The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
In an interview with Hugh Hewitt, Jeb Bush responded to criticism of his brother's selection of John Roberts to be Chief Justice. Without intending it, his answer revealed he would select judges by exactly the same criteria that has given us our current problem with a Supreme Court that is dominated by Republican nominated justices:
"When I was governor, we tried to find people with a proven record of judicial restraint, and people that were committed to enforcing the constitutional limits on government authority. In essence, what I'm saying is I think we need to have people that have not just theoretically, but have had a proven record of not legislating from the bench."
He then doubled down:
"All justices disappoint their presidents some of the time but Souter was like a 90 percent swing and miss," Hewitt said. "How do you avoid Souters?"
"You focus on people to be Supreme Court justices who have a proven record of judicial restraint," Bush answered.
This is exactly the problem with the judicial philosophy promoted by many conservatives for the past 30 years: "judicial restraint" in "enforcing constitutional limits on government authority" leads to NFIB v. Sebelius. In fairness, that is not what Bush actually said but, as George Will recently observed, that is what this judicial philosophy produces in practice.
Thoughtful conservatives today will insist that, properly defined, "judicial restraint" includes enforcing constitutional limits, and the term could be defined that way. But that is not the mentality of "restraint" as it was originally formulated by the Progressives and has been perpetuated by some conservatives. For years, "judicial restraint" has been primarily about not thwarting the will of "democratic majorities." There are myriad doctrines to accomplish this. For example, you adopt a "presumption of constitutionality" that cannot be rebutted. Or find a "saving construction" of a statute to avoid finding it unconstitutional. Or you "defer" to administrative agencies' interpretation of statutes. Or you make a statute "work" as the "legislature intended" (even if that means ignoring the plain or natural reading of its words).
Many good conservatives truly wanted Obamacare invalidated in NFIB because it was unconstitutional. And they then sincerely wanted it to be enforced according to its terms in King. But selecting judges with the judicial mindset of "judicial restraint" and "deference" to the majoritarian branches leads to the results we witnessed in NFIB and King. If conservatives persist in supporting presidents who select judges on this basis, they will persist in being disappointed.
I know, I know. What about Obergefell and gay marriage? Didn't that result from a lack of "restraint"? No, if you don't approve of Obergefell, it is because you do not agree with the constitutional rationale Justice Kennedy articulated for invalidating the state laws at issue, not because he was "unrestrained." Winning Obergefell on the grounds urged by Chief Justice Roberts in his dissenting opinion also gives you NFIB and King. If you want to avoid the latter, then you should criticize the majority on the ground that Justice Thomas did in his dissent: that the majority misinterpreted the Due Process Clause, not that they were "unrestrained." You will notice that Chief Justice Roberts did not join Justice Thomas's dissent (though regrettably, Justices Thomas and Scalia joined his). The Chief Justice's dissent was all about restraint and only secondarily about correctness. He cited Lochner v. New York 16 times because Lochner was supposedly about activism, rather than appropriate restraint. In contrast, Justice Thomas appealed to the original meaning of "the due process of law." There is a big big difference between these two judicial mindsets.
So, if conservative Republicans want a different performance from the judiciary in the future, they must vet their presidential candidates to see whether they understand this point. Jeb Bush clearly does not. And I have personally heard Marco Rubio and Carly Fiorina say much the same sort of thing about judges, showing that they do not understand this either-at least not yet. Only Rand Paul has been very clear about the duty of judges to invalidate unconstitutional law without restraint or deference.
I haven't heard yet what other candidates think about this, but everyone should be listening closely. If you hear catch phrases like "judicial restraint," "deferring" to "the democratic branches," or "not legislating from the bench," then you know this candidate intends to repeat the mistakes of past Republican presidents.
Conservatives must learn from the recent past what not to look for in a justice.
Cross posted on Instapundit.