Monday, April 2, 2012

Judicial restraint

Here's an opinion we should all take into account, by one prominent constitutional law scholar, on the constitutionality of the Affordable Care Act.


As the president reminds us:
[F]or years what we've heard is the biggest problem on the bench was judicial activism or a lack of judicial restraint. That an unelected group of people would somehow overturn a duly constituted and passed law. Well, this is a good example, and I'm pretty confident this court will recognize that and not take that step.
My commentary on just how radical and backwards a step it would represent to return our country to a vision of limited federal power that was repudiated by the Supreme Court about 75 years ago, appears below. But we could also spend some time talking about the doctrine of judicial restraint, that conservatives like to invoke when they complain about the Supreme Court invalidating laws that the courts deem too intrusive of individual constitutional rights. To be consistent, these critics should not be so quick to urge the court to invalidate the will of Congress in this case. (See this interview with Charles Fried, solicitor general under Reagan, and a solid conservative, who finds this an easy constitutional case, and concludes that the opposition to what was previously thought to be a fairly conservative solution to the health insurance problem, is mainly based on politics, not constitutional law.)


  1. The court striking down Obamacare as judicial activism? It looks to be the exact opposite of judicial activism. I thought judicial activism is where the court creates a right out of nothing relating to the constitution. In the case of Obamacare the court is determining constitutionality. That is what they do.

    Maybe the left and the right have their own definitions of judicial activism.

  2. The right defines judicial activism when a liberal court gives a broad interpretation of certain individual rights such as the protections against search and seizure, or self-incrimination, or equal protection. But it is not judicial activism when the court gives a broad interpretation to other rights such as the right to own guns or free exercise of religion.

    The left defines judicial activism as striking down duly-enacted statutes such as those that restricted corporate spending on political campaigns, or that overturn statutes that regulate business activity. But it is not judicial activism to protect the constitutional rights of those accused of crimes, or of individual privacy rights, or voting rights, or the rights of minorities.

    Right now we have a very activist Supreme Court, in support of a right wing agenda. They hide behind the facade of saying they are just protecting the text of the Constitution, but that is just not true. When they decide to protect the rights of gun owners, they take a very expansive view of the second amendment; when they protect the rights of corporations, they take a very expansive view of the 14th amendment; when they stopped the Florida courts from doing their own recount of the 2000 election, they ignored state's rights and took a very expansive view of the equal protection clause that was directly at odds with what those same conservative judges had previously said.

    I'm going to write another post about this, but the Supreme Court does not need to step in right now and decide that the ACA is unconstitutional, and to do that will be perceived--correctly--as both activist and political. And since it is largely a political decision, it should be left up to the voters to decide in November. If people really want to get rid of this law, it will be very easy for them to do in this year's election, since the Republicans have promised to repeal it on day one.

  3. What would you call the court that made several decisions that Bush was upset by? Like Boumediene v. Bush, 553 U.S. 723 (2008), or clean air act, etc?

    I understand the President's frustration. Perhaps he was tipped off about their vote last Friday. But I am surprised by him questioning their legitamacy while a case is pending. About 75% of Americans hold the SCOTUS is good or high esteem. The President has two important things working for him heading into the election. One is the respect for the office that most Americans have and the other is his like ability. Do you think he risks underrmining both with recent actions?

  4. The decisions that held that the Guantanamo detainees have rights were somewhat surprising because Justice Kennedy joined the more liberal justices. I guess you could call that activist if you think that standing up strongly, and perhaps extending, the constitutional right of habeas corpus is activist. The decision that told the EPA that they have the authority to regulate carbon dioxide was a pretty straightforward issue of statutory interpretation. That was not a constitutional issue. It was more a question of the Executive branch failing to comply with the intent of the Clean Air Act.

    I don't think President Obama was questioning the Supreme Court's legitimacy, though it might have been a rare occasion where he was not quite as clear about what he meant as he should have been. I think he was suggesting that this was a case where the Supreme Court should think long and hard about whether to overturn an act of Congress.

    I also agree that he sounded frustrated because to anybody familiar with the constitutional issue, it does not sound like a very close question at all(read the Fried interview that I linked to in my post), so if the Supreme Court overturns this statute, I think they really would be embarking on a radical new interpretation of the Constitution, or at least an interpretation that nobody has taken very seriously since the 1930's.

