Debating Judicial Restraint: A Response to Somin and Whelan

• July 16, 2012 • 9:02 am

Ilya Somin and Ed Whelan have criticized my Public Discourse article on the healthcare decision, which discusses dueling conceptions of judicial restraint within the conservative legal movement. I’m grateful to both of them for their critiques and will try to respond to some of their comments.

Somin claims that I “argue that the individual mandate case represents a sea change in conservative attitudes to judicial review.” Against this, Somin contends that “there is a lot more continuity in both liberal and conservative attitudes towards judicial review than [Alicea and Orin Kerr] suggest” and that the conservative argument for “stronger judicial enforcement of constitutional limits on federal power….long predates Obamacare.

Specifically, Somin takes issue with my characterization of then-Justice Rehnquist’s role in the conservative legal movement’s founding during the 1970s. I note that Rehnquist was a proponent of an older view of judicial restraint, a view that emphasized deference to legislative majorities and set a high bar for unconstitutionality before striking down statutes. Somin cites many examples of Rehnquist acting to enforce limits on federal power, such as the so-called Federalism Revolution of the 1990s. In short, Somin writes, “[T]here is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.”

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows. That lecture repeatedly emphasizes the role of legislative majorities in our constitutional system and the comparatively minor domain of the federal judiciary. True, in his discussion of Chief Justice Marshall and judicial review, Rehnquist makes clear he thinks the judiciary has a responsibility to strike down unconstitutional laws, but the sense one gets from the lecture is that he has a less aggressive conception of judging in mind than Keith Whittington described in Constitutional Interpretation or than Randy Barnett has argued for in recent years.

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Robert Bork undoubtedly adhered to the Justice Harlan conception of restraint, and I think it is fair to say that his jurisprudential views were emblematic of the movement until the early- to mid-1980s. Somin focuses on Rehnquist’s views, but my argument was much broader and does not rise or fall with how the Rehnquist of the 1970s is categorized.

Thus, I think that in arguing that my case is overstated, Somin overstates my case. He ascribes positions to me that I did not express in the article. To take another example, I did not say that the healthcare decision “represents a sea change in conservative attitudes to judicial review.” In fact, I argued quite the opposite: that the change in legal conservatives’ conception of judicial restraint has been going on since at least the 1990s. The healthcare decision simply highlights how far legal conservatives have moved away from the old, Justice Harlan conception of restraint, with its emphasis on deference to current majorities and modest view of the judicial role.

Nonetheless, Somin adds nuance to the picture I painted of Justice Rehnquist’s thinking on judicial restraint, and for that I am grateful. My article attempted to describe the last 40 years of the conservative legal movement, and that necessarily meant oversimplifying things. Somin helpfully shows that Rehnquist’s views on judicial restraint were not black-and-white, particularly after the 1970s

Like Somin, Ed Whelan thinks I overextend my argument. Whelan argues that the anger over Chief Justice Roberts’ opinion is likely driven by the “widespread perception (accurate or not) that his reliance on the taxing power rests on an implausible reconception of the mandate as a tax and/or to the widespread perception (again, accurate or not) that the Chief changed his bottom-line position on the mandate for non-legal reasons.” Whelan think this makes it harder for me to claim that the response to Roberts’ opinion among legal conservatives shows how far they have drifted away from the old conception of judicial restraint.

He argues further, “[G]iven the intensity of the political debate over Obamacare, it wouldn’t be surprising if the hostile reaction of some legal conservatives to the Chief’s opinion has been colored by their strong political opposition to Obamacare. If so, that would complicate the task of extracting any broader lessons about changing conceptions of judicial restraint.”

I agree that the factors Whelan lists are playing a major role in the anger over Chief Justice Roberts’ decision, but I also think that there are undoubtedly many legal conservatives who are angry precisely because they believe that the Chief Justice abdicated his role as an enforcer of constitutional limits on federal power. Randy Barnett is certainly among them, as are most of the libertarians within the conservative legal movement. The editor of NRO, where Whelan regularly writes, penned a column blasting the Chief Justice for having “blinked” rather than having done his duty under the Constitution (as the editor understands that duty). I would add that in my personal conversations with legal conservatives, there is palpable frustration with what they perceive to be the Chief Justice’s lack of backbone.

All of this relates back to differing conceptions of judicial restraint. What some call Roberts’ invertebrateness, others see as a properly humble view of the judicial role. The language of “abdication” is particularly significant and has been tossed around quite a bit in the aftermath of the decision. Like I said, I do not disagree with Whelan that there are a lot of reasons why legal conservatives are angry, and I probably should have included that caveat in my article. But I also do not see why that means I am wrong in saying that the reaction highlights different views of judicial restraint

Whelan’s other argument is that “the real dividing point between the Chief and the dissenters” is their respective judgments on the reasonableness of the Chief Justice’s interpretation of the statute, and if that is true, “then it’s not that the Chief and the dissenters adopt different conceptions of judicial restraint but rather that they differ on how the same conception ought to apply.

I agree that the reasonableness question is what divided Roberts and the joint dissenters. My article tried to explore why they disagreed about what was reasonable. I argued that the two sides had different views of judicial restraint that led them to draw the line of reasonableness in different places. I do not see how Whelan’s argument refutes that, although it does offer an alternative explanation.

Whelan is essentially arguing that both sides thought of judicial restraint in the old fashioned way and were willing to bend over backwards to save the statute, but the Chief Justice was willing to bend a little farther than the dissenters. That is certainly a plausible interpretation of the opinions. I still think mine is the better interpretation, given the other language in the respective opinions that I highlighted in the article and that indicates different views of judicial restraint (e.g., the Chief Justice’s repeated emphasis on the Court’s non-political nature and insistence on unconstitutionality being “clearly demonstrated”). But I concede that Whelan’s interpretation is a reasonable alternative to my own.

I end by noting that neither Somin nor Whelan disagreed with a key argument in the article: that there are two different views of judicial restraint within the conservative legal movement. Somin disputes that Rehnquist represents the old view and that aggressive enforcement of constitutional limits is relatively new to the conservative movement. Whelan is skeptical that the healthcare decision embodies the two conceptions of restraint. But there are two views of judicial restraint within the conservative legal movement, and the one seen in Roberts’ opinion is quickly losing ground to its alternative.