In Popular Constitutionalism and the Affordable Care Act, I address how liberals and conservatives have largely swapped places over the last two decades or so concerning attitudes to judicial restraint and judicial activism. When the Warren and Burger Courts ruled mostly to the left of the spectrum, conservatives charged a need for judicial restraint. Liberals were just fine with activism. As the Court shifted to the right, and 5-4 opinions started going against liberal causes, liberals rediscovered fealty to judicial restraint, while conservatives began to embrace an engaged judiciary. Libertarians were always of the engaged position.
What’s strange about all of this is the role the court is playing here. Conservative judges used to rail against liberal activists for striking down laws passed by the duly elected branches of government. The argument was that judges shouldn’t substitute their own values for the ones expressed by the legislature and the executive. Not without a very good reason, anyway, such as protecting the rights of a disempowered minority. When it comes to other sorts of laws like this one, which need only be justified by some reasonable basis, courts are generally supposed to let the democratic process play out. If the voters don’t like Bloomberg’s limit on sugar-drink sales, they can replace him with a mayor who will repeal it. (And in fact, Christine Quinn, Bloomberg’s own choice for his successor, opposes the order.) It’s true that the sugar-drinks partial ban would have thicker democratic roots if Bloomberg had gone to the city council for passage. But it doesn’t look like the city’s charter required him to do that—again, a matter for the voters to repair, if they don’t like the outcome.
Bazelon also ties it into the conservatism at One First Street.
Judge Tingling walked on by all of that in striking down the Department of Health order. And of course he’s not the first conservative judge to find that activism from the bench is awfully appealing when it allows you to sweep away laws you don’t like. Exhibit A is the four-judge dissent in the Supreme Court’s ruling on Obamacare last June. And Exhibit B may turn out to be a majority opinion this term striking down Section 5 of the Voting Rights Act.
That’s another law recently passed by duly elected officials—Congress—by a huge majority. And it’s also another law that may be flawed and incomplete, but hardly looks like it has no reasonable support at all. If you don’t like the Bloomberg approach to regulating high-calorie drinks, or obesity prevention in general, you may not care that it was a judge rather than an elected body of government who stopped the mayor. But remember that next time a judge invalidates a law you do support.
I find it only slightly fitting that Emily Bazelon, the granddaughter of none other than Judge David Bazelon (the Brennan of the D.C. Circuit), calls out conservative judges for being activist.
We have truly come full circle in legal jurisprudence.