The SCOTUS: Is an extreme constitutional winter coming?

The SCOTUS' strike zone has widened
extremely to the right

[I]t's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. [...] The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically. [Ridiculing emphasis supplied] - 2005 Washington Post Editorial urging the confirmation of Samuel Alito as Justice of the Supreme Court

In 2005, now Chief Justice John Roberts was testifying before the Senate Judiciary Committee, which was considering his nomination by President George W. Bush to replace William Rehnquist as Chief Justice of the United States. In his opening statement, Roberts described the role of justice on the Court as one of neutral arbiter, an umpire calling balls and strikes—a role that required modesty and restraint:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

The umpire analogy was particularly facile, if not dishonest. Justices of the Supreme Court are part of the policy "game." And, as I noted at the time, every umpire's strike zone is different. The near seven years of the Roberts Court has demonstrated this as few have in our history. But at the time, many urged that Roberts deserved confirmation, based on his credentials, his intellectual capacity and his profession of fealty to the concept of judicial restraint and modesty. Emblematic of this view is law professor Jeffrey Rosen, who wrote in many forums that Roberts should be confirmed. But one of the more striking "Rosen" moments was his description on NPR of an exchange  between Senator Patrick Leahy of Vermont, then the ranking member of the Democratic minority on the Judiciary Committee, and Roberts:

SIEGEL: I want to ask Jeffrey Rosen about one moment in the questioning which struck me a great deal. That was when Patrick Leahy of Vermont was questioning Judge Roberts, and we heard Judge Roberts talk about a Supreme Court justice whom he admires tremendously; one of his great role models is Justice Jackson.

Professor JEFFREY ROSEN (George Washington University Law School): I'm so glad you noticed that moment because I did, too. It was my favorite moment, as well. Leahy was questioning Roberts about his views of congressional power, [...] And it was a wonderful moment, both because it did seem to be Roberts' quite elegant answer to the claim of Democrats that he would just enact the views that he'd expressed in the youthful memos, but more importantly, it showed a deference to congressional authority that many of us have been unsure about whether he has. It was interesting that several senators, and not only Democrats, questioned him quite closely about whether he would defer to Congress' fact-findings and strike down lots of federal laws; Specter and Kyl as well as Leahy. [Emphasis supplied.]

Personally, I was quite sure that Roberts would, to the extent possible, attempt to "enact the views that he'd expressed in the youthful memos." I was also sure that Roberts would "show deference to Congressional authority" when it suited him and would not when it did not. Eventually, people like Jeff Rosen saw it my way. In 2010, he wrote:

What all this says about the future of the Roberts Court is not encouraging. For the past few years, I’ve been giving Roberts the benefit of the doubt, hoping that he meant it when he talked about the importance of putting the bipartisan legitimacy of the Court above his own ideological agenda. [...] If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration--precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal. [Emphasis supplied.]

I think we can change that "may" to "has," precipitating the first full throttle confrontation between the president and a narrow majority of conservative judicial activists since the New Deal. The funny thing is that President Obama's economic policies have largely been center-right conventional, not the transformation of our understanding of the national government that the New Deal produced.

As many of us believe, the policy that has now become the center of the storm of the confrontation between the president, the Congress and the Supreme Court—the individual mandate—is not actually an "economically progressive" policy. It is a price paid to garner the political support believed required for the passage of the Affordable Care Act. The progressive policy would have been, of course, Medicare for All, or at least auto enrollment in Medicare for the uninsured.

Based on the oral arguments, the extreme conservative bloc of the Supreme Court has adopted the off the wall attack on the constitutionality of the mandate. Absent a repudiation of nearly 200 years of Court jurisprudence (we'll talk about the notable exception of the Lochner Era Court decisions in a moment), there is no serious argument for the unconstitutionality of the mandate. (For my writings on these subjects, see this, this and this for a few.)

The Court's adoption of these unserious arguments has brought dismay to many:

If [the Supreme Court] decide[s] [the ACA case] by 5-4, then yes, it’s disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn’t. What mattered was politics, money, party, and party loyalty.” - Akhil Reid  Amar, Professor, Yale Law School

For the rest of us, we have no choice but to fight to stop this extreme conservative Constitutional winter.

