The attitude of judges as law “discoverers” rather than law “makers” speaks to a certain humility in law-making conducive to the preservation of liberty.
Recently, I heard an observation about liberals and conservatives that rang true to me: Modern liberals tend to view themselves as freethinkers no matter how rigidly they adhere to liberal orthodoxy. Modern conservatives often display the opposite vice, imagining they speak for the average citizen even when election returns contradict that belief.
One consequence is that many conservatives think of themselves as zealous advocates both of democracy and of limited government as envisioned by 18th century classical liberals. Until recently at least, they have often ignored the tension between the two. Richard Epstein’s wide-ranging The Classical Liberal Constitution: The Uncertain Quest for Limited Government reminds us that it is sometimes necessary to choose.
Conservatives in recent decades have shown their commitment to democracy by adhering to a very robust form of judicial deference. The dominant strain of modern conservatism holds that “unelected” judges should bend over backwards—or at least bend a lot—to avoid coming into conflict with the political branches. Judges should fix their gaze on the text of the Constitution and of statutes. Questioning the legislature’s motives is unbecoming, and legislation that can be plausibly justified on some ground, even if it isn’t the ground that the legislators purport to have in mind, should be upheld—or so a standard version of the argument runs.
Some conservative jurists—notably U.S. Court of Appeals Judge J. Harvie Wilkinson III in his 2012 book Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance —have taken judicial deference to Thayeresque heights by suggesting that courts should find statutes unconstitutional only if their constitutional defect is essentially uncontroversial. According to Wilkinson, split decisions harm the judiciary’s prestige as well as eat away at the right of citizens to self-governance.
Much of this is plausible if one places great trust in the people’s representatives, including the President, to do the right thing. And some modern conservatives purport to do exactly that—or at least to trust the people’s representatives more than they trust judges.
A similar deference has been employed vis-à-vis administrative agencies. Under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., a 1984 decision that has received considerable support from mainstream conservative jurists, courts must defer to an agency’s interpretation of the statute it is charged with enforcing if it is within the realm of the reasonable. Just last year, in City of Arlington v. Federal Communications Commission, the Supreme Court, speaking through Justice Antonin Scalia, held that this deference requirement extends to an agency’s expansive interpretation of its own jurisdiction.
This kind of deference toward agencies, especially those with some level of independence from the President, fits in a little less well with conservative rhetoric than does deference toward Congress and the President, since agency bureaucrats are just as unelected as judges. On the other hand, agency bureaucrats are subject to ever-so-slightly more political oversight than judges. Deferring to agencies thus has the virtue of keeping policy judgments out of the hands of the least accountable arm of government by putting them into the hands of the second least accountable part of government.
But this should be unsettling to an advocate of limited government. Does it really make sense to allow an agency to define its own powers? Doesn’t everything the classical liberal believes about human nature counsel that agency personnel will likely use that opportunity to enlarge those powers? If it doesn’t make sense to cede such power to them, why let the President and Congress define their own powers? Why lean over too far in assuming that the President and Congress are pursuing constitutionally permissible goals?
Put differently, are electoral constraints on the President and Congress enough to assure good behavior? Madison didn’t think so. Might the political branches, if not held in check by the judiciary, be inclined not just to enlarge their own powers but also to intervene in the marketplace to enrich their political friends at the expense of the general welfare?
Richard Epstein has never subscribed to the modern conservative orthodoxy on judicial deference. He argues convincingly that some (though by no means all) of this deference is inconsistent with the classical liberal thinking through which much of modern conservatism traces its pedigree—from Locke to Madison and on to Tocqueville and Mill. Liberty and democracy are always potentially at odds. The Federalists who created our Constitution carefully dispersed power between national and state authorities and among the national government’s three branches, providing checks and balances of various sorts, in large part because they feared the power of unchecked democracy as well as the power of faction (or “special interest” to use the more contemporary term), which goes along with democracy. The Anti-Federalists insisted that a bill of rights be included. For their joint vision of limited government to work, the task of policing the boundaries must often fall to the judiciary. A judiciary that lets the political branches define their own powers will almost certainly fail in this job.
