Legal Conservatism and Judicial Restraint
In a New Republic article that makes a number of challenging and important points, Professor Jeffrey Rosen says that “by voting to strike down Obamacare, [Chief Justice] Roberts would … be abandoning the association of legal conservatism with restraint.”
I think that’s wrong. It rests on an implicit three-part argument: (1) striking the health care law is inconsistent with judicial restraint; (2) legal conservatives traditionally associate themselves with judicial restraint; so (3) legal conservatives can’t favor striking the health care law without abandoning their principles. But that argument depends on equating two wholly distinct ideas of judicial restraint.
Point (1) is correct, if you accept (as I do) Professor Rosen’s definition of judicial restraint. As he puts it in a follow-up article, “restraint requires deference to all laws passed by Congress and the states, regardless of whether they’re favored by liberals or conservatives, unless they violate principles that can be so clearly located in constitutional text and history that people of all political persuasions can readily accept them.” This is consistent with the idea of restraint expressed by J. Harvie Wilkinson in his recent book, and with the definition I’ve suggested on this blog.
But point (2) fundamentally misunderstands modern conservative legal philosophy and fails to take account of competing definitions of “restraint.” Professor Rosen says that his definition is the “traditional, bipartisan understanding of judicial restraint, which conservatives and liberals alike used to define as deference to the legislative branches.” As readers of this blog know, that’s not right at all. When many legal conservatives support “judicial restraint,” they mean something different: that judges should decide according to law not according to personal policy preferences. In constitutional cases, that means, to many if not most legal conservatives, that judges should follow the Constitution’s text and original meaning (tempered, to varying extents, by precedent). (See this post by Mike Rappaport).
The idea of fidelity to original meaning as restraint is completely different from the Rosen/Wilkinson idea of restraint as deference to political branches – as Judge Wilkinson’s masterful book makes clear in its criticism of originalism. And to be sure, some leading legal conservatives advocate Rosen’s view, including of course Wilkinson himself and University of Texas law professor Lino Graglia. But a core of conservative legal thought at least since the 1980s is originalism. Originalism was the centerpiece of Attorney General Edwin Meese’s famous speech to the American Bar Association in 1985. It is a centerpiece of the philosophy of the Federalist Society, founded in 1982 on the proposition, among others, that “it is emphatically the province and duty of the judiciary to say what the law is, not what it should be,” and which has as an unofficial motto the passage from Hamilton’s Federalist 78 that judges exercise “neither force nor will, but merely judgment.” (Hamilton didn’t mean that judges would defer to elected branches; he meant that judges would adhere to law, and, as he explained, invalidate statutes that violate the Constitution). Originalism is a centerpiece of the jurisprudence of the longstanding hero of conservative legal thought, Justice Antonin Scalia, appointed to the Court of Appeals in 1982 and to the Supreme Court in 1986.
Using text and original meaning to overturn decisions of the political branches is nothing novel for legal conservatives -- and hardly part of a new sinister turn in legal conservatism, as Rosen implies. Consider some of the famous cases of the 1980s and 1990s: Chadha and Bowsher, invalidating congressional statutes on separation-of-powers grounds; Lucas, Nollan and Dolan, invalidating state land-use regulations as violations of the takings clause; Lopez and Morrison, invalidating federal statutes as exceeding the commerce power; Adarand and Croson, invalidating state and federal affirmative action programs. All these cases, and many more, overturned decisions of the political branches; all were controversial, yet they enjoyed the support of the Court’s leading conservatives and were widely applauded by conservative scholars and commentators. One can quarrel with the textualist/originalist grounds of particular decisions, but one can hardly say that invalidating laws as inconsistent with text and original meaning runs counter to longstanding conservative judicial philosophy.
The short of it is that, in general, legal conservatives don’t subscribe to the Rosen/Graglia/Wilkinson version of judicial restraint. So of course Professor Rosen is right that his version of judicial restraint would counsel upholding the health care law, but he can’t claim that legal conservatives would betray their philosophy by striking it down. To the contrary, mainstream conservative legal traditions for the past 30 years call on judges to invalidate laws inconsistent with constitutional text and original meaning. In calling for "restraint," this line of thought means that judges should be "restrained" by the Constitution (not that they should be restrained by very strong deference to the political branches). Rosen only sees a contradiction because he’s using a different (albeit, to my mind, preferable) definition of “judicial restraint.”
This is not to say that legal conservatives should necessarily approve of striking the health care law – that depends on whether one views it as consistent with text, original meaning and precedent. But the idea that invalidating the law would be “abandoning” something legal conservatives previously exalted is mistaken. Rosen is wrongly attributing his meaning of "restraint" to conservatives.