A Supreme Court with a majority of Republican appointed justices has for the second time saved Obamacare from its significant and obvious Constitutional flaws. The wrong-headed decision in King v. Burwell is just the latest in a long line of judicial disappointments for Republicans, who seem by at least one measure much worse at picking justices compared to their Democratic counterparts.
The Supreme Court currently consists of five justices appointed by Republican Presidents and four by Democrats. Yet you wouldn’t always know it by the results, particularly in recent months.
Obviously there is more to a good Supreme Court Justice than how often he or she sides with a particular political viewpoint. What really ought to matter is process – namely the quality of their legal reasoning and adherence to Constitutional principles. But picking judges is an inherently political process, and politicians by their nature want judges that will advance their political agenda.
Politicians generally believe that judicial vacancies, particularly at the Supreme Court, provide an opportunity to put in place someone that will consistently advance both their general view of government and their major agenda items. Yet Republican-appointed Chief Justice John Roberts has twice voted to save Obamacare – which conservatives view as a massive and unconstitutional government overreach – including once as a crucial tie-breaking vote.
Republicans and conservatives are scratching their heads for good reason. The just concluded Supreme Court term has been marked by liberal cohesion and conservative disunity, as explained by SCOTUSblog’s Tom Goldstein:
“For present purposes, I treat four Justices as sitting to the Court’s left: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. I treat four Justices as sitting to the Court’s right: Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito. I treat Justice Anthony Kennedy as the Court’s ‘center.’
I count 26 cases this Term that were both close (5-4 or 6-3) and ideological (in the sense that they broke down principally on ideological lines, with ideology seemingly an important factor).
Of the 26 cases, the left prevailed in 19… In the 26, a Justice on the left voted with the right a total of 3 times…[and] a Justice on the right voted with the left 14 times.”
If it were focused on party identification of the appointing President, Goldstein’s analysis would look even worse for Republicans because Kennedy would also be included: “If [Kennedy] were characterized [as conservative] for my analysis, the number of defections to the left would be much higher. By that measure, a Justice on the right voted with the left 25 times (compared with 3 times the reverse happened). That occurred in all 10 of the 10 major cases (because no Justice on the left voted with the right in any of those cases), and determined the outcome in all of them.”
Clearly if politicians aim to appoint judges that will side with their desired policies, Republicans in recent years have proven not to do anywhere near as good a job at the task as Democrats. And this doesn’t even consider the recently retired David Souter and John Paul Stevens, Republican-appointed Justices that became liberal stalwarts on the Court, or the moderate Sandra Day O’Connor.
No doubt a combination of explanations is needed to understand why Republicans pick Supreme Court Justices poorly, or why recent decisions were more liberal than expected.
One possible factor is that because the Roberts Court is perceived as more conservative, liberal lower court rulings are more likely to be appealed by petitioners who think they will be overturned. They may in turn have overestimated how far the court was willing to go.
That can only explain so much, however, not including the typically conservative Roberts’ quixotic Obamacare rulings. In that regard, Republicans and conservatives have no one to blame but themselves, as Roberts is the extreme embodiment of the misguided judicial philosophy of “judicial deference” that they have been trumpeting for decades.
Roberts’ guiding principle is to minimize the Court’s footprint. During his confirmation hearings he emphasized the Court’s role as “umpire,” and stressed that no one goes to a baseball game to watch the umps.
The Court, in other words, shouldn’t attract undo attention. Thus when President Obama publicly flogged the Supreme Court in anticipation of a ruling striking down Obamacare, Roberts switched his initial vote that would have struck down the law out of apparent fear that the Court would become too politicized.
Roberts, like many of his fellow conservative judges, believes in “deference” to the political branches, insisting the Court must practice “judicial self-restraint.” His tenure has been marked by a minimalist approach, where he emphasizes consensus on the Court as much as possible and seeks the narrowly crafted decisions that might foster it.
To borrow his umpire analogy, Roberts seems to believe that the tie goes to the government.
