Randy Barnett’s Changed Tune on Precedents and Unprecedentedness?

May 29th, 2012

Jeff Rosen makes an astute point about Randy Barnett’s new-found appreciation for adhering to the Supreme Court’s precedents.

Barnett’s suggestion that he and the other challengers of the law are not seeking a radical change in the law is amusing. In 2005, after all, Barnett asked the Supreme Court tooverturn the 1942 Wickard v. Fillburn case, which allowed Congress to regulate a farmer who was growing wheat in his personal use. But in Gonzalez v. Raich, the Supreme Court, in a 6-3 opinion written by Justice Antonin Scalia, rejected Barnett’s invitation to return to a narrow, pre-New Deal vision of Congress’s commerce power. (Only Justice Clarence Thomas signaled a willingness to overturn Wickard.) Now Barnett implies that he is asking the Supreme Court to do no more than respect the previous precedents that he has devoted his career to trying to overturn. . . .

Barnett’s response is that, despite having staked his career on the need to overturn the New Deal, he is not, in the health care case, arguing for overturning the New Deal, but is simply making a narrow, modest argument for applying the existing precedents that he has devoted his career to denouncing. Barnett’s conclusion: “I almost admire Jeff Rosen’s chutzpah.” I wholeheartedly admire Randy Barnett’s, and I still hope that Chief Justice Roberts has decided to reject it.

Randy replies:

Rosen inaccurately claims that, in the Raich case, I asked the Court to reverse Wickard v. Filburn.  To the contrary, throughout that litigation, in our briefs and my oral argument, we distinguished Wickard, knowing full well that the success of the lawsuit depended on not reversing Wickard.  As we stated in our brief, “Wickard differs substantially from this case. Properly understood, it supports a decision for Respondents.”  First, we contended that the Agricultural Adjustment Act upheld inWickard applied to commercial farms above a certain size, unlike the Controlled Substances Act which was being applied to backyard marijuana grown for personal consumption.  Second, we contended that the opinion in Wickard did not turn on the “home consumption” of wheat by the farmer’s family (as the case is often taught), which the Court noted varied little and was small in quantity, but of the marketing of wheat as meat, i.e. feeding it to livestock and then sending the livestock into commerce.  ”Consumed on the farm” referred mainly to wheat consumed as feed for livestock.  While devoting pages to this argument, in a single sentence we did ask that Wickard be reconsidered “if the Court were to conclude that Wickard is controlling” (i.e. if it rejected our distinctions), but this is an obligatory request never mentioned in oral argument.  It was never part of our objective in Raich. Sadly, our attempt to distinguish Wickard, although largely adopted by Justice O’Connor in her dissent, was rejected by the Court.   (I have asked Jeff for a correction, which I assume will be forthcoming and will update this post when it occurs).

Randy’s second point is more interesting.

Rosen accuses me of “soft-peddling” our arguments in the ACA challenge, but in this case we are making the arguments we are making, and not making the arguments we are not making.  There is no soft-peddling.  That I hold other views, such as a commitment to originalism, that are not being put forward in this challenge is irrelevant to the merits of the arguments we are making in court (as they were inRaich).  If the Court accepts the arguments we are making it will entail no acceptance of other positions I may hold that are not being advanced in the case.   But the case will stand for the proposition that there are are judicially-enforceable limits on the enumerated powers of Congress, which I believe there must be —  a proposition that Chief Justice Rehnquist reaffirmed in his majority opinion in Lopez.

In this case, Randy has not advanced his originalist view of the Lost Constitution which he seeks to restore. Likewise in Raich, though he has written for years that Wickard should be overturned, he only perfunctorily asked the Court to do so. This raises an interesting dichotomy between the role of Randy as an advocate and the role of Randy as an academic. The Godfather blurs the line.

In any event, Rosen throws down the gauntlet to Chief Justice Roberts:

John Roberts’s choice in the health care case has nothing to do with judicial independence and everything to do with what kind of judicial conservatism he wants to embrace: that of activist libertarians such as Randy Barnett and Janice Rogers Brown or that of traditional conservatives, such as Lawrence Silberman and Jeffrey Sutton, who have rejected Barnett’s arguments and voted to uphold the health care law.

You are either with us or against us.

The politics of this case are fascinating.