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

The Supremes Full.jpg


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?

I wish conservatives would be more forthright about the fact that they want to overturn a lot of New Deal era cases that they think were wrongly decided. I don't think it's illegitimate that they want to do so, especially as the consequences of a scarcely limited federal government intensify. 

Perhaps alone among commentators, I think the individual mandate is superior as policy to whatever alternative we'll likely get if it's struck down, even as I am uneasy about the precedent it sets -- and as uneasy about the Commerce Clause precedents set in Wickard v. Filburn and Gonzalez v. Raich.

Though liberals are free to disagree with the notion, advanced by Justice Thomas, that precedent matters far less than making decisions in line with the original understanding of the U.S. Constitution, I see no justification for claiming that his interpretive framework is illegitimate, or that he'd be acting as a partisan if he votes down Obamacare. Doing so is consistent with the judicial philosophy he has long avowed. Furthermore, you'd think that proponents of the living Constitution would grant that the nature of interstate commerce and the federal government have both changed significantly since 1930s-era bureaucrats sought to prevent a farmer from growing wheat for personal consumption on his own property. As I see it, the federal government now enjoys significantly more power in relation to the states than ever before, rendering them a less effective repository of countervailing power than they were intended to be; and Congress is more influenced by powerful corporate interests than ever before too.

There is, accordingly, a "living constitution" argument to be made for "adapting" the commerce clause in order to reestablish what many would regard as a more prudent distribution of power among the federal government, the states, and the people. I don't expect any of today's conservative justices would make that argument. To do so would be contrary to so much of what they've avowed. But liberals should recognize that what's stopping them is the extent to which they've not yet embraced certain widely held liberal attitudes toward constitutional interpretation.

As Will Wilkinson puts it:

Were we to make slavish deference to precedent universal law, ala Kant, we'd end up with what a sort of path-dependent judicial drift -- tiny but unavoidable interpretative mutations piling up until the law ends up in places no one finds desirable. Interpretative frameworks that push the law toward substantive ideals save us somewhat from the problem of arbitrary, path-dependent drift. But they create another kind of arbitrary drift, as rival frameworks push the interpretation of the laws in incompatible directions. This can, again, leave us in stupid places no one ever had in mind. The only rescue is the occasional "activist" saltative leap that either ignores or radically reinterprets precedent in order to restore to the law the coherence of principle, for a while at least.

"Originalism" is not a non-activist interpretative framework. An "originalist" framework applied to the interpretation of non-originalist precedent predictably generates "activist" decisions. That is why, as I've argued before, originalism is just one among many philosophies of the "living constitution", and does not differ in fundamental method from the progressive "second-bill-of-rights" philosophy, which attempts to reinterpret the law such that over time the accumulation of progressive precedent codifies certain basic rights unfortunately omitted from our antique constitution. Both philosophies seek to rewrite the law, as it now stands, better to conform to some external ideal.

The left's judicial strategy is presently threatened least by those on the right who are most consistently conservative and averse to activism. Hence the new-found respect for those qualities.

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