(Continue reading below the fold)

There is no handwringing (or crying) in activism over the Supreme Court. Certainly the conservative movement is seeing its opportunity and it is taking it. Consider George Will:

Conservatives, however, cannot coherently make the case for Romney as a shaper of the judicial branch until they wean themselves, and perhaps him, from excessive respect for judicial “restraint” and condemnation of “activism.” [...] Although Hamilton called the judiciary the “least dangerous” branch because it has “neither force nor will, but merely judgment,” it is dangerous to liberty when it is unreasonably restrained. One hopes Romney recognizes that judicial deference to elected representatives can be dereliction of judicial duty.

What does Will mean by "liberty?" He means "economic" liberty—the liberty to not be subject to minimum wage laws, the liberty to not be "burdened" by regulations, the liberty to not abide by civil rights laws, the liberty to pollute the environment, the liberty to have our financial system operate like a casino. In a concurring opinion by DC appellate court judge Janice Rogers Brown (PDF), joined by conservative judge David Sentelle (of appointing Ken Star infamy), the extreme conservative ideal was expressed, the overthrow of the New Deal jurisprudence that overturned the Lochner Era. The opinion is clear in its view and so remarkable that I believe an extended excerpt is required:

The Hettingas’ collision with the MREA—the latest iteration of the venerable AMAA—reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers. And the courts, from which the victims of burdensome regulation sought protection, have been negotiating the terms of surrender since the 1930s.

First the Supreme Court allowed state and local jurisdictions to regulate property, pursuant to their police powers, in the public interest, and to “adopt whatever economic policy may reasonably be deemed to promote public welfare.” Nebbia v. New York, 291 U.S. 502, 516 (1934). Then the Court relegated economic liberty to a lower echelon of constitutional protection than personal or political liberty, according restrictions on property rights only minimal review. United States v. Carolene Products Co., 304 U.S. 144, 152–53 (1938). Finally, the Court abdicated its constitutional duty to protect economic rights completely, acknowledging that the only recourse for aggrieved property owners lies in the “democratic process.” Vance v. Bradley, 440 U.S. 93, 97 (1979). “The Constitution,” the Court said, “presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted no matter how unwisely we may think a political branch has acted.” Id.

[...] In Carolene Products (yet another case involving protectionist legislation), the court ratified minimalist review of economic regulations, holding that a rational basis for economic legislation would be presumed and more searching inquiry would be reserved for intrusions on political rights. 304 U.S. at 153 n.4. Thus the Supreme Court decided economic liberty was not a fundamental constitutional right, and decreed economic legislation must be upheld against an equal protection challenge “if there is any reasonably conceivable state of facts that could provide a rational basis” for it. FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 313 (1993). See also Pac. States Box & Basket Co. v. White, 296 U.S. 176, 185–86 (1935); Steffan v. Perry, 41 F.3d 677, 684–85 (D.C. Cir. 1994) (en banc).

This standard is particularly troubling in light of the pessimistic view of human nature that animated the Framing of the Constitution—a worldview that the American polity and its political handmaidens have, unfortunately, shown to be largely justified. See James Madison, Notes of Debates in the Federal Convention of 1787, at 39, 42 (W. W. Norton &
Co. 1987). [. . .] But the better view may be that the Constitution created the countermajoritarian difficulty in order to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.

[...] The judiciary justifies its reluctance to intervene by claiming incompetence—apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm—or deferring to the majoritarian imperative. [...] The practical effect of rational basis review of economic regulation is the absence of any check on the group interests that all too often control the democratic process. It allows the legislature free rein to subjugate the common good and individual liberty to the electoral calculus of politicians, the whim of majorities, or the self-interest of factions. See Randy E. Barnett, Restoring the Lost Constitution: The Presumption of Liberty 260 (2004).
The hope of correction at the ballot box is purely illusory. [...] In an earlier century, H. L. Mencken offered a blunt assessment of that option: “[G]overnment is a broker in pillage, and every election is a sort of advance auction sale of stolen goods.” [...] Civil society, “once it grows addicted to redistribution, changes its character and comes to require the state to ‘feed its habit.’” Anthony De Jasay, The State 226 (1998). The difficulty of assessing net benefits and burdens makes the idea of public choice oxymoronic. See id. at 248. Rational basis review means property is at the mercy of the pillagers. The constitutional guarantee of [economic] liberty deserves more respect—a lot more. [Emphasis supplied.]

