The decline of judicial restraint: Some thoughts on recent decisions

I must admit that Chief Justice John Roberts is growing on me.  While I never doubted his legal competence, and I believed that he deserved Senate confirmation, I feared that he would be another right-wing ideologue on a Court that already had too many. That fear has not been entirely allayed, but I am beginning to believe that Roberts actually has a better understanding of the Court’s proper role in our constitutional system than any other Justice currently on the Court, and indeed, than most Justices in recent history.

My enhanced respect for Roberts arises out of the opinions he wrote in both of the high profile cases that the Court released in the last week of its most recent term. He was the only one of the Supreme Court’s nine Justices who reached what I think was the correct conclusion in both of those cases.  But what impressed me was not just the conclusions he reached but the reasoning by which he got there. Chief Justice Roberts  wrote the principal dissenting opinion in Obergefell v. Hodges, the case in which the Court discovered  — or, to be more precise, invented — a constitutional right to same sex marriage. His dissenting opinion in that case can best be understood as a plea for judicial restraint, a concept so weakened by decades of neglect that it seems almost quaint.  So unfamiliar has the American public become with the notion that not every societal wrong necessarily has a judicial remedy, that many supporters of same sex marriage have assumed Roberts’s argument in his dissent to be a mere pretext intended to mask  hostility toward homosexuals.

One searches the text of Roberts’s opinion in vain, however, for any hint of such hostility — an attitude that is not difficult to find in, for example, the separate dissent of Justice Antonin Scalia.  Indeed, Roberts begins his dissent by acknowledging that the proponents of same sex marriage had made “strong arguments rooted in social policy and considerations of fairness” that had “undeniable appeal.”  He then goes straight to the heart of the case, however, reminding both his colleagues and the general public that.

this Court is not a legislature. Whether same sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have the power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.”

Throughout his opinion, Roberts makes his principal concern clear:

[O]ur Constitution does not enact any one theory of marriage. The people of a State are free to expand marriage to include same-sex couples, or to retain the historic definition. Today, however, the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage.

Perhaps most significant, Roberts points out that the judicial short circuiting of the democratic process is not necessarily in the interests of those urging it:

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own version of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept.

The fact that a conservative Chief Justice appointed by a conservative Republican President relied on judicial restraint to support  a conservative result in a constitutional case by itself is hardly surprising.  The language he used to make that argument was certainly more temperate than was used in the separate opinions issued by his dissenting colleagues, but court-watchers on the other side of the issue are understandably skeptical as to the sincerity of his apparent moderation.  The nearly simultaneous release of the majority opinion Roberts wrote in King v. Burwell, in which the Court for the second time rejected an attempt by Republican opponents of  the Affordable Care Act (a/k/a Obamacare) to use litigation to eviscerate the program is a different matter.  Conservative ideologues in both Congress and the punditocracy, many of whom have made the destruction of Obamacare their top priority, have screamed about the chief justice’s “betrayal” in having twice sided with supporters of the law in cases involving its validity and interpretation.

While Obergerfell was a constitutional case, the issues in King involved the interpretation of an Act of Congress.  The central issue before the Court was whether the intent of Congress in passing the Affordable Care Act was to limit the federal subsidies created by the Act to exchanges established by the States rather than those that the federal government is authorized to establish for States that decline to do so.  Logically, the answer seems obvious, as Roberts’s majority opinion meticulously demonstrates.  In construing  statutory language, oftentimes the “meaning—or ambiguity—of certain words or phrases may only become evident when placed in context.”   In this case, the context makes determining Congressional intent fairly easy, as Roberts’s opinion makes clear:

Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.

The relevant context, Roberts’s decision makes clear,  includes a realistic view of the legislative process that created the legislation in question.  The Affordable Care Act, he notes, “contains more than a few examples of inartful drafting.” Among the reasons, he explains, are the fact that:

Congress passed much of the Act using a complicated budgetary procedure known as “reconciliation,” which limited opportunities for debate and amendment, and bypassed the Senate’s normal 60-vote filibuster [citations omitted]. As a result, the Act does not reflect the type of care and deliberation that one might expect of such significant legislation.

