Activism, Restraint, and Engagement in NFIB v. Sebelius

July 10th, 2012

Joel Alicia writes:

 The truth is that the conservative legal movement’s conception of judicial restraint has changed, departing from the view it held when it emerged from the constitutional wilderness to which it had been banished during the Warren Court. NFIB v. Sebelius displays a conservative legal movement in transition—and one that is increasingly leaving the judicial restraint in Roberts’ opinion behind. . .  .

Of course, originalism was not—and is not—the entirety of the conservative legal movement. There has always been a vocal libertarian element, especially with the rise of the law and economics movement. Similarly, there has been a strain of legal conservatism that rejects originalism on the one hand and libertarian ideology on the other. But when it comes to constitutional interpretation, originalism has been the default theory of legal conservatism, and it is appropriate to look at how originalism developed for insight into the broader movement. . . .

And so we arrive at NFIB v. Sebelius. The chief justice’s opinion displays a clear embrace of the old judicial restraint. He announces that “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” Although the joint dissenters would likely agree with this principle, the key word is “reasonable.” The Justice Harlan conception of judicial restraint leads Roberts to stretch the language of the statute far beyond what the dissenters believe is reasonable—or indeed constitutional. . . .

Just as the old theory of judicial restraint came under intellectual attack, so too does Roberts’ opinion for the Court—and for the same reasons. The problem with the old theory of judicial restraint, so the critique goes, is that in straining to sustain the will of today’s fleeting majority, a judge may ignore a fairly clear constitutional command from the original popular sovereign: the people who enacted the Constitution. The more recent idea of restraint sees the old way as a straightforward abdication of a judge’s duty to safeguard the limits of political power. Where a law is unconstitutional, it must be declared so, and the judge who contorts a law to save it is viewed as engaging in the very activism he disclaims.

The clash between the chief justice’s opinion and that of the joint dissenters is therefore best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement. The overwhelmingly negative response to the Chief Justice’s analysis shows just how far the movement has distanced itself from the old theory of restraint, embracing instead a view that cares less about how many statutes are struck down than about why they are invalidated. For the chief justice, his opinion is the epitome of judicial modesty. For the dissenters, it is the height of judicial arrogance. Roberts thinks his actions are compelled by respect for the coordinate branches of government; the dissenters see his actions as flouting the Constitution that called that government into being. And at this moment in the history of the conservative legal movement, Roberts stood alone.

This sums up a lot of my thoughts. After I finish a blitz of work before I wrap up in chambers, you will see much more.