Supreme Hubris:  Theories of Judicial Activism

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J. Harvie Wilkinson III




Supreme Hubris: Theories of Judicial Activism by Don Franzen

The inevitability of politics.

June 29th, 2012 reset - +

Yesterday, on June 28, 2012, the Supreme Court of the United States in National Federation of Independent Business v. Sebelius upheld, by a margin of 5 votes to 4, most of the provisions of Affordable Health Care Act. At stake was nothing less than the single most important legislative achievement of the Obama Administration and one of the most significant efforts at addressing a national economic issue since the 1960s, when a Democratic majority lead by President Lyndon Johnson passed both the Civil Rights and Medicare Acts. The surprise swing vote came from the court’s Chief Justice, John Roberts, a Bush appointee meant to be a secure vote for the right — in nominating Roberts, Bush was trying to appoint a chief justice who would not go “rogue,” as had his father’s appointee, David Souter, whose opinions over time leaned ever more to the left.

Commentators are already likening Roberts’s vote to the famous “switch in time that saved nine” in 1937 when Associate Justice Owen Roberts underwent a change of heart resulting in a 5 to 4 vote upholding a key piece of New Deal Legislation. In the years leading up to this switch, the Supreme Court had negated several major Federal efforts aimed at addressing the crisis of the Great Depression. Decrying the tyranny of the Court’s “nine old men,” President Roosevelt called for Congress to expand the court’s numbers from nine to as many as fifteen — to open up new appointments for him to “pack” the Court with appointees favorable to the New Deal agenda. Recognizing that the very independence of the judiciary was at stake, the court then began a reversal of course that eventually lead to it routinely upholding economic regulations that it formerly would have overturned, either on the grounds of interference with “due process” or because they were deemed beyond the reach of the federal government.

In the early 1940s the court also settled — or so we thought — the reach of the federal government’s power under the commerce clause, which authorizes Congress “to regulate commerce among the several states.” Those cases cumulatively concluded that just about everything is “interstate commerce.” Even the activity of a lone farmer who produced wheat for his private consumption was found, in 1942, to be subject to Congressional regulation. Understandable, then, that the Obama administration, as recently reported in the New York Times, foresaw little risk that a successful challenge could be mounted against the power of Congress to enact the Affordable Health Care Act. The administration greatly underestimated the magnitude of the tectonic shift in the court’s jurisprudence in recent decades, the result of a relentless series of appointments by Republican presidents of judges who passed right wing litmus tests. The Roberts opinion upholding the Affordable Care Act actually concluded that it was beyond Congress’s power under the commerce clause because it mandated action rather than regulating pre-existing conduct. Instead, to uphold the law, Robert embraced what most analysts thought to be the Administration’s throw away argument, that the Act was a valid exercise of Congress’s power to tax. The rationale suggests that the decision may be a Pyrrhic victory for liberals. Embedded in Roberts’ opinion is a major limitation on the Federal government’s power to regulate commerce. The ripple effect on existing and future legislation is not clear, but undoubtedly it will be brandished by future litigants in attempts to overturn Federal laws. The four dissenting justices, lead by Antonin Scalia, fulminated against the majority’s reliance on the taxing power to uphold the law as a “metaphysical” sleight of hand, since the majority, in order to allow the case to be decided now, had held initially found that the “penalty” for not getting insurance was not a “tax” — if it were, the case would not be ripe for decision until the first “tax” was in fact paid. The phrase “turncoat” nowhere appears in the dissent, but between the lines one can sense the frustration of the four member conservative bloc in losing Roberts’s key vote.

Theories are called upon to justify results, and just as, according to Keynes, “the most practical man of affairs is usually in the thrall of the ideas of some long-dead economist,” jurists too can be the enthralled acolytes of a favorite constitutional theory. The Affordable Health Care case was very much a war of constitutional theories, left leaning justices opting for an expansionist view of Congressional powers and right leaning justices arguing for limited federal power. This battle of ideas over the meaning of the constitution has its roots in the scripture itself. Written over two hundred years ago, consisting of less than 5,000 lofty but sometimes ambiguous words, and concise to the detriment of being complete, the American Constitution is a fertile breeding ground for a wide range of theories — including attempts to formulate a constitutional “theory of everything,” or, as the title of Judge Harvey Wilkinson III’s recently published book has it, a Cosmic Constitutional Theory. Wilkinson, a sitting federal appellate judge appointed by Ronald Reagan, has little taste for such overreaching, and his message is a “pox on all their houses.” Taking each major constitutional theory chapter by chapter, he explicates and critiques them, and concludes each falls short when it comes to his sine qua non of any theory of the constitution — judicial restraint. To his credit, despite his conservative credentials, Wilkinson derides judicial activism wherever he finds it, whether on the left or the right. Democracy, he argues, is the victim when the courts embark on setting policy in the guise of constitutional adjudication. For Wilkinson, “the great casualty of cosmic constitutional theory has been our inalienable right to self-governance.”

