The Gathering Storm

There will be no shortage of constitutional “experts” in this country come June.

The decisions in the Affordable Care Act cases are two months away, but the massive narrative-generation apparatus has already begun to shimmy and whir as it churns out the story lines that will dominate editorials in a few weeks’ time.  If the ACA disappears, news personalities will react with subtle disapproval coupled with selective memory of the history of the federal judiciary—a partial history that will escape the attention of their mostly-oblivious audience.  Commentators will be less restrained.  Keith Olbermann may settle his lawsuit with Current TV just for the sake of more easily finding a new platform from which to declare the downfall of our republic.

For all of you who are outraged at the prospect of the Supreme Court of the United States taking the “unprecedented” step of striking down the Affordable Care Act . . . this one’s for you.


I think it’s helpful to mark the basic parameters of the national dialogue we’re all about to have (whether we want to or not).  Broadly, “judicial activism” is the idea that a court strikes down as unconstitutional (or—this is key—upholds as constitutional) a law based on “reasoning” that isn’t directly supported or required by Constitution.  Under an activist regime, the Court elevates its own ideology to the level of Constitutional mandate.

This is distinguished from valid judicial review, which, for example, might compel the Court to strike down a hypothetical law that made it illegal to criticize the president.  Don’t mistake the frequency with which a court strikes down laws with its level of activism.  There may be a correlation, but, if the laws being struck down are in conflict with actual constitutional provisions, this is not activism.

Put another way, an activist court bypasses the legitimate exercise of judicial review because it will not be enough to strike down a law with which they disagree.  Instead, such jurists stretch the meaning of various constitutional provisions in a given case so as to reach their desired result illegitimately.

Defenders of activism cite a few rationales in support of the philosophy.  One would be that the judiciary sometimes needs to take an active role in social debates when the executive and legislative branches are not sufficiently “responsive.”  Another is that the Constitution should be viewed as a “living document” that evolves over time even without actual changes to its content (i.e. amendments).

My thesis is simple.  Activism, as defined above, is dangerous for two important reasons.  First, it quite plainly undermines the governmental structure created by our Constitution by substituting the Court’s judgment for that of a legislature.  Secondly, activism could be used to achieve any end, not merely ones you or I might consider appealing.

The second prong of my assertion should be frightening, but it was that point that most often fell upon deaf ears when I would have this discussion in law school.  The bulk of my friends were left-leaning, and the lion’s share of the activist decisions of the Court during the last half of the twentieth century had the effect of advancing or maintaining values from a liberal (or liberal/libertarian) point of view.  As such, my colleagues saw no problem with using extra-constitutional means to achieve ends they found agreeable, which they naturally considered to be “the greater good.”  They dismissed my suggestion that the Court might someday impose ideas they didn’t like.

This begat some very circular logic that failed to separate judicial activism from the values it had recently been advancing.  The two are not synonymous.  Seduced by a love of these values, my friends adopted a “means justify the ends” posture, even to the detriment of the democratic/legislative process.  Achieving their preferred ideological positions on social or economic issues they held most important was reason enough to reject the will of the majority.

So, I would normally ask them to imagine the power of an activist Court as a metaphorical “weapon.”

I explained, “When the people holding the weapon have the same belief system you do, and use that weapon to enforce those beliefs, you’re willing to overlook what might otherwise be considered a transgression against our system of checks and balances.”  I cautioned, however, that “It may not always be the case that the people in possession of this weapon are kindred spirits.  Better to condemn the weapon’s use generally, rather than expose your own hypocrisy when it becomes apparent that you reject activism only when it’s used to advance an agenda toxic to yours.”

As you might imagine, this went over very poorly.

Most often, people with whom I’ve had that discussion over the years simply would not accept the possibility that an activist Court could ever be anything other than liberal/libertarian.[1]

I recall vividly trying to design a hypothetical that would make that possibility seem more plausible.  For example, I said, “What about a Court packed with activist conservatives who interpreted the ‘life’ referenced in the Due Process Clause of the Fourteenth Amendment as prenatal life, and, therefore, as requiring that abortion be illegal?”  While they agreed that outcome would be ridiculous, they dismissed the scenario of such a decision actually occurring as preposterous.

