Greg Weiner is Provost and Vice President for Academic Affairs at Assumption University. He is also a Visiting Scholar at the American Enterprise Institute. He is a regular contributor for The Constitutionalist.
The June round of Supreme Court decisions will help reveal the judicial character of Justice Amy Coney Barrett. One question, The New York Times reports, is “whether she will look for opportunities to compromise and burnish the court’s preferred image as a nonpartisan institution.” In other words, is she Justice Alito or Chief Justice Roberts? The question presupposes—correctly—that Roberts is an institutionalist concerned for the reputation of the Court. That much is true and—as far as it goes—commendable. What is less clear is how far institutionalism can go as a principled basis for judicial decisions.
Many admirers of Roberts’ jurisprudence—I am one of them—respect it less for the Chief’s institutional motives than for his deference to the elected branches of government. That can mimic institutionalism insofar as popular majorities presumably prefer that judges uphold policies passed with public support. (Yes, legislative politics is more complicated than that, but all else being equal, deference should serve the Court’s institutional goals.)
But what are those goals? One is certainly maintaining popular esteem, which is (a) necessary for a branch that operates on neither force nor will and (b) why the Court rarely takes too many steps beyond public opinion. By the time of the Obergefell decision establishing a right to same-sex marriage, for example, the dam of public opinion was already breaking open on the issue. That judicial caution is protection against the backlash effect of popular majorities entrenching themselves even deeper behind a commitment precisely because the Court has said they are not allowed to act on it.
Still, these are raw political calculations: necessary for realities on the ground, but not to be elevated to the status of general principles. The principle The Times seems to endorse is that justices should not appear to favor the policies of one party over another. That, too, is true as far as it goes. But the measure of that is not how many statutes or policies the conservative justices strike down. (The Times notes that the conservative majority may be able to demonstrate its nonpartisanship by upholding Obamacare this term.) We have no reason to believe the parties are equally constitutionally committed and even less reason to believe they understand the Constitution similarly. Asymmetries may result. A truly neutral Court may find it necessary to strike down more Democratic than Republican policies, or vice versa.
The best way to avoid that trap is not to step in that trap. Judges cannot dodge tough decisions simply because they will provoke controversy. But they can avoid decisions because someone else has already made them: elected officials. A reasonably consistent posture of deference to the elected branches—whether James Bradley Thayer’s rule of the clear mistake or John McGinnis’ duty of clarity—serves dual institutional purposes. Again, ceteris paribus, such a posture should help protect the Court from onslaughts of public opinion. But it also grounds this respect for the Court on the basis of consistent principle: namely, that judges should give elected officials the benefit of the doubt on the constitutionality of policy.
Of course, the federal system of the United States does not always produce clear national majorities, and still less does it clarify those majorities’ clear, discrete will. The nationalization of local disputes by means of the Fourteenth Amendment can strain the link between institutional interests and judicial deference. But in principle, those two align. When they do, they burnish the Court’s reputation by making it both principled and popular.
By contrast, the public is entitled to question the legitimacy of a Court that seems to be making decisions on the basis of polishing its own image rather than on consistent principles of law. There must be room in those principles for striking down statutes and policies that transgress whatever one’s threshold may be. Federalist 78’s standard was that a law should be overruled in a case of “irreconcilable variance” with the Constitution. Roberts’ general disposition of restraint, evident in NFIB v. Sebelius, which dealt with the semantics of whether a fee was comparable to a tax, has been less defensible in other cases (see Halbig v. Burwell) in which institutional interests prompted him to stretch words beyond their reasonable meanings in order to avoid overruling a statute. Pick your case. The particulars are less the point than the face that the institutional motive can be an inducement to follow a principle, but it does not itself constitute one.
One reason judges should not get involved in public policy is that they are almost invariably bad at it. (See, in this regard, the failure of Buckley v. Valeo’s Solomonic split-the-baby approach.The wisdom of King Solomon was that he did not actually intend for the baby to be split.) It is unsurprising that judges are poor policymakers. They lack expertise and experience in that area. They are, by design, insulated from the people whom policies affect. That is among the reasons the “empathy” standard for judicial nominees, which then-candidate Hillary Clinton elucidated in 2016, is hollow, if not condescending. It is invariably empathizing from a careful and deliberate distance.
For the same reasons judges are bad at policy, they are also apt to be bad at political judgments, a point to which Chief Justice Roger Taney could attest. The institutionalist standard for judicial decisions is likely to lead jurists down the road of political calculations about complex strains of public opinion that individuals can rarely decipher and from which judges are purposefully isolated. This is not a complaint with judicial prudence, a necessary virtue that entails judgment calls rather than axiomatic rigidity. But the Court, or at least Roberts, can justly be accused of opportunism and caprice when he is deferential on some statutes but not on others.
There is a healthy kind of institutionalism, at which both Federalist 51 and Federalist 78 hint: protecting the turf of the judicial branch, just as Congress and Presidents protect theirs, or are supposed to. In other words, the Supreme Court can bat back attempts by Congress and the Executive Branch to intrude on the proper internal business of the judiciary, just like the President can veto a law he or she believes transgresses executive authority. That is not the kind of institutionalism being imputed to Chief Justice Roberts and to which Justice Barrett is being invited. Moreover, that kind of institutionalism requires assertion, not deference.
The question for Justice Barrett, then, is not whether to be a conservative or an institutionalist. A jurisprudence bottomed on sound principles and rooted in deference would allow her—and Chief Justice Roberts—to be both.