In Praise of John Roberts and His Reformulation of Political Questions
I am less critical of Chief Justice John Roberts than many other conservatives and libertarians. I do disagree with some of his decisions, as I disagree with some decisions by every justice, but there are far more that I agree with than disagree. When there is no clear precedent on the subject, like the recent recess appointment case, he generally goes with the original meaning. And even when there is lot of precedent he often slaloms with the skill of a gold medalist through the precedents to move the law toward the original meaning. See Free Enterprise v. Public Company Accounting Oversight Board.
One’s evaluation of John Roberts’ performance may depend on how one prioritizes cases. While I disagreed with King v. Burwell, I do not think a contrary outcome would have had real-world effects, as Republicans in Congress would have caved on subsides. In contrast, on the most important constitutional issue of our time—resisting the attempt to tamp down on speech during elections—he has been the leader on the Court. He has applied neutral principles found elsewhere in First Amendment law to permit ordinary citizens to spend as much as they like to get out their views at election time, just like the media. He has given corporations the right to speak at election time, just as they do in other First Amendment contexts. He has rebuffed Justice Stephen Breyer’s dreadful idea that the Court should defer to Congress on such issues, which would turn the First Amendment from a charter of liberty into a delegation to self-interested regulators. The fate of our republic may rest on whether our representatives should be given the power to determine how opinion is shaped and he has been splendidly on the side of constitutional liberty in the most important of the cases about campaigns and speech.
But my main purpose in this post is to praise his treatment of the political question doctrine in Zivotofksy v. Kerry. He took a doctrine that was a mess and turned it into law rooted in the original meaning of the Constitution’s text. Before Zivotofksy, the modern doctrine was a balancing text of various factors, many of which had no clear relation to the Constitution. It was thus the kind of doctrine of which the Supreme Court case law is sadly full—a reservoir of discretion for the justices and a barrier to the understanding of the public. After Roberts’s opinion, the political question doctrine is straightforward and straightforwardly limited. It is available only when the decision is “textually committed to another branch” or “there are no judicially discoverable and manageable standard to apply.”
Thus, Roberts makes the political question doctrine just the ordinary exercise of judicial review. If the decision is textually committed to another branch, giving the other branch the authority to make the decision is just following the original meaning of the Constitution. If there are no judicially discoverable and manageable standards to apply, there cannot be any clear inconsistency of the other branch’s actions with the Constitution. Thus, the action should not be blocked because of the Duty of Clarity: The Court should intervene to stop another branch only upon its discovery of a clear repugnance of the action to the Constitution—what Alexander Hamilton called “irreconcilable variance.”
Roberts’ transformation of the political question doctrine also shows that it is not really a doctrine of justiciability but a ruling on the merits. In my view, the justiciability categorization never made much sense. If the only barrier to hearing the case is Article III, could a state court decide political questions that the Supreme Court could not? In any event, Chief Justice Robert has restored good sense and constitutional fidelity to this important area of law. It is a great achievement.