When that failed, I told them to recall the infamous Lochner Era, when a group of activist justices on the Supreme Court began to strike down numerous federal and state laws on the grounds these measures violated a broad “right to contract” discovered in some dark corner of the Due Process Clause.  There, a conservative, free-market capitalist mentality fueled the Court’s activism as it erased progressive measures designed to protect workers and reform labor laws.

Still, when I would bring this up, it was rejected out of hand as a relic of history.  Something that could never happen in the twenty-first century.  Again, not that activism couldn’t return, but, rather, conservative activism.

Now, a decade later, these folks and people like them have changed their collective tune when faced with the mere possibility that the Affordable Care Act may be struck down as an unconstitutional overreach by Congress pursuant to Commerce Clause powers.  Two generations of nearly-one-sided activism in their favor lulled these people to sleep, only to have them awaken to the horrifying possibility that activism might be practiced by conservatives to eliminate a federal law they believe to be an essential step toward universal health care.

The response has been swift, remarkably hypocritical at times, and, most incredibly, seemingly unaware of the actual history of the Court over the past several decades.

Academics who silently (or not-so-silently) approved of the activism used to overturn laws that, say, restricted sexual freedom are tripping over one another to be the first to criticize a ruling that won’t even be rendered until June.

The first article I saw proudly trumpeted the fact that Ronald Reagan’s former solicitor general, Charles Fried, believes that the ACA undoubtedly passes muster.  A series of other articles also made reference to Fried.  The general tone of these articles was to imply “Hey, conservatives!  We said the magic words: RONALD REAGAN!  Someone from his administration agrees that this is constitutional!  I guess that’s that!”

That, however, is hardly that.


The more interesting story to me isn’t even whether the ACA can (or should) be found unconstitutional.  Instead, the most fascinating component is how the narrative is already shaping into “We don’t know if the Court is going to strike this down or not, but, if it does, SOMETHING MUST BE DONE!!!”

Professor Paul D. Carrington of Duke University recently penned an op/ed for the New York Times in which he makes the case for a fairly radical alteration to the Supreme Court cooked up by a group of academics (including himself).  The scheme would see a new justice appointed every two years.  Yet, only the nine most junior justices would decide each case, with an ever-growing stockpile of reserve members twiddling their learned thumbs.  The mothballed justices would dust off the robes for cases such as one in which one of the regular nine had to recuse himself.

Presumably, the spare justices would also be assigned to their infrequent cases in reverse order of seniority.  Had this system always been in place, it would mean that someone like Justice Scalia (a 1986 appointee) would have a dozen or so justices ahead of him by now, and almost certainly would never help decide a case—a scenario at least some who helped craft this plan might find pleasing.

Carrington sees this reform as a workaround of the more difficult chore of amending the Constitution.  He says that it would nonetheless “revise the job of a justice to a more human scale and perhaps make the court [sic] less likely to impose erratic political preferences on the citizens it governs.”

With all due respect, this is a terrible idea.

First off, it’s wholly counter-intuitive to argue that adding a new justice to the mix every two years would make the Court less likely to be erratic.  One of the major benefits we have under the current structure is that, once the Court rules on something, for better or worse, the decision isn’t likely to be disturbed in short order.  We may not like the outcome, but there’s something to be said for stability.

Secondly, the proposal not only removes outstanding jurists from the Supreme Court, but also shifts them into some kind of judicial limbo.  The Carrington reform keeps the senior justices from regularly serving on any court for the last ten or twenty years of their respective careers.  This is not an effective use of a very limited resource: Namely, minds adept enough to be high-level federal jurists.

We get to the heart of the matter in the closing paragraph of Carrington’s piece: “If five of our present justices broadly prohibit the federal government from providing accessible health care, Congress should consider using its constitutional power again to add two more justices—and impose a reasonable limit on the length of time that a mere mortal should hold so much political power.”

Translated: “If five justices aren’t willing to say that the government has the power to enact a law with which I agree, then we should add two more justices so that those five no longer have a majority.”

I’m curious as to whether he would feel the same way if activist jurists who shared his views were about to strike down a law he found objectionable.

