Movement Liberals Cannot Credibly Demand Judicial Restraint

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Their biggest legal triumphs have involved courts overruling legislatures to overturn longstanding precedents.  

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Overturning the Affordable Care Act would be wildly unpopular with what Kevin Drum aptly terms "a small but dedicated segment of elite opinion." But it wouldn't bother most people. A recent New York Times poll found 67 percent of the country wants part or all of the law struck down. "So which matters more? The general public's view? Or the view of a small but dedicated segment of elite opinion?" Drum writes. "In the short term, the general public probably matters more. In the longer term ... overturning Obamacare could end up mobilizing movement liberalism in the same way that the Warren Court mobilized movement conservatism four decades ago."

Perhaps he's right. I don't doubt that movement liberals will be upset if the individual mandate is struck down. But what exactly would the reaction against such a decision look like? President Obama's recent remarks notwithstanding, it isn't as if the left wants a Supreme Court that consistently respects legislative majorities. The iconic decisions of The Warren Court, Roe vs. Wade, and efforts to extend marriage rights to gays are all premised on the notion that striking down popular laws is sometimes a worthy enterprise. Nor is the left going to champion fidelity to the text of the Constitution as it was understood at the time of the country's Founding. And as Lawrence v. Texas shows, liberals are comfortable celebrating when longstanding precedents are overturned (after strategic hunts by ideologically-driven activists for the perfect case).

Thus the unavoidably tricky position in which Affordable Care Act defenders find themselves: liberal justices are going to keep "discovering rights" and expanding certain liberties in the future, rejecting originalism, the judgment of legislatures and at times even longstanding precedent. They'll keep advancing the idea that ours is a living constitution that adapts with the times. And those commitments undermine complaints they make about conservative justices discovering rights, expanding economic liberties, overruling legislators, and overturning precedents.

"We're okay with those things, but you've always claimed to be against them" is enough to demonstrate hypocrisy; but it's a little much for Obamacare defenders to start claiming that the conservative justices are party to "a conservative Coup d'Etat," as my colleague James Fallow's correspondent put it. If the unnamed reader wasn't identified as being from Holland I'd half-suspect it was Newt Gingrich back with more hyperbolic rhetoric intended to undermine the judiciary.

I'm glad that the Warren court expanded civil liberties and reined in certain powers of the police; the end of sodomy laws was long overdue; and I hope that all gays can marry one day soon. But after all the activism and departures from precedent liberals have cheered over the years, it's a bit jarring to see so many asserting that overturning legislation they support is illegitimate, based largely on the conviction that long-contested Commerce Clause precedents, established in the 1930s and inconsistently challenged during the Rehnquist years, are sacrosanct. Here's Andrew Cohen, a writer with whom I often agree, opining elsewhere at this magazine:
 

Opponents of the law say it represents a "fundamental" expansion of federal power. Supreme Court Justice Anthony Kennedy wondered Tuesday whether it might represent a "fundamental" change in the relationship between individuals and the government. But if the Court were to strike down the act it would be a fundamental reversal of generations of judicial deference to federal economic legislation. Even if Clement's argument is true, who should make the fundamental change contemplated by the act? Elected representatives? Or unelected judges?

If the level of deference shown the legislature by judges is going to change, isn't it by definition the judiciary that has to effect that change? Would a narrow limiting principle -- one that forbade Congress from mandating that individuals buy a corporate product -- really constitute a "fundamental reversal" of commerce cause case law, or merely establish an outer limit? Were the court's liberal members guilty of voting to end "generations of judicial deference to federal economic regulation" in Raich?

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Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

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