A more profound disrespect for democracy would be difficult to imagine. A more fundamentalist adulation for belief in the need to protect the Titans of Plutocracy is hard to imagine. But this is the constitutional vision of the Republican Party. But what was once off the wall now is "mainstream." It is the promise of the extreme Republican Party—a return to Herbert Spencer's Social Statics and the Lochner Era. A return to the era when minimum wage laws violated "liberty of contract." A return to when the national government (or state governments for that matter, compare Lochner to  Nebbia ) could not enact civil rights laws, or environmental laws, or laws regulating insurance companies.

This is who the extreme, radical Republicans are and this is what they want. Will wrote:

if Obama wins he may be able to create a liberal majority; if Romney wins he may be able to secure a conservative majority for a generation.

Will is right. And that's why the most important progressive project of this election is the reelection of President Barack Obama. If he is defeated, the Republican project to a return to the Lochner Era will be full speed ahead. The return of Social Darwinism will be the order of the day.

Nothing can be more important to the progressive project than stopping this attempt to "unconstitutionalize" progressive government. For if the Supreme Court declares a return to the Lochner Era, every progressive value we cherish will be in the most severe jeopardy.

In his famous dissent in Lochner v. New York, Oliver Wendell Holmes wrote:

This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. [...] The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics. The other day, we sustained the Massachusetts vaccination law. Jacobson v. Massachusetts, 197 U.S. 11. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Northern Securities Co. v. United States, 193 U.S. 197. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. Otis v. Parker, 187 U.S. 606. The decision sustaining an eight hour law for miners is still recent. Holden v. Hardy, 169 U.S. 366. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. [...]

I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first installment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.

Justice Holmes's view of the Constitution eventually prevailed in the late 1930s New Deal jurisprudence. President Franklin Delano Roosevelt's 1937 Constitution Day speech (authored by Felix Frankfurter) eloquently expressed our progressive view of the Constitution:

In these days when the undemocratic concentration of economic power has brought with it a corresponding concentration of legal ability against the democratic purposes of the Constitution, only the utmost vigilance and the utmost willingness to fight for our Constitutional heritage will guarantee its continuance.

Furthermore, a democracy cannot help counting, and seeking ways and means to avoid for the future, the terrible cost at which its ultimate triumphs have had to be achieved. We did not need to have a Civil War to recognize the constitutional power of Congress to levy taxes upon those most able to pay. We did not need twenty years of exploitation of women's labor to recognize the constitutional power of the states to pass minimum wage laws for the protection of women. Those were unwarrantable costs in restoring to the governments of both the nation and the states powers for action which the Constitution itself had not denied them. Nothing that possibly could have been gained by delay can justify such a price. We know that it takes time to adjust government to the needs of society and that deliberation upon the remedy is indispensable to wise reform. We also know that government must keep pace with changes in circumstances substantially as the changes occur. If wise reform is delayed too long, resentments, grievances and injustices accumulate to such a degree that orderly, wise reforms are rendered impossible and unreasonable and forcible measures in one form or another come to prevail. Time is vital in statesmanship, and orderly reforms, too long delayed or denied, have too often in modern history jeopardized peace, undermined democracy, and swept away civil and religious liberties.

These unwarranted delays in the accommodation of the government of today to the needs of today have not been due, I cannot too often repeat, to any language that the Fathers used in the Constitution to bind their successors. I ask you laymen for whom George Washington and Benjamin Franklin spoke at Philadelphia 150 years ago—look into the simply worded Constitution which I hope is in your hands tonight. Read it in the light of our history and in the light of its expressed purpose—to form a more perfect union and provide for the general welfare.

Then see if you can find anything in it which says that the government of the nation cannot help the one-third of its population engaged in national agriculture to stabilize their national market.

See if you can find there anything which says that the government of the nation cannot require a system of pensions for the vast army of railway employees on whose vigilance and well-being rests the safety of everything and everyone moving on the great railway systems.

See if you find anything that says the government of the nation cannot help to reorganize the sick coal industry which operates in so many states of the Union and provides the motive power for national industry and transportation.

See if you can find there anything which forbids the government of the nation to regulate the unholy practices of the great network of public utility holding companies which, admittedly, have proved too powerful for State regulation.

See if you can find there anything which forbids the government of the Nation to apply every resource of science to the development of a great river basin, to improve its water transportation, to end its floods, to conserve its natural resources, to demonstrate the potentialities of electricity, that greatest servant of democracy.

