« Joel Alicea: Forty Years of Originalism
MikeRappaport
| Main | Mark Tushnet's Erroneous Critique of Chapman & McConnell
Kurt Lash
»

06/04/2012

The Moment of Truth for Liberal Judicial Restraint
Michael Ramsey

Many political liberals have argued that the Supreme Court should defer to the elected branches and not strike down the health care law famously under challenge in HHS v. Florida.  Judicial restraint, they say, counsels against such a decisive and divisive intervention in national policymaking.  With last week's First Circuit decision finding unconstitutional portions of the Federal Defense of Marriage Act (DOMA), the wave of liberal judicial restraint that has built up around the health care case faces its moment of truth.  The DOMA decision makes Supreme Court review of the issue increasingly likely in the (relatively) near term, and indeed the First Circuit judges basically encouraged the Court to get involved.  (See this discussion by Damon Root at Reason, and this longer analysis by Ed Whelan at NRO).   How will liberal judicial restraint respond?

It's hard for me to see differences between the two cases that should matter for advocates of judicial restraint (meaning strong deference to the elected branches).  Both involve substantial policy issues; both involve constitutional claims that lack consensus support.  One could say that the executive branch under President Obama doesn't support the constitutionality of DOMA -- but the executive branch under Presidents Clinton and Bush did so, and I wouldn't think advocates of judicial restraint should want the potential constitutionality of a federal law to rise and fall with changes in the occupant of the presidency.  One could say that the DOMA case involves individual rights rather than structural rights, but it's not obvious why that should matter to advocates of judicial restraint, and in any event the structural provisions at issue in the health care case -- Congress' enumerated powers -- were designed to protect individual rights (indeed, they were seen as a centerpiece of individual rights by many framers).

So it seems that liberal advocates of judicial restraint in the health care case should now stand ready to argue that the First Circuit must be reversed and Congress' constitutional judgment on DOMA be respected.  It's a fair test, I'd say, of how serious that advocacy ever was.