Perhaps we ought to give this administration credit where credit is due.
In the past few months, we have heard a great deal about “judicial restraint.” In particular, Progressives have complained that if the U.S. Supreme Court strikes down the Obamacare mandate that all Americans carry health insurance, it will be a case of “judicial activism” on the part of the Supreme Court. And conservatives, they say, have long supported judicial restraint, rather than judicial activism. Some conservative commentators have asked whether this categorization is fair. That’s an interesting question from a party perspective, but it pushes aside another question: whether the idea of judicial restraint is compatible with current notions of judicial supremacy?
Where does the idea of judicial restraint come from? In the first part of the twentieth century, the idea is most closely associated with Supreme Court Justice Felix Frankfurter. As Mark Graber of the University of Maryland School of Law notes in a recent Law review article, “Frankfurter was the leading advocate of a restrained judiciary in constitutional cases.” Frankfurter argued that the Court should defer to the democratic majorities, which found their expression in the legislative branch, for “it is not the business of this Court to pronounce policy.” Moreover, he wrote, “this Court’s only and very narrow function is to determine whether within the broad grant of authority vested in the legislatures they have exercised a judgment for which reasonable justification can be offered.” Frankfurter was so committed to such deference to the legislature that he held schools were free to expel Jehovah’s Witnesses for refusing to salute the flag. Such judicial restraint, it would seem, can be problematic. After all, we do not live in a democracy, or even in a simple representative democracy. The United States is a constitutional republic. That constitutional republic presumes that the constitution is supreme, not the legislature. The trouble with modern notions of judicial restraint, therefore, is that they can undermine constitutional democracy.
Frankfurter operated in a very different constitutional world than our own. If there is one major difference it is the rising importance of the idea of judicial supremacy. Judicial supremacy is the idea that it is the job of the Supreme Court, and only of the Supreme Court to say what the Constitution means–to decide what is an is not a constitutional use of power. Whereas in the founding era and for much of American history it was common to believe that each branch had the duty to determine for itself what the Constitution meant, nowadays, the consensus is that that job belongs only to the Supreme Court. When President Bush signed the McCain-Feingold campaign finance law, he did so even though he had “serious constitutional concerns.” In the founding era, by contrast, a President would veto a bill only if he found it to be unconstitutional. But President Bush held it was the job of the Court to decide such things.
Once the other two branches of government believe it is not their job to determine the constitution’s meaning, the idea of judicial restraint makes no sense. Judicial restraint presumes that the other branches do their best to stay within the confines of the powers delegated to them by the constitution. But with the rise of judicial supremacy, the other branches are no longer trained to think about whether their actions are constitutional. They have chosen to pass on that question, and give it to the Supreme Court. Unless and until the other branches reclaim their coordinate authority to judge the meaning of the Constitution for themselves, the idea of judicial restraint is a mistake. If Congress does not think it is their job to determine the meaning of the Constitution, and if the Court defers to them, the Constitution ceases to be the fundamental law of the land.