divLate last year, Reason magazine’s crack legal correspondent Damon Root chronicled the rise of the modern libertarian legal movement in his important new book, Overruled: The Long War for Control of the U.S. Supreme Court. In it, he focused especially on the struggle that some of us have been engaged in for more than four decades to recast the terms of the debate over the proper role of the courts from “judicial activism” and “judicial restraint” to “judicial engagement” and “judicial abdication.” That shift has been crucial because it refocused the debate from judicial behavior to where it should have been all along, namely, on the proper interpretation of the law before the court.
The struggle to bring about that shift, although much further along than when it began decades ago, is far from finished: Witness hearings just two days ago before the Senate Judiciary Committee’s Subcommittee on Oversight, Agency Action, Federal Rights and Federal Courts. Called by Subcommittee Chairman Ted Cruz in the wake of last month’s Supreme Court decisions in King v. Burwell, upholding Obamacare’s subsidies for insurance purchased through exchanges established by the federal government, and Obergefell v. Hodges, which made same-sex marriage the law of the land, the hearings were titled “With Prejudice: Supreme Court Activism and Possible Solutions.”
As the title suggests, committee conservatives, in the majority, remain focused on what they see as the Court’s activism. Their witnesses were two professional friends of mine, former Chapman Law Dean and now Professor John Eastman and Ethics and Public Policy Center President Ed Whelan. Nominally representing the liberal activist side was Duke Law Professor Neil Siegel.
I say “nominally” because Professor Siegel took pains early in his testimony to expose problems with the very idea of judicial activism. If defined in opposition to judicial deference, he said, many of the recent decisions of the Court’s “conservatives” would have to be called “activist.” But if the term is defined as engaging in legal infidelity, then we’re arguing not about activism or restraint but about whether the judge read the law correctly.
That’s right. In fact, “judicial engagement” emerged in libertarian thought mainly in opposition to calls from conservatives like Robert Bork and Antonin Scalia for courts to be more deferential to the political branches. But it was animated by the contention that the basic problem with conservative deference was its misreading of the law. In particular, under our Constitution, as Bork put it, majorities were entitled to rule in “wide areas” simply because they were majorities, even if in “some areas” minorities were entitled to be free from majority rule—to which many of us responded that that had the law exactly backwards, turning the Constitution on its head.
But having put his finger on the real source of the differences between the activist and restraint schools, Siegel then went on to illustrate why conservatives called the hearings in the first place, arguing that the Court got it right in both King and Obergefell. In King, Siegel said, Chief Justice John Roberts was right to ignore both the text at issue in the case and the rationale for that text and instead “to read the statute in context and as a whole.” Those, of course, are the kinds of words that enable courts to reach almost any conclusion they wish—to engage in the “activism” conservatives rightly condemn. On reading the law correctly here, credit the conservatives.
Obergefell, however, is another matter. Here too conservatives believe the Court got the law wrong, but they’re wrong. We see why in the two conservatives’ statements. Focusing almost entirely on the “possible solutions” part of the hearings’ title, Professor Eastman nonetheless noted almost in passing that the Constitution left most power with the states. That is true, but the Civil War Amendments made substantial changes to our federalism; the Fourteenth Amendment in particular, for the first time, provided federal remedies, through the courts, for state violations of our rights. Eastman appreciates that more than most conservatives, but he doesn’t go far enough in recognizing the countless unenumerated rights we retained when we reconstituted ourselves in 1787, which the Fourteenth Amendment made good against the states in 1868.
Like Ed Whelan, he would have left it to the states to define marriage in a way that excluded same-sex couples from its benefits. But the problem with that approach surfaced when Whelan rested it on the methodology of original understanding. “Every state,” he said, “had defined marriage as the union of a man and a woman when the Constitution was first adopted and when the Fourteenth Amendment was ratified.” True, but several states practiced segregation when that amendment was ratified and many more prohibited interracial marriage.
When the Supreme Court finally put an end to those practices, therefore, it didn’t cite original understanding. It couldn’t, because that understanding supported those practices. Instead, it relied on the original meaning of the words the drafters wrote. And fortunately, that meaning was better than their actions. By its plain text, the Equal Protection Clause prohibits states from discriminating in their dispensation of privileges and benefits—including those pertaining to marriage—unless they have a good reason. And in that regard, the states' policy reasons did not suffice, a point Siegel summarizes in his testimony.
Unfortunately, Justice Anthony Kennedy only touched on the equal protection rationale when he wrote for the Court in upholding same-sex marriage; nor did he draw a distinction between original understanding and original meaning. Had the Court drawn that distinction, it might have grounded Obergefell on the right foundation and reached the right result in King as well. For a fuller account of these issues, read the three statements in the link above for the hearings—and see here for a libertarian response. There is more work for modern libertarian legal theory to do.