Libertarian History/Philosophy

Conservatives, Progressives, and Judicial Deference

A reply to National Review's Ramesh Ponnuru.

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On Tuesday I noted a piece in National Review which urges conservatives to reject the "libertarian constitutionalism" described in my new book Overruled: The Long War for Control of the U.S. Supreme Court. According to National Review, "conservative judicial deference" beats libertarian judicial engagement because the conservatives are the ones following in the footsteps of the founding fathers. In response, I observed that today's legal conservatives actually owe much more to the turn-of-the-20th century Progressives than they do to folks like James Madison and John Marshall.

Writing yesterday at National Review, Ramesh Ponnuru took issue with my genealogy. "The concept of judicial restraint goes back much further than to the progressive era," Ponnuru declared.

But I never claimed otherwise. Of course there was a debate over judicial restraint during the founding era (see my reference on Tuesday to the Jefferson-Marshall feud for a small taste of it). There was also a raging debate over judicial restraint during the period immediately following the Civil War and the ratification of the 14th Amendment, as I detail in Overruled's first chapter.

My book's historical argument about genealogy goes like this: The majoritarian version of judicial deference championed by Progressive thinkers and fellow travelers such as James Bradley Thayer, Oliver Wendell Holmes Jr., Felix Frankfurter, Learned Hand, and Hugo Black had a massive and direct influence on the modern conservatives who advocate a similarly majoritarian brand of judicial deference, such as the late Robert Bork.

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According to Ponnuru, "Root argues that judicial restraint, though many conservatives have championed it for decades, actually has progressive roots. I take it that this argument is meant to suggest that conservatives should be suspicious of the idea." Ponnuru must be unaware that Robert Bork himself proudly owned up to the decisive influence that Progressive legal thinking had on his own intellectual development. Among other things, Bork repeatedly credited his fellow Yale law professor Alexander Bickel, with whom Bork co-taught a class on the Bill of Rights, as the thinker who convinced Bork that substantive due process was wrong and that the Supreme Court engaged in heinous judicial activism in Griswold v. Connecticut.

So who was Bickel? He was a former clerk to Progressive Justice Felix Frankfurter and an eloquent and influential proponent of Progressive judicial deference in his own right. In his 1962 book The Least Dangerous Branch, for example, Bickel criticized judicial review as a "deviant institution" that should rarely be used against the democratically accountable branches of government in our majoritarian society. "When the Supreme Court declares unconstitutional a legislative act or the action of an elected executive," Bickel wrote, "it thwarts the will of the representatives of the here and now."

That's stronger stuff than anything that ever came from the pen of Chief Justice Marshall (including Marshall's famous nod to judicial restraint in Fletcher v. Peck). It is, however, precisely the sort of stuff that we find again and again in the judicially deferential writings of Progressive heroes like Holmes and conservative heroes like Bork. But as I said earlier, don't take my word for it. Bork repeatedly acknowledged his own Progressive DNA.

In the introduction to Overruled I write that the debate over the merits of judicial deference is "a contest that cuts across the political spectrum in surprising ways and makes for some unusual bedfellows." Like it or not, the Progressive-conservative legal connection is a clear example of one such coupling.