Amongst conservatives, nominating judges committed to "judicial restraint" used to be as uncontroversial as seeking to elect the next Ronald Reagan. Today, an increasing number of conservatives are embracing an alternative approach. In an essential article in the latest issue of the Weekly Standard, legal scholars Randy Barnett and Josh Blackman make five recommendations to Republican presidential candidates seeking to appoint constitutional conservatives to the bench. Among them: "Reject clichéd calls for judicial restraint." Barnett and Blackman highlight and criticize Governor Jeb Bush's recent promise that, if elected, he would "appoint justices with 'a proven record of judicial restraint' and a 'proven record of not legislating from the bench." "These are clichéd talking points that didn't work 20 years ago," the authors write, urging instead that presidential candidates seek out judges who will "engage and enforce the Constitution against the other branches."
This is wise counsel, and conservatives should heed it. Those concerned about the unprecedented growth of government in recent years owe it to themselves to cast counterproductive calls for judicial restraint into the dustbin of history.
Judicial restraint holds that judges should generally defer to the choices of the political branches, presuming those choices to be legitimate and only invalidating them when they are clearly unconstitutional. Different advocates of judicial restraint have embraced restraint for different reasons. The first vigorous early proponents of judicial restraint were political progressives, who in the late 19th and early 20th century railed against what they perceived to be a reactionary Supreme Court thwarting New Deal policies by clinging to outmoded notions of federalism and individual rights. Beginning in the late 1950s, political conservatives took up the mantle of restraint and criticized the Warren Court for its "activist" imposition of liberal values on the rest of the nation. Since the days of Miranda, Griswold, and (later) Roe, praise of "judicial restraint" and criticism of "judicial activism" have been an integral part of the conservative catechism.
Opposition to "activism" led conservatives to push for judicial nominees (including, unsuccessfully, Judge Robert Bork) who were committed to restraint. Chief Justice John Roberts' own appointment cannot be understood except in the context of a conservative legal movement that touted restraint as a supreme judicial virtue. Reading the transcript of his confirmation hearings, one finds Roberts emphasizing his modesty, his humility, and his unwillingness to second-guess the elected branches of government.
Roberts has proven as good as his word, and the results have not been good for constitutionally limited government. In NFIB v. Sebelius (2012), the Court transformed the Affordable Care Act's requirement that Americans purchase government-approved health insurance from a mandate enforced by a financial penalty into an option either to purchase government-approved health insurance or pay a small additional tax. Although Congress and the President had insisted that the individual mandate was not a tax, and despite the fact that the ACA refers to the mandate as a "penalty" some 18 times, Roberts construed the mandate as a tax in order to uphold it. Roberts considered it his duty to base his ruling not on the "most natural interpretation of the law" (his words) but on any "fairly possible" interpretation that would "save the statute from unconstitutionality."
Recently, in King v. Burwell, Roberts again helped the Court to salvage the ACA. Congress wanted states to set up their own health insurance exchanges, but, lacking the constitutional authority to force them, incentivized states to set up their own insurance exchanges by authorizing tax credits to help qualifying individuals purchase health insurance "through an Exchange established by the State." As a fallback, Congress authorized federal bureaucrats to set up exchanges in states that declined to set up their own. When, contrary to expectations, 34 states declined, the IRS issued tax credits through federal exchanges, triggering taxes against employers and individuals from federal-exchange states under the ACA's employer and individual mandates. The question for the Court in King was whether, in effect, the IRS could interpret "Established by the State" as "Established by the State or the federal government."
Again departing from "the most natural interpretation" of the law's language, Roberts, writing for the Court, undertook to rescue Congress from what he described as "inartful drafting." Divining that Congress' overriding purpose was to "improve health insurance markets, not to destroy them," the Court sought to interpret the statute consistently with that purpose "if at all possible." As before, Roberts performed what Justice Scalia called "somersaults of statutory interpretation" to avoid saying "no" to the political branches.
The irony is bitter indeed. In the name of deference to Congress, Roberts usurped its prerogatives. He committed the cardinal sin for which conservatives had long condemned the Court--he legislated from the bench.
Roberts' votes to preserve the greatest expansion of federal power since the New Deal were not the product of mere interpretive errors--they were the product of a judicial approach rooted in false premises about the role of judiciary. The judiciary serves as the last place of redress for Americans whose rights have been violated by legislators or executives (or both) who have betrayed the trust of those whom they are duty-bound to serve, and serves as a bulwark against executive or legislative overreach. If the Constitution is to be effectively enforced against the political branches when the chips are down and the stakes are high, we must have judges who are committed to judicial engagement: conscientious, impartial truth-seeking in every constitutional case, without unwarranted deference to the political branches.
The Constitution itself says nothing about the proper posture of judges in constitutional cases--whether they should be engaged or restrained. But constitutional conservatives must consider what approach to judging is most likely to produce decisions that are consistent with the Constitution's plan for limiting government. The lesson of the Roberts appointment is that judicial restraint is not a solution to the problem of out-of-control government; it is part of the problem. Presidential candidates who are serious about addressing the problem of overweening government must take Barnett and Blackman's advice and steer clear of judges whose records disclose a willingness to place a finger (much less a palm or an elbow) on the government's side of the ledger.