Tuesday, July 3, 2012

Was it "truly a conservative" dissent?

Mr. Torvik asked me the other day if I had a "better theory to explain Judge Posner's contrarian musings" about the dissent in the Obamacare decision.  This is Mr. Torvik's theory: 

Posner is not truly a conservative. He is a nerdy, heartless pragmatist who tries to reduce every problem to an equation. (I have some sympathy for this disposition.) In the past, this approach has happened to steer him toward conservative policies, but only because that's how the math worked out for him—not for any ideologically pure reason. Because the conservative members of the Court are ideologues, they do not compute. Posner can't figure out how their numbers add up. So he criticizes them. He doesn't really care to criticize the liberals, at least not as harshly, because he at least thinks he understands their math—Breyer (their leader) is obviously a pragmatist just like Posner. The liberals have a variable in their equation for feelings, or heart, or something, that Posner thinks they overvalue. But at least they show their work.
Mr. Torvik doesn't  say what characteristics a justice who is  "truly a conservative" possesses. It seems like the definition is that a truly conservative justice is one who voted against Obamacare.  If that is the definition of a truly conservative justice, then Chief Justice John Roberts is not truly conservative but, apparently, Justice Kennedy is (although not to Conservative pundit Marc Thiessen, whose essay on how Republicans are terrible at picking justices is really something).  To be clear prior to last week, literally no one believed Justice Kennedy was more "truly a conservative" than Chief Justice Roberts.

But the list of previously-thought-of-as-conservative judges who are actually not "truly a conservative" does not end with the Chief Justice.  The list of judges appointed by conservatives Presidents who found Obamacare constitutional includes:  (1) Sixth Circuit Court of Appeals Judge, and former law clerk for Justice Scalia, Jeffrey Sutton, who found Obamacare constitutional in Thomas More Law Center v. Obama; Senior Judge on the United States Court of Appeals for the D.C. Circuit Laurence Silberman, who found Obamacare constitutional in Seven-Sky v. Holder; Fourth Circuit Court of Appeals Judge J. Harvie Wilkinson, III, who wrote that the Supreme Court should not overturn Obamacare in an opinion piece in the New York Times; and, of course, Judge Posner.

So if these members of the Federalist Society think that Obamacare is constitutional, are they betraying conservative principles?  I do not believe so.  Remember that the original idea for the individual mandate came from the Heritage Foundation, a leading conservative think tank.  That is why the Democrats used mandate--they thought it would garner conservative support.  However in the Bizarro World that is our modern political discourse, Republicans stopped liking the mandate as soon as Democrats wanted to use it.

It seems to me that the folks that aren't being "truly a conservative" are Justices Kennedy, Alito, Scalia, and Thomas. Conservatism, at least in the context of the judiciary means judicial restraint and respect for precedent. Even Mr. Thiessen mentions judicial restraint in his description of a conservative judge. 

Few would say that Justice Thomas has respect for precedent.  Moreover, Justice Scalia has evidently decided that the Supreme Court's commerce clause jurisprudence since 1942 is wrong.  As for judicial restraint, the dissent was certainly not deferring to the political process.  Nor was the dissent concerned about the effect of the decision on the national economy. As Judge Wilkinson put it,
In curbing federal excess, courts risk lessening our national economic strength. That strength resides partly in the national aspects of our founding document, among them the now maligned commerce clause and the newly mistrusted supremacy clause, which gives preference to federal over state law when there is a conflict. States’ rights are important in many spheres, but the benefits of a national economic policy must also be considered. A vibrant economic order requires some political predictability, and the prospect of judges’ striking down commercial regulation on ill-defined and subjective bases is a prescription for economic chaos that the framers, in a simpler time, had the good sense to head off.
It is tempting to shout states’ rights when deeply flawed federal legislation is enacted, but the momentary satisfactions of that exercise carry long-term constitutional costs. Badly conceived bills die a thousand political deaths — in the appropriations process, in the states, through electoral retribution, in the executive appointments of a succeeding administration and ultimately in amendment and repeal. However, if courts read the Constitution in such a way that it enables them to make Congress ineffectual, and instead to promote 50 state regulatory regimes in an era of rapidly mounting global challenges, the risks should escape no one. Making our charter more parochial while other nations flex their economic muscle seems like poor timing.
This is a long way of saying that I do not think Judge Posner's criticism stems from Judge Posner not being a conservative.  I think the criticism stems from his belief that the dissent was not being conservative in voting to strike down Obamacare.  Finally, the whole controversy regarding the reports that the Chief Justice changed his mind about overturning the law just reinforces what I understand to be Judge Posner's point about the dissent being like a barking dog.  To overturn every part of Obamacare would have a significant negative impact on huge number of people and also fundamentally change the way Court's interpret the commerce clause.  Judge Posner's point is that it was easy to get four justices to do that because an agreement of four justices does not accomplish anything.  The trick is to get five and that trick is sometimes hard to pull off.

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