Along similar lines, Professor Farzal Khan of Georgia penned a piece astounding in its lack of self-awareness.  In it, he not only suggests that ruling the ACA unconstitutional would undermine the institution of the Court, but also says, in part, “If the electorate’s choice of legislators and the executive is rendered meaningless by the partisan fiat of five unelected and unaccountable men in robes, how could this not lead to a massive legitimacy crisis?”

This is nothing new.

Why?  Because, if that’s the test, then the massive legitimacy crisis of which he speaks must have already occurred repeatedly in the past hundred years.

This quote could have been ripped from any number of conservative opinion pieces from the last fifty years.  I have to wonder whether Professor Khan’s study of constitutional law skipped the eighty or so years between Lochner and the Rehnquist Court.  The implicit point is that judicial activism pursuant to non-conservative outcomes doesn’t “register” as such, thereby giving rise to the impression that an anti-ACA ruling would somehow create a “crisis.”

Despite rumors to the contrary, activist jurisprudence did not begin with Bush v. Gore.  The author seems to proceed from the assumption, as do many liberals in this case, that activism in the name of Fourteenth Amendment “liberty”[2] is of a different character than striking down a law on questionable Commerce Clause grounds.

Do not believe this.

This is wrong coming from either direction: The notion that the federal government has never been held to have exceeded its Commerce Clause powers is obviously false.[3]  In addition, it’s disingenuous to say that activism is tolerable when used to effectuate “good” Fourteenth Amendment ends, while the same method undermines legitimacy when it relies on the Commerce Clause to carry out its sinister machinations.  That is a distinction without a difference.  If one undermines our system of government, then so does the other.

Even President Obama set aside a few moments to reinforce what will become the “company line” in the event that the ACA is struck down by the Court.  The President said, “Ultimately, I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

He was attacked on several grounds for this comment[4], but most relevant to this discussion was the puzzling notion that overturning a law was somehow “extraordinary” or even “unprecedented.”  A confused Fifth Circuit requested clarification from the DOJ as to whether the Obama Administration was refuting (or oblivious to) the notion of judicial review.

The administration reassuringly clarified the prior comments and confirmed an understanding that judicial review does, in fact, exist.  Naturally, however, the usual suspects criticized the criticism of the comments, running interference for the president, calling it a conservative “temper tantrum,” and repeating the groundwork-laying meme that the federal judiciary is suddenly losing its credibility because of something the Court hasn’t even done yet.

CNN legal expert Jeffrey Toobin went as far as to call the episode a “hissy fit,” going on to miss the point entirely and say, “Cue the phony outrage. It’s phony because the president was simply exercising his First Amendment right to defend the law. He was not threatening anyone.”  As for the issue of whether President Obama was questioning the very concept of judicial review, Toobin added “Of course, Obama issue [sic] no such challenge to Marbury or the courts’ [sic] right of judicial review.”

A quick Google search of this topic could churn up hundreds of more articles attacking the Court for a yet-to-be-rendered opinion.  This number will increase exponentially should “Obamacare” be obliterated.[5]  Many of these criticisms will rely either on a normative argument that helping people get medical care should always be, like, constitutional and stuff, or on a simple version of the points raised above that the evil conservatives are destroying democracy as we know it.

Here’s the bottom line: All of this is nonsense.


The fact of the matter is that the ACA is probably constitutional.  That said, I don’t think that the individual mandate’s constitutionality is the open-and-shut case that the administration’s supporters would have us believe.  However, I find it hard to reconcile that, for example, Justice Scalia could rule in the government’s favor in Gonzales v. Raich, but rule against the government on Commerce Clause grounds here.  That will be a difficult distinction to draw.  But none of that is even the real point of this discussion.

Here’s what this is all about, folks:

The left likes the Court to use shaky constitutional interpretation to get rid of laws it doesn’t like.

And guess what?

The right likes the Court to use shaky constitutional interpretation to get rid of laws it doesn’t like.

It just hasn’t had as many opportunities in the last fifty years as the left has.

However, when shaky Constitutional arguments are used to strike down laws one side or the other finds agreeable, such tactics suddenly becomes an “assault on democracy.”

