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 […]