“A lawyer’s rigor with a statesman’s breadth of view”

In the course of his thoughtful discussion of Chief Justice Roberts’ reported change of mind on NFIB v. Sebelius, Mike Rappaport makes what seems, at first glance, to be an unassailable assertion: A justice ought not to consider extraneous circumstances surrounding a decision, such as its effect on his or her reputation.  Instead: “The decision is supposed to be based on a justice’s view of the law.”

But closer inspection reveals tension between that premise and the doctrine of judicial restraint, which I recently argued in this space was theoretically but not inherently compatible with the philosophy of originalism that Rappaport, like Justices Scalia and Thomas, espouses.  If Federalist 78 is to be believed, a justice ought very much to consider circumstances beyond his or her narrow reading of the law.

That paper says the power of judicial review is to be exercised only in a case of “irreconcilable variance” with the Constitution.  The modifier—“irreconcilable”—suggests there is no way around the need for justices to exercise discretionary judgment in addition to an antiseptic, technocratic reading of the law. By the Chief Justice’s now famous metaphor—that the Court exists only to call balls and strikes—the strike zone ought to be large enough to accommodate anything but an unquestionably wild pitch

The tension is evident in Professor J.B. Thayer’s 1893 article, “The Origin and Scope of the American Doctrine of Constitutional Law,” a landmark explication of the idea of judicial restraint.  Paraphrasing Judge Cooley, Thayer writes that

one who is a member of a legislature may vote against a measure as being, in his judgment, unconstitutional; and, being subsequently placed on the bench, when this measure, having been passed by the legislature in spite of his opposition, comes before him judicially, may there find it his duty, although he has in no degree changed his opinion, to declare it constitutional.

The point, Thayer emphasizes, is that the judge’s view of the law is not all that counts.

It can only disregard the Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, — so clear that it is not open to rational question. … [T]hat is the test which they apply,–not merely their own judgment as to constitutionality, but their conclusion as to what judgment is permissible to another department which the constitution has charged with the duty of making it. (emphasis added)

On Thayer’s argument, moreover, a justice should consider the possibility of a popular backlash against the Court, this being one of the intended restraints on judicial overreaching.

The difficulty from the originalist point of view is that restraint, so conceived, leaves judges wide latitude for discretion rather than confining them to an all but scientific explication of the law.  According to the doctrine of restraint, there will be situations in which a judge—looking, as Rappaport counsels, merely at the law—will conclude that an act of Congress is unconstitutional yet should nonetheless uphold it.  This discretion requires what Thayer calls a “combination of a lawyer’s rigor with a statesman’s breadth of view.”  Originalism counsels the first but cannot always countenance the latter.  But statesmanship so conceived is precisely what Roberts demonstrated in searching for a constitutional justification for the Affordable Care Act.  The question conservatives ought to ask is not merely whether they agree with that basis but whether it was an irrational one.

Critiques of Roberts have tended to overlook the fact that the judiciary is only one among many institutional protections against abuse, others being bicameralism, separation of powers, the presidential veto and, ultimately, the reasoned judgment of the people, which was registered in the election of 2008 and is about to be taken again.  Thayer emphasizes that these protections, not judicial review, featured prominently in the debates at the Constitutional Convention of 1787.  Hence Madison could later say that “it was never intended, and can never be proper” for the judiciary to have the final say in constitutional matters.  Jefferson, characteristically, could go further, saying only Congress could declare a law unconstitutional.  And Hamilton’s standard of “irreconcilable variance,” as we have seen, established a clear foundation for restraint.

None of this is to suggest that originalism and restraint are inherently or always incompatible.  Indeed, the genuine originalist will practice restraint.  But it does illustrate that an analytic determination of the intent of the Founders will not always lead to restrained results.  Cases are bound to arise in which originalism and restraint stand in tension; NFIB v. Sebelius was one of them, and it has exposed a divide that requires attention from conservative thinkers.

What, then, are judges to do?  Are they not bound, once a question of constitutionality does reach the bench, to rule honestly and impartially in accordance with the meaning of the Constitution as they see it—the formula Rappaport compellingly suggests?

Well, no.  What they are supposed to do is defer.  On questions of policy decided by the elected representatives of popular majorities, judges are to intervene only when the act in question is so obviously and indisputably unconstitutional that no reasonable person could otherwise conclude.  They are, in short, supposed to do the one thing evidently anathema on both sides of contemporary politics: refrain from exercising the power available to them.  In so doing, Roberts very much upheld his “view of the law”—that is, the fundamental law of the Constitution, including the sharply confined role it accords the judiciary.

Reader Discussion

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on July 02, 2012 at 15:24:35 pm

A declaration of constitutionality is different than re-writing the law. It would be one thing if Roberts had joined the four liberal justices and based his decision on, say, the commerce clause. He didn't do that. Judge Roberts became a legislator, calling a penalty a tax. There are distinct differences between the two, and how this can be glossed over like it is here I don't know.

With all due respect, I think you're glossing over much of Federalist 78 , as well. In the very sentence that mentions "irreconcilable variance", Hamilton also includes: "...the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." Roberts did exactly the opposite of what Hamilton argued. Hamilton also wasn't saying that judges should decide cases for extraneous decisions over judicial, or constitutional, ones. His point was that judges need to have a sense of "firmness and independence" greater than which is found in the other two branches. If, in order to side with the Constitution, a judge needs to re-write a law, which then effectively gives the legislative branch powers it's never had in the history of this country, then the Constitution is meaningless. There is no way Hamilton or any Founder would have approved of what Roberts did, and they would be appalled that almost half of the Supreme Court doesn't care a whit about the limits of federal power to begin with.

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Nick Charles
on July 03, 2012 at 09:43:21 am

In what sense did Roberts "rewrite" the law? "Relabeled," maybe. But nothing about its operation changes because of this opinion. With respect to the mandate, the situation on the ground will be identical -- absolutely identical -- to what it was before. Had he, say, ordered that the penalty/tax be collected by the IRS so it would look like a tax, that would be legislating. But he did not change anything whatsoever about the actual operation of the mandate. Moreover, the question remains whether the questions over the mandate are best resolved at the ballot box or through the courts. Roberts' decision essentially punts to the voters, who will decide the fate of the mandate this November -- and who, let's not forget, elected the Congress and President who enacted it in the first place. According to longstanding conservative doctrine, precisely what a judge ought to do.

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Greg Weiner
on July 03, 2012 at 15:03:18 pm

Yes, it's on the voters, completely agree. But if Congress wanted a tax, they would have written tax legislation. Instead they wrote legislation with penalties and no taxes. These two things can be essentially the same but they can also be distinct. Does the 16th amendment require you pay a federal income penalty and get taxed if you don't pay it? Would this law even have reached the Supreme Court if it were about taxation? Why on the first day of oral arguments did the government try to explain the the law was not a tax to get around the Anti-Injunction Act? Four dissenters refused to even acknowledge Roberts's opinion because it was that ridiculous. He didn't re-write the effect of the law, he re-wrote the law. That's not the job of a judge.

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Nick Charles

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.