How deference leads to activism (or scuttling originalism)

|The Volokh Conspiracy |

Professor Mike Ramsey has an interesting response to my previous post on constraint vs deference:

The problem with judicial restraint (meaning simply deference to legislative majorities) as an interpretive philosophy is that it isn't an interpretive philosophy. No one (except those who don't believe in judicial review at all—and they are unlikely to be appointed to the Supreme Court) thinks the Court should always defer. Rather, they think the Court should mostly defer, unless something points strongly the other way. But what is that "something"? Unless "judicial restraint" judges have some interpretive philosophy (such as originalism) informing their decisions, nothing tells them what can overcome the principle of restraint. So, most likely, they will abandon restraint when intuitively there seems a moral imperative to do so—that is, in the most important cases. So paradoxically the advocate of restraint becomes unrestrained when it matters most.

To be clear, I'm not saying this always happens, just that it's a risk. And there are very good restrained originalist judges, such as the Sixth Circuit's Jeffrey Sutton (who deferred in both the first ACA case and in the same-sex marriage case). But I'm skeptical of an approach that says, I'll be restrained except when I think it's really important not to be. And I think that's the way a lot of judges look at it.

Of course, many advocates of judicial deference are also committed to originalism. Indeed, the person as much responsible for the rise of originalism as anyone—the great Ed Meese—advocated both originalism and judicial deference.

But a tension between these two approaches soon emerged: What happens when a law conflicts with the original meaning of the text? Should judges still defer to the legislature? Most of today's advocates of "judicial restraint" would surely say "no." But then what is left of "deference" after one accepts that the constraints of original meaning cut both ways? Deference advocates make 2 moves.

The first we have already seen emerge in this debate: they urge a presumption of constitutionality that requires a "clear conflict" with the text before a law can be invalidated. With this move, the question becomes how such a presumption can be rebutted. If you adopt Justice Holmes's approach in his famed Lochner dissent—that the Chief Justice so lovingly invoked in his dissenting opinion in Obergefell v. Hodges – then the presumption is irrebuttable. But this means it is not truly a presumption at all. It is a fig leaf for always upholding majoritarian will. This was the approach first taken by the Warren Court in 1955 in Williamson v. Lee Optical. In essence, judicial deference does all the work, as all legislation considered under this presumption is upheld.

If, however, the presumption is rebuttable, as Justice Harlan's dissent in Lochner assumed it to be, then we need an administrable legal doctrine that specifies how it is to be rebutted. For example, if it can be shown that a law was merely a pretextual assertion of a health and safe concern raised by the exercise of liberty, we may conclude that it was really passed for "other motives," rather than legitimate health and safety police power concerns. This was the position articulated by Chief Justice Marshall with respect to Congressional power in McCulloch v. Maryland:

Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government; it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.

And "other motives" is what the Court suspected in Lochner because it found the health and safety claims to be tenuous at best. Eventually, the New Deal Court used "judicial deference" to implicitly repudiate Marshall in U.S. v Darby: "The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which the Constitution places no restriction, and over which the courts are given no control." This is still said by the Court to be good doctrine-a good constitutional construction.

While I favor a "presumption of liberty" in which those defending restrictions of liberty bear the burden of proof, who bears the burden is less important than the possibility of bringing a challenge based on evidence. As the New Deal Court had earlier said in U.S. v. Carolene Products: "a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis." (In 1972, that led a federal district court judge to invalidate the Filled Milk Act.)

Such a genuinely rebuttable presumption approach is a doctrinal middle ground on which constitutional conservatives might come to consensus.

But some advocates of judicial deference make another move: to avoid finding a "clear conflict" with the Constitution, they deprecate the more "abstract" or "vague" or "unclear" passages of the text. Taking judicial deference to the extreme, Judge J. Harvie Wilkinson contended that the words of the Second Amendment are too vague to be judicially enforced. Both Heller and McDonald, he says, "found judicially enforceable substantive rights only ambiguously rooted in the Constitution's text."

In the same spirit, deference advocates assert equally flawed theories to show that the Ninth Amendment, the Privileges or Immunities Clause, the Due Process Clause, etc. don't really mean much of anything either. Of course, these claims about original meaning might be accurate readings of the text. But this should be decided based on evidence not assertions of what they "must" mean to keep judges from invalidating laws.

Of course, in many places the text expressly grants discretion to those to whom power is granted. For example, "Each House shall keep a Journal of its Proceedings, and from time to time publish the same, excepting such Parts as may in their Judgment require Secrecy." The term "may" appears frequently in the text, indicating discretion. But there is nothing discretionary about the words "shall not be construed to deny or disparage" or "no state shall make or enforce any law."

For over 20 years, I have addressed at length how the original meaning of these passages may be implemented by the use of appropriate presumptions and proof without granting judges the authority to identify and enforce specific special rights. But any approach that effectively reads all these general clauses out of the Constitution seriously distorts its meaning. The Fourteenth Amendment without the Privileges or Immunities Clause reads quite differently than with it. So too do the first eight amendments without the Ninth.

In essence, some defenders of "judicial restraint" would have judges ignore wherever the Founders or later generations spoke in sweeping, abstract, or general terms because they do not fit some preconceived notion of specificity. Only the more specific provisions of the text, they claim, are "law-like" enough to pass muster. This has proven to be a highly effective way for judges to allow other constitutional actors to escape the constraints imposed upon them by the text. Is this not form of "activism"?

This is not to deny that judges have far exceeded the constraints imposed upon them by the meaning of the text, and have been doing this for a long time. Indeed, this is my claim. When this happens, however, they are to be condemned by constitutional conservatives for violating the constraints imposed upon them by the text of the Constitution, not for failing to defer to the will of the majority. Justices should be selected for their demonstrated commitment to being constrained by the original meaning of the text-whether to uphold or invalidate laws-not by their assertions of judicial self-restraint.

UPDATE: I have made some minor words changes and additions to this post and corrected some typos.