Re-thinking Judicial Restraint

In today’s Akron Beacon Journal there is an analysis of Chief Justice Roberts on the editorial page worth reading.  The piece demonstrates the value of bringing a comparative and historical perspective to the analysis of current conflicts.  

The piece also reminds us of the critical importance of being able to ‘put ourselves in the other’s shoes,’ if we want to fully understand and appreciate the complexity of any argument, ours and those advanced by others who see any particular conflict from a perspective other than our own.

Here is the piece in its entirety, with a link to the ABJ here if you want to read it there.  My contributions are in [brackets].

CAMBRIDGE, MASS.: The U.S. Supreme Court term that starts the first Monday in October will mark the 10th anniversary of John Roberts’s introduction as chief justice. He can celebrate by reflecting on the assertion by Republican presidential candidate Ted Cruz that Roberts should never have been nominated.

[Immediately…we can see here that one theme examined in this piece will be the complicated relationship between law and politics.]

Cruz’s repudiation of Roberts, a fellow product of the conservative legal establishment, is just the latest confirmation of an astonishing process: The chief justice, a lifelong conservative who hasn’t abandoned his views, is nevertheless being abandoned by conservatives — without being embraced by liberals.

Having exercised judicial restraint in the two Obamacare cases and in the gay-marriage decision, Roberts is in the admirable and unenviable position of having a principled, across-the-board stand against activism. It’s admirable because justices are supposed to have, you know, a coherent judicial philosophy. And it’s unenviable because, in an era of activism, it wins you nothing but enemies on both sides.

[It is important to note here that two key terms are used in this analysis, that might require some clarification.  Judicial activism usually means:  when justices on the court, most often the Supreme Court, use their discretion to strike down acts of Congress or of the Executive Branch.  Judicial restraint usually means the opposite:  when justices on the court, most often the Supreme Court, use their discretion to defer to the more democratic branches and not strike down acts of Congress or of the Executive Branch.  I say ‘usually’ because as this piece points out, these are contested terms.]

Perhaps suitably for the Supreme Court, there’s a precedent for this process: Justice Felix Frankfurter, who joined the Supreme Court as a prominent liberal and found that his refusal to adopt judicial activism lost him his liberal legacy without gaining him a conservative one. Today, this extraordinary justice, one of the fathers of judicial restraint, has almost no fans or supporters — except possibly John Roberts.

Frankfurter started on the opposite side of the spectrum from Roberts. As a young government lawyer and Harvard law professor, Frankfurter became nationally known for his advocacy of liberal and even left-wing causes. He vociferously criticized the murder convictions of Italian anarchists Nicola Sacco and Bartolomeo Vanzetti, who may well have been guilty and in any case certainly belonged to what we would today consider a dangerous terrorist organization.

He strongly supported labor unions, helped found the American Civil Liberties Union, and was a national board member of the National Association for the Advancement of Colored People. He was a close adviser to Franklin Delano Roosevelt, instrumental in shaping the second New Deal. By the time he became a justice in 1939, he was one of the most famous liberals in the country.

[So, an appreciation of our own history allows us to see that Justice Frankfurter was clearly a leading and very public and powerful liberal before joining the court.  And part of his pre-court liberalism included developing a judicial philosophy of judicial restraint as noted in the next section...be sure to notice the reason he did this.] 

As part of his liberalism, Frankfurter pioneered the ideology of judicial restraint, which he developed to criticize the libertarian, property-protecting Supreme Court majority that struck down progressive legislation on wages, hours and working conditions. He marshaled the views of Oliver Wendell Holmes and Louis Brandeis to support his critique, but in truth both of those great justices exercised judicial restraint somewhat selectively.

Frankfurter took seriously the judicial philosophy he had developed as a critic of the court’s majority. And he stuck with his restraint even when FDR’s numerous Supreme Court appointments (eight plus a chief justice) gave liberals a majority.

[Here we see that Frankfurter chose, once on the court, to use his discretionary authority to remain logically consistent…that is what it means when they say he ‘stuck with his restraint.’  But other liberal justices made different choices with their discretion, as noted here.]

To the other liberals, judicial restraint was a tool of criticism that they could jettison when they had the votes. To Frankfurter, it was the creed of a lifetime that he was unwilling to abandon.

[This raises an important question:  is ‘judicial restraint’ a principle, a value, a moral commitment expressing a deeply held vision of what the rule of law means…or is it an instrumental, provisional, political position we should adopt as if it were a morally principled position only when it serves our own partisan political needs of the moment (as we saw in the article about how partisanship impacts whether or not we even ‘see’ voter fraud or voter suppression? 