With the 21st century electorate’s seeming acceptance of big government, it is not surprising that modern conservatives are beginning to rethink things. They are now more open to Epstein’s views than they had been during the Reagan administration. Timing is everything. The Supreme Court’s Obamacare decision—National Federation of Independent Business v. Sebelius—may be a turning point for some conservatives on this. Liberals hailed the opinion as a model of judicial restraint. Conservatives were indignant: “It’s a tax? You’re kidding me, right?”
But what exactly is the alternative that Epstein offers? Is there a less deferential tradition that modern jurists can draw upon without opening a Pandora’s box of judicial activism? Judges who feel free to remake policy are at least as dangerous as legislatures in thrall to special interests. Moreover, it’s not just Epsteinian judges who will have the chance to slip the bonds of judicial deference, but also the non-Epsteinian judges, whose numbers are likely to increase in the near future.
Part of his enterprise is thus to present the less deferential tradition of 19th and early 20th century judges in a way that ensures that the judicial authority it sanctions will be limited and well-defined—as well as palatable to those who might fear that his vision would negatively affect settled law regarding their pet issue. He is not always successful in reconciling those conflicting goals. But the constitutional tradition he discusses comes off as a reasonably coherent body of law intended to protect the essentials of classical liberalism and hence the essentials of our constitutional order. These judicial decisions seek to protect the Constitution’s unacknowledged foundation, especially those aspects of its foundation most likely to be eaten away by the termites of special interest. As a whole, they mesh tolerably well with the text of what Epstein calls our “iconic but laconic” Constitution.
The classic example of this tradition may be the much-reviled Lochner v. New York . It is only one among the diverse group of cases Epstein discusses. But Lochner is instructive:
The case is usually portrayed as an ill-considered interference by the Supreme Court with New York State’s efforts to protect bakery workers’ health by limiting the number of hours they can agree to work. Indeed, up until fairly recently, one of the few things that practically every lawyer in America agreed on was that Lochnerism was bad.
But there is another way to look at the case, one that can be divined from reading contemporary newspaper accounts. In Lochner, large, usually German-owned bakeries and bakers’ unions had successfully lobbied the New York legislature to prevent small, usually Italian or Jewish family-owned bakeries from competing with them too much. The statute they requested prohibited all bakery employees, some of whom may well have desired more working hours in order to improve their lot in life, from working more hours than the contract the union had negotiated would permit. It thus ensured that small bakeries and their employees could not prosper by working harder and longer than the larger bakeries with their unionized workers. The Supreme Court smelled a rat, in part because the law applied only to bakers and not to jobs that are more taxing or dangerous.
It’s easy to see why early Progressives opposed an assertive Lochnerian judiciary. Woodrow Wilson, our President most strongly associated with Progressivism, wrote that the Founders’ concept of check and balances was a “radical defect” in our Constitution and separation of powers only makes it difficult for policymakers to grapple with the increasingly urgent problems that face the modern world. And he wasn’t necessarily opposed to “smelly rat” legislation that benefitted some workers (union members) at the expense of other, less fortunate workers. If one believes as he did, then any restraint exercised by an independent judiciary ought to be to the good. Deference gives the political branches the maneuvering room they need and was thus an essential part of his principles of governance. Limited government was for men in powdered wigs and knee breeches.
But Progressives wanted courts to take a back seat for another reason besides principle. Because judges are appointed for life, the judiciary tends to be a lagging ideological indicator. Progressive and New Deal Era judges were often, well, not themselves Progressives or New Dealers. They were throwbacks. Progressives would have demanded that they defer even if that hadn’t been part of their abstract thinking. The judiciary was largely made up of their ideological adversaries.
It is just as easy to see why, after the Second World War, Progressives lost their taste for judicial modesty (and conservatives gained theirs). By that point, after five consecutive Democratic administrations, the federal bench was dominated by judges who basically shared their outlook, and the political branches, both at the state and federal levels, often did not.
While it may not be easy to reconcile this change of the Progressive heart with broad principle, practical politics has its reasons.
Practical politics matter to the conservatives who uphold classical liberalism too. By the time of the Reagan administration, many conservatives saw the reining in of an out-of-control federal judiciary—one that had sometimes engaged in breathtaking acts of judicial arrogance—as one of their greatest tasks. Justice William Brennan’s interview with journalist David O. Stewart soon after his retirement from the Supreme Court summed up much of the preceding era. Asked whether he had any second thoughts about any of the cases during his long career, Brennan replied: “Hell no. I never thought I was wrong.”
