The Liberal Embrace of Judicial Restraint

It’s a great pleasure, in this week when the entire political world is hanging on the Supreme Court’s health care ruling, to welcome so many liberals to a cause dear to my heart: The crusade for judicial restraint.

For decades, the idea that judges should show more deference to the democratic process was the province of social conservatives and right-wing populists. The experience of the civil-rights era taught liberals to regard an aggressive judiciary as their natural ally, and over the ensuing decades the left came to rely on expansive (some might say fanciful) court rulings as a kind of trump card on issues where liberalism had not won public opinion to its side.

When conservative intellectuals complained that the Court’s approach to abortion (or civil liberties, or religious expression, or criminal justice — the list was long) amounted to a kind of “ judicial usurpation of politics,” liberals rolled their eyes and called the conservatives paranoid. When right-wing politicians ran too hot in their attacks on liberal judges, liberals often responded with high-minded paeans to the importance of judicial independence.

This changed only gradually as the influence of Republican appointees inevitably tilted the court rightward. In the 1990s, liberals sometimes found themselves reaching for conservative-sounding rhetoric about judicial activism to critique court rulings they disliked. In the wake of the Bush v. Gore decision in 2000, some of them reached for harsher rhetoric still. But the Court’s swing votes, Sandra Day O’Connor and then Anthony Kennedy, leaned leftward often enough — and on the hottest issues, crucially, from gay rights to Guantanamo Bay — to prevent the traditional liberal deference to the Supreme Court from breaking down entirely.

Now it has. No ruling has come down yet, but the mere possibility that five justices might invalidate part or all of the recent health-care legislation has persuaded liberals that the Court has become a purely ideological actor, a rogue body unmoored from any cause save partisanship, a crucial participant in what the Atlantic’s James Fallows described as a “long coup” perpetrated by the political right.

This narrative of right-wing judicial overreach, which weaves in Bush v. Gore and 2010’s Citizens United decision as well as the looming health care verdict, has inspired some liberals to a kind of frank despair: “If they decide this by 5-4,” the Yale constitutional law professor Akhil Amar told the Washington Post’s Ezra Klein, then “my life was a fraud.” Others, though, have cast around for reforms that might limit the influence of the court’s current right-leaning majority: a big expansion in its membership, term-limits for the justices, or even a 6-3 supermajority requirement for overturning an act of Congress.

The claim that we’re living through a kind of conservative judicial coup, it must be said, is not particularly convincing. Bush v. Gore probably didn’t change the outcome of the 2000 election – though it depends on which recount scenario you believe. The Citizens United decision hasn’t actually unleashed a flood of corporate donations to Republicans, and much of the money flowing through super PACS and into Scott Walker’s recall campaign would have been legal even without the Citizens ruling. As even some liberals implicitly concede, a health care decision that strikes down the individual mandate while leaving the rest of the law intact would not necessarily undo the legislation, and might even leave it on a more secure political footing.

What’s more, a few high-profile cases notwithstanding, the Court under John Roberts has arguably been less activist overall than under his predecessors as chief justice. In the first five years of Roberts’ tenure, the justices overturned an average of 1.6 precedents and invalidated an average of 3 laws per term. By comparison, the Warren Court overturned 2.7 precedents and 7.9 laws per term; the Rehnquist Court overturned an average of 2.4 precedents and struck down an average of 8.2 laws. (Those numbers make Roberts’ famous confirmation-hearing promise to be an umpire rather than a player look more convincing than his critics have allowed.)

But one can disagree with the specifics of the liberal brief against the Roberts Court and still welcome liberalism’s conversion to the cause of judicial restraint. It should be a point of bipartisan consensus that the judiciary is a political body rather than a panel of Platonic Guardians, and it’s a healthy thing for our democracy to have the other branches of government ready to push back when the high court seems to overreach. This pushback can and should include the possibility of reforming the way the court does business: Term limits and supermajority requirements, for instance, are both plausible responses to the weirdness of having our great controversies settled by the timing of an aging justice’s final illness, or the idiosyncracies of Anthony Kennedy.

Partisanship being what it is, we aren’t likely to see a left-right alliance to push through such reforms anytime soon. If the health care bill goes down on Thursday, you won’t hear a word from conservatives against 5-4 decisions. But at the very least, when the next confirmation hearing comes around, left and right will share one premise in common – that judicial modesty is one of the best possible qualifications for a position that offers so much untrammeled power and brings so much temptation along with it.