This is the kind of question we could not have asked without considering the argument in this text.  It is a much better question than the ‘usual suspects’ types of questions we might have asked without engaging with other smart people to deepen our understanding of law and politics…this is why we all need to work on learning to ask better questions.]

The result [of the conflict on the court between Frankfurter and his liberal colleagues] made Frankfurter look like a conservative on a court that moved steadily to the left. He voted twice to allow schools to expel students who wouldn’t recite the Pledge of Allegiance and salute the flag. He voted to oppose judicial intervention in electoral districting, the issue that led the court to “one person, one vote.” By the time he retired in 1962, he was being rejected by young liberals, to whom Earl Warren’s activist court embodied the true liberal spirit.

Today, Frankfurter is never mentioned as a liberal hero [but he should be]. But movement conservatives don’t like him either [though they probably should]: How could the post-Ronald Reagan right ever embrace one of the fathers of the New Deal and a lifelong admirer of FDR? To make matters worse, Frankfurter always considered himself a liberal, never conservative.

The parallels to Roberts are striking. He came on the bench as a highly credentialed conservative who clerked for Justice William Rehnquist and worked in the Reagan administration. He was deputy solicitor general under President George H.W. Bush before being nominated to the court by President George W. Bush.

[Here we see the value of comparative analysis, of putting ourselves in the other person’s shoes.  In this case, if you are a conservative, putting your perspective on Roberts to the test and if you are liberal putting your perspective on Frankfurter to the test, by seeing these two strikingly similar cases—one liberal and one conservative—side by side. 

This is another reason why learning to write accurate and persuasive summaries of the arguments of others is such an important intellectual and political and legal tool.]

By the time Roberts came of age, judicial restraint had become a conservative position in response to judicial activism from the left. As a conservative, Roberts believed in judicial restraint, a principle he invoked at his confirmation hearings.

[So, the politics behind the struggle over the meaning of the law and, as a result, the meaning of ‘judicial restraint’ had flip-flopped from Frankfurter’s era to Roberts’ era today.]

Once on the court, however, especially after the retirement of Justice Sandra Day O’Connor, Roberts found himself with a conservative majority that would kick into action whenever Justice Anthony Kennedy’s view brought him to a conservative result. Roberts could’ve pressed his advantage and abandoned judicial restraint, as his conservative colleagues are all prepared to do.

[If you are conservative…when you read this are you drawn to Roberts as the leader in the room or to the un-named conservative justices (Scalia, Alito and Thomas) who have used their discretion to abandon their moral commitments to the law in favor of pressing their political advantage on the court?  If you are a liberal, when you read the same dynamic about Frankfurter and imagine it were playing out today…who would you be drawn to? 

If we all step back and see both sides, historically and comparatively, does this have any impact on how we might have interpreted these conflicts before reading this?]

But Roberts has balked at judicial activism in the most high-profile cases the court has faced, bitterly disappointing conservatives like Cruz. His motivation is in part to preserve the legitimacy of the court — and that’s a perfectly appropriate rationale, part and parcel of judicial restraint in the Frankfurter tradition. According to this view, the court lacks the legitimate authority to overturn legislation passed by an empowered democratic majority, and harms itself and the democratic process when it does so.

[This highlights a powerful constraint on judicial activism that had concrete impact on both Frankfurter and Roberts choices regarding when and how to use their discretion:  concern about the legitimacy and power of the court, and rule of law, itself.]

Having refused to drop his judicial restraint when it’s convenient, Roberts is now being abandoned by his fellow conservatives [and he should not be, while he should also be praised by liberal movement activists but is not]. Like the liberals who rejected Frankfurter, these conservatives only care about winning, and treat judicial philosophy as a useful fiction.

[‘Treating judicial philosophy as a useful fiction,’ is a powerful statement worth thinking about.  Is that what Scalia, Alito and Thomas are doing?  If it is, what does it say to us about the relationship between law and politics?  And if this is what they are doing, why do other justices use their discretion in opposite ways?  And what does seeing all of this together suggest about law and politics?]

It would be nice to think that history will vindicate Roberts. But it hasn’t vindicated Frankfurter — at least not yet. Constitutional law should be more than pure politics. Roberts deserves admiration, not contempt. Maybe someday he’ll get it.

Feldman is a Bloomberg View columnist. He can be reached at nfeldman7@bloomberg.net.