In the wake of recent high-profile criticism of his jurisprudence, Chief Justice John Roberts can take comfort in the fact that he has at least one, perhaps increasingly lonely, admirer. Law professor Noah Feldman, writing at Bloomberg View, praises Roberts' "principled, across the board stand against activism," supposedly exemplified in Roberts' opinions for the majority in the two Obamacare cases and his dissent in the same-sex marriage case, Obergefell v. Hodges. In all three cases, writes Feldman, Roberts deferred to the political branches in order to "preserve the legitimacy of the court," purportedly in the belief that "the court lacks legitimate authority to overturn legislation passed by an empowered democratic majority, and harms itself and the democratic process when it does so." Feldman favorably compares Roberts' judicial approach to that of Justice Felix Frankfurter, a Progressive jurist who advocated reflexive deference to the political branches in nearly all constitutional cases, regardless of the consequences.
Feldman admires the restraint of Roberts and Frankfurter because he shares their premises about the proper role of the judiciary in our system of government. But upon examination, these premises turn out to be mistaken, and they lead Feldman to offer a false choice between "unprincipled" activism and "principled" restraint. There is a third way: a principled, consistent approach in which judges act as enforcers of the Constitution, neither imposing their personal preferences on the rest of the nation nor allowing the political branches to treat constitutional limits as mere parchment barriers.
Feldman's account of the jurisprudence of Frankfurter and Roberts is accurate. In Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices, Feldman's readable and highly informative history of Franklin Delano Roosevelt's most consequential Supreme Court appointments--Frankfurter, Hugo Black, William O. Douglas, and Robert Jackson--Feldman provides an excellent summary of Frankfurter's consistent, at times agonized commitment to judicial restraint. Whereas other Progressive jurists initially embraced judicial restraint as a means to an end, namely, facilitating social and economic legislation that they deemed desirable, Frankfurter embraced restraint because he believed that it was the proper posture of judges in a representative democracy. As Feldman puts it in his book, "Frankfurter's judicial restraint was riven by a deeply romantic conception of the nature and tendencies of the American people living under conditions of democracy." Specifically, Frankfurter believed that "under our basic constitutional structure," the proper thing is "to rely on the democratic polity to preserve rights, not for the courts to intervene." Frankfurter's commitment to restraint was unwavering--when the Court struck down a requirement that all children in public schools salute the flag and recite the pledge of allegiance, Frankfurter dissented, even as he acknowledged that he, as a Jew, "belong[ed] to the most vilified and persecuted minority in history." His steadfast reluctance to protect minority rights would leave him a lonely figure, as his (later) liberal colleagues on the Warren Court took an active role in enforcing constitutional limits on the desires of majorities.
Chief Justice Roberts appears to share Frankfurter's conception of judicial duty. At his confirmation hearings, Roberts emphasized his modesty, his humility and his unwillingness to second-guess the elected branches of government. In NFIB v. Sebelius (2012), Roberts construed the Affordable Care Act's individual mandate as a tax in order to uphold it--even though Congress and the President had insisted that the individual mandate was not a tax, and despite the fact that the ACA refers to the mandate as a "penalty" some 18 times. Roberts considered it his duty to base his ruling not on the "most natural interpretation of the law" (his words) but on any "fairly possible" interpretation that would " save the statute from unconstitutionality." "It is not our job to protect the people from the consequences of their political choices," Roberts reasoned. In the second Obamacare case, King v. Burwell (2015), Roberts again departed from "the most natural interpretation" of the law's language in order to rescue Congress from what he described as "inartful drafting." As before, he did so in the name of deference to the political branches: "In a democracy, the power to make the law rests with those chosen by the people...in every case we must respect the role of the Legislature, and take care not to undo what it has done." Finally, in Obergefell v. Hodges, the same-sex marriage case, Roberts penned a lengthy dissent that might have gladdened Frankfurter's heart. The dominant theme of Roberts' dissent is his reluctance to cut short democratic debate. He inveighs against the majority for taking the question whether same-sex couples are to be allowed to marry away from "the people acting through their elected representatives" and concludes by arguing for a "modest and restrained" role for the Court that is "sensitive to the fact that judges are unelected and unaccountable."
Feldman criticizes as unprincipled liberals who condemned Frankfurter for his unwillingness to protect minority rights and conservatives who have recently denounced Roberts for the Obamacare decisions. But as Feldman acknowledges in his book, the value of Frankfurter's (and Roberts') commitment to judicial restraint is contingent upon the merits of restraint as a judicial approach. Feldman gives the following account of Frankfurter's reasoning: "If judicial restraint had been appropriate when conservatives controlled the Court, it must still be the right doctrine now that the liberals had the votes." But this begs the question: is judicial restraint the right doctrine?
In a word, no. The judiciary is not an exceptional, deviant institution in an otherwise pure democracy. The Constitution is pervasively countermajoritarian. It protects Americans against majority tyranny by providing that the government may act only when it has the authority to do so and by explicitly protecting individual rights. The Framers established an independent judiciary to hold the political branches to the terms of our countermajoritarian Constitution. Alexander Hamilton emphasized in Federalist 78 that "the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority" by the Constitution. In discussing the role of the judiciary in policing the separation of powers and protecting constitutional rights, Madison explained that "independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive."
The Framers envisioned the Constitution as a source of fixed principles and the judiciary as an active enforcer of those principles. In order for the judiciary to fulfill that function, judges must consistently engage with the Constitution and the facts of every constitutional case rather than extending unwarranted deference to the political branches. They must seek truth, remain impartial and require the government to demonstrate the constitutionality of its actions with reliable evidence. This is called judicial engagement, and perhaps surprisingly it is the exception in constitutional cases today, not the norm.
The history of American government has proven the necessity of such judicial engagement. Frankfurters' confidence in democratic majorities did not stand the test of experience. The fact of the matter is that even the best of our public servants don't always serve the public. As G. Edward Wright recounts in his invaluable biography of Chief Justice Earl Warren, Warren's rejection of the Frankfurter's restraint was in part the product of Warren's own experience in California government. That experience led Warren to see first-hand how "legislatures were neither 'democratic' nor 'representative' of public opinion" and could not be relied upon to pursue only public-spirited ends. In the wake of state-level resistance to the Court's decision in Brown v. Board of Education (1954), Warren came to see that the only relief that is realistically available from majoritarian tyranny must come from the courts. The Warren Court's judicial engagement in cases involving segregation, speech and voting rights, among other constitutional questions, inspired a generation of activists, scholars, and jurists--and with good reason. While its record was far from perfect, in key cases, the Warren Court's pursuit of the truth concerning the constitutionality of the government's means and ends and its refusal to extend unwarranted deference to government at any level extended the blessings of liberty to classes of Americans who had long been deprived of them.
Feldman is correct that neither Frankfurter nor Roberts should be condemned for fidelity to a particular judicial approach. But he fails to apply the needed scrutiny to their judicial approach. Any admiration we might have for Frankfurter and Roberts should be tempered by the recognition that judicial restraint is a deeply flawed doctrine. Those who value the Constitution's promise of liberty owe it to themselves to seek out an alternative approach that is more consistent with the vision of the Framers and our own experience with how the democratic process actually works--not in theory, but in fact.