Are conservatives truly revisiting their longstanding commitment to judicial restraint, or are liberals merely flogging a narrative of right-wing radicalism to advance their own ends? Last week, I responded to an article by The New York Times' Linda Greenhouse focusing on conservative criticism of Chief Justice John Roberts in the wake of his votes to preserve the Affordable Care Act. Greenhouse claimed that an important recent shift is taking place within the conservative legal movement--a shift from judicial restraint, which holds that judges should generally defer to the choices of the political branches, to judicial engagement, which holds that judges have a duty to impartially pursue the truth concerning the lawfulness of the government's conduct and enforce the Constitution without unwarranted deference.
In a recent post on the Originalism blog, Professor Michael Ramsey argues that the shift Greenhouse identifies is not particularly significant and not related to the ACA cases. He concludes that Greenhouse is "trying to create a scare narrative of a radical shift in conservative objectives that has left the cautious Chief Justice behind." But I think Ramsey is wrong to diminish the shift and fails to grasp the intimate connection between conservative criticism of Roberts and the rise of judicial engagement.
Ramsey begins by stating that "[t]he idea that conservatism (in the good old days) meant judicial restraint oversimplifies." Conceding that "conservatives centrally objected to activist decisions from the Warren and early Burger courts," Ramsey claims that "conservative Justices have not hesitated to act against unconstitutional laws."
If Greenhouse is guilty of oversimplifying, so, too, is Ramsey. Conservatives have long inveighed against the Warren Court's enforcement of rights not expressly listed in the Constitution, in particular, the right to marital privacy recognized in Griswold v. Connecticut (1965). But none of the Court's conservatives, save Justice Clarence Thomas, has seriously questioned the New Deal Court's essentially limitless conception of federal power, as articulated in cases like Wickard v. Filburn (1942)--a conception that cannot be plausibly reconciled with James Madison's vision of a federal government of "few and defined" powers. Justice Antonin Scalia (whom Ramsey touts as an example of conservative vigilance in enforcing the Constitution), concurred in Gonzalez v. Raich (2005), in which the Court held that Congress's power to regulate interstate commerce enabled Congress to regulate purely local, noncommercial growth and consumption of marijuana because those activities might have an impact on the national market for marijuana. Justice Scalia is also responsible for a series of opinions defending and even expanding the rule articulated in Chevron v. National Resources Defense Council (1984), in which the Court held that courts should defer to interpretations of congressional statutes when agencies write and enforce regulations pursuant to the statutes unless those interpretations are "unreasonable"--regulations that have the force of law. Chevron deference has been instrumental in perpetuating a status quo under which most of the law we live under is written not by Congress but by administrative agencies, despite the fact that the first sentence of Article I of the Constitution reads: "All legislative Powers herein granted shall be vested in a Congress ...." (emphasis added). In short, there is more than a little conservative faint-heartedness in evidence here that belies Ramsey's claim that conservative justices have been fairly conscientious in enforcing textual limits on government power.
Second, Ramsey dramatically understates the extent of the recent rehabilitation of Lochner v. New York (1905), once grouped together by conservatives with Griswold and Roe v. Wade (1973) as an example of judicial lawlessness. Ramsey may be correct that support for Lochner "remains a minority [position] in conservative legal thought," but it is an increasingly influential minority position that is changing conservative discourse about the Constitution. Columnist George Will's embrace of Lochner is not merely "noteworthy," as Ramsey claims; indeed, Will is perhaps the most prominent conservative opinion-leader in the American press, and he had vigorously criticized Lochner in prior years, echoing a long-standing conservative consensus that the Constitution protects no rights not expressly listed in the Constitution's text. In 2011, however, Will praised David Bernstein's indispensable history of the case, Rehabilitating Lochner, and in 2014, he favorably reviewed Terms of Engagement (written by my colleague Clark Neily), urging that "conservatives clamoring for judicial restraint ... are waving a banner unfurled a century ago by progressives eager to emancipate government." Conservative politicians, too, are revisiting the question of whether the Constitution protects unenumerated rights. Senator Rand Paul praised Lochner and affirmed the need for judicial protection of unenumerated natural rights during two momentous filibusters on the Senate floor. Most recently, Carly Fiorina emphasized the importance of the Ninth Amendment's reference to unenumerated rights "retained by the people" and called attention to the Privileges or Immunities Clause of the Fourteenth Amendment. These provisions have long been neglected --indeed, avoided-- by conservatives. Conservative icon Judge Robert Bork stated that both clauses were as impenetrable as "inkblots" to him, falsely claiming that there is no historical evidence that would illuminate either clause; Justice Scalia declined an express invitation to consider whether the Privileges or Immunities Clause protects substantive rights--including, perhaps, unenumerated rights--against the states in McDonald v. City of Chicago (2010). Even conservative scholar Ed Whelan, who has been unsparing in his criticism of the libertarian legal movement, has stated that it is "quite plausible" that "the Privileges or Immunities Clause...does protect some substantive economic rights." (Although he has yet to take a considered position on the meaning of the clause.)
Finally, Ramsey claims that "the [supposed] rise of Lochner-inspired libertarian thought has nothing to do with the conservative Obamacare-driven criticism of Chief Justice Roberts." According to Ramsey, "The conservative critique of Roberts isn't that he should be doing something beyond 'calling balls and strikes'; it's that he isn't calling the balls and strikes correctly." The implication is that "Lochner-inspired libertarian thought" would have Roberts do something beyond calling balls and strikes.
Ramsey mischaracterizes "Lochner-inspired libertarian thought" and therefore misunderstands its connection with conservative criticism of Chief Justice Roberts. What Ramsey calls "Lochner-inspired libertarian thought" has never held that judges should be doing something calling beyond "calling balls and strikes," but, rather, has insisted that judges shouldn't presume that legislators and bureaucrats will hit the constitutional strike zone. Libertarian constitutional scholars like Randy Barnett, Richard Epstein, and Timothy Sandefur have argued that judges should adopt a presumption of liberty and require the government to demonstrate the constitutionality of its conduct. The conservative criticism of Roberts that Linda Greenhouse notes and Ramsey attempts to downplay has proceeded precisely along these lines. One of the most important reasons why the call for judicial engagement has proven so appealing to conservatives is that judicial engagement rejects Roberts' reasoning in the ACA cases. Both of those cases saw Roberts departing from the "the most natural interpretation" of the law's language and both saw Roberts justifying his interpretive moves in terms of deference to the political branches. Ramsey may think conservative criticisms of Roberts' restraint overblown, but he neglects to grasp the deep connection between the rise of engagement and the rejection of the deferential conception of the judicial role reflected in NFIB v. Sebelius (2012) and King v. Burwell (2015).
Ultimately, both Greenhouse and Ramsey miss the mark in their analysis of the judicial engagement phenomenon. It's not simply driven by conservative antipathy towards the ACA, as Greenhouse suggests. Nor is it the fruit of libertarian thought unconnected with the ACA decisions. Rather, judicial engagement is on the rise because it promises to deliver what judicial restraint, as vividly revealed in the ACA decisions, has not: a judicial approach that is capable of keeping government within constitutional limits.