Obamacare and the Perils of Conservative Judicial Restraint

Conservative judicial restraint came home to roost.

Credit: Whitehouse.gov

Republican presidential hopeful Jeb Bush recently appeared on Hugh Hewitts's talk radio show and denounced the Supreme Court's Obamacare ruling in King v. Burwell. According to Bush, if he becomes president, he plans on appointing new justices who will do the right thing in similar cases in the future. How will he find the appropriate justices to appoint? "You focus on people to be Supreme Court justices who have a proven record of judicial restraint," Bush declared.

Writing at the Volokh Conspiracy, Georgetown law professor Randy Barnett practically doubles over in laughter at Bush's preposterous solution. If Republican presidents keep appointing justices committed to "judicial restraint" and "judicial deference," Barnett points out, Republican presidents will keep getting deferential justices like John Roberts who write deferential majority opinions like the Obamacare cases King v. Burwell and National Federation of Independent Business v. Sebelius. Barnett explains why:

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.

In a piece last Friday, I made a related point:

In the approving words of National Review editor Ramesh Ponnuru, [judicial deference] "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."

Sound familiar? "It is not our job," John Roberts wrote in 2012, tipping the scales in favor of Obamacare, "to protect the people from the consequences of their political choices." He tipped the scales once again yesterday in King v. Burwell. "In every case we must respect the role of the Legislature, and take care not to undo what it has done."

Whether conservatives like it or not, John Roberts is the heir to a well-established school of conservative legal philosophy.

Comments

[Rich]

"In every case we must respect the role of the Legislature, and take care not to undo what it has done."

Show me where in the Constitution ....

[WTF]

The FYTW clause, of course.

[jrombouts]

Conservative judicial restraint was always a load of crap any way. There is no such thing as conservative or liberal judicial restraint. They all legislate from the bench. And law and order judge just means that they believe that they should be a rubber stamp for police and prosecutors. Our prosecutors and personal injury lawyers should not be able to bring their trumped up cases so easily as they do now. Personal injury crooks cost each consumer individually thousands of dollars each year in higher costs for goods and services. They are nothing but ambulance chasing crooks! And this same court ruled a few years ago, that prosecutors that knowingly prosecute innocent people, and withhold exculpatory evidence from the defense, cannot be sued for their own criminal conduct personally. So prosecutors get a free pass to trample on peoples rights. That's our law and order judges for you.

[Swiss Servator, Holzhacker]

It is not restraint to rewrite the law...penaltax, Medicaid funds, State = State or Fed....

[Auric Demonocles]

Root's insistence on calling legislating from the bench "restraint" is almost as disgusting as his lack of alt-text.

[Wizard with a Woodchipper]

You nailed it, Swiss. When did restraint mean rewriting the law? Apparently words don't have meaning for Roberts or for Root.

[Mickey Rat]

Root's definition of restraint is results oriented (the government getting what it wants). The definition of restraint as I had understood is process oriented (not discovering things in the text of the law under consideration that are not there). The former is a frustrating definition because it is essentially unprincipled. It can celebrate pretzel logic on the part of yhe judiciary as well as condemn it depending on the result.

[darius404]

No, Roots idea of restraint is based on whether or not they're striking down laws. They're doing their utmost here to keep from striking down the law, therefore they're practicing judicial restraint. I don't know if that's the best term to use here, but as far as I can tell that's what he means.

[darius404]

Personally I think "judicial deference" works a lot better. Also, terming this behavior "judicial restraint" doesn't really originate with Root anyway, refraining from striking laws down has been called restraint for a while.

[Mickey Rat]

Then by the definition you give here what Roberts did is not restraint as he did strike down the relevant part of the law as written.

[IceTrey]

They didn't strike down the relevent part of the law they extended it to cover the interpretation of the IRS.

[IceTrey]

As Scalia said they effectively added the words "or the Federal government."

[Mickey Rat]

I think tjat is a semantic distinction. SCOTUS did not uphold the law as written, they changed it to what the executive preferred.

[IceTrey]

It wasn't about striking down the law it was about the IRS's interpretation of the law.

[Fist of Etiquette]

Republican presidential hopeful Jeb Bush recently appeared on Hugh Hewitts's talk radio show and denounced the Supreme Court's Obamacare ruling in King v. Burwell.

Did he drop an n-bomb?