Though the fervent opponents of the Affordable Care Act pretend not to know this, it is hardly unusual for errors to creep into major legislation.  Given the size and complexity of the Affordable Care Act, it would have been surprising if the enacted text did not contain some errors and ambiguities.  Ordinarily, Congress would address  such errors in due course, often in bills intended to make technical corrections. But the Republican Party’s all-out war on Obamacare prevents that normal procedure from being a viable option.  In any event, Congress’s inartful draftsmanship does not absolve the Court of its responsibility to ascertain and comply with Congress’s intent:

…[W]e must respect the role of the Legislature, and take care not to undo what it has done.  A fair reading of legislation demands a fair understanding of the legislative plan.

During the process leading to his confirmation as Chief Justice, Roberts memorably likened the role of a judge to that of an umpire calling balls and strikes.  That characterization received strong support from many self-styled conservatives at the time, but many of those erstwhile supporters are now among the fiercest critics of his opinions in the Obamacare cases.  The ferocity of their current criticism calls into question the sincerity of their previous support.

A truly neutral umpire — one who calls the legal issues of each case as he sees them — will not reliably produce in every case a result congenial to the policy preferences of the party whose President appointed him.  The accusations of “betrayal” that have been hurled at the Chief Justice by purported conservatives bespeak an expectation that he would in all cases find a way supply them with the result they desired — a far cry from the way a neutral umpire would be expected to behave.  These “conservatives” are not interested, it seems, in a neutral umpire, but rather in one whose pretended neutrality will invariably produce the policy result they desire.

The precipitous decline of judicial restraint as a guiding principle of Supreme Court jurisprudence has coincided with an enormous` increase in both the scope of the Court’s docket and the reach of its decisions.  It is often forgotten that, in the early days of the Republic, it was by no means self-evident that the Supreme Court would have the final word on the broad range of legal issues that come before it.  Lincoln, most famously, in refusing to accept the legitimacy of the Court’s 1858 Dred Scott decision, argued that the Court’s rulings were binding only on the parties to the cases before it, not on the other branches of the federal government.  It’s worth recalling that, when a dispute arose in 1876 as to the result of the Presidential election, no one seriously suggested that it be resolved by the Supreme Court.  When a similar dispute arose in 2000, no one seriously suggested that it be resolved anywhere else.

There is a political consensus today in support of both the finality and the  reach of Supreme Court rulings; given the complexity of the world we live in, there is probably no realistic alternative.  As long as that consensus remains operative, however, there is no meaningful check on the Court’s power except for the consciences of its members.  Under those circumstances, the continuing democratic legitimacy of the Court demands the development of a robust jurisprudence of judicial restraint.  Chief Justice Roberts, however, so far seems to be the only current member of the Court who realizes that.

The virtual abandonment of judicial restraint as a meaningful check on the Supreme Court’s power reflects  much broader trends in our contemporary culture — our insistence on instant gratification and our virtual deification of the individual as the sole morally cognizable unit in relation to the State.  As Roberts correctly noted in his Obergefell dissent, the proponents of same sex marriage had enjoyed quite a bit of success through the democratic process.  Allowing that process to play out over time would probably have gotten to the same place eventually, and with less collateral damage to our democratic institutions — but it would have meant that some of the individuals who will now benefit from the Supreme Court’s decision would have lost that opportunity because of the additional years that the democratic process would have required.  To ask an individual to defer the gratification of his own felt needs for something as abstract as the democratic process is in the public mind unthinkable.

The same societal mindset that poses a daunting obstacle to the exercise of judicial restraint also affects the American attitude toward other sources of authority, including religion. This attitude poses a particular problem for traditional Judaism, which has always been a religion of patience and collective responsibility.  The pull of the pragmatic idealism and ingrained impatience that has long been the hallmark of the  American mindset is more powerful than most of us realize.  We can accomodate it or we can battle against it, but we cannot afford to ignore it.

We tend to associate the accommodation of the halakhic process to the values that pervade American society with those on the left fringe of the halakhic community; one familiar example is the slogan “Where there is a rabbinic will, there is a halakhic way” — which implies that the halakhic process can readily produce whatever result those wielding it find desirable.

There is, however, more than one way to accommodate the individualism and impatience that have long been the hallmarks of the stereotypical American personality.  Do you really think it’s a coincidence that the most successful outreach program for halakhic Judaism today is the one that has co-opted American impatience with the slogan “We want Moshiach now!”?

Douglas Aronin

About the Author
Douglas Aronin is a retired attorney living in Forest Hills, Queens, who is continuing his lifelong involvement in the Jewish community. His writings have appeared in a wide range of print and online forums.
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