To suggest that even a sacred cow like Griswold—which ruled a Connecticut law banning contraception unconstitutional—was an airtight decision with no extraneous or political motivation is simply not intellectually honest or historically accurate.  A Supreme Court that, here, struck down the ACA would be doing nothing that the Griswold Court (or the Lochner Court, or even much of this Court in Bush v. Gore or Lawrence v. Texas) didn’t do before it.

If the Court strikes down the Affordable Care Act, the right will engage in all sorts of mental gymnastics to show why this is a decision well-grounded in strong constitutional principles, just as the left has attempted to do with myriad prominent rulings from the last few decades.  Each side convinces itself that the other is crazy or evil while simultaneously engaging in the very behavior that they’re allegedly condemning.

I’ve discussed this phenomenon before.  Ideologues adopt the aforementioned “ends justify the means” mentality that they attempt to dress up as something that isn’t contrary to notions of democracy or self-determination.  That’s because, as always, if something is “really, really important” to them, but the Constitution is silent on the issue, then they believe they’re justified in supplanting the will of the legislature for the sake of their own values or political preferences.

So, this time, it will be the left’s turn to howl about “five men in robes” contravening the wishes of our elected representatives—or, even more compelling, contravening the “will of the people.”

Yet, these same howlers will make the argument that, despite the Constitution being silent on topics like contraception, abortion, or marriage, that all of those things are Constitutional rights.  Why?  Because the Supreme Court said so!  Ipso facto, they’re ironclad rights for ever and ever.

Like my old law school classmates, they find no difficulty accepting the circular logic of the Supreme Court “discovering” rights, so long as those rights jibe with their worldview.

Meanwhile, the same conservatives who balked at activist decisions like Roe v. Wade and who have continued to fight them for years will now point to a (possible) 5-4 decision in the ACA cases as some kind of argument-ender, telling anyone who objects that they should shut up and get on with their lives.

I am firm in my belief that these people either do not fully understand what the Constitution requires or do not choose to believe it.

This is what both sides need to know: Abortion, gay rights, and contraception are as important to the left as states’ rights and free-market capitalism are to the right.  I know it will be difficult for ideologues to accept that someone could care about “bad” values as much as they themselves care about “good” values, but it’s the truth.

And it’s not a valid basis for judicial reasoning.

I don’t know when we passed the point of no return as far as judicial activism is concerned. Maybe it was Lochner.  Maybe it was Griswold.  We could debate even that point forever.[6]

But, whenever it happened—whenever we crossed that imaginary line—we moved beyond a moment where such activism made us sufficiently uncomfortable.


True believers will always be able to muster fury at an outcome that presents a challenge to their ideological brand.  These same folks will gladly accept the good fortune of an activist decision that advances their agenda.  Only certain conlaw nerds (myself included) will be irritated by activism irrespective of a case’s outcome.[7]

I look at it like this.  I’m a die-hard Redskins fan.  If the Redskins were playing the Cowboys, I would clearly want Washington to prevail, hopefully by a huge margin.  However, I wouldn’t want the Redskins to win because the officials made up a rule at a critical moment in the game that wound up costing Dallas dearly.

For someone of my mindset, a person who is comfortable with judicial activism is essentially saying, “I don’t care if my side wins because of improper refereeing.  The important thing is that my side wins.”

Here, that could mean that opponents of the ACA see no distinction between the law being repealed by Congress or struck down in the Supreme Court.  As long as what they perceive as the first step toward “socialism” gets reversed, it doesn’t matter how we get there.  The process doesn’t matter.  Only the outcome does.

Do not believe this, either.

The process matters.  Propriety matters.  Self-determination matters.  On these points, I agree with those who have misgivings about where the Court may go with this ruling.  There is a legitimacy at stake on some level.  However, a lot of the people complaining most loudly would be on the other side of this argument entirely were the Court about to decide on whether it’s constitutional for a state to allow only opposite-sex marriages.

What I am saying is that it is really the same issue.

If activism undermines democracy and erodes the legitimacy of the Court when used to overturn left-leaning economic legislation, then it also undermines democracy and erodes the legitimacy of the Court when used to overturn right-leaning social or criminal legislation.

