Time was, left-leaning legal scholars and commentators called for the courts to actively enforce individual rights against overbearing majorities. Today, some among them would prefer that judges largely stay out of the way--and they're worried that an increasing number of conservatives do not agree with them.
In a recent column, Linda Greenhouse, The New York Times's venerable (but semi-retired) Supreme Court correspondent, confesses her surprise that Chief Justice John Roberts has been criticized by conservatives for voting twice to preserve the Affordable Care Act, both times in the name of "judicial restraint." Roberts' critics, including law professors Randy Barnett and Josh Blackman, along with columnist George Will, take the radical (to Greenhouse) view that judges should not reflexively defer to the political branches but should instead enforce the Constitution's terms as an independent, coequal branch of government. Greenhouse characterizes their view thus: "Judicial 'engagement' is good. Judicial restraint is a dereliction of duty."
Greenhouse's surprise is, well, surprising. As the New Republic's Brian Beutler has detailed in a thoroughly researched, fair and illuminating article, proponents of limited government are increasingly embracing an active role for the courts in holding government at all levels to the Constitution's terms. Having seen that calls for judicial restraint have done little to restrain government, they have sought out a new judicial approach. In judicial engagement, they have found the approach they seek.
As Greenhouse observes, criticism of "judicial activism" and calls for "judicial restraint" have been part of conservative vocabulary about the role of the courts for decades. Prior to the heady days of the Warren Court, however, it was progressives who were the most ardent advocates of judicial restraint, believing that judicial restraint was necessary to make space for the constitutionally dubious social and economic legislation they deemed desirable. Conservatives later embraced judicial restraint in response to the perceived excesses of the Warren Court, accusing it of creating rights with no foundation in the Constitution. The conservative call for judicial restraint was a call for a return to constitutionally limited government, consistent with the Constitution's original meaning.
But the hard truth of the matter is that conservative judicial restraint has long depended upon majoritarian premises that are no part of the original meaning of our Constitution, as well as a view of the political process that is often at odds with reality. If the Constitution prioritized majority rule over individual freedom, it might be sensible for judges to be highly--even reflexively--deferential to assertions of power by elected officials.
Yet, as originalist scholars like Richard Epstein, Roger Pilon and Randy Barnett have demonstrated, the Constitution is essentially countermajoritarian. The Constitution's structural limitations on government, its explicit protection of individual rights and its recognition of unenumerated rights that individuals possess by nature refute the notion that the judiciary is a deviant institution in an otherwise pure democracy. If it were rational to believe that legislatures and executives engage in careful constitutional reflection before taking action, it might be sensible for judges to give the political branches the benefit of the constitutional doubt. Yet there is precious little evidence that such reflection takes place, and a growing body of public choice scholarship strongly suggests that it frequently does not.
The Affordable Care Act decisions inspired many conservatives to revisit their restraint-oriented premises. But contrary to Greenhouse's facile account, conservative criticism of Chief Justice Roberts' votes in NFIB v. Sebelius (2012) and King v. Burwell (2015) was not simply grounded in antipathy towards the ACA. NFIB in particular was a galvanizing decision because conservatives (correctly) saw Roberts' opinion for the Court in as a tortured rationalization of an exercise of federal power that could not plausibly be reconciled with the Framers' vision of a federal government with "few and defined" powers, justified in the name of judicial restraint. The idea that judicial restraint would lead to government consistent with the original meaning of the Constitution, long unquestioned, suddenly looked dubious at best.
Enter judicial engagement. Judicial engagement stands for the modest proposition that the government should have to justify itself to citizens, not the other way around. It holds that judges should remain impartial and seek the truth, rather than simply presuming the constitutionality of the government's actions, and that they should also ensure that the government's factual assertions are supported with reliable evidence. Judicial engagement offers to proponents of limited government a view of the judicial role that is consistent with the Framers' vision of the judiciary as "an impenetrable bulwark against every assumption of power by the legislative and executive," and a means of holding the political branches to the Constitution's terms, rather than allowing the political branches to treat those terms as perpetually subject to revision.
In the end, Greenhouse's surprise at the criticism of Roberts can be attributed to her own unfamiliarity with the conservative legal movement. As I have written, Chief Justice Roberts' own nomination cannot be understood except in the context of a conservative legal movement that touted judicial restraint as the supreme judicial virtue.
The criticism of him cannot be understood except in the context of a conservative legal movement that has come to regard restraint as a vice, both inconsistent with the Constitution's premises and incapable of delivering on its promises. Judicial engagement, unlike judicial restraint, rests on firm constitutional foundations and is capable of keeping government within constitutional limits. It is here to stay.