    Do I think that expressing frustration with the Supreme Court is going to undermine the president's position? Maybe with a few people, but Obama's supporters are only going to sympathize with him, while his opponents are going to take the opposite view. I think it's ok for the president to let off a little steam once in a while.

  5. In 2005 Bush appointed Roberts and Alito. Recently, Obama appointed Judge Sonia Sotomayor and Solicitor General Elena Kagan. Neither court appears activist.

  6. ...backwards a step it would represent to return our country to a vision of limited federal power that was repudiated by the Supreme Court about 75 years ago...

    Perhaps you could construe it as a 'backwards' step, but to many, it also is a step in the right direction. The Supreme Court you talk about of 75 years ago was stacked during 20 years of Democratic Presidency with extremist liberals who COMPLETELY POLITICALLY threw aside 150 years of precedence in order to promote Socialism in the United States.

    Clarence Thomas, in his extraordinarily well-written and logical concurring opinion on the Lopez Case, specifically detailed where the court threw out any preceding understanding of 'commerce' in order to push through New Deal legislation; and, further detailed that it was time to review the extremist opinions of that far-leftist court and reconcile and return the true intent of the founding fathers, found in the Federalist Papers and the first 150 years of Supreme Court Jurisprudence regarding the Commerce Clause.

    This laughably junk 2700 page disaster of Socialist Elitism passing as 'Healthcare Reform' is going to be thrown the hell out, as it should be, and we are now about to enter a new era of constraining runaway Elitist Controlled by Federal Power, and returning power to the States, as our constitutional Federalist system means it to be. Thank God for that.

    1. Perhaps you could enlighten me, Anonymous, as to what was so wonderful about the weak central government we had up until the New Deal. Because when I hear people extolling the virtues of states' rights, what comes to my mind is 250 years of slavery which could only be ended by war and by fundamentally changing the relationship of the states and the federal government by means of the 14th amendment. And even that wasn't enough to prevent another 100 years of institutionalized racism which could only be ended by putting some teeth in those 14th amendment guarantees.

      And when I think about the older interpretation of the Commerce Clause, what comes to mind is a federal government nearly powerless to deal with the Great Depression. And had Roosevelt not increased the power of the federal government, it is also hard to imagine how we would have been united enough and strong enough to win World War II.

      So when you talk about returning power to the states, what I understand that to mean is slavery, racism, backwardness, poverty and fascism. I can't imagine why we would want to dismantle our federal government, risk destroying our union, and return to those values.

  7. << So when you talk about returning power to the states, what I understand that to mean is slavery, racism, backwardness, poverty and fascism. >>

    Joe, are you insinuating that anyone who wants to return power to states is in favor of slavery, racism, backwardness, poverty and fascism?

    1. Our history demonstrates that states' rights is associated with all of those things. People who say they favor states' rights might be suffering from historical amnesia.

  8. You didn't answer my question.

    Try to be as clear as you were about the mandate and the capital gains tax.

    1. I'd like to know if I favor additional state's rights if that means you think I favor slavery, racism, backwardness, poverty and fascism?

    2. I was trying to be kind by using the term "historical amnesia." How else would you describe people who champion an idea that has such an ugly history and that has repeatedly led to calamity for our country? Einstein supposedly called it insanity to do the same thing over and over again and expect a different result.

      The other thing I would say about the idea of states' rights is that the people who are the loudest in support of the idea are completely inconsistent about it. In the time leading up to the Civil War, the Southerners who supposedly believed in states' rights had no problem at all with the Fugitive Slave Law, which was a huge expansion of federal power. And nowadays, the people who supposedly favor states' rights had no problem with the Supreme Court stopping the state of Florida from counting ballots in the 2000 election on spurious federal equal protection grounds that they had rejected in other cases. They have no problem with the Defense of Marriage Act, which is a gross interference with the right of states to define marriage, which has always been a matter of state law. They have no problem with telling states or local governments that they cannot institute a ban on handguns. They have been happy to extend the reach of federal drug laws. And a lot of them want the federal government to outlaw abortion and pornography and anything else they disapprove of, even though those are traditionally state law issues.

      In my opinion, states' rights is nearly always a bogus claim. It's just something people like to say when they disapprove of what the federal government is doing. And they never say it when they like what the federal government is doing.

  9. Thanks Joe, for taking the time to add to your position. Much appreciated.