That’s the provocative title of my new essay in National Affairs, out this week. I’m mostly addressing conservatives who believe that judges ought to be “restrained,” as opposed the in contradistinction to the “liberal judicial activism” of the Supreme Court in the 1960s and ’70s. It’s puzzling that the attack would be that judges should have a bias towards inaction, towards sitting on their hands, when it’s precisely this deference to the political branches that allowed progressives to rewrite the Constitution during the New Deal. As I explain:
Under the founders’ Constitution, under which the country lived for its first 150 years, the Supreme Court hardly ever had to strike down a law. The Congressional Record of the 18th and 19th centuries shows a Congress discussing whether legislation was constitutional much more than whether it was a good idea. Debates focused on whether something was genuinely for the general welfare or whether it served only a particular state or locality. “Do we have the power to do this?” was the central issue with any aspect of public policy… .
But deferentialist judges played their part in changing all that. The idea that the general welfare clause says that the government can essentially regulate any issue as long as the legislation fits someone’s conception of what’s good — meaning, as it’s understood by the majority party in Congress — emerged in the Progressive Era and was soon judicially codified. After 1937’s so-called “switch in time that saved nine,” when the Supreme Court began approving grandiose legislation of the sort it had previously rejected, no federal legislation would be struck down for exceeding Congress’s Article I powers until 1995. The New Deal Court is the one that politicized the Constitution, and therefore too the confirmation process, by laying the foundation for judicial mischief of every stripe — be it letting laws sail through that should be struck down or striking down laws that should be upheld.
And it’s this unholy alliance of liberal activism and conservative passivism – both the progeny of the Progressive Era – that leads to rulings like NFIB v. Sebelius, where Chief Justice John Roberts rewrote the Affordable Care Act in order to avoid having to strike it down as unconstitutional. I use NFIB as a salient recent case study of the ills of judicial restraint, including a provocative vignette on how Roberts begat Donald Trump:
Roberts essentially told future Donald Trump supporters not to bother the courts with important issues, that if you want to beat Obama you have to get your own strongman — complete with pen, phone, and contempt for the Constitution. So they did, bypassing several flavors of constitutional conservative in favor of a populism that knows nothing but “winning.” …
Constitutional conservatism simply couldn’t survive this brand of judicial conservatism. The genteel Roberts and the vulgar Trump thus seem to have one thing in common: a belief that judges should stop striking down laws and let political majorities rule, individual liberty be damned.
It’s fortuitous that my piece came out just as Cato Unbound is featuring a symposium on “judicial engagement.” The point is that judges should judge – we pay them for making those hard balls-and-strikes calls, as Roberts described at his confirmation hearings – and then we can debate their interpretive theories rather than whether they’re activist or restrained. Read the whole thing.