Left, Right, and Judicial Review

Various commentators, such as co-blogger Orin Kerr and Joel Alicea argue that the individual mandate case represents a sea change in conservative attitudes to judicial review. Whereas before conservatives supposedly opposed most judicial invalidation of statutes, now they emphasize the need to strike down laws that can’t be justified on originalist grounds. Orin also suggests that the battle over the mandate has led liberals to change position and embrace “judicial restraint,” which they were reluctant to do before.

There is something to these claims. But I think there is a lot more continuity in both liberal and conservative attitudes towards judicial review than these commentators suggest. As I pointed out at the very beginning of the individual mandate battle, conservative scholars and jurists have been arguing for stronger judicial enforcement of constitutional limits on federal power for many years now. The issue long predates Obamacare.

Alicea contrasts the four conservative justices’ position on the mandate with Chief Justice Rehnquist’s endorsement of “restraint.” In reality, however, Rehnquist led the federalism “revolution” of the 1990s and dissented in Gonzales v. Raich. Moreover, he was advocating stronger enforcement of federalism as far back as the 1976 case of National League of Cities v. Usery . When that decision was overruled in 1985, both he and Sandra Day O’Connor bitterly dissented and forcefully rejected the dominant liberal view that federalism issues should be left to the political process. Thus, there is at least a 35 year history of leading conservative jurists urging strong judicial enforcement of limits on federal power.

For at least 30 years, many conservative scholars and jurists have also been urging strong judicial enforcement of constitutional property rights. Rehnquist was a leader on that issue too, notably in his dissent in the key 1978 Penn Central case, which established the modern – largely pro-government – standard for regulatory takings cases.

These longstanding attitudes were sometimes obscured by loose conservative rhetoric about “judicial activism,” which is one reason why I have long been critical of that rhetoric. But most conservatives used the term “activism” to denounce decisions that they saw as departing from originalism, not simply ones striking down laws.

There is greater consistency than meets the eye on the liberal side too. While liberals have long favored aggressive judicial review on issues like privacy rights and defendants’ rights, they have for decades opposed nearly all judicial enforcement of structural limits on federal power, and most judicial protection for property rights and economic liberties. For nearly a century, the dominant left-wing view has been that such issues must be left to the political process. I think the latter attitude is misguided. But it’s hardly new.

In sum, the main disagreement between liberals and conservatives is not about whether judicial review in general should be deferential to the political process, but rather on what kinds of legislation should be treated deferentially and what kinds should not. There is also, of course, an important longstanding debate over methodology: whether the courts should rely on originalist methodology in deciding which laws to strike down, or whether they should give greater weight to various “living constitution” theories.

I don’t fully subscribe to either the conservative or liberal approaches to judicial review. And I don’t think either has been anything close to fully consistent over time. That’s especially true if you shift the focus away from scholars and judges to politicians and parties, which are more likely to be influenced by short-term political calculations. But both have been a lot less inconsistent than some commentators like to suggest.

The struggle over the individual mandate was not some strange role reversal. It was a continuation of a longstanding battle over the issue of judicial enforcement of federalism.

UPDATE: I should mention that I am still abroad, and therefore may not be able to respond to any responses this post may generate for some time. I took advantage of a short break in my travel schedule to write this post and my previous one.

UPDATE #2: Co-blogger David Bernstein reminds me of Rehnquist’s notable 1981 concurring opinion in Hodel v. Virginia Surface Mining, where he criticized the Supreme Court’s Commerce Clause jurisprudence for giving Congress too much power.

UPDATE #3: Alicea responds to this post here:

I do not disagree with much of what Somin says. How could one dispute that judicial conservatives have long objected to the expansion of federal power and favored a judicial response to this accretion of authority? No one with a passing familiarity of American constitutional history could contest these points, and I did not do so in my essay

It is equally undeniable that Chief Justice Rehnquist was willing to enforce limits on federal power, especially during the federalism cases of the 1990s. My claim was not that Rehnquist was averse to patrolling the boundaries of federal power. Even a Justice with a far more modest view of the judicial role than Rehnquist will encounter statutes that he or she thinks are clearly unconstitutional.

Nor did I argue that Rehnquist’s view of judicial restraint remained constant throughout his tenure on the Court. I wrote only about his role at the founding of the conservative legal movement in the 1970s, long before the Federalism Revolution of the 1990s. That is not to say that Rehnquist’s views changed dramatically from the 1970s through the 1990s, but I confined my observations of the Justice to his role at the beginning of the movement.

I do think that Rehnquist expressed a modest view of the judicial role during the 1970s, as his 1976 lecture on the “Notion of a Living Constitution” shows….

Even if I were mistaken in describing Rehnquist’s jurisprudence, that would not undermine my point that the older view of judicial restraint was once dominant in the conservative legal movement. Robert Bork undoubtedly adhered to the Justice Harlan conception of restraint, and I think it is fair to say that his jurisprudential views were emblematic of the movement until the early- to mid-1980s. Somin focuses on Rehnquist’s views, but my argument was much broader and does not rise or fall with how the Rehnquist of the 1970s is categorized.

Thus, I think that in arguing that my case is overstated, Somin overstates my case. He ascribes positions to me that I did not express in the article. To take another example, I did not say that the healthcare decision “represents a sea change in conservative attitudes to judicial review.” In fact, I argued quite the opposite: that the change in legal conservatives’ conception of judicial restraint has been going on since at least the 1990s. The healthcare decision simply highlights how far legal conservatives have moved away from the old, Justice Harlan conception of restraint, with its emphasis on deference to current majorities and modest view of the judicial role…

I end by noting that neither Somin nor [Ed] Whelan disagreed with a key argument in the article: that there are two different views of judicial restraint within the conservative legal movement.

With regard to Rehnquist, as I explain in my original post, he argued for strong judicial review on federalism and property rights issues long before the 1990s, and indeed going all the way back to the 1970s. in the 1976 article that Alicea cites, Rehnquist criticized not strong judicial review as such, but judicial review based on “living constitution” theories. He did not object to aggressive judicial review in cases where the legislature adopts laws that are unconstitutional from an originalist point of view.It is also important to emphasize, as I briefly note above, that Rehnquist was not alone in holding those views. Several other conservative justices of the era expressed similar views on federalism, notably Sandra Day O’Connor. Robert Bork did indeed express a more deferential approach to judicial review. But even he suggested in his writings of the 1980s and early 1990s that much of the post-New Deal federalism jurisprudence was questionable. Other prominent conservative jurists made similar statements. Thus, Alicea is wrong to trace the change in conservative perspectives on these issues only back to the 1990s. In reality, it dates back at least to the early to mid-1970s.

I should add that when I said that, on Alicea’s theory, “the individual mandate case represents a sea change in conservative attitudes to judicial review,” I did not mean to suggest that he thinks the sea change occurred only as a result of this case, but rather that the conservative reaction to the mandate is part of a relatively recent change in attitude. I apologize for any confusion on this point. However, I think we do differ in so far as he portrays the change as a relatively recent development, whereas in my view it had deep roots going back several decades.

Finally, I agree that there are at least two views of the judicial role among conservatives. Indeed, there are probably many more than just two. My point, however, is that many prominent conservatives have been arguing for strong judicial review on federalism and property rights issues for a long time now. Neither the 1990s nor the individual mandate case represented a sea change in that respect.

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