His first (and easiest) target is the pet theory of liberals, “living constitutionalism.” Taking the late Justice William J. Brennan as its most eminent spokesman, Wilkinson sums up his view of the constitution as calling for an interpretation of the document based not on a strict reading of its text but based rather on “contemporary values” so that the “community’s interpretation” can give current life to language composed way back in 1787. Wilkinson credits “living constitutionalism” with adapting the constitution to the needs of the time, as for example, the broad reading of the Congress’s power under the commerce clause in the face of the crisis of the great depression. But he is vehement in his catalogue of its “vices” — according to him, “living constitutionalism … has elevated judicial hubris over humility, boldness over modesty, and intervention over restraint.”

Exhibit “A” to Wilkinson’s indictment of “living constitutionalism” is the Court’s liberal reading of the Eighth amendment’s prohibition of “cruel and unusual punishment.” “Somehow,” writes Wilkinson, a recent five member majority of the court “thought that this provision justified the release of some 46,000 inmates from the California state prison system.” (Wilkinson does not discuss the extensive findings at the trial level regarding the extreme overcrowding and lack of medical care for inmates.) Exhibit “B” is the favorite target of conservative jurists, Roe v. Wade, which Wilkinson condemns on the grounds that “nothing in the text of the constitution suggested that the specific contours of a right to abortion should be judicially engrafted onto a highly generalized privacy right.” Wilkinson’s examples multiply, principally taken from the Warren Court era, during which rights to privacy, travel, procreation, contraceptives, and abortions were, to the thinking of originalists, just pulled out of thin air and inserted into the Bill of Rights. His conclusion is clear: a living, “organic” reading of the constitution flunks the test of judicial restraint. But while he rails against living constitutionalists, Wilkinson admits the “ranks of their disciples on the bench have become … thin.” Living constitutionalism is, at best, a rear guard action today, and it is the next theory Wilkinson evaluates, “originalism,” that has taken center stage in the debate over what is the One True Cosmic Theory.

Wilkinson chooses Robert Bork, academic, former federal judge, and failed Reagan appointee to the Supreme Court, as orginalism’s best exponent. The gist of Bork’s view is that “the original public understanding of the Constitution [is] the only legitimate source of constitutional interpretation.” The intent of the “founding generation” is all that matters, “how the words used in the Constitution would have been understood at the time.” Wilkinson is clearly sympathetic to originalism’s themes: no amorphous “organic” interpretations, judges “constrained” by the meaning of the text and the intent of the framers. But with a candor seldom heard among his right wing colleagues, Wilkinson admits that orginalism’s adherents can be aggressively “activist” when they want to be. The three staunchest originalists of today’s court, Justices Scalia, Thomas and Alito, stand convicted of “orginalist activism” in their Second Amendment opinion, District of Columbia v. Heller, which in 2008, for the first time ever, “found” a personal right to own guns embodied in the Second Amendment. “The historical evidence of the original understanding of the Second Amendment is inconclusive,” writes Wilkinson, and adds that the follow up decision, McDonald v. City of Chicago, holding that the right to bear arms applies also to the states, is based on, at most, an “ambiguous” historical record.

Wilkinson also had a premonition about the fate of the Affordable Health Care Act. Here, again, he breaks rank with many of his conservative colleagues to question the commerce clause challenge to the Act. “The health care reform act of 2010 seems misconceived in many ways, but flawed legislation is not on that account unconstitutional,” he writes. “The idea that Congress is constitutionally disabled under the commerce power from regulating activity affecting one-sixth of the national economy strikes me as a heavy lift. … Any decision [striking it down] that is less than bullet proof will be seen as a purely political undertaking.” Originalism, Wilkinson concedes, can serve as a legitimatizing theory for a conservative agenda just as Living Constitutionalism can be called upon to validate liberal policies. Either way, he laments, judicial restraint is the loser.

Is there a theory better suited to restraining the judiciary and keeping Alexander Hamilton’s promise that it would be “the least dangerous branch” of government? Wilkinson doesn’t think so. He takes a look at John Hart Ely’s “process theory,” which directs the courts to focus on the political process, not its outcomes, and invalidate only laws that “clog the arteries of political change or discriminate against minorities.” Wilkinson lauds process theory for emphasizing deference to the democratic process, but faults it for failing to deliver on its promise of a truly “wertfrei” system of judicial review. Its promise, he says, “is ultimately too good to be true,” and in the end, process theory “cannot extricate itself from the thicket of value judgments” because “procedural judgments can be every bit as subjective and consequential as substantive ones.” Wilkinson points to Citizen’s Untied v. FEC as an example of “process theory” gone wrong. At first blush, Citizen’s United seems to uphold a process oriented approach — keeping open the channels of free speech by unblocking congressional limits on campaign spending by corporations and unions. But in so doing, the court undermined the efforts of Congress to “redress imbalances of power and wealth between corporate and individual speakers.” To reach their result, the majority in Citizen’s United had to make value judgments, deciding the free speech rights of corporations outweigh society’s interest in equalizing the political playing field.

