Two cheers for judicial restraint

George Will’s latest column endorses judicial activism. He argues that judicial deference to the political process is misplaced because majorities should not enjoy a largely untrammeled right to make rules for everyone; because it’s not the case that most things legislatures do reflect the will of a majority; and because “government is almost never disinterested.”

Ed Whelan offers what I consider a persuasive rebuttal to Will. He argues, as Will once did, that imperfections in the democratic processes don’t legitimize rule by an enlightened judiciary. And he reminds us that judges — who themselves are governmental actors — cannot be viewed as consistently “disinterested.”

Whelan also explains that most contemporary conservative exponents of judicial restraint are also proponents of originalism. They see judicial restraint merely as supplementing originalist methodology when that methodology fails to yield a sufficiently clear answer to a constitutional question.

As such, they “aim. . .to have judges enforce the rights, and limits on power, that the Constitution, fairly construed, sets forth, and to prevent judges from inventing rights and powers that are not in the Constitution.” This approach is most unlikely to do what Will fears judicial restraint does, i.e., “serve liberalism by leaving government’s growth unrestrained.”

I agree with Will’s critique of judicial restraint to this extent, though — judges should not be oblivious to specific, relevant quirks or flaws in the political process that gave rise to a particular piece of legislation when considering whether, or what extent, they will defer to the legislature that enacted it. Chief Justice Roberts’ opinion upholding Obamacare’s individual mandate provides a good example.

The Chief Justice found the individual mandate in Obamacare constitutional because he concluded that the mandate could be considered a tax, and that Congress has the power to tax the decision not to purchase health insurance. Roberts didn’t find that the mandate is most accurately viewed as a tax; rather, he found that it is “fairly possible” to view it that way.

Roberts’ use of the “fairly possible” standard was an act of judicial restraint. It was based on the commendable desire to uphold the people’s will, as reflected in the decisions of those they elect, if fairly possible.

But in the case of Obamacare there was a quirk. The legislature and the executive represented to the public that the mandate is not a tax. And this labeling plainly was intended to make the legislation palatable to the people.

Under these circumstances, as I argued at the time, deference to democracy did not militate in favor of the exercise of judicial restraint via the “fairly possible” test. The president and his fellow Democrats had labeled and framed the exaction for not purchasing health insurance as a penalty because taxes are unpopular. It did not promote the will of the people to bend over backwards to countenance this deceptive approach to legislating.

It’s possible, in other words, to overdo judicial restraint. But the concept, when combined with originalism, is sound.


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