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. Read More »