I know and every lawyer knows that you will find nothing in our Constitution which forbids the national government to do any of these things.

They have been forbidden or jeopardized, not because of anything the Constitution says but because men with axes to grind have chosen to put their lawyers' own notions of policy upon the silence or the vagueness of the Constitution. When the framers wanted to be specific, they could be specific. They forbade titles of nobility and attainder of blood, for instance, in no uncertain terms. But when they came to the great areas of governmental action, they used vagueness and silence as conscious instruments for the flexible statesmanship of the future, as they had used explicit denial as a guarantee of the observance of what to them were eternal verities unaffected by time and circumstance. [...]

It is a well-known saying that men are subdued by the medium in which they work. And men whose daily work is the nice use of language in conveyances and contracts and legal instruments of every variety, where the rules of the game provide that nothing is included in the scope of the document unless expressly mentioned, instinctively forget what the statesmen of 150 years ago at Philadelphia and the statesmen of their own profession did not forget—that a Constitution is a great instrument of government—not a conveyance, not a contract, not even a statute. That is why when a great lawyer does triumph over his absorption with words and with the limited outlook of individual interests—when he adds vision to his technical skill, then he is a statesman indeed.

The most important sentence ever written by Chief Justice Marshall is a part of the opinion in which over one hundred years ago that great Chief Justice established the constitutionality of the legislation which saved the banking system of this country in 1933 and insured the safety of your deposits for the future. In that opinion Marshall, who had fought through the Revolutionary War and had experienced all the difficulties of his generation in the founding of a nation, admonished those who would narrowly limit the great document to remember "that it is a Constitution we are expounding."

 And the modern Marshall—Mr. Justice Holmes—who like Marshall had seen the price paid on the battlefield to establish a nation, elaborated the thought of Marshall in these memorable words: "the provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic living institutions transplanted from English soil. Their significance is vital not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth." Gompers v. United States, 233 U.S. 604, 610 (1914).... "When we are dealing with words that also are a constituent act, like the Constitution of the United States, we must realize that they have called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago." Missouri v. Holland, 252 U.S. 416, 433 (1920).

Whether the Constitution is treated primarily as a text for interpretation or as an instrument of government makes all the difference in the world.

In the last 25 years government, State and Federal, has struggled particularly hard to utilize the powers given them under the Constitution to create economic conditions under which the great mass of people would feel convinced of justice and security. Those efforts have included attempts at establishment of minimum wages and maximum hours, prohibition of child labor, encouragement of the unionization of labor, reasonable stabilization of farm and industrial markets, conservation and development of natural resources, regulation of utilities and of other public businesses in private hands. Consistently the lawyers representing those interests wishing to block such efforts have invoked the Bill of Rights to protect their clients. Until last spring, for instance, they had argued successfully that it interferes with the freedom of a charwoman to work if an employer is not permitted to underpay her. And until last spring they had argued successfully that it interferes with the property of an employer to refuse him the right to discriminate against an employee who joins a union, while at the same time large corporations were indulging in espionage to root out union workers, as outrageous in essence as any search and seize prohibited to government.

I have often wondered whether those interested in the realistic protection of the individual and of minorities against intolerance and arbitrary power appreciate the danger to minorities of such perverted applications of great constitutional provisions. For unless government can succeed in creating conditions under which the great mass of people do feel convinced of justice, economic security and ample scope for human dignity, that tolerance of differences and that general concern for fair play which are the real protection of the individual and minorities will disappear. As a practical matter that tolerance and that concern rest only in small part upon legal formulas. Far more importantly they are the natural reflection of magnanimity of spirit in the masses which in turn depends upon generally distributed well-being.

No one cherishes more deeply than I the civil liberties achieved by much blood and anguish through many centuries of Anglo-American history. No one is more zealous that the safeguards they write into the Constitution be scrupulously and undeviatingly observed in spirit as well as in letter not only by government but by all those who wield a private power comparable to that of government.

But we should be deaf to the teachings of history and the admonitions of other lands if we do not recognize that civil liberties and non-discrimination against minorities can long be maintained only in a contented society. [...]

More and more the guarantees of civil liberties to which minorities have looked in this country for protection available in no other land depend for real effectiveness upon the full usefulness of the affirmative powers given to government to safeguard the life of the nation.

