There are two basic positions in the American legal tradition about the power of courts to strike down legislative acts. The first position envisions the power of judicial review as an unambiguously positive thing. It is a Constitution we are interpreting, and we should strive to get it right. If that means that statutes must be struck down, then good: It means that the wayward legislature has strayed from fundamental law, and we are lucky that the wise judges can keep the other branches in check. The ideal judge should try to get it right, based on whatever understanding they have of what the Constitution truly means.
The second position envisions the power of judicial review as important but also potentially dangerous. We live in a democracy, and statutes represent majority will. Judges often confuse their view of the constitution and their view of sensible policy, which creates a significant danger that courts will overturn legislatures when they like the results rather than when the constitution truly demands it. Given that legislatures are majoritarian and the judiciary is not, we should be wary of judges using dubious theories to trump the will of the people. The ideal judge should approach judicial review with these institutional concerns in mind, and should rely on established doctrines such as stare decisis and canons of constitutional avoidance.
For the last half-century, these two positions had clear ideological affiliations. The liberal side and the Democratic party adopted the first view, and the conservative side and the Republican party adopted the second view There have been plenty of exceptions, of course, both as to specific people and specific cases. But those two positions framed the basic way that we have talked about the courts.
Why did the two sides take on these positions? I think the main reason is motivated reasoning. When the median Justice on the Supreme Court has positions about the law that are consistently to the right or left of then-existing precedents, the power of judicial review will tend to serve certain political ends and disserve others. In the 1950s, 1960s, and 1970s, the median Justice was to the left of the body of then-existing precedent. The cases that the median Justice found difficult were the kinds of cases in which the court considered changing the law in ways that would please liberals and displease conservatives. And often enough, the Court did change the law in those ways, striking down school prayer, invalidating abortion laws, and creating many new rights for criminal defendants.
In that environment, the positions of the two sides were pretty predictable. Clearly, some people hold genuinely deep commitments to the different views of the courts that are independent of their policy preferences. But for better or worse, most people engage in motivated reasoning. They find themselves drawn to whatever view of the courts tends to advance their views of how the world should be. So back in the 1960s, 70s, and 80s, liberals adopted the position that support the actions of the liberal Supreme Court, while conservatives adopted the position that opposed it. Conservatives embraced the second position I described above, what you might call judicial restraint. Liberals embraced the first position, which conservatives called judicial activism. But liberals saw it as just correctly interpreting the Constitution as a living document with its majestic generalities that judges needed to make adapt to each era. (Libertarians were in a bit of a no-man’s land: Because judicial invalidation always leads to less legislation, motivated reasoning would push libertarians to embrace the first position but substitute libertarian theories of how to read the Constitution. But their positions had relatively limited force with the political class because it often led to results strongly disliked by either side.)
The interesting question is whether the Health Care Cases will cause a grand and lasting flop-flop. To me, one of the most remarkable aspects of the Health Care Cases is that the the political class adopted clear views on the merits of the constitutional issues that reversed the traditional positions. Specifically, the Republican side adopted a position firmly rooted in the first of the two positions I noted above, and dismissed any arguments based in judicial restraint. This became the standard GOP position, formally adopted by politicians and echoed by conservative activists and pundits. When the cases came down, the GOP appointed Justices came down 4-1 between the two sides. Four Justices embraced the first position, and one Justice embraced the second. The one Justice who embraced the view traditionally embraced by conservatives was instead widely accused of being a traitor.
The big question is, are we seeing a genuine realignment of what it means to be a judicial conservative and a judicial liberal? Are the two changing sides, so now conservatives will embrace the old liberal position and liberals will embrace the old conservative position?
Over the long term, the answer likely depends on the personnel of the Court. The more the median Justice’s view of the law tends to be consistently to the right or to the left of precedent in the major high-profile areas, the more the parties will align around a particular view. If in the future, the median Justices’s view is more liberal than existing precedent in the major high-profile areas, the two sides will keep their traditional alignment and the Health Care Cases will be seen as a weird blip. On the other hand, if in the future, the median Justice’s view is more conservative than existing precedent, there is a good chance that the two sides will flip for the duration.
How about the present? Right now both conservatives and liberals are divided on these questions. There is disagreement in both camps. Partly that reflects old habits. But partly it reflects the fact that since 2006, the median Justice has been Justice Anthony Kennedy. Justice Kennedy’s views generally are pretty libertarian, His views of the law are to the right of existing precedents in some ways and to the left of them in others. To oversimplify a complex pattern, Justice Kennedy’s positions on the law tend to be to the right of existing precedents in areas like federalism, criminal procedure, and campaign finance, while they tend to be to the left of existing precedents in areas like the Eighth Amendment and gay rights. Justice Kennedy’s position as the median Justice makes this a good time for libertarian constitutionalists. But because the median vote isn’t clearly on one side, we’re seeing a lot of shifting rhetorical positions on the role of the Supreme Court. We’ll probably see this in the next year or two as the Supreme Court takes on gay marriage and revisits affirmative action. Gay marriage will bring out the old alignments; affirmative action will reverse them.