Is there a Generational Divide over “Judicial Restraint” Between Reaganites and Libertarians?

Various commentators such as Garrett Epps, Mark Tushnet, and recent guest-blogger Josh Blackman argue that there is a generational divide among right of center jurists between Reaganite advocates of “judicial restraint” and later, more libertarian figures who are less willing to defer to legislatures and more eager to strike down laws they consider unconstitutional. They argue that this divide is exemplified by the the Supreme Court’s decision in NFIB v. Sebelius, where Chief Justice John Roberts voted to uphold the individual health insurance mandate as a tax, while other conservative justices voted to strike it down. As Epps puts it, Roberts voted the way he did because “his is the conservatism of the 1980s rather than the new, more aggressive version minted for the Age of Obama.” As a veteran of the Reagan-era Justice Department, Roberts supposedly imbibed the ideology of judicial restraint, from which later conservatives have departed.

I. Federalism and Reagan’s Judicial Appointees.

This thesis fundamentally misconceives the dominant constitutional vision of the Reagan administration and most of the jurists associated with it. In the individual mandate case, both of the actual Reagan appointees still on the Court – Justices Antonin Scalia and Anthony Kennedy – voted to strike down the law. If they had still been on the Court, Reagan’s two other appointees, Sandra Day O’Connor and William Rehnquist (whom Reagan promoted to Chief Justice), would likely have voted the same way, based on their longstanding advocacy of strong judicial enforcement of limits on federal power and their dissents in Gonzales v. Raich (in which case Scalia and Kennedy voted to uphold the law).

Reagan also nominated numerous leading libertarians and pro-federalism conservatives to the lower courts, including such well-known libertarian and libertarian-leaning jurists as Alex Koziniski, Douglas Ginsburg, Stephen Williams, Jerry Smith, and Bernard Siegan (whose nomination failed in the Senate). If anything, the Reagan-era judicial appointees were, on average, more libertarian and more pro-federalism than those of the George W. Bush administration, among whom it’s hard to think of anyone comparable to the above list, with the possible exception of Janice Rogers Brown. This division reflects Bush’s lesser interest in federalism issues compared to Reagan, and also the ideological differences between Bush’s big government “compassionate conservatism” and Reagan’s more limited view of federal power.

II. Federalism and the Reagan Justice Department.

If there is anyone who exemplifies Reagan-era legal conservatism, it is probably former Attorney General Edwin Meese, who perhaps did more than anyone to popularize originalism. And Meese was an early supporter of the case against the individual mandate. He published an op ed arguing that it was unconstitutional just two weeks after Obamacare was enacted. The op ed was coauthored with Senator Orrin Hatch (who had been the Reagan Administration’s leading ally on constitutional issues in Congress), and Northwestern law professor Steven Calabresi, possibly the most prominent constitutional law scholar who is also a veteran of the Reagan Justice Department.

Nor was this interest in constitutional limits on federal power a new theme for Meese and other former Reagan DOJ officials, born of the debate over Obamacare. The Reagan Justice Department emphasized the issue throughout the 1980s as well. For example, former Reagan Solicitor General Charles Fried lamented the powerful influence of what he called “the federalism police” at the DOJ (Fried was out of step with most of the rest of the political appointees in the DOJ on these issues).

If John Roberts really is more committed to judicial deference to legislatures than other conservative jurists are, it isn’t because he’s clinging to a Reagan-era vision of the Constitution that they do not share. And, obviously, Roberts himself has voted to strike down laws in several high-profile cases, most notably Citizens United and Parents Involved, and ended up endorsing most of the arguments made by the plaintiffs in the individual mandate case as well.

There is no denying that Reagan-era conservatives repeatedly attacked what they considered to be the “judicial activism” of the left. This led many people to assume that they were opposed to judicial invalidation of legislation in general, or believe that it should only be done in highly unusual cases. Some conservative jurists really do believe that. But, for most, when they refer to “activism,” they mean to attack not judicial invalidation of legislation as such, but merely judicial decisions that depart from the text and original meaning of the Constitution. In that sense of the term, a decision upholding an unconstitutional law can be just as “activist” as one striking down a constitutional one. This ambiguity in the term “judicial activism” is one of the reasons why I have long been critical of its promiscuous use by both the right and (more recently) the left. The same goes for “judicial restraint,” which has similar problems. But it is important to understand that, for most Reaganite conservatives, rejecting “judicial activism” was not and is not the equivalent of rejecting strong judicial review – especially on federalism issues.

I certainly do not mean to suggest that either Reagan-era conservatives or those of today consistently adhere to legal principle and are never influenced by political expediency. Short-term political considerations play a major role in the legal positions taken by supporters of almost every political movement. Conservative Republicans are no exception – either today or in the Reagan era. It is easy to find examples where both conservatives and liberals switch sides on constitutional issues when it becomes politically convenient for them to do so. And there are some important legal issues where many present-day conservatives really have departed from Reagan-era positions, such as standing.

Be that as it may, however, it is incorrect to argue that most Reagan-era conservatives advocated “judicial restraint,” defined as broad deference to legislatures, while those of the 21st century have abandoned that doctrine in favor of a new-found “libertarian” commitment to judicial enforcement of federalism. In reality, support for strong judicial enforcement of limits on federal power was a major theme of mainstream conservative jurisprudence both in the 1980s and today.

UPDATE: I should emphasize that I am not suggesting that most Reagan-era judicial appointees and DOJ officials are libertarians. The majority were conservatives. However, they were on average, more libertarian the George W. Bush-era judicial nominees, and most of them were and are supporters of judicial enforcement of structural constraints on federal power.

UPDATE #2: It is perhaps worth noting that “the the younger and stunningly rigid [Justice] Samuel Alito,” whom Epps contrasts with Roberts, is in fact five years older than Roberts, and (like the Chief Justice) also a veteran of the Reagan Justice Department, where he served for six years in the 1980s[ UPDATE: I think I misconstrued Epps here; in this passage he meant to contrast Alito with Kennedy (who really is older than Alito) rather than with Roberts. Still, the fact that Alito is no less a Reagan administration alum than Roberts does weaken Epps’ case.]

UPDATE #3: I should note that Epps recognizes that Roberts is not a supporter of judicial deference on all issues. He claims, for example, that Roberts is very aggressive in striking down affirmative action policies and other racial classifications. But he does seem to argue that Roberts supports restraint on federalism issues, among others. That is the part of his argument I meant to criticize in this post.