It would be understandable if liberals were feeling kind of relaxed, kind of “Supreme Court, what’s so bad?” over the weekend. John Roberts and Anthony Kennedy delivered for our team on Obamacare, and then Kennedy came through again on same-sex marriage. If this is a conservative court, is getting a liberal one—which will be one of the trump-card arguments for voting for Hillary Clinton next fall—really a matter of such pressing urgency?
Well, yes. As we saw yesterday with the court’s death-penalty and EPA rulings, it’s still a long way from being a liberal court. But there’s more to it than that. People should remember that if a Republican is elected president next year and has the chance to replace Kennedy and/or Ruth Bader Ginsburg with another Samuel Alito, the Obamacare and same-sex marriage standings could easily be reversed. And don’t think there aren’t conservatives out there thinking about it, because there most certainly are, and they literally want to roll back the judicial clock to 1905.
An interesting and important debate opened up over the weekend in conservative legal circles that you should take time to educate yourself about. Many conservatives, of course, are furious with Roberts and Kennedy and are wondering, with conservatives like this, who needs liberals?
The ins and outs of the debate were deftly summarized yesterday by Ian Millhiser of Think Progress. I’m not going to take you as deep into the jurisprudential weeds as Millhiser does, but here’s the basic story. Since the 1980s, “judicial restraint” has been the guiding principle of conservative jurisprudence—the idea that judges shouldn’t make law from the bench but should rule more narrowly and modestly, deferring to the other branches. Roberts was invoking judicial restraint during his confirmation hearings with that famous line about judges just calling “balls and strikes.”
Judicial restraint was appealing to conservatives at the time because to a large extent, majorities of the public shared their views on pressing issues of the day. It was liberals back then who were trying to gain through the courts what they could not accomplish through legislatures and the political process.
But now that reality is to a considerable extent reversed. Public opinion is firmly against conservatives on same-sex marriage, and even on Obamacare, though the law (or the name of the law) remains unpopular, polling before last week’s decision showed that majorities didn’t want the Court to take away people’s health-care subsidies. And besides, Obamacare is after all a law, duly passed by the people’s representatives in Washington.
So now it’s the right trying to achieve through the courts outcomes that it could not through the political process. This is what Roberts in essence said in his majority opinion upholding the health-care law. “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” Roberts wrote. “If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”
All of this takes us back to Lochner v. New York, a 1905 decision that I’m not going to get into here (Millhiser does) but that in essence used the Fourteenth Amendment to extend rights not to individuals but to employers. The decision led to a series of decisions up through the New Deal that invalidated several key pieces of progressive legislation protecting workers and more. The Lochner majority relied on a view of the Fourteenth Amendment that is now discredited—except on the far right.
Which brings us to this past weekend. Conservative Georgetown law professor Randy Barnett wrote a column lambasting judicial restraint, arguing that “selecting judges with the judicial mindset of ‘judicial restraint’ and ‘deference’ to the majoritarian branches leads to the results we witnessed in NFIB [the first upholding of Obamacare back in 2012] and King.” He wants judges who embrace Lochner and who understand the “duty of judges to invalidate unconstitutional law without restraint or deference.”
Barnett specifically cited Clarence Thomas as an example of a judge who has this depth of understanding. And conservative law professor Jonathan Adler, one of the two, ah, creative minds who brought us the bogus King v. Burwell lawsuit in the first place, tweeted over the weekend that if a Republican wins the election next year, he ought to put Utah Senator Mike Lee on the court. As Millhiser notes, Lee is huge Lochner-ian, to the point that he thinks that Social Security, Medicare, and child labor laws are all unconstitutional.
Barnett wrote in his column that there would heretofore be a new standard that conservative legal scholars will demand of Republican presidential nominees. Now, dimwit candidates like Jeb Bush and Marco Rubio who yammer on about “judicial restraint” and “deference to the other branches” will be exposed as the traitors in waiting that they are, capable of upholding abominable notions like letting people who love each other get married or giving working-class and poor people a little financial help so they can take their kids to the doctor. Judicial restraint, apparently, breeds certain counter-revolutionary tendencies.
And this, finally, circles us back to the 2016 election and health care and marriage equality. Several legal challenges to Obamacare are still pending. Other inventive approaches no doubt await us. For example, a group of legislators in some red state could sue claiming that as the elected representatives of the people, they were denied by the court their proper deliberative role in the process of deciding how to bring health care to their state. If we get a Republican president and he puts a Barnett/Adler-approved justice on the court, poof, sayonara subsidies.
Same-sex marriage’s majority is even more precarious. For example: A gay plaintiff or plaintiffs could bring some kind of discrimination lawsuit (despite the marriage win, there still are other kinds of discrimination lawsuits on the books). A Lochner-loving majority of five could use that suit as the occasion to say, actually, discrimination here is legal, and while we’re at it, this marriage business…
And mind you, from a legal point of view, this would be legitimate. After all, think of it this way: If Kennedy had retired shortly after Citizens United and Barack Obama had put a liberal on the bench, liberals would have advanced at least one legal vehicle to try to get campaign-spending issues before the Court again hoping for reversal. All’s fair in campaign-finance, health care, love, and bigotry.
Imagine how that would feel—same-sex marriage overturned. Right now it’s hypothetical, but it is a long, long way from impossible. And if the Republican wins in 2016, and if Barnett’s arguments carry the day, we could end up with two or three more Alitos on the bench.Still feeling relaxed?