2013 and the Probable Death of Judicial Restraint
2012 was a good year for judicial restraint. In NFIB v. Sebelius, the Supreme Court declined to invalidate a major piece of federal legislation – in large part, one may speculate, because Chief Justice Roberts hesitated to cast the Court in such an intrusive role. Moreover, in the run-up to the Sebelius decision, an array of commentary called forth the values of restraint – with most of this commentary coming from the political left, where judicial restraint has not recently been so popular. And perhaps most lastingly, Judge J. Harvie Wilkinson’s 2012 book Cosmic Constitutional Theory provided a clear and concise brief for judicial restraint – arguably the ablest since James Bradley Thayer in the late nineteenth century.
2013 does not look so promising. It is reasonable to predict that the year will see at least four major interventions against the democratic parts of government: invalidation of the University of Texas’ affirmative action policy in Fisher v. University of Texas; invalidation of Section 4(b) of the Voting Rights Act in Shelby County v. Holder, and invalidation of limits on same-sex marriage in United States v. Windsor and Hollingsworth v. Perry. (And if that were not enough, there’s also a reasonable chance that a new Second Amendment case will reach the Court on facts likely to provoke a further intervention). Further, it’s a fair prediction that each of the nine Justices will join at least two of these interventions – that is, that no Justice will consistently take the position that on close constitutional questions the Court should avoid setting major points of highly disputed public policy.
Moreover, political commentary, whether from the left or the right, will have a hard time consistently pressing for restraint because the cases divide so evenly between interventions conservatives like and interventions liberals like. For better or worse, the immediate lesson of 2013 is likely to be the importance of appointing like-minded Justices, not (as 2012 might have suggested) the importance of shifting core policy decisions to democratic decisionmakers.
For originalism this seems a mixed result. Judicial restraint is a competitor of originalism, as I've argued in the past and as Judge Wilkinson's book makes clear. It's doubtful, though, whether the leading 2013 interventions will rest much on original meaning. But that in turn may make 2013 a year to pointedly pose the recurring question of the Court's authority to intervene against democratic decisionmaking. To that question, originalism may have a better answer than its (interventionist) competitors.