The SCOTUS: Is an extreme constitutional winter coming?

The SCOTUS' strike zone has widened
extremely to the right

[I]t's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. [...] The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically. [Ridiculing emphasis supplied] - 2005 Washington Post Editorial urging the confirmation of Samuel Alito as Justice of the Supreme Court

In 2005, now Chief Justice John Roberts was testifying before the Senate Judiciary Committee, which was considering his nomination by President George W. Bush to replace William Rehnquist as Chief Justice of the United States. In his opening statement, Roberts described the role of justice on the Court as one of neutral arbiter, an umpire calling balls and strikes'a role that required modesty and restraint:

My personal appreciation that I owe a great debt to others reinforces my view that a certain humility should characterize the judicial role.

Judges and justices are servants of the law, not the other way around. Judges are like umpires. Umpires don't make the rules; they apply them.

The role of an umpire and a judge is critical. They make sure everybody plays by the rules.

But it is a limited role. Nobody ever went to a ball game to see the umpire.

Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.

The umpire analogy was particularly facile, if not dishonest. Justices of the Supreme Court are part of the policy "game." And, as I noted at the time, every umpire's strike zone is different. The near seven years of the Roberts Court has demonstrated this as few have in our history. But at the time, many urged that Roberts deserved confirmation, based on his credentials, his intellectual capacity and his profession of fealty to the concept of judicial restraint and modesty. Emblematic of this view is law professor Jeffrey Rosen, who wrote in many forums that Roberts should be confirmed. But one of the more striking "Rosen" moments was his description on NPR of an exchange  between Senator Patrick Leahy of Vermont, then the ranking member of the Democratic minority on the Judiciary Committee, and Roberts:

SIEGEL: I want to ask Jeffrey Rosen about one moment in the questioning which struck me a great deal. That was when Patrick Leahy of Vermont was questioning Judge Roberts, and we heard Judge Roberts talk about a Supreme Court justice whom he admires tremendously; one of his great role models is Justice Jackson.

Professor JEFFREY ROSEN (George Washington University Law School): I'm so glad you noticed that moment because I did, too. It was my favorite moment, as well. Leahy was questioning Roberts about his views of congressional power, [...] And it was a wonderful moment, both because it did seem to be Roberts' quite elegant answer to the claim of Democrats that he would just enact the views that he'd expressed in the youthful memos, but more importantly, it showed a deference to congressional authority that many of us have been unsure about whether he has. It was interesting that several senators, and not only Democrats, questioned him quite closely about whether he would defer to Congress' fact-findings and strike down lots of federal laws; Specter and Kyl as well as Leahy. [Emphasis supplied.]

Personally, I was quite sure that Roberts would, to the extent possible, attempt to "enact the views that he'd expressed in the youthful memos." I was also sure that Roberts would "show deference to Congressional authority" when it suited him and would not when it did not. Eventually, people like Jeff Rosen saw it my way. In 2010, he wrote:

What all this says about the future of the Roberts Court is not encouraging. For the past few years, I've been giving Roberts the benefit of the doubt, hoping that he meant it when he talked about the importance of putting the bipartisan legitimacy of the Court above his own ideological agenda. [...] If Roberts continues this approach, the Supreme Court may find itself on a collision course with the Obama administration--precipitating the first full-throttle confrontation between an economically progressive president and a narrow majority of conservative judicial activists since the New Deal. [Emphasis supplied.]

I think we can change that "may" to "has," precipitating the first full throttle confrontation between the president and a narrow majority of conservative judicial activists since the New Deal. The funny thing is that President Obama's economic policies have largely been center-right conventional, not the transformation of our understanding of the national government that the New Deal produced.

As many of us believe, the policy that has now become the center of the storm of the confrontation between the president, the Congress and the Supreme Court'the individual mandate'is not actually an "economically progressive" policy. It is a price paid to garner the political support believed required for the passage of the Affordable Care Act. The progressive policy would have been, of course, Medicare for All, or at least auto enrollment in Medicare for the uninsured.

Based on the oral arguments, the extreme conservative bloc of the Supreme Court has adopted the off the wall attack on the constitutionality of the mandate. Absent a repudiation of nearly 200 years of Court jurisprudence (we'll talk about the notable exception of the Lochner Era Court decisions in a moment), there is no serious argument for the unconstitutionality of the mandate. (For my writings on these subjects, see this, this and this for a few.)

The Court's adoption of these unserious arguments has brought dismay to many:

If [the Supreme Court] decide[s] [the ACA case] by 5-4, then yes, it's disheartening to me, because my life was a fraud. Here I was, in my silly little office, thinking law mattered, and it really didn't. What mattered was politics, money, party, and party loyalty.' - Akhil Reid  Amar, Professor, Yale Law School

For the rest of us, we have no choice but to fight to stop this extreme conservative Constitutional winter.

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