Supreme Court

Judicial Restraint or Constitutional Abdication?

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Writing at National Review, conservative law professor Robert F. Nagel argues that conservatives have no business asking the federal courts to overturn ObamaCare:

[S]ome on the right are sufficiently sanguine about the Roberts Court that they are eager to abandon conservatives' traditional distrust of judicial power. Using the same kind of imaginative legal arguments that leftist lawyers and judges have relied on in modern times, some thoughtful lawyers on the right propose subjecting state and local governments to increased supervision by federal judges by reading into the Constitution rights that cannot be found there. While liberal lawyers strategize about establishing a constitutional right to gay marriage, conservative lawyers plot to create a right to "medical self-defense." The idea that constitutional argumentation can be used to achieve ambitious moral and political objectives is so attractive that Americans of all political stripes turn to the Court even when the likelihood of vindication is slim.

Nagel goes on to make the standard conservative case for judicial restraint, which includes the importance of letting democratic majorities have their way, restricting the power of unelected judges, and pursuing political change through the ballot box, not through the courthouse. In other words, Nagel thinks the courts should defer to the elected branches in the vast majority of cases, including that of ObamaCare. President Barack Obama certainly agrees. And it looks like Supreme Court nominee Elena Kagan does too.

But the courts weren't meant to be a rubber stamp. They were designed as an essential safeguard against the tyranny of the majority, which means that unconstitutional laws should be struck down, no matter how many elected officials disagree. Judicial restraint tosses this constitutional safeguard out the window.

For more on the problems with judicial restraint, see here and here. And keep an eye out for our July issue, where I'll have an article examining the longstanding division between conservative and libertarian legal activists over this very topic.

NEXT: Last Week's Top 5 Hit & Run Posts

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  1. So the Constitution says whatever Congress wants it to say?

  2. Add this to the list of why I don’t trust conservatives. I won’t RTFA, but it seems like Nagel can only get where he does by 1) claiming conservatives shouldn’t join the game of inventing constitutional rights out of whole cloth, and 2) shoehorning objections to ObamaCare under a “constitutional right to medical self defense.”

    Problem is, #2 has nothing to do with what conservatives (or libertarians for that matter) think or want. I’m an anarchist, but I’m pretty sure the constitutionalist objection to ObamaCare is that it’s not an enumerated power. The fact that Nagel glosses over this point (again, I’m assuming, I won’t read RTFA) demonstrates that’s he not at all interested in pinpointing actual constitutional objections.

  3. Say what you will about Justice Thomas, but he seems to be the only Justice that is still interested in doing what a SCOTUS judge is supposed to do-determine is a law is constitutional or not.

    Arguing for the courts to do anything other than that -be it from a conservative or or liberal argument- goes against the point of having a SCOTUS to begin with.

    There are two decisions that came out today from SCOTUS that show Justice Thomas sticking to his guns.

    1. Thanks for the great link.  So life in prison without parole is OK for murderers who are over 18 but it’s cruel and unusual for those who are younger?  Talk about public policy trumping law under the Constitution.

      1. Justice Thomas criticizes the majority for imposing “an exacting constraint on democratic sentencing choices based on ? such an untestable philosophical conclusion”: “that a 17-year-old who pulls the trigger on a firearm can demonstrate sufficient depravity and irredeemability to be denied reentry into society, but? a 17-year-old who rapes an 8- year-old and leaves her for dead does not.”

    2. I read the Abbott vs. Abbott decision. Breyer is a little out there it seems.

  4. Oh look, conservatives want to defer to “majorities” and “democracy”, just like progressives. How are they different other than their stated goals again? They sure seem to have the same tactics.

    1. Oh look, Epi’s treating people in groups as all the same again, just like progressives. On National Review this is a dissenting opinion, but Epi will never let something like that stop him from lumping people together.

  5. “Restraint” != “do nothing.” Restraint is about following the law A-as written and, in case of ambiguity B-as originally intended. Absent a grant of power to Congress authorizing them to compel Americans to buy products they do not want, “activism” here is doing nothing.

  6. Using the same kind of imaginative legal arguments that leftist lawyers and judges have relied on in modern times, some thoughtful lawyers on the right propose subjecting state and local governments to increased supervision by federal judges by reading into the Constitution rights that cannot be found there.

