Judge Sutton wrote a piece for the Marquette Alumni Magazine looking at the Jehovas Witness flag salute cases, and how the Court switched its vote from Gobitis to Barnette. In analyzing the jurisprudences of Justices Frankfurter and Jackson, Sutton offers his opinion about how courts should treat close constitutional cases.
Consider the two possibilities. If forced to generalize, I would suggest that, in most close constitutional cases, the Court should err on the side of deference to the elected branches—on the side of judicial restraint. More often than not, the Court poses a greater risk to the country by invalidating laws than by letting the political processes oversee them. The American people are more likely to accept the resolution of difficult social and economic issues when they have a say in the matter. While democracy is flexible, judicial review is not. While democracy is designed to adjust to new circumstances, judicial review generally is not. And while all legislative and judicial decisions will have unintended (and unknown) consequences, the elected branches are far better equipped to respond to them than life-tenured judges. In close cases, it thus makes sense for courts to err on the side of democracy—to allow the elected branches of government to monitor, adjust to, and ultimately solve, as best they can, difficult social and economic problems.
This is quite similar to Judge Sutton’s philosophy expressed in his concurring opinion in the 6th Circuit’s ACA case (though Judge Sutton did not think the ACA case was even close).
Today’s debate about the individual mandate is just as stirring, no less essential to the appropriate role of the National Government and no less capable of political resolution. Time assuredly will bring to light the policy strengths and weaknesses of using the individual mandate as part of this national legislation, allowing the peoples’ political representatives, rather than their judges, to have the primary say over its utility.
This also echoes points that Judge Wilkinson has made about judicial restraint in close cases in his article comparing Heller to Roe.
When a constitutional question is so close, when conventional interpretive methods do not begin to decisively resolve the issue, the tie for many reasons should go to the side of deference to democratic processes.
These are the views of what Randy Barnett has deemed judicial conservatives. Rather than erring on the side of the Constitution–or as Randy would phrase it alternatively, on the side of liberty–these conservatives err on the side of constitutionality and deference to the democratic process.
Later in the essay, Sutton elaborates on what he sees as a potential “cheapening” of our governmental by the Justices protecting rights of dissenters:
In civil-liberties debates, moreover, it sometimes is worth asking this question: Would you rather live in a country in which a majority of a nine-member Supreme Court protects the rights of dissenters or a country in which a majority of its citizens do so? What, for example, is more important to the protection of racial and religious minorities in this country: Court decisions such as Brown or legislation such as the 1964 Civil Rights Act? There is something to Frankfurter’s insight that civil liberties are best protected when they become part of our political culture and part of what we Americans do for each other, not what the Supreme Court does for us. Every time the Court protects the people from their own mistakes, it risks cheapening self-government and undermining the polity’s capacity to steel itself against the next misbegotten policy urge of the moment.
In light of these questions, I wonder how Judge Sutton would have voted had he sat on the 6th Circuit 70 years earlier, perhaps considering civil rights cases, or segregationist legislation from Kentucky or Tennessee, that affects the “rights of dissenters.” Should judges have merely waited a few decades till the Congress narrowly passed the Civil Rights Act? Could it be that cases like Brown set the stage for these landmark pieces of legislation.
In his new book, Judge Wilkinson punts on this difficult question, reasoning quite unconvincingly: outlier “[d]ecisions like Brown, Gideon, and Miranda represent success stories because they vindicated foundational principles essential to the functioning of our nation. But I doubt there are now Browns and Gideons waiting to be born.”
To simply shoo away any future constitutional conflicts by saying the Supreme Court has already decided the important cases is short-sighted, and somewhat reminiscent of the 19th Century Patent Commissioner who purportedly boasted that “Everything that can be invented has been invented.” This is not the case with respect to inventions, and it is certainly not the case with respect to future unexpected constitutional crises. Further, this position does nothing to address whether a Justice Wilkinson sitting on the Fourth Circuit or the Supreme Court decades earlier would have decided any differently. Unexpected changes in our society—disputed presidential elections, a war on terror, broccoli mandates, and other constitutional black swans— will happen, and the Supreme Court will confront them.
And this debate is certainly not limited to historical cases. Judge Sutton, like Chief Justice Roberts and Judge Kavanaugh, were recently confronted with just such a decision in the Health Care Cases, and they voted on the side of deference. Totally unrelated, CJ Roberts appointed J. Sutton as the chair of the Committee on Rules on Practice and Procedure–the question of whether the Chief Justice unilaterally appointing people to offices, rather than the Court as a whole is of dubious constitutionality. The appointment clause in Article II, s. 2 vests the power of appointment of inferior offices in the “Courts of law,” not in the Chief Justice. Textually, the only “Courts of law” in the Constitution is the Supreme Court. Thus, the argument could be made is that the 9 Justices share that appointment power.
Later, Sutton makes an interesting point about the division between “economic” rights and “liberty” rights.
He was rightly skeptical of the idea that constitutional rights could be neatly divided into economic and liberty rights, and indeed there is some support for this point in the modern era. Is it really true, for example, that the Supreme Court’s 2005 Kelo v. City of New London decision—permitting the use of eminent domain over a middle-class family’s home for the purpose of economic development by a large corporation—is a case about property rights as opposed to liberty rights?
Should it matter how a right is characterized? The artificial bifurcation of rights through Footnote Four was one of the most significant quantum leaps in constitutional law, though one that was based on a normative judgment that some rights were simply more important than others. Though, frankly, I’m not really sure what the difference is between an economic right and a liberty right. The 5th Amendment protects against takings of private property except for public use. You can label the individual interest however you wish, but, like most rights, it comes down to individual liberty put up against the state’s power to restrict that right for some proffered greater good.