Supreme Court

New York Times Prefers John Roberts Over His Libertarian Critics

Liberal pundit alarmed by competing versions of legal conservatism.

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Credit: C-SPAN

Over the past three decades, a fierce debate has been occurring within the ranks of the conservative legal movement. Stated broadly, this debate has pitted advocates of judicial restraint, which is the idea that the courts should defer to the democratically accountable branches of government whenever possible, against advocates of judicial engagement, which says that the courts owe no deference to the will of the majority and are instead duty-bound to keep the other branches in check. In 2012 this debate took center stage at the U.S. Supreme Court, when a libertarian-fueled coalition sought to overturn the Patient Protection and Affordable Care Act, only to be rebuffed by Chief Justice John Roberts, who upheld Obamacare as an act of conservative judicial restraint.

Writing today in The New York Times, liberal pundit Linda Greenhouse looks on in horror at the implications of this debate:

The problem, from the point of view of the chief justice's critics, isn't only that he voted the wrong way, but that on a deeper level, he didn't get the memo. John Roberts is conservative, beyond any doubt, but he's a 20th-century conservative in a 21st-century world.

Remember when "judicial activism" was a nasty label that conservatives hurled at liberals and when "legislating from the bench" was the worst thing a judge could do? Not, it seems, any more. Josh Blackman and Randy Barnett, two law professors who are advising Senator Rand Paul's presidential campaign (Professor Barnett was an architect of the first Affordable Care Act case), wrote in the conservative Weekly Standard last month that "presidential candidates should reject the vapid labels of 'restraint' and 'legislating from the bench.'" Rather, they argued, "The heart of the inquiry should be whether the nominee is willing to engage and enforce the Constitution against the other branches, not whether they can parrot clichés about 'strict constructionism' or 'calling balls and strikes' during a confirmation hearing." In other words, judicial "engagement" is good. Judicial restraint is a dereliction of duty.

Greenhouse doesn't come right out and say so, but it's clear that she's disgusted by libertarianism and plainly prefers the brand of legal conservatism in which judges like Roberts keep on deferring to laws like Obamacare. As Institute for Justice lawyer Clark Neily quipped on Twitter in response to Greenhouse's column, "Fans of big-govt increasingly anxious about #JudicialEngagement. They should be."

Indeed they should. As I document in my recent book Overruled, the long war between these two competing legal philosophies is increasingly trending away from the conservative judicial deference favored by John Roberts and towards the libertarian judicial engagement favored by Randy Barnett. If that trend continues, the resulting intellectual shift is likely to have a profound impact on American law in the years to come.

Related: Conservatives v. Libertarians: The debate over judicial activism divides former allies

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  1. Of course they do.

    1. They all want cake?

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  2. “Greenhouse doesn’t come right out and say so, but it’s clear that she’s disgusted by libertarianism and plainly prefers the brand of legal conservatism in which judges like Roberts keep on deferring to laws like Obamacare.”

    Do they ever talk about the popularity of Jim Crow laws? Do they have a problem with “Separate but Equal”, or was the problem that things weren’t really equal? The black schools weren’t really as good as the white schools, etc.

    What about popular referendums, like Proposition 8 in California that prohibited gay marriage? Shouldn’t judicial restraint suggest that if the state offers civil unions that are effectively the same as marriage, then the Court should restrain itself?

    I see the intellectual debate as being about the proper role of government. If the legitimate role of government is to protect our rights, then the proper role of the Court is to protect our rights–from popularity contests and the governments they elect, too.

    P.S. You want restraint? If the American people wanted the Supreme Court to reflect the democratic will of the people, they would have changed the Constitution to provide for the popular election of SC Justices–or they would have given the SC justices limited terms.

    1. The right and the left routinely switch talking points on that and other matters, and we’re not supposed to notice. We’ve always been at war with Eastasia.

  3. It’s still a euphemism. Neither precedent nor actual constitutional history would justify recreating the American system from the court bench into a libertarian model. This is, as it has always been, legislating via courts. I’d be more concerned over this shift in attitude if it weren’t actually just a shift in terminology–conservatives have never been restrained in their attempt to get what they want through judicial fiat. It is, however, always a concern when they drop the pretense of caring about something they were traditionally supposed to care about. Careful what you wish for–“small government” could be next.

    1. I see our distinction-challenged troll still doesn’t understand distinctions.

      1. To be fair, he really doesn’t understand much of anything.

    2. Neither precedent nor actual constitutional history would justify recreating the American system from the court bench into a libertarian model.

      If we restricted Congress to passing law that implemented a sane interpretation of the enumerated powers, and stripped the quasi-legislative powers from the executive branch’s “rule-making” process, this country would be a hell of a lot more libertarian, and a hell of a lot closer to the Constitution.

      Those are both things that the Court could do, and indeed used to do fairly regularly. The New Deal brought a century and a half of this kind of jurisprudence to an end. To say that returning to it is not Constitutional, inconsistent with history, or could not be done by the Court betrays a great deal of ignorance.

      1. To say that returning to it is not Constitutional, inconsistent with history, or could not be done by the Court betrays a great deal of ignorance.

