Should Courts Only Strike Down Laws as Unconstitutional if “People of All Political Persuasions” Agree?

In his most recent article defending the constitutionality of the individual mandate, Jeffrey Rosen claims that “[judicial] restraint requires deference to all laws passed by Congress and the states, regardless of whether they’re favored by liberals or conservatives, unless they violate principles that can be so clearly located in constitutional text and history that people of all political persuasions can readily accept them.”

It’s possible Rosen means only that a law should not be invalidated unless there it at least some support for doing so among “people of all political persuasions.” If so, the individual easily mandate qualifies. Polls show that a slight plurality of self-identified Democrats want the the Court to invalidate the law, and a few liberal organizations have even filed an amicus brief urging the Court to do so.

It’s also possible that Rosen means to suggest merely that a law should be struck down only if the Court has a rationale that “people of all political persuasions” could potentially embrace without giving up their broader ideological commitments, even if they don’t actually choose to do so. The case against the individual mandate qualifies on that basis too. There is no inherent inconsistency between being a liberal (or even a radical) and believing that the mandate is unconstitutional. If the Court were to strike it down, virtually all other existing federal regulatory laws would remain in place, and Congress would still have extensive authority to enact new ones.

More likely, however, Rosen means that courts should only invalidate laws if there is strong support for doing so across the political spectrum, not merely potential support, or a few outliers on one side supporting the vast majority of people on the other. By that test, the case against the individual mandate would fail. Most committed liberals clearly want the law to be upheld.

But such a test would also condemn numerous earlier Supreme Court decisions, including many strongly supported by liberals. Brown v. Board of Education definitely would not meet the standard. At the time it was decided and for years thereafter, Brown was denounced as illegitimate by most conservatives, and also by most southern Democrats (including many who were left-wing on economic issues, such as George Wallace and Robert Byrd). Even some prominent liberal jurists rejected the Court’s reasoning, such as Herbert Wechsler and Judge Learned Hand. The same goes for the Warren Court’s defendants’ rights decisions (rejected by most conservatives and many moderates), much of the last fifty years of Supreme Court Establishment Clause jurisprudence (ditto), and the Court’s more recent decisions protecting the rights of terrorism suspects detained at Guantanamo (most definitely, ditto). Rosen himself implies that Roe v. Wade flunks the test, as would a Supreme Court decision endorsing a constitutional right to gay marriage.

It’s possible that Rosen really does believe that all these cases were wrongly decided, as well as all others that struck down a law without the support of “people of all political persuasions.” If so, that’s a fairly radical conclusion.

Be that as it may, I suspect most other liberal defenders of the mandate would not agree with such a theory. Nor should they. Judicial enforcement of the Constitution is often most necessary precisely in cases where a violation of the Constitution enjoys substantial political support, which usually means endorsement by at least one side of the political spectrum. One of the reasons why we have constitutional restraints on government in the first place is to constrain the powers of political majorities.