THE BLOG

The Progressive Roots of Judicial Restraint

03/24/2015 01:41 pm ET | Updated May 24, 2015

Does the "judicial restraint" long advocated by conservatives have progressive roots? That's the provocative claim Damon Root makes in his recent book, Overruled: The Long War for Control of the U.S. Supreme Court. Though Root is not the first to advance this claim, he has rekindled an important discussion about the role of the judiciary and history of ideas in America. Carson Holloway and Ramesh Ponnuru at the National Review have criticized Root's arguments, contending that judicial restraint is at least as old as the founding itself, and therefore is nothing to be suspicious of.

Simply put, Root has the better of this debate. The concept of judicial restraint with which Root is concerned can be traced to a school of thought that was dedicated to subverting the Constitution's limits on government -- and has done precisely that for decades. It is the fruit of a poisonous tree, and supporters of constitutionally limited government should be tempted by it no longer.

Just what is judicial restraint? Holloway defines it as "upholding the authority of the majority to rule where it does not violate any clear constitutional provision." Holloway and Ponnuru contend that this principle was articulated by Chief Justice John Marshall in Fletcher v. Peck (1810). Writing for the Court, Marshall stated that judges should "seldom if ever" declare a law unconstitutional "in a doubtful case."

This argument for the ancient lineage of judicial restraint is remarkably similar to the case made by Harvard professor James Bradley Thayer in an influential article 1893 article, The Origin and Scope of the American Doctrine of Constitutional Law. Thayer inspired a line of academics and jurists, including Oliver Wendell Holmes, Jr., Learned Hand, Louis Brandeis, Felix Frankfurter and Alexander Bickel. Thayer, too, drew upon Marshall's jurisprudence in support of what would become known as the "clear error rule," arguing that a court may only strike down a statute if legislators have not "merely made a mistake, but have made a very clear one."

But as Professor John O. McGinnis points out in a recent paper, The Duty of Clarity, Thayer and Marshall proceeded from very different premises about judicial review. Marshall believed that doubtful questions concerning constitutionality could be rendered clear through tried-and-true interpretive principles and disciplined inquiry into the available evidence. By contrast, Thayer believed that the Constitution "often admits of different interpretations." In such cases, Thayer argued, the Constitution "does not impose upon the legislature any one specific opinion, but leaves open this range of choice; and whatever choice is rational is constitutional." Thayer's "clear error" rule in practice entailed reflexive deference to legislative judgments.

It is Thayer's concept of reflexive restraint that Root traces to the progressive era -- and rightly so. It took hold at a time when the legal establishment was increasingly hostile toward judicial review, and inclined to view constitutional limits on government power as embarrassing historical relics. One can find no better example of this than the jurisprudence of Oliver Wendell Holmes, Jr., a student of Thayer's. Holmes viewed rights as social permissions and saw it as his duty to give effect to the will of the majority in nearly every case, often without regard to the underlying facts. Thus, in his canonical dissent in Lochner v. New York (1905), Holmes wrote that he did "not need facts" to conclude that legislation purportedly designed to protect bakers' health was "reasonable" -- even though it was in fact a nasty bit of protectionism that served no legitimate end. One searches in vain for such deference in the jurisprudence of Marshall, who in McCulloch v. Maryland (1819) insisted upon the judicial duty to determine whether "the end be legitimate" and the means "plainly adapted to that end."

Conservatives embraced Thayer's brand of reflexive restraint in response to the supposed excesses of the Warren Court. Reacting to what they viewed as the creation of rights without foundation in constitutional text or history, they argued for broad deference to legislatures, relying upon majoritarian premises. It was such reflexive restraint that conservative icon Robert Bork defended in his ill-fated confirmation hearings, when he argued that discrimination cases should be judged by means of a "reasonable basis" test.

If the conservative call for reflexive restraint was an attempt to return to constitutionally limited government, we can only conclude that it has failed miserably. Such restraint has led judges to rubber-stamp patently protectionist regulations, uphold the bulldozing of entire neighborhoods for private economic development, and rationalize their way into upholding Obamacare's individual mandate as a "tax." Rights held sacred to the founders and which are central to our daily lives are disparaged and outright denied. Reflexive restraint forces us to rely upon the self-restraint of policymakers, which experience has shown is no restraint at all.

Root's challenge to the dogma of deference is most welcome. By laying bare its roots, he helps readers understand why calls for reflexive restraint have been unsuccessful, and why judicial engagement -- genuine, evidence-based truth-seeking, without bent or bias in favor of government -- is required in every constitutional case. Supporters of limited government owe it to themselves to recognize and reject Thayer's clear error.