05 April 2012

Did Obama cross a line?: judicial independence vs. judicial deference

When a dependably liberal columnist like Ruth Marcus spends a column criticizing President Obama on domestic policy, something has clearly gone wrong. As far as Marcus is concerned, the President did wrong last Monday when he urged the Supreme Court to eschew "judicial activism" and not overturn a "duly constituted and passed law," i.e. "Obamacare." Marcus is most disturbed by Obama's insinuation that the Supreme Court, as an unelected body, should defer to "a strong majority of a democratically elected Congress." She seems especially disappointed to hear such words from a former instructor in constitutional law. For the record, Marcus believes that the notorious "individual mandate" is constitutional, and she worries that the Court will overturn it on a "party-line" vote that 'would not be a healthy outcome for public confidence in the court's integrity." However, her loyalty to the Constitution obliges her to defer to whatever decision the majority renders, on her understanding that the Court has ultimate authority in questions of constitutional law. For the sake of argument, she puts the best face on the justices' conduct during oral arguments, characterizing them as "a group wrestling [presumably sincerely] with a legitimate, even difficult constitutional question." It would be an insult to the Court as an institution, Marcus charges, to condemn a ruling against the individual mandate as "conservative justices run amok." But if she believes the mandate constitutional, how could she see an opinion to the contrary any other way, unless she sees a middle ground between an ideologically biased and a merely wrong opinion. Even in the latter case, however, she believes herself constitutionally obliged to defer to a right-wing majority purely on its authority as the Supreme Court of the United States.

This is the latest round of a struggle that has lasted for at least 100 years. In 1912 Theodore Roosevelt, standing as a "progressive" Republican, rejected deference to courts whose dogmas had not kept up with changing circumstances and changing needs for political power and action. He was not the most radical critic of judicial supremacy. While some on the "far left" proposed giving constituents the power to recall judges, Roosevelt went no further than proposing a kind of popular veto of high-court rulings. If enough people supported particular legislation, but a court overturned it, Roosevelt wanted the people to have the option of holding a referendum to override the court's verdict and declare the law constitutional. Unsurprisingly, Roosevelt's position was sharply criticized by conservatives in both major parties. In their view, the former President would put the law in the hands of "temporary majorities," rendering it inconsistent and subject to whims and irrational enthusiasms. The presumption behind such criticism is that judges were consistent and immune to whims and enthusiasms. Today's right-wing justices and their supporters no doubt see themselves that way, especially if they espouse "originalism." For such people, the issue of changing circumstances raised by Roosevelt and later progressives is irrelevant, since they understand the Constitution to embody a political philosophy valid for all time and impose an obligation to live according to the best values of the Framers, no matter how much society changes, unless the law is amended by the rules the Framers set.  Such a mindset is inevitable whenever you have a constitution based primarily (as many understand it) on what government should not do. Just as inevitably, a belief evolves in a "living constitution" founded on a more fundamental belief in what government must do. If a constitution was simply a set of rules for conduct, the designation of a referee with final authority to interpret the rules would be less problematic than the Court has become. But both "strict construction" and "loose construction," to use the original terms of the dispute, have both become means to ideological ends outside the experience or interest of the Framers. Since each side's first loyalty is to a kind of ideology, neither readily concedes the objectivity of the other. This may only prove that we've really needed a constitutional convention for at least a century, but the originalist notion of "limited government" has served too many vested interests for those interests to risk those limits getting revised at a convention. The originalist can just as easily challenge his opponents to amend the Constitution if the people want new rights so badly. -- and then they'll argue that new rights are unsustainable.

It's most likely that the President was simply being snarky in claiming that right-wing justices would be practicing the "activism" they so often decry by overturning the individual mandate. If so, the joke fell flat. While "activism" is often characterized as "legislating from the bench," its real meaning for critics is "inventing rights that don't exist in the Constitution." By that definition, striking down the individual mandate wouldn't count as "activism," nor would it be activism whenever our theoretically objective judges strike down legislation that plainly violates the fundamental law. For other observers, however, it's "activism" whenever justices interpret the Constitution based on extra-constitutional ideologies, and it could be argued that everybody does that now. If judicial activism is undesirable, then its current omnipresence, all disclaimers notwithstanding, again proves the actual obsolescence of the Constitution and the need for a new one that is either ideology-proof or embodies one ideology or another once and for all.

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