Wilkinson reviews one more attempt to unscramble the constitutional omelet, the “pragmatic” approach championed by Federal Appellate Judge Richard Posner. Brilliant, erudite and articulate, Posner deserves to be taken seriously and Wilkinson critiques his “pragmatic” approach with respect. Starting with the premise that there are no “mutually accepted principles for choosing among [competing] theories,” and that such theories are “mainly rationalizations of their author’s political ideologies,” Judge Posner concludes that all judges can do is “decide pragmatically.” And what would that mean? Posner directs judges to base judicial decisions on the effects the decisions are likely to have, taking into account the “overall consequences, not just those falling on the litigants.” To be fair, Posner is not advocating a pragmatic free for all in every case. The “pragmatic” approach is called for only when the usual guides for decision, precedent and the language of the text, are unavailing in directing a result — in other words, in the tough cases. Is this a better guide to judges faced with constitutional dilemmas? Wilkinson doesn’t think so. “Supposedly antitheoretical pragmatism turns out to be just like the other cosmic constitutional theories,” he concludes, because it “encourages judges to attempt the impossible feat of balancing all relevant interests.“ In the end, it is like “looking over a crowd and picking out [one’s] friends,” and “simply sets the judge loose from the law.” Judicial restraint is again the victim.

So where does this leave Judge Wilkinson? In despair, it would seem, for any constitutional theory consistent with his conception of a judiciary bound by restraint. His survey of the cosmos of theories leads him to the conclusion that “justices of all persuasions can appear to migrate between activism and restraint depending on their personal beliefs.” Wilkinson’s answer “is not yet another theory but an escape from theorizing.” His final confession, “I have no theory.” In the end, he can rely only on the familiar homilies about restraint, good sense, adherence to the clear meaning of the text, and submission to precedent. Wilkinson is a constitutional agnostic.

Others are not so ready to give up the fight to win the ideological battle for a Theory of Everything. Supreme Court Justice Stephen Breyer has twice in recent years written in defense of his brand of “living constitutionalism,” first in Active Liberty: Interpreting Our Democratic Constitution (2007) and more recently in Making Our Democracy Work (2010). More a polemic than an exercise in constitutional theory, The Conservative Assault on the Constitution (2010), by left leaning law professor Erwin Chemerinsky, chronicles the retreat from Warren Court-era precedents in the fields of education, presidential power, the separation of church and state, the rights of criminal defendants, individual liberties, and access to justice. In June of this year, Justice Antonin Scalia, the high court’s most fervent originalist, together with Law Professor Bryan A. Garner, released treatise under the title Reading Law: The Legal Interpretation of Texts, presenting a detailed and scholarly argument for the originalist thesis.

Behind all the theorizing is the real politik governing which men and women get appointed to the Supreme Court. For this, one should turn to Jan Crawford Greenberg’s Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court (2007). Ms. Greenberg’s gripping journalistic account leaves no doubt about the political objectives behind President Bush’s nominations of now-Chief Justice Roberts and Associate Justice Alito — Bush “follow[ed] through on his campaign promises” and “in pushing through John Roberts and Samuel Alito, the Bush White House did indeed give Americans justices closely aligned to Scalia and Thomas.” By so doing, the scales on the high court were tipped decisively to a conservative side with the “originalist” doctrine preeminent. The stage was set for an originalist court to feign restraint but take action on behalf of the conservative agenda. The votes were there to overturn the Affordable Health Care Act had Justice Roberts only voted as his backers intended. That he chose not to is a credit to his statesmanship as Chief Justice, since the job requires him not just to decide cases, but to preserve the integrity of the court as a neutral adjudicator. One wonders if among Roberts recent bedside reading was a copy of Judge Wilkinson’s book. Did Wilkinson’s drumbeat against judicial activism help stay Roberts’s hand?

Few would openly argue against judicial restraint — even “living constitutionalists” concede that the courts should act with caution in upending the acts of legislatures. But certainly a theory of restraint is not enough to guide jurists on tough constitutional questions. If one conclusion emerges from Wilkinson’s review of the leading “cosmic theories,” it is that value judgments cannot be avoided. Originalists and Living Constitutionalists alike tip the scale of decision in favor of the values they believe the Constitution and the Bill of Rights are meant to foster. Restraint without normative guidance would seem to leave judges rudderless, and that in the end is the unhappy state that Judge Wilkinson finds himself — no theory, no real guide to deciding cases except to follow the text and proceed with caution. Hume famously said “Reason is, and ought only to be the slave to the passions,” and even so, we may conclude constitutional theories are, and ought to be, the servant of political philosophies. Better that judges confront this fact than dissemble restraint when in fact actively advancing their political objectives. Better yet if they realize in so doing they uphold the best traditions of constitutional law. To paraphrase an icon of the right, Barry Goldwater, activism in the defense of liberty is no vice, restraint in the pursuit of justice is no virtue.

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