Gerhardt, Michael J., Harvard Journal of Law & Public Policy
The invitation to speak at the 2010 Federalist Society National Lawyers Convention was especially meaningful to me as I consider myself to be the last of a dying breed. When pressed, I usually have considered myself a moderate, and I have long feared that there are not many of us left.
As I listened to my fellow panelists at the Convention, (1) I got the feeling that I was correct. I was also struck, frankly, by what I did not hear. Despite the recent 2010 midterm elections in which Republicans had retaken control of the House of Representatives and substantially narrowed the Democratic party's control of the Senate, there was no elation. I expected the attendees to be energized by these recent victories, but instead I heard a great deal of dissatisfaction with the Constitution, the Congress, and the Supreme Court.
As the last of my kind, I took heart at what was not said by my fellow panelists. I took heart that nobody was looking to the courts to save us, that nobody expressed the view that the courts ought to strike down the individual mandate provision of President Obama's major overhaul of the health care system and pull us back from the brink on which many attendees believe we are teetering. It is a good thing that no one argued that the courts are the answer to our constitutional dilemma.
After two years of an active, Democratic controlled Congress and considerable anger in the conservative ranks of the Republican party (and the academy), what is a judicially moderate, or modest, judge to do? I ask the question in this manner because the Chief Justice of the United States, who was once one of the most illustrious members of the august Federalist Society, famously suggested in his confirmation hearings that a judge or justice should aspire to be modest in his work. (2) He explained then, and since, that judicial modesty requires Justices to find consensus as much as possible, to avoid unnecessary concurrences or dissents, and to opt for narrower rulings--and avoid overturning well-settled precedent--to minimize both the opportunities for discord on the Court and interference with democratic decisionmaking. (3) A modest judge respects the work of the other branches as well as that of the judiciary. As someone who considers himself a moderate, I am strongly drawn to this ideal. The question, then, is whether it still has any place in our constitutional world.
The answer that I wish to offer is the one given by some of our most eminent judges. Faced with questions not unlike those that have confronted--and will soon again confront--the Supreme Court, these jurists have eloquently maintained time and again that under our Constitution, elections matter. This is a position that many, if not most, members of the Federalist Society have long maintained. Members of the Federalist Society know that the Constitution does not embody a particular political party's values or agenda, and I believe you would agree that the Supreme Court should not interpret the Constitution to help only one political party by advancing its political interests or agenda. The Constitution vests considerable discretion in political authorities, who remain politically accountable for their choices. The 2010 midterm elections reflected the electorate's attitudes on the direction of the country, including the Obama Administration's massive overhaul of the health care system. (4) That is as it should be. Indeed, one of the greatest traditions of the Federalist Society has been the effort of its members to keep the courts from overturning democratic decision-making. Many Federalist Society members have been among the most eloquent critics of Supreme Court decisions that they believe have undermined the electoral process. How much easier it is, we all know, to get five Justices to agree to a proposition as a matter of constitutional law than to get that proposition approved by Congress or fifty state legislatures. As a moderate, I have long found this tradition to be appealing; it is a tradition that refuses to abandon the Constitution and accepts that elections matter. …