        In Tony’s case I’ll go with equal parts stupidity and dishonesty.

    3. “Neither precedent nor actual constitutional history would justify recreating the American system from the court bench into a libertarian model.”

      Nationally, no, but at the federal level, you’re wrong. The federal government was constitutionally granted only a limited set of enumerated powers. The constitution was never amended to alter this, so the fact that the various branches of the government so limited decided to remove these restrictions on themselves and become a government only of enumerated restrictions is not constitutionally legitimate.

      1. You want to see a limited national government, look at the system under the Articles of Confederation. The constitutional system, the one designed specifically to give the national government more power, has outlasted that one by a good long while. And it must be legitimate, as both the constitution and the system are intact. Sure, conservative activists, judges among them, would like to reorganize things radically from where they are, but they don’t get to pretend that they are the true upholders of the constitution. That’s just what they say because they think it means they don’t have to defend their stupid ideas on their merits.

        1. Says the guy who is too stupid to know that Constitution is always supposed to be capitalized.

          The Constitution was designed to give the federal government SOME additional specific powers it did not have under the Articles of Confederation.

          It was not designed to give the federal government vast powers over virtually every aspect of existence in the country.

    4. Tony’s past stupidity is only exceeded by his present stupidity.

      If you want Roe v Wade, then expect to get a Lochner, too. It’s well past time that the Court started examining economic restraints with intermediate scrutiny.

      1. The Commerce Clause clearly states that the feds can do whatever the fuck they want. /sarc

      2. I do expect that. I don’t expect conservatives and libertarians will ever start being honest instead of insisting that angels are whispering in their ears and their ears alone when they declare their policy preferences.

        1. What are you babbling about, exactly? Libertarians don’t need “angels.” Read the 9th Amendment and try to reconcile it with your views of unlimited government.

  4. First, we need to correctly define what “judicial activism” means.

    It has nothing to do with whether the court defers to a legislative body or not.

    Judicial activism is when judges depart from the literal text of the Constitution and the common understanding of what the words in that text meant at the time they were written by the people who wrote them (such as James Madison) and the people who ratified them.

    When judges effectively rewrite the meaning of the Constitution to advance their own personal beliefs/ideology, that is judicial activism regardless of whether that results in upholding or overturning laws passed by legislative bodies.

  5. Chief Justice Roberts is getting a bad rap here. The libertrian/conservative establishment that brought this suit are as much at fault because they do not understand the income tax.CJR defended the necessary and proper clause,stated that substance trumps form in tax law, and presented a pretty cogent view of tax law history in America. He never said that “Americans” or “the people” had to pay the Shared Responsibility Tax (SRP). He merely said that “taxpayers would pay it on their income tax”. Are you a taxpayer?
    It was ridiculous for the suit to allege that the SRP was an unapportioned direct tax, and CJR swiped that silly argument away like an annoying fly. The SRP is an indirect duty tax, and the income tax is an excise tax on federal privilege. Income itself is not taxed in this country. The federal privilege is what is taxed, and income merely measures the amount of the privilege to determine the tax. Until the libertarian/conservative establishment gets that, they will keep losing the big liberty battles. And the debate will keep being about “how much” people earn instead of about “how they earned it”. Damon, go back and read your Bastiat re the difference between free market means of earning wealth and legal plunder, and understand the US INVIDIVUAL INCOME TAX is the American version of the classical liberal British Public Office Duty.

    1. CJR defended the necessary and proper clause,stated that substance trumps form in tax law, and presented a pretty cogent view of tax law history in America.

      Which would be fine, if the ACA had actually created a tax, rather than a penalty collected by the IRS. It was very clear in both the text and the legislative record that it was the latter.

      Judicial activism is going beyond interpreting the language of a statute, and rewriting the statute itself. Which is what Roberts did.

      1. Meh. The individual mandate is too small to make a difference. It isn’t changing behavior. I disagree with Roberts on the subject but I don’t think his ruling was egregiously wrong or important on that topic.

        1. The individual mandate is too small to make a difference.

          So, judges shouldn’t rule on the law, or on principled application of the law, but on whether the Constitutional violation is big enough to make a difference?

        2. I’ll tell you what is making a difference. The regulations dictating what kind of policies we are allowed to purchase. My take home pay is down about three hundred dollars a month from four years ago, all of it going to health insurance that costs more and covers less.

      2. “Which would be fine, if the ACA had actually created a tax, rather than a penalty collected by the IRS. It was very clear in both the text and the legislative record that it was the latter.”

        Indeed.

        That goes to the notion that the court is supposed to bend over backward to find any way possible to determine something the legislature has enacted to be Constitutional regardless of whether the enumerated Constitutional power relates to the language of the law in question.

        And where does that idea come from? The court dreamed it up entirely on it’s own (much like the bogus so-called “rational basis” test). That concept never had any basis in the Constitution or relate in any way to how the founding fathers thought the court system should operate.

