I must have hit a nerve, judging from the tone of Romesh Ponnuru’s response to my critique of his recent Bloomberg column, where he argued that the Supreme Court’s role in protecting freedom has been vastly exaggerated. He calls “bizarre” my charge that in arguing his point he was “selective” in his review of Supreme Court history – “as though it were possible for it to be anything else.” Please, I was hardly asking him to recite the whole of Supreme Court history, but merely to honestly exercise his critical faculties. In politics as in science, a thesis is tested not simply by selecting corroborating evidence, as Ponnuru did, but evidence that calls the thesis into question, precious little of which he adduced. Had he done so, his thesis would have come up short.

And it’s not simply the libertarian rulings of the modern Court that call Ponnuru’s thesis into question. Thus, he misreads the history of our first seven decades because he misreads the Court’s seminal 1803 decision in Marbury v. Madison as standing for “a kind of judicial self-restraint” (admitting to being in the minority in that view). In truth, the decision was a bold assertion by the Court, grounded in the text of the Constitution, of having the power to declare its own power limited by the Constitution, thereby implying that the political branches were similarly limited. And that is the principle that explains why we enjoyed such freedom as we did during our first seven decades. It was not from “judicial restraint” – from judicial deference to the political branches, as Ponnuru would have it – but from respect for constitutional limits on the power of each of the branches, as secured by the Court.

Turning to the modern era, however, it’s difficult to tell what Ponnuru’s point is when he writes that he used Brown v. Board of Education “as a stand-in” for the several libertarian decisions I cited – many more of which I could have cited, covering everything from religious liberty to school choice, property rights, criminal procedure, and far more. But truth to tell, the reason Ponnuru cited Brown originally was not as a stand-in for those many decisions, as he now says. It was because Brown “is central to that [judicial] story, the shining example of how the court has broadened our constitutional guarantees.” And that’s just the “story” he wants to scuttle.

Why, especially since the evidence of the Court’s having so often stood against political tyranny is so overwhelming? Not that it has always done so, mind you: As I wrote originally, “both the political and the nonpolitical branches have played their parts in protecting freedom” – and scuttling it, I might add. But on balance we’ve been far better served by having than by not having an independent judiciary, as a look around the world will attest.

So we come, again, to the main reason Ponnuru is advancing his less than credible thesis that, as his original title said, the Court is “no friend of freedom.” He believes “that our history does not give us reason to refrain from considering proposals to reduce judicial power.” What exactly does he have in mind there? He chides me for citing Madison in defense of the courts. Perhaps his insights on these matters are keener than Madison’s. We’d like to know what he’s proposing, not least because it undermines the Madisonian structure that has served us so well – not perfectly, but tolerably well.

The U.S. Department of Labor claimed the authority to issue rules governing the H-2B guest worker program on the grounds that the underlying statute provides for it to be consulted as part of the program’s administration. On Monday, the Eleventh Circuit U.S. Court of Appeals curtly rebuffed this “absurd” claim. From its opinion:

In its proposed and final rules, DOL cited two statutory provisions as the source of its rulemaking authority. First, DOL cited 8 U.S.C. § 1184(c)(1), which instructs the Secretary of DHS to consult with the “appropriate agencies of the Government” in resolving whether to grant a foreign worker a visa upon the “petition of the importing employer.” Although there is no grant of rulemaking authority to DOL in this statutory section, DOL asserts that as the result of the permission it grants to DHS to consult with it, DOL “has authority to issue legislative rules to structure its consultation with DHS.” The end result, in DOL’s view, is that it is empowered to engage in rulemaking, even without the DHS.

We reject this interpretation of “consultation.” Under this theory of consultation, any federal employee with whom the Secretary of DHS deigns to consult would then have the “authority to issue legislative rules to structure [his] consultation with DHS.” This is an absurd reading of the statute and we decline to adopt it.

Meanwhile, today’s Washington Post reports that the Obama Administration is anxious to get more of its appointees confirmed to the D.C. Circuit, which hears more regulatory appeals than any other, on the grounds that the current roster of judges on the circuit too frequently strikes down the administration’s regulations as exceeding the federal government’s authority.  Perhaps the administration would not have to worry about seeing so many of its regulations struck down if it took care not to ground them on claims of authority that are “absurd.”

National Review’s Ramesh Ponnuru wrote a mischievous piece yesterday at Bloomberg (reposted today by AEI, where he’s a visiting fellow). Entitled “The Supreme Court: No friend of freedom,” the article challenges the “story” that “the Supreme Court has played a crucial, maybe the crucial, role in our country’s progress toward ever greater freedom and justice.” In truth, Ponnuru writes, “the story is false. In our actual history, the court has often been a bystander as freedom and equality have grown – and has frequently been a villain.”

The history Ponnuru then recounts is, not surprisingly, selective – and subject to rather of a different interpretation than he gives it. Thus, during our first 70 years the Court overturned only two federal laws, he tells us, and struck down only 34 state laws and one city ordinance. What he doesn’t tell us is how little the Court had to do during its early days. (Our first two chief justices, John Jay and Oliver Ellsworth, stepped down largely because they were bored.)  And the reason the antebellum Court was not more active in defending freedom was, first, because at the federal level bills often didn’t get out of Congress – members took the doctrine of enumerated powers seriously – and when bills did get out, presidents often vetoed them; second, accordingly, most government took place at the state level; and, third, the Bill of Rights did not apply against the states until after the Fourteenth Amendment was ratified in 1868.

Moreover, Ponnuru writes that “on the first occasion [on which Congress overturned a federal statute], the court said Congress was giving the federal judiciary more power than the Constitution allowed.” True. But that’s hardly an example of the Court’s not having been a friend of freedom. Ponnuru’s spin gets it exactly wrong. In limiting its own power in Marbury v. Madison the Court was establishing the fundamental principle that we live under a government of enumerated and thus limited powers, leaving us otherwise free to live our lives as we wish. What could have been a more important decision securing freedom?

Ponnuru goes on to cite a number of bad Court decisions, which is easy enough to do, the thrust of his argument being that Brown v. Board of Education in 1954 has misled us into thinking that the Court is our savior against majoritarian tyranny when in fact it has been the political process, as in the Civil Rights Act of 1964, that has played a far larger role in securing our liberties.

If you’re selective, you can make a case for either side, of course, and Ponnuru is that, ignoring many of the criminal law decisions that have advanced liberty, never mentioning decisions like Griswold v. Connecticut (the right to buy and use contraceptives), Loving v. Virginia (striking state anti-miscegenation statutes), and Lawrence v. Texas (striking state sodomy laws). He even claims “we don’t have the court to thank for free political speech.” True, the Court hasn’t been the best guardian of that form of political speech that takes the name of campaign finance, but it’s been far better than the political branches, especially lately. The truth in all of this, of course, is that both the political and the nonpolitical branches have played their parts in protection freedom. That’s part of the genius of our system.

So what is the point of Ponnuru’s “story”? It starts out, no surprise, with the same-sex marriage cases the Court heard last week. But it concludes on this note:

The mythology of a heroic court distorts our understanding of U.S. history, making us forget that for the most part we secured our status as a free people outside the courts. It makes us more averse to proposals to reduce judicial power than we otherwise would be. … The justices might be more likely to stick with a modest conception of their role, however, if they remember that the court has much to be modest about. (emphasis added)

This is, in short, one more plea for “judicial restraint” – perhaps, even, for “proposals to reduce judicial power.” That’s not what Madison had in mind when he hoped for the courts that “they will be an impenetrable bulwark against every assumption of power in the legislative or executive.”