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Article III, Section I of the U.S. Constitution vests “the judicial power” in “one supreme Court, and in such inferior Courts as Congress from time to time may ordain and establish.” Most supporters of ratification understood the judicial power as including the authority to decide whether acts of Congress were consistent with the Constitution. “If a law should be made inconsistent with those powers vested by this instrument in Congress,” constitutional convention delegate James Wilson explained to the Pennsylvania ratification convention in December 1788, “the judges, as a consequence of their independence, and the particular powers of government being defined, will declare such law to be null and void.” This is the power of judicial review.
“Judicial review is doubtless the main issue that separates conservative and libertarian jurisprudes,” says Roger Pilon, an influential legal thinker who serves as director of the Center for Constitutional Studies at the Cato Institute, a libertarian think tank. “But that divide is rooted in turn in more fundamental differences about the American system of government.”
Libertarians typically favor an aggressive judiciary that is willing to overturn mistaken precedents and strike down unconstitutional state and federal statutes. The Georgetown law professor Randy Barnett, for instance, has argued that the courts should adopt a “presumption of liberty,” meaning that the government should be required “to justify its restriction on liberty, instead of requiring the citizen to establish that the liberty being exercised is somehow ‘fundamental.’ ”
That position is almost the exact opposite of the judicial restraint advocated by Meese and other conservatives. As Ramesh Ponnuru of National Review has put it, judicial restraint “is best understood as a finger on the scales, tipping judges in close cases against invalidating the actions of Congress or state or local governments.”
Clark Neily, a senior attorney at the Institute for Justice and, in his private capacity, one of the winning attorneys in the Heller gun rights case, describes the source of disagreement this way: “What level of skepticism do you bring to government?”
It’s common to assume that conservatives bring a very high level of skepticism to government. But when it comes to legal theory, that’s not necessarily the case. Consider the Supreme Court’s decision in Lochner v. New York (1905). At issue was a provision of New York’s 1895 Bakeshop Act that banned bakery employees from working more than 10 hours per day or 60 hours per week. Writing for the majority, Justice Rufus Peckham nullified the law for violating the right to liberty of contract protected by the Due Process Clause of the 14th Amendment, which says that no state shall “deprive any person of life, liberty, or property, without due process of law.”
Unsurprisingly, liberals denounced Peckham for striking down this economic regulation and later cheered the Supreme Court when it rejected liberty of contract in the landmark New Deal case West Coast Hotel v. Parrish (1937). Since the Constitution doesn’t mention liberty of contract, the liberal argument went, the Court had no business overriding the wishes of the New York legislature. Ask virtually any liberal law professor about Lochner, and he’ll tell you it’s a blatant example of judicial activism. Cass Sunstein, who teaches law at Harvard and the University of Chicago and currently serves as head of the federal Office of Information and Regulatory Affairs, has even compared Lochner to Plessy v. Ferguson (1896), the notorious case that enshrined the vile doctrine of “separate but equal” into law.
What’s surprising is that many of today’s most prominent legal conservatives share this hostility to Lochner. Foremost among them is Robert Bork, the former federal appeals court judge whose failed 1987 nomination to the Supreme Court galvanized conservatives and set a template for future judicial confirmation battles. A distinguished Yale law professor, bestselling author, and popular speaker, Bork has had an immeasurable impact on the conservative legal movement. Indeed, he is arguably its most influential figure. And in Bork’s opinion, Lochner represents “the symbol, indeed the quintessence, of judicial usurpation of power,” as he put it in his bestselling 1990 book The Tempting of America.
As Bork sees it, the “first principle” of the American system isn’t the protection of individual rights. “In wide areas of life,” he writes in The Tempting of America, “majorities are entitled to rule, if they wish, simply because they are majorities.” That means that in the vast majority of cases, the courts should give lawmakers the benefit of the doubt and presume the constitutionality of the disputed law, including economic regulations. In other words, courts should adopt a pro-government posture of judicial deference.
Chief Justice John Roberts offers an instructive example of the problems this approach can cause. During his 2005 Senate confirmation hearings, Roberts stressed his belief that the Supreme Court should practice “judicial modesty,” a respect for precedent and consensus that he extended even to the abortion-legalizing Roe v. Wade (1973), a case Roberts described as “the settled law of the land.”
Yet as Citizens United later demonstrated, Roberts’ judicial modesty has limits. In his concurrence in that case, Roberts argued that the Court was perfectly justified in overturning its decisions “if adherence to a precedent actually impedes the stable and orderly adjudication of future cases”—when, for example, “the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.”
That formulation leaves a lot of wiggle room for a self-described champion of judicial modesty. Many liberals would say Citizens United is hotly contested and therefore deserves to be overruled. Most conservatives would say the same thing about Roe v. Wade. And that’s precisely the point of judicial restraint; it eliminates all that picking and choosing by requiring judges to defer to the will of the majority.
Roberts tried to have it both ways, employing the standard conservative rhetoric of judicial restraint while selectively wielding a more libertarian form of judicial review. That’s what prompted Stuart Taylor to lambast him for forfeiting the high ground. It’s now anybody’s guess whether, in cases where conservatives prefer a particular outcome on policy grounds, the Roberts Court will flex its judicial muscles or defer to precedent and the popular will.
‘A Sea of Individual Rights’