        1. Checks and balances are an impediment to progress.

      3. So we should take the legislators’ word for it when they say they’re enacting a penalty, when it acts as a tax? Or anything else they say is something, when it has the characteristics of something else? [cough]Pretext![/cough]

    2. substance trumps form in tax law

      No, the issue was that Roberts elevated rulemaking over legislating.

    3. You’re wrong on every point. But thanks for supporting Ron Paul anyway.

  6. I think Roberts was not abhorently wrong to rule that a fee paid on the income tax form and taken only out of federal withholding is a tax.

    Meanwhile he gets no credit for allowing the states to opt out of Medicaid expansion. This key point is helping undermine obamacare.

    More recently he was not the deciding vote on obamacare, but his vote did allow him to write the opinion. That was probably a better outcome that letting Ginsburg write it.

    1. I think Roberts was not abhorently wrong to rule that a fee paid on the income tax form and taken only out of federal withholding is a tax.

      His enshrining of extreme deference to the other branches in the pursuit of this decision is, however, abhorrently wrong.

      And, the fact that this approach was necessary in order to save ObamaCare from being either stricken in its entirety (as, again, a straight reading of the actual statute would require) or gutted and crippled, should give you pause.

      More recently he was not the deciding vote on obamacare,

      He was the deciding vote on the first, Commerce Clause, case. I also think that he actually switched his vote after the initial decision was made to reverse it before publication.

      He also allows Kagan to blatantly violate judicial ethics by participating in these cases after she provided legal advice to the President on the statute.

    2. I think Roberts was not abhorently wrong to rule that a fee paid on the income tax form and taken only out of federal withholding is a tax.

      Roberts ruled that the “fee” was simultaneously a tax and not a tax. He had his cake and ate it too. That decision may not be “abhorrently wrong” (it’s no Dred Scott) but it is egregious sophistry of the sort we should not accept from the self-proclaimed ultimate authority on the constitutionality and apparently interpretation of the laws.

    3. Meanwhile [Roberts] gets no credit for allowing the states to opt out of Medicaid expansion. This key point is helping undermine obamacare.

      Montana recently acquiesced to expanding Medicaid in accordance with the ACA, and Montana was one of the most vocal holdouts…

  7. Again, what Roberts did in the Obamacare cases was not deference to the law as written but deference to the executive’s preferred policy. In both cases the law had to be rewritten to reach that result disregarding the intent of the legislature (neither case had much to do with constitutional issues). To describe what Robert’s rewriting the statute to get a particular justification as conservative judicial restraint is redefine the bases of conservative philosophy and strain credulity.

    1. And in the latest case Roberts, for all intents and purposes, stripped Congress as the final legislative authority. What executive wants and the judicial will pass determined what the law actually is.

      1. I.e., “This law means what it should have said.” Pen. Phone. Etc.

    2. neither case had much to do with constitutional issues

      In the sense that the Constitution was disregarded to reach desired results, this is true.

    3. He didn’t defer to it, & said so. He agreed w it. 2 people take their case to you. You hear what each has to say, investigate the facts, & wind up agreeing w 1 party. That doesn’t mean you deferred to them; if you had, you wouldn’t’ve paid att’n to the other side. You pretty much had to agree w 1 or the other, but that’s not deference to them.

      1. In fact he denied that they should get such deference, even though there’s a line of precedent that (unfortunately) would say they should.

  8. One of the missed opportunities in the ObamaCare abomination, is the gargantuan and unguided delegation of authority to the Secretary of DHS.

    That, as a stand-alone issue, should render the statute unconsitutional. While you might be able to defend delegation of legislative authority to a regulatory agency in very narrow circumstances, this kind of open-ended grant of plenary legislative authority cannot be defended in any rational view of separation of powers.

    Ah, well. The Constitution has about as much relevance to our government these days as the Articles of Confederation. Its all academic, unless and until there is an enormous reversal of cultural, social, political, and legal trends that date back 80 years now.

  9. “judicial restraint, which is the idea that the courts should defer to the democratically accountable branches of government whenever possible”

    What does this have to do with the Obamacare case?

    That case was about whether Obamacare-style laws were the responsibility of Congress or the state legislatures (or possibly the people of the states directly).

    It was a choice between two “democratically accountable branches of government,” not a choice between a democratically-elected body and a bunch of judges.

    Yes, I’m for judicial engagement, but the Obamacare case wasn’t about that, it was about which elected body deserved deference.

  10. “judicial restraint, which is the idea that the courts should defer to the democratically accountable branches of government whenever possible”

    What does this have to do with the Obamacare case?

    That case was about whether Obamacare-style laws were the responsibility of Congress or the state legislatures (or possibly the people of the states directly).

    It was a choice between two “democratically accountable branches of government,” not a choice between a democratically-elected body and a bunch of judges.

    Yes, I’m for judicial engagement, but the Obamacare case wasn’t about that, it was about which elected body deserved deference.

  11. Maybe I’m crazy, but I do see a difference between ‘judicial restraint’ and ‘not doing your fucking job’ of reviewing the constitutionality of laws. If the proper jurisprudence were really to defer to the legislatures interpretation of the the constitution then the court has no purpose whatsoever.

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