In the first Obamacare challenge, he cited an Oliver Wendell Holmes Jr. opinion stating, “between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Deference in practice is permission to stretch the Constitution as far as possible.
It wasn’t always conservatives preaching judicial deference to the political branches. Holmes was also trumpeted by early Progressives, who pushed adoption of his views to justify permitting New Deal regulatory expansions previously considered unconstitutional. But that all changed with backlash to perceived liberal overreach, and the idea was cemented into conservative thought when Robert Bork’s appointment to the court was famously derailed, creating for the political right a sort of judicial martyr.
Bork’s own adherence to judicial deference didn’t always go together with originalism, another idea popular on the right. As Ilya Somin explained:
As a constitutional theorist, the late Judge Robert Bork was best known for his advocacy of two major ideas: originalism and judicial deference to the democratic process. In some cases, these two commitments may be mutually reinforcing, as in Bork’s critique of some of the nonoriginalist “activist” decisions of the Warren Court.1 But Judge Bork largely failed to consider the possibility that his two ideals sometimes contradict each other. Over the last twenty to thirty years, it has become increasingly clear that consistent adherence to originalism would often require judges to impose more constraints on democratic government rather than fewer.
To uphold Constitutional values, in other words, judges must sometimes act against the will of the people, be it expressed through Congress or state governments. That means striking down bad law in a way that some might term “activist.”
To sustain his argument for deference, Bork also had to essentially write out the crucial Ninth Amendment from the Bill of Rights. It reserves for the people even those rights not specifically mentioned in the Constitution or the Bill of Rights, and is an essential component in keeping government operating within its proper bounds. But Bork compared it to an indecipherable “ink blot,” likely in reaction to Roe v Wade‘s reliance on 9th amendment “penumbra” to find a right to privacy that in turn was used to invalidate abortion restrictions (alternatively, an opponent of Roe could acknowledge a right to privacy, but argue that in the case of abortion it is outweighed by the potential rights of the unborn).
It’s not just Roberts at issue, either. Even favorites Scalia and Thomas have their own blind-spots. Scalia, in particular, gives great weight to the right of the majority to enact their will without judicial second guessing. Alas, such interference in the actions of the majority is precisely the point of the Court. When the rights of the minority – or the individual – are infringed upon by the government, the courts must intervene. Even when the government is acting with the blessing of a majority of the population. No, especially then.
Nonetheless, in Lawrence v. Texas, Scalia’s dissent outrageously argued for the right of state governments to criminalize homosexual acts on the basis that, “The Constitution does not forbid the government to enforce traditional moral and sexual norms.” Perhaps not, but it sure as hell doesn’t authorize it to do so.
The idea that the government can exercise any power not expressly forbidden to it by the Constitution turns the document completely on its head, and is not the sort of thing the conservative base typically endorses. Yet Scalia is frequently held up as an ideal conservative jurist. The disconnect is explained by the excessive importance given by conservatives to “judicial deference,” even to the neglect of other constitutional ideals.
Simply put, a large reason Republicans are disappointed in the Supreme Court is because the prevailing conservative judicial philosophy is inadequate for standing up for the Constitution in the face of executive and legislative abuses. Preaching ‘deference’ and ‘restraint’ for their own sakes has led conservatives astray. The Court shouldn’t invent its own law, to be sure, but it shouldn’t be held back by some false notion of modesty and stand idly by as the law is abused by other branches and levels of government.
If conservatives want to avoid another disappointment the next time the public throws an electoral fit and grants Democrats a large enough majority to radically transform major sectors of the economy, then they need to start appointing judges who actually believe in striking laws down.
Brian Garst is an advocate for economic and individual liberty. He works as Director of Policy and Communications at the Center for Freedom & Prosperity, a free market think-tank dedicated to preserving tax competition. His writings have been published in major domestic and international papers, and he is a regular contributor for Cayman Financial Review. He also blogs at BrianGarst.com and you can find him on Twitter @BrianGarst.
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