Poor Jeb. He could have easily said he would sniff out justices who would accept the judicial role as a check on the legislative and executive.

[Alan Vanneman]

Libertarians want judges who will legislate from the bench, which is what Barnett is advocating, because libertarians can't win enough elections to legislate from the legislature. Learn to win, or learn to lose!

Further offensive thoughts here:

http://avanneman.tumblr.com/po.....-bad-court

[WTF]

You keep misspelling your first name.

[deepspeed]

Trying to protect individual liberty from the tyranny of the majority does seem to be a losing battle, I'll give you that.

[The Late P Brooks]

Professional courtesy.

[The Late P Brooks]

"In every case we must respect the role of the Legislature, and take care not to undo what it has done."

This raises the question of why the SC even exists. If the law is what the government says it is, no further interpretation is needed.

[Tacos Los Gatos]

Is Jeb Bush really the best Republicans can do in 2016?

[Wizard with a Woodchipper]

Don't you know, the one person that the country needs more than anyone right now is another Bush. And, hey, it's his turn, right?

[Wizard with a Woodchipper]

AND he can speak Spanish, too!

[Tacos Los Gatos]

Bush, Clinton, Bush, Obama ... Bush/Clinton?

I'm seeing a disturbing pattern here.

[Crusty Juggler]

Don't forget about Chelsea, and then the other Bush's. Taking turns forever.

[Joec578]

There is Rand Paul.

[Number 2]

But despite Roberts' claim to the contrary, how exactly was his decision in King an exercise in "judicial restraint?" The logical schematic of his analysis looks like this:

1. Congress passed a law seeking to achieve a certain end, but...
2. The law contains a troubling provision that "strongly suggests," -- hell, specifically says -- something that, in retrospect, may not actually help Congress achieve the end it wanted to achieve, accordingly...
3. We will "interpret" the law to re-write this clear provision to say what we think Congress would actually have said had they thought about matters a tad more carefully...
4. And this somehow constitutes "judicial restraint" and "deference" to the legislative branch!

This type of "analysis" -- calling it "applesauce" is far too kind -- actually invites the very sort of judicial activism that Roberts purports to be opposing.

Besides, "judicial restraint" and "deference" were not really issues here. The court cannot "defer" to the will of Congress until it determines what Congress "willed" in the first place. The issue here was determining the meaning of the exchange clauses of the ACA. Deference to Congress includes deference to provisions that are flawed or fail to operate in the manner Congress anticipated.

[Mickey Rat]

Roberts ruled that Congress is not accountable to write laws in clear sense, that the executive and judiciary are not bound to follow the law as written. Roberts has, in a real sense, stripped Congress of the legislative authority in the federal government.

[Francisco d'Anconia]

Judicial restraint is an abomination. The three branches of government should constantly be at each other's throats. They are not supposed to get along, they are supposed to be defending the rights of the individual and policing each other. Any judge who says his job is to knuckle under to Congress should be impeached.

[Morpheus was right]

Yup, this.

[IceTrey]

But they DID undo what the legislature had done since the Congress wanted each State to set up it's own exchange and was using the loss of subsidies as a stick to coerce them into that action!

[John Thacker]

The decision came out on the one year anniversary of the Aereo decision. Same majority, same reasoning. The same six members of the Court agreed that what Congress probably intended for the regulation to function was more important than the text actually passed.

[kbolino]

The same six members of the Court agreed that what Congress probably intended for the regulation to function was more important than the text actually passed.

Which is itself nonsensical, since Congress can just pass another bill to make its intent clear. The idea that the court should cover for Congress's "mistakes" is basically premised on undermining the political and legislative processes in favor of administrative process.

[LIBSRBEDWTRS]

This Supreme Court has clearly become an Activist Supreme Court

[Father of Two]

What is this "Newspeak" in which a jurist rewriting sections of a law is referred to as "restraint"?

[LIBSRBEDWTRS]

" Whether conservatives like it or not, John Roberts is the heir to a well-established school of conservative legal philosophy." BULLSTUFF-----John Roberts is a mixed up Man in Black-----he lurches left upholding and saving an unconstitutional law which compels individuals to buy a product and then penalizes them if they dont---thereby denying the individual the right to choose---and also infringing on their Liberty. Then ---he dissents on the unconstitutional decision by Kennedy granting and making homosexual marriages legal and recognized in all 50 states.

[IceTrey]

You don't have to be gay to get same sex married.

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