No wonder many conservatives viewed “judicial restraint” as an undifferentiated virtue, and gave little thought to the nuances and complications.
Their argument for a certain kind of judicial deference is ironclad. The judiciary has no claim to expertise in choosing from an array of policy alternatives. It must resist the temptation to second-guess legislatures and other policymakers in such matters while purporting to interpret the Constitution or a statute. A robust textualism as advocated by such jurists as Justice Scalia may well be an effective way to avoid that temptation and to force the political branches to make the tough policy choices and make their choices clear.
The argument that courts must defer to other branches or levels of governments in defining their own powers is not so ironclad. And the argument that the ballot box is the only weapon against special interest legislation aimed at benefitting one set of well-connected Americans at the expense of another, frequently more vulnerable, set of Americans is also less than self-evident.
But if there were to be, so to speak, less deference toward deference, how would this actually play out? Is the box that Epstein is pointing to Pandora’s, or does it contain a diamond or two? And either way, will there be sufficient consensus to open it at all—even just a crack?
The truth is that it is already opening a crack. When it comes to allowing Congress to define its own powers, it is worth noting, for example, that the highly deferential standards previously used to interpret congressional powers under the Reconstruction amendments are being reined in, one by one. In the 1997 case of City of Boerne v. Flores, the Court cut down on Congress’s power under Section 5 of the Fourteenth Amendment, which authorizes it to promulgate legislation to prevent Fourteenth Amendment violations by state governments. Under City of Boerne, federal legislation must be “congruent and proportional” to the state violation—which makes it more difficult for Congress to use Fourteenth Amendment violations as a pretext for actions it wanted to take anyway.
In 2013, in Shelby County v. Holder, the Court interpreted Congress’ authority under Section 2 of the Fifteenth Amendment to legislate to prevent race discrimination in voting. Declining to rubber-stamp congressional action, the Court held that even under a “rationality” test, the Voting Rights Re-Authorization Act of 2006 was unconstitutional, because its preclearance provisions “impose current burdens and must be justified by current needs.” Like City of Boerne, Shelby County makes it more difficult for Congress to use constitutional violations by states as a pretext for actions it wanted to take for other reasons.
This month, in Hatch v. United States, the Court will have the opportunity to consider similar limitations on congressional discretion to define its own power under Section 2 of the Thirteenth Amendment, which bans slavery. Hatch concerns a portion of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act of 2009. The part of the law forbidding hate crimes based on race is premised on Congress’ power to enforce the ban on slavery. If the Court accepts the case, it may limit congressional power under this section to actions undertaken to eradicate slavery and keep it from returning.
Meanwhile, it is true that Justice Scalia’s recent majority opinion in City of Arlington v. Federal Communications Commission held that courts must defer to an agency’s expansive view of its own jurisdiction. But the decision drew a dissent from Chief Justice Roberts in which Justices Kennedy and Alito joined.
Then there is the special interest front. There, lower federal courts are starting to make quiet noises in the direction of limited government. Two years ago, in St. Joseph Abbey v. Castille, the Fifth Circuit appeals court held that a Louisiana law governing who can build or sell a casket was intended to protect the powerful funeral industry and hence was unconstitutional. The court didn’t buy the imaginative public health explanations offered by Louisiana. The judicial blinders were off. The panel wrote:
The great deference due state economic regulation does not demand judicial blindness to the history of the challenged rule or the context of its adoption nor does it require courts to accept nonsensical explanations for naked transfers of wealth.
Similarly, two federal courts have now held protectionist state legislation requiring African hair braiders to attend cosmetology school and secure a cosmetologist’s license is not a rational use of the state’s power to protect the public health. “The right to work for a living in the common occupation of the community is of the very essence of the personal freedom and opportunity that the Constitution was designed to protect,” wrote the federal district court in Clayton v. Steinagel (internal quotations omitted).
Clayton and St. Joseph Abbey were both lawsuits brought by the Institute for Justice, a public interest law firm where the name “Richard Epstein” carries a lot of weight.
I don’t how this story will end. But there is a story here. And while it may not end in way that allows Epstein to claim sweeping victories, his way of thinking has already scored several small ones and will likely score more.