by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Most media accounts about U.S. Supreme Court politics focus on a conservative bloc of four votes; a liberal bloc of another four votes; and Associate Justice Anthony Kennedy, a Reagan-appointed Republican who’s seen nonetheless as a potential swing vote in the closest of split cases.
But that assessment of the high court’s ideological makeup proves to be oversimplified. The new book Overruled from Damon Root, senior editor at the libertarian Reason magazine, details the history of an ideological split on constitutional law issues within the “conservative” camp. (Root discussed the book during a recent Federalist Society speech in Raleigh.) It’s a split that helps explain why Obamacare survived its first encounter with the Supreme Court, and why no one should feel confident that a court led by “conservatives” will act consistently to protect individual freedoms from government overreach.
Root uses the Obamacare ruling to help set the stage for his work, focusing on the surprise and outrage among many conservatives when they learned that Chief Justice John Roberts had written the ruling that preserved the Affordable Care Act.
But Roberts had not actually betrayed legal conservatism; he had simply followed one of two possible conservative paths in the case. Judicial restraint, as Roberts well understood, was not only a touchstone of the Progressive left; it was also a philosophy adopted by many members of the modern right. Conservative icon Robert Bork, for example, the former Yale law professor and federal judge whose failed 1987 Supreme Court nomination had galvanized Republicans and set the stage for future judicial confirmation battles, was an outspoken proponent of granting [Oliver Wendell] Holmes-style deference to the elected branches of government. As Bork argued in his bestselling book The Tempting of America, the “first principle” of the U.S. system was not individual rights; it was majority rule, which meant that when it came to the vast preponderance of political disputes, the courts should simply butt out. “In wide areas of life,” Bork wrote, “majorities are entitled to rule, if they wish, simply because they are majorities.” …
… That was the path taken by Roberts in the health care case. The only problem was that very few conservatives wanted to join him for the ride. Instead of seeking judicial deference, they wanted the justices to nullify President Obama’s signature legislative achievement and overrule the elected branches of government — something the Supreme Court had not done since the great legal battles over Franklin Roosevelt’s New Deal in the 1930s.
This was the other conservative path, the one Roberts refused to take. Like the Bork-Holmes approach, it too has its roots in the legal and political controversies of the late nineteenth and early twentieth centuries. Except this school of thought was not inspired by Holmes, but by the legal figures who opposed him: the conservative and libertarian judges and lawyers who rejected judicial deference and worked instead to strike down many of the laws imposed during the Progressive and New Deal eras.
Root goes on to recount this history. While he doesn’t explicitly take sides, it’s clear that the heroes of his story are the libertarian legal thinkers who challenged judicial restraint, during the Progressive and New Deal days and during recent decades.
Fans of Bork’s approach will no doubt finish the book with a sense that their arguments have been given short shrift. In addition, liberal supporters of a “living Constitution” approach will find nothing in the book bolstering their case.
Nonetheless, anyone interested in the way the Supreme Court approaches thorny constitutional issues will find value in Root’s investigation into a lingering conservative-libertarian divide.