Rethinking Legal Conservatism

Article excerpt

I appreciate so much the invitation to contribute to this debate, and before I gently chide my colleagues for what they have been doing for the last few years, I want to offer some words of praise. First, as to Professor Randy Barnett, who was described as the "intellectual godfather" of the health care challenge, (1) he is also the person right now who is making law professors relevant again to the real world. It is a wonderful example that he has set for the legal academy. Second, let me say a word about my dear friend Paul Clement, who was described by Judge Sykes at the outset of this panel as "one of the finest Supreme Court advocates." I actually think he is the finest Supreme Court advocate practicing today. For anyone who did not hear those three days of the health care argument and listen to him, I have not heard a more marvelous set of arguments in my life, and it was quite a spectacular thing to see.

The timing of this convention is auspicious. I suspect that I am much happier than most members of the Federalist Society at this particular moment, but I am not here to gloat. (2) I am really here to say that members of the Federalist Society should be happy, particularly if you take seriously the notion that the

Federalist Society stands for taking the law back and returning government to the people. From that vantage point, I suggest that the 2012 election will serve those principles well. The reason is not the trite notion that "Obama is better," but goes back to what Professor Barnett noted about the two essential strands in the Federalist Society. (3) One is the strand that he called "judicial conservatism," the tradition of judicial restraint. The other, which he embraces, he labels "constitutional conservatism"--the idea that the third branch of government must robustly enforce constitutional principles, apart from any tradition of deference to the elected branches. (4)

When I was in law school, it seemed that the Federalist Society had won the argument by standing for the first principle, the tradition of judicial restraint. That principle deeply influenced my generation of lawyers: Judges are unelected, and if there is doubt as to whether a law is unconstitutional, those judges should defer to political processes. I believed that was what the Federalist Society stood for. It was a deeply held and powerful belief, and it influenced my entire generation of law students and what we wound up doing afterwards.

I see today a total breakdown in that basic philosophy, and it is visible even in Professor Barnett's eloquent work. In his books on the Ninth Amendment, (5) which are marvelous (and marvelously wrong), or in his celebration of the Supreme Court's refusal to accept the constitutionality of the Affordable Care Act on Commerce Clause grounds--even though that Act regulated seventeen percent of the gross domestic product--one begins to wonder what is left of the tradition of judicial restraint. Indeed, the arguments in Professor Barnett's book are not much different from those sometimes advocated by the last Carmack Waterhouse Professor at Georgetown, Mark Tushnet. There is a deep similarity in the structure of the argument that the constitutional conservatives and many traditional liberals have been making about the role of the judiciary in policing state and federal boundaries.

There is a sense that everyone has lost their bearings a little bit. Even the Chief Justice's opinion in National Federation of Independent Business v. Sebelius suffers from these problems. Its first pages begin with the point that Professor Barnett discusses: the idea that there is no precedent for the health care legislation and it is therefore presumptively unconstitutional. (6) Call this doctrine the antinovelty canon. The Chief Justice says, "Sometimes 'the most telling indication of [a] severe constitutional problem ... is the lack of historical precedent' for Congress' action. …