political left in light of the constitutional difficulties of the health care reform.  

Of course, it is somewhat difficult to take much of the latter embrace seriously, as many people (not naming names) seem to have discovered judicial restraint only (literally) last Tuesday.  Nonetheless, the argument may sound appealling -- consider, for example, Columbia law professor Jamal Greene's “I Do Not Think the United States Would Come to an End” if the Supreme Court Stopped Telling Congress and the President which laws they can pass:

This week, challengers to the Affordable Care Act are asking the Supreme Court to say that the Constitution does not permit the government to require Americans to purchase health insurance. Lawyers for the government are asking the court to say the opposite. The court should say neither.

What it should say instead is this: “By requiring that Americans purchase health insurance, two coequal branches of government—Congress and the president—have determined that the Constitution permits such a requirement. Because that determination is reasonable, we need not reach an independent judgment on the question. Our inquiry is therefore at an end.” That is, so long as reasonable people can believe that an act of Congress is constitutional, the Supreme Court should generally let the legislation stand.

We must not forget … that striking down congressional statutes carries its own significant cost—these are the laws our democratically elected representatives have passed. And history confirms that when the court overturns national laws, its track record is spotty at best. The court’s invalidation of the Missouri Compromise in the Dred Scott case may have led to the Civil War. Its striking down of federal laws in the first half of the 20th century prevented Congress from regulating child labor and weakened President Roosevelt’s efforts to pull the nation out of the Great Depression. The court’s recent decision in Citizens United permitting unlimited corporate election spending threatens American democracy itself.

It is no answer to point to cases like Brown v. Board of Education or the many other instances in which the court has correctly overturned acts of state legislatures, local officials, or federal prosecutors. The court has an important role to play in ensuring that state and local actors and unaccountable individuals invested with government authority comply with federal law. That role is especially important where rights of minorities are at stake. But this is not true of the Affordable Care Act. And Congress is different, which is why Oliver Wendell Holmes wrote in 1913: “I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States.”

And at Balkinization, Sandy Levinson asks:  "To what degree has such judicial review [of federal statutes] benefitted the country? It's hard for me to come up with a positive answer, even if the Court in fact struck down a relatively unimportant statute or two that I didn't like."

I have some sympathy for this view, and a strong version of judicial restraint may be the most plausible alternative to originalism.  If you accept one of the leading theoretical criticisms of originalism – that we shouldn’t be bound by the dead hand of the past, or that the original meaning is too difficult to recover – the most natural conclusion I would think is not that judges should make up their own constitutional meanings, but rather that judges should stay out of the matter altogether and leave policymaking to the elected branches. 

Moreover, it’s possible that judicial restraint might offer a compromise in the political wars that have engulfed judicial confirmations.  Confirmations are highly charged precisely because judges are empowered to invalidate laws, and absent some rethinking of the matter one may expect them to become even more difficult in light of recent events.  Take away the power or propensity to find laws unconstitutional, and the political clash largely dissipates.  (Note, though, that neither of these advantages supports distinguishing between invalidating state law and invalidating federal law, as Professors Greene and Levinson suggest).

Still, I doubt that, under current conditions, the embrace of judicial restraint has staying power.

First, at least in the strong form Professor Greene advances, it is contrary to the original design.  Prominent members of the founding generation understood the courts to have this power, including Hamilton (in Federalist 78), Madison and Jefferson.  Moreover, Marbury v. Madison in 1803 of course invalidated a portion of a federal statute, and did not excite much objection at the time.  (Actually the Court embraced judicial review of federal statutes even earlier, in Hylton v. United States in 1796, although it upheld the statute.)  Ironically, adopting the strong form of judicial restraint would require abandoning two centuries of precedent.

Second, I’m not aware of anything in the founding materials that supports the state law/federal law distinction Professor Greene adopts.  It’s a little hard to see it motivated by anything other than a dubious intuition to distrust states more than the national government – as I’ve argued, there are reasons to fear the oppression of the national government more than the oppression of the states, and if one is worried about states invading the province of the national government it’s hard to see why Congress’ power of preemption isn’t sufficient to take care of the problem.  But as Greene’s comments suggest, it’s doubtful that a policy of judicial restraint fully applicable to both the states and the federal government would have much traction on the political left (and a policy that was not equally applicable would have little traction on the political right).

Third, I have some skepticism of the political and academic embrace of judicial restraint, even as applied just to the federal government, coming as it does in conjunction with arguments over the constitutionality of health care reform.  Is Professor Greene ready to follow where it leads?  Notably:

     1.  Boumediene v. Bush in 2008 overturned the Military Commissions Act, a federal statute passed with considerable attention to its constitutionality, and allowed Guantanamo prisoners to challenge their detention through habeas corpus.  I recall that most people on the political left, as well as media and academic commentators, celebrated the decision.  (Jonathan Adler comments here).  Do we now agree it was wrongly decided?

    2. The next high-profile federal statute to be challenged at the Supreme Court may be the federal Defense of Marriage Act (DOMA), which defines marriage for federal purposes as the union of a man and a woman.  Should the Supreme Court uphold it because its enactment represented the constitutional judgment of the political branches that the Court should not disturb?  (Moreover, DOMA indicates the difficulty of a clear state/federal line of the type Professor Greene suggests.  Although a federal statute, DOMA carries the clear congressional judgment that state laws limiting marriage to opposite-sex couples are constitutional.)

    3.  Legislation has been introduced in Congress to deny birthright citizenship to the children of illegal aliens born in the United States.  If duly enacted, should we prepared to let it stand, despite its apparent conflict with the text and history of the Fourteenth Amendment?

I don’t meant to put Professor Greene on the spot, but anyone who is going to make a serious argument for judicial restraint must be able to argue that the Court should uphold the health care reform and answer yes to all three of these questions.  (Judge Wilkinson likely would, but I think he's unusual).

Of course people want judicial restraint when the Court is taking a close look at a statute they like.  Unless people are willing to stand up for judicial restraint with regard to statutes they don’t like, it’s hard to see the argument as anything other than made for the moment.