    Robert F. Nagel, I’m far worse (from your point of view) than SCOTUS justices past or present, liberal or conservative.
    *Pulls out pocket sized Constitution, reads aloud*

    Ninth Amendment

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    The government determining what crops you grow or what medicines you are allowed to take clearly violates this.

    So would the government mandating you purchase crap you don’t want
    from corporations that you don’t wish to do business with.

  7. subjecting state and local governments to increased supervision by federal judges by reading into the Constitution rights that cannot be found there.

    A good description of classic leftist legislation-from-the-bench.

    Of course, it has nothing to do with overturning ObamaCare.

    And of course, the invalidation of legislation by the courts is not “judicial activism” provided there are solid Constitutional grounds. Like, for example, exceeding enumerated powers.

    1. Yes.

      Judicial activism is NOT defined by whether the court is affirming or invalidating some law passed by a legislative body.

      It is determined by whether the judge’s decision is based on the actual language of the Constitution according to the common understanding of what those words meant to those who ratified it at the time they ratified it.

      1. Absolutely not, Gilbert. You are trying to redefine judicial activism into a pejorative that simply means “whatever is wrongly decided.”

        Judicial activism means going against the political branches of government, right or wrong. Up until recently, it has been used pejoratively by people who think courts have been too active against the political branches, but judicial activism can be “good” when it stops the political branches from infringing on fundamental rights.

        Failing to stop the political branches from infringing fundamental rights is judicial abdication, NOT activism.

        Judicial abdication can do as much damage as misplaced judicial activism, but it is not the same thing as judicial activism. They are as different as a drought is from a flood.

        1. “Judicial activism means going against the political branches of government, right or wrong”

          Nope.

          It means exactly what I said.

        2. Judicial activism means going against the political branches of government, right or wrong.

          Impossible to say that this is the accepted definition. From a FindLaw article we see:

          The Harper Collins Dictionary of American Government And Politics depicts judicial activism as the “making of new public policies through the decisions of judges.”

          Black’s Law Dictionary defines it as a “[j]udical philosophy which motivates judges to depart from strict adherence to judicial precedent in favor of progressive and new social policies which are not always consistent with the restraint expected of appellate judges.”

          The New Dictionary of Cultural Literacy says it is synonymous with the term “broad construction” – which, according to the dictionary, is a “theory of interpretation of the Constitution that hold that the spirit of the times, the values of the justices, and the needs of the nation may legitimately influence the decisions of a court, particularly the Supreme Court.”

  8. J sub D nails it for me: The Constitution doesn’t GIVE anyone any rights. It’s meant to protect the rights we already have. The SCOTUS exists to keep the Government up to date with the hard-earned rights that women and blacks have gained since the time of its writing.

    1. Yes, the Constitution was written to limit the government’s powers, not the people’s.

  9. Oops. I meant for the latter half of that post to be an example, not to mean that only the listed parties have any rights…

  10. Again, I say: the “power” does not lie with unelected judges, it lies with the Constitution. The unelected judges are supposed to defend the Constitution from usurpation by self-aggrandizing politicians.

    1. Again, I say: the “power” does not lie with unelected judges, it lies with the Constitution. The unelected judges are supposed to defend the Constitution from usurpation by self-aggrandizing politicians.

      Look up Minor v. Happersett, Baker v. Nelson, Rostker v. Goldberg, and Michael M. v. Superior Court

      Based on those precedents, how should the Supreme Court rule on the constitutionality of laws that recognize real marriage, but not same-sex “marriage”?

  11. The next post contains an excellent example of Constitutional abdication.

  12. Perhaps Mr. Nagel Esq. should go in to another line of work, or at least refraining from speaking on topics he clearly knows very little about.

    Of course, being a lawyer, the latter may be physically impossible for him to do.

  13. The method that the Supreme Court should interpret the Constitution is:

    1. plain text

    2. original public understanding

    3. precedent

  14. Newsflash to libertarians: You are not the Apostles of Constitutional Truth… you hold but one of many competing ideals about its meaning and the way in which it should be interpreted today. Get over it! If you really want to have your way, get control of the Presidency or Congress! It’s democracy, stupid!

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