The men who signed the Constitution 150 years ago were fundamentally much more realistic about these things than we are today.... To them the protection of civil rights was not a platform for politicians nor a breastwork for corporation lawyers. For those rights these men or their fathers had come to the new country when it was not a comfortable country to come to. And to vindicate those rights these men themselves had written the Declaration of Independence and had fought a war. Freedom of speech, freedom of religion, freedom from unreasonable searches and seizures, and a fair trial for the humblest accused—sacred from attack not simply from tyrannies and oppressions which they had known and experienced but from whatever forms of tyranny and oppression the evil ingenuity of intolerant men might devise—were at the very top of their thoughts.

And yet when in the midst of such economic chaos as we faced in 1933, they came to write the Constitution, their first concern was not with written guarantees of these civil rights but with the formation of a government strong enough to bring economic order and economic security to the land. There was no Bill of Rights at all in the Constitution as it was first signed 150 years ago tonight. The Bill of Rights was added a year later by the first Congress as the first ten amendments.

We profited by the spelling out of those rights which for them were so fundamental as to require no literal spelling out. But it is significant that in their judgment the first thing they felt they needed, to preserve the liberties for which they had fought, was a central government, strong enough to avert economic chaos. They knew that guarantees of tolerance written on parchment were nowhere near as important as guarantees written in the hearts and the character of the American people so long as those hearts and that character were not embittered by economic distress.

Tolerance and concern for fair play are virtues which do not flourish in the stony soil of economic want and social distress. They are flowers that grow only when nurtured by a fertile soil and a warm sun. And none of us to whom the protection of minorities is a daily concern can have any illusions that in a world of aggression and of sudden and imperfectly understood economic disruptions no minority has any assurance of tolerance and fair play unless by the affirmative use of governmental power we succeed in this generation in collaborating with the private processes of economic enterprise so as to enable every class of our society to live at least on a level of civilized decency. Those of us whose circumstances have been cast in fortunate lots are too prone to bear with fortitude the hardships of a goodly portion of our fellow countrymen and women.

There is a group which—either in secret despair that inevitable calamity can be averted or in reckless ignorance of the day-to-day problems of those who are not lost to fear—would deny the government powers it needs to protect us and ask it to make bricks without straw. To such people, misinterpreters of the Constitution seem fortunate allies indeed.

Happily the great mass of the American people have lost neither their courage nor their common sense. And the framers of the Constitution, who had the greatest courage and common sense in history, have left us instruments with which we can use both. Their handiwork did not shackle us. They left us free if we will use all of the Constitution they bequeathed to us Their legacy was the wisdom which they embodied in the Constitution and that included the opportunity and the right to draw upon such wisdom as each generation can summon to the problems each generation has.

The Bill of Rights is precious to all of us. The reserved powers of the States to deal with matters of purely local concern are also precious. But the great affirmative grants of power to a strong national government democratically responsible to all of the people, is no less precious—for without such a national government, civil liberty and states' rights would have scant chance of survival in the modern world. Let us give our allegiance not to a part but to the whole Constitution. The exercise of the whole Constitution is the real way to guarantee the effectiveness of every part of it.

The perennial conflict of American history and the conflict of today centers around the way you look at the Constitution, whether you look at it through the narrow eyes of the partisan lawyer, whether you invoke the whole of the Constitution or only that part of it which seems to serve the purposes of certain limited interests in the nation which from time to time seek to appropriate the Constitution as their special shelter. This is the controversy that has cut athwart every effort of American society to adjust itself to new circumstances. For this is the question which concerns not the expedience of legislation, not the application of the method of trial and error in solving new difficulties; this is the problem that challenges the power of statesmen to find solutions. It touches the very existence of government. The misinterpretation of the Constitution is a fortress which democracy on the march simply cannot afford to leave untaken on its flank or in its rear.

We shall hold to this true course; we shall be most loyal to our history and most reverent to the framers of the Constitution if we view it as the great interpreters have always viewed it, as Marshall viewed it, as Holmes viewed it

Thus only will we be true to the avowed purposes of the Constitution itself—"to form a more perfect Union, establish Justice, insure domestic tranquility, provide for the common defence, promote the general Welfare and secure the Blessings of Liberty to ourselves and our Posterity...." [Emphasis supplied.]

This is the vision we are fighting for. This is the vision that the reelection of President Obama can help to preserve. It is our most important fight this year.