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Thursday, August 30, 2012

Neither Fish nor Fowl

With school starting up again, I’ve made less progress this month than I hoped in identifying for myself what is so remarkable about Justice Roberts’ forbearance in NFIB v. Sebelius.  (The experience of the month reminds me what a gift it once was to be an academic -- truly thinking things through properly, and finding the right metaphors for them, takes large swaths of time.  I hope law professors find such time, as English professors sometimes do.)

Nonetheless, here is a stab at what NFIB means:  We need new ways of thinking about judicial restraint as part of the constitutional scheme.  If such ways could be developed, we would end up reviving an old-fashioned idea of ‘judging’ as a function of individual temperament, and return to an understanding of judicial selections as a matter of character judgment rather than “qualifications” or political identity.

I think Roberts’s philosophy of judging, as manifested in his NFIB conduct, disrupts our usual way of thinking about supremacy of power.  --It might not even be a “philosophy,” in the sense that it might not have a governing logic.

We all know that constitutional law has power over statutory law (the legislature must conform itself to constitutional law).  We also know that, under the consensus, the judiciary has power over constitutional law.  It seems a simple matter of logic, and the transitive property, to conclude that the judiciary has power over the policy made in statutes.  Roberts disrupts this syllogism, and urges us to return to believing that there are, or should be, different types of power.

--This may not be legal realism, but it is, as of July, real.  A myth in action is no longer mythical.

The premise of my reading of NFIB is that Roberts himself really disliked Obamacare, and preferred as a matter of policy that it be struck down to the extent possible.  Not only does he strongly imply this to be true, but there is very strong evidence in the fact that he voted to invalidate the law at the initial conference, and acted to do so for over a month, as opinions were being written.  Then somehow, in the act of being a judge and writing the ruling, he reached the conclusion that he should refrain -- and found a parsimonious way to do it, minimizing the policy impact while maximizing the doctrinal impact of the case.  

He is, to me at least, now the poster child for judicial restraint with regard to policy outcomes.

The received ways of thinking about ‘restraint’ flow from ideas about the constitution of the political system.  Larry Kramer described them earlier this year:  “For Republicans [of the early 1800s], restraint was a device to preserve the primary and superior authority of ‘the People’ ” in matters of constitutional interpretation.  By contrast, for Federalists, “this restraint or deference was a matter of prudence and political expediency:  something necessary to secure and preserve judicial (rather than popular) authority by minimizing the risks of overstepping.”  Judicial Supremacy and the End of Judicial Restraint, 100 California Law Review, 621, 625-26 (2012) (emphasis in original).

If those are our only two choices for thinking about Justice Roberts, I think we miss something important.  Let’s have him try them on for size.

1) We can read Roberts as a Democratic-Republican in the Ely vein, returning the question of Obamacare’s constitutional propriety to the people for determination in the 2012 election:  but this flies in the face of his doctrinal purity on so many other matters, especially in Citizens United and in every other section of the NFIB opinion besides the one on the taxing power.

2) Alternatively, we can read Roberts as a Federalist who refrained from striking down Obamacare out of fear of the consequences for the Court itself.  Prof. Kramer places great emphasis on the crisis the Court faced in the 1930s, when it backed down in the face of political danger, and continues the story by showing that the Warren Court coopted liberals to the camp of judicial supremacy.  He predicted this spring that judicial restraint would become a thing of the past:  

Why should the Court defer, after all, if it is, by constitutional design, supposed to be the final, authoritative interpreter?  There is no reason beyond doing what is necessary to protect the Court’s ability to play its institutional role.  In a world of judicial supremacy, then, deference is simply a matter of expediency:  of how far the Court can, as a practical matter, go without sacrificing too much of its political capital.”  (633)

This is the way many thoughtful people are reading Justice Roberts’ forbearance:  as a strategic retreat to avoid excessive political exposure.  Liberals see it as a calculated ploy, Roberts conceding one battle in order to win a larger policy war for his side (the Republicans); conservatives see it as a failure of GOP nerve worthy of General McClellan.  

But I think the Federalist interpretation of Justice Roberts is wrong.  The premise of this view is that he feared political repercussions for the Court if it intervened in an intense political dispute between the parties.  No one really explains what those repercussions might actually be (besides an awkward moment here or there at a future State of the Union address).  Nor can they.

The Supreme Court has fully tested the possibility that it will lose institutional credibility, as a matter of “expediency” and “political capital,” if it intervenes in partisan political battles in real electoral time.  It is, in fact, impossible to conceive how it could have done so more overtly than in Bush v. Gore.  And in 2012, the results are in and they are very, very clear:  the Court risks, in the big picture, virtually nothing by such interventions.  

For Roberts, the poleaxing of Obamacare had been fully legitimated by law professors, by the media, and by popular opinion.  The rituals were performed, the tournament conducted, the great policy enemy was supine, and he held the sword for the coup de grace.  He knew that prestige lost by the Court would be re-won within a few years, as it had been after 2000.  He and his institution faced, in large political terms, no danger.  

And yet he forbore.  

We do not have doctrinal understandings of what Roberts did.  We need new doctrines.  I suggest the following:

In Justice Roberts’ understanding of his profession, a certain temperament is required.  Although neither the Constitution nor the constitution explains how, the power of a judge is different -- not in degree, but in kind -- from other kinds of political power.  

I know this is an unimpressively small claim.  In the terms of legal academia, it means little.  In its humility, I hope it emulates the humility of Justice Roberts, who did something that in the terms of power and jurisdiction meant very little, but (in my eyes) served higher values that exist, and are refreshed in every American generation, despite the failure of every American generation to name them adequately.  

Posted by Jim von der Heydt on August 30, 2012 at 04:26 PM | Permalink


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