Saying otherwise would be akin to saying that a bad call that went against the Cowboys isn’t a bad call because it went against the Cowboys.

This is as direct as I can put this: I would rather live in a jurisdiction governed by disfavored ideological policies passed by a legislature than live in a jurisdiction governed by favored ideological policies imposed through extra-constitutional means on an unwilling majority by an activist judiciary.

The Constitution does not guarantee a specific ideology beyond its text.  So, yes, to the extent that freedom of speech or protections against involuntary quartering of soldiers during peacetime or a prohibition against slavery are ideological positions, the Constitution does require those.  Everything else is—or should be—up to us.

The Constitution does not “protect” us from becoming a socialist nation or a communist nation.  It does not force us to adhere to “Judeo-Christian” principles.  Nor does it stand for  the libertarian precept that “as long as I’m not hurting anyone, I can do whatever I want.”

All of those ideas are ideological positions.  You may love them.  You may hate them.  But our feelings for them, not matter how strong, do not magically affix them to the Constitution.  A political opinion does not suddenly become an incontrovertible constitutional principle by currying favor with a quorum of the Harvard Law School faculty, being substantiated by centuries-old quotes from a critical mass of “Founding Fathers,” or being posted to your aunt’s Facebook page day after day.  It’s high time we remembered that the judiciary is not the legislative branch.

The two best summations of this point came in dissents to landmark activist cases.  In Lochner, Justice Holmes wrote:

The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.  The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.

Indeed.  As I mentioned above, although the right may hate it, there is nothing—not one thing—in our Constitution that structurally prevents our nation from abandoning capitalism altogether.  Rejection of the free market is entirely within the power of the government.[8]

In his brilliant Griswold dissent (which, in the interests of full disclosure, is my favorite piece of legal writing), Justice Stewart stated:

Since 1879, Connecticut has had on its books a law which forbids the use of contraceptives by anyone.  I think this is an uncommonly silly law.  As a practical matter, the law is obviously unenforceable, except in the oblique context of the present case.  As a philosophical matter, I believe the use of contraceptives in the relationship of marriage should be left to personal and private choice, based upon each individual’s moral, ethical, and religious beliefs.  As a matter of social policy, I think professional counsel about methods of birth control should be available to all, so that each individual’s choice can be meaningfully made.  But we are not asked in this case to say whether we think this law is unwise, or even asinine.  We are asked to hold that it violates the United States Constitution.  And that I cannot do . . . [I]t is not the function of this Court to decide cases on the basis of community standards.  We are here to decide cases “agreeably to the Constitution and laws of the United States.”  It is the essence of judicial duty to subordinate our own personal views, our own ideas of what legislation is wise and what is not.  If, as I should surely hope, the law before us does not reflect the standards of the people of Connecticut, the people of Connecticut can freely exercise their true Ninth and Tenth Amendment rights to persuade their elected representatives to repeal it.  That is the constitutional way to take this law off the books.

I couldn’t dream of crafting a better summation of the anti-activist position than that.  Note especially that he votes to uphold a law despite his personal opinion that it is “uncommonly silly.”

If all Supreme Court justices were like Potter Stewart, the last fifty years of the Court’s history would look very different (better, in my view), ideologues on both sides wouldn’t be able to cry foul about one activist opinion while lauding another, and this article would have been lighter by something like 4,000 words.

So, before you begin to store canned goods, bottled water, and ammunition in preparation for the forthcoming “unprecedented” and horrendous “assault on democracy” by the Supreme Court, remember two things.  One, this sort of decision has been going on for quite some time, and, while it’s not a positive practice, we seem to have survived so far.  Two, many of the people who will be criticizing activism most fervently this round worship at the altar of Griswold and Roe and will be singing a much more harmonious tune the next time this same method of adjudication is used in their ideology’s favor.

See you in June.


[1] My own view is that this comes from a sort of arrogance that believes that members of the federal judiciary are overwhelmingly brilliant, and, “therefore,” overwhelmingly progressive (like them).  Moreover, many of the most prominent “conservatives” were staunch opponents of activism, notably Judge Robert Bork and Justice Antonin Scalia.  Faced with a possibility that seemed extremely remote to them, these left-leaning activism apologists excused or even applauded this behavior with the same naivete as a nuke-happy American in 1946 who believed that the United States would remain the only nation with atomic weapons in perpetuity.
[2] Forgetting, of course, about the capitalist justices who used the same notion to impose their economic ideology on legislatures during the Lochner Era.
[3] For one of many examples, provisions of the original Violence Against Women Act of 1994 were held in U. S. v. Morrison to violate both the parameters of the Commerce Clause as well as the Fourteenth Amendment.
[4] For example, whether a 219-212 vote in the House of Representatives qualifies as a “strong majority”
[5] One thing that is particularly puzzling about the ACA is that it has no severability provision.  That is, most federal legislation contains language that says something to the effect of “Should any part of this legislation be found to be unconstitutional, the remainder of the legislation shall not fail on that ground,” limiting the scope of a decision to the portion of the law that runs afoul of the Constitution.  Without such a provision, the entire law fails if a portion of it is found to be unconstitutional.
[6] I definitely don’t believe it was Marbury v. Madison.  Again, that’s a topic for another article  (Spoiler: I will never write that article).
[7] One of the biggest hurdles to discussing this with people is that they can’t separate ideology from judicial philosophy.  Even someone as intelligent as Jon Stewart has difficulty doing that on occasion.  In short, and to use the most famous example, it is quite possible to be strongly pro-choice while also thinking that Roe v. Wade is a horribly-reasoned opinion.
[8] One legitimate constitutional question in a hypothetical case that contemplated that issue would be whether the Constitution empowered the federal government to enact such a law, or whether a state would have to do it.  That’s also at the heart of the ACA cases.
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5 Responses to The Gathering Storm

  1. Pingback: Best of 2012 | The Axis of Ego

  2. Pingback: The Gathering Storm (Redux) | The Axis of Ego

  3. Tom Garrett says:

    Reblogged this on The Axis of Ego and commented:

    With today’s impending announcement of the result in the Affordable Care Act cases, I thought it appropriate to revisit this piece from a few months ago. No matter the outcome in the case (and the tea leaves seem to suggest that the law will be ruled unconstitutional), the reaction and coverage of same is likely to be oversimplified, overstated, and generally insufferable.

    Whichever way the case comes out, we’ll hear that this case marks the “end of freedom” or some such thing. Just keep in mind that the law being struck down doesn’t represent any real obstacle to a system that will ultimately produce universal healthcare, and that the law being upheld doesn’t represent any real obstacle to its being repealed a year from now. I can guarantee you that one of those two arguments (depending on the outcome of the decision) will be making the rounds on cable news all week.

    One final thought: Remember that, if the Court rules against the law, the ACA must be struck down in its entirety due to a lack of a severability clause. In other words, whereas a provision of the USA PATRIOT Act may be ruled unconstitutional without killing the entire bill, the individual mandate being ruled unconstitutional here would serve as a judicial repeal of the entire ACA because of its lack of such a clause.

    I’ve often wondered whether the decision to exclude a severability provision was strategic. Whether it was or not, just remember that the other provisions of the ACA would still be left standing in the face of a ruling on the individual mandate had the law been drafted with such a provision. I suspect that a ruling against the ACA will be met with subtle (or not-so-subtle) implications that striking down the entire law was an overreach by the Court, when, in fact, there was no discretion available on the point.

    No matter what happens today, partisans on one side or the other will insist that the sky is falling. This is not the case. More to the point, a ruling against the ACA will undoubtedly spawn a deluge of anti-judicial-activism retorts from people who adore judicial activism when it’s used in ways that help their ideological causes. That, really, is the point of this piece: Hypocrites and equivocators are already a dime a dozen. This ruling will simply accelerate their mass production. The only question is: Which model will come flying off the assembly line in a few hours?

  4. Pingback: The Triumph of Self-Determination | The Axis of Ego

  5. A very good analysis–thanks! And you’re right–it’s going to get ugly. What is so sad about these things is that, regardless of what side you’re on, the root cause issues get totally lost in the hysterial of ideology–it’s true of all the hot issues–guns, abortion, etc. Is it more or less “American” to have the government force people to buy insurance or to force Americans to go to the third world to get medical care?

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