By Randy E. Barnett from the September 2012 issue

How John Roberts ended up as America’s Big Chief.

Here is what 30 years of “judicial conservatism” have gotten us: John Roberts’ decision upholding Obamacare.

For three decades, conservatives have advocated “judicial restraint.” They have attacked unelected, lifetime-appointed judges for interfering with the will of the people as manifested in statutes enacted by Congress or the states. Judges who invalidate laws are called “activist.” Judges should “defer” to the more democratic legislature. Striking down a law as unconstitutional is called “legislating from the bench.” The power of judicial review, some conservatives insist, is nowhere to be found in the Constitution and was invented by Chief Justice John Marshall in Marbury v. Madison.

The irony here is that every one of these charges is a holdover from the 1910s–30s, when political “progressives” and populists leveled them at the “Nine Old Men” of the Supreme Court for using what progressives derisively called the “horse and buggy Constitution” to thwart their political agenda. “Deference” and “restraint” were the watchwords of how good judges were supposed to behave when legislatures, for example, enacted laws to benefit unions at the expense of employers.
Given the composition of unions in those days, this meant benefitting whites at the expense of blacks, men at the expense of women, and large industrialists who could enter labor agreements at the expense of mom-and-pop small businesses.Above all, it meant protecting public over private “power,” while assuming that democratic legislatures always acted to protect the public good. Never mind that many of these laws directly benefitted powerful businesses at the expense of their smaller competitors.

In the face of the growing popularity of progressive measures, and especially in the wake of the Great Depression, the Supreme Court gradually relented. Justices appointed by progressive presidents Woodrow Wilson and Herbert Hoover—yes, Hoover was a progressive—first began relaxing the constraints on government power in the early 1930s. Even before the New Deal, these justices adopted a “presumption of constitutionality” by which legislatures were given the benefit of the doubt.

Eventually, these justices were joined or replaced by nominees selected by Franklin Roosevelt based on their willingness to uphold the New Deal. (Which they did.) The Commerce Clause— when combined with the Necessary and Proper Clause power “to make all laws which shall be necessary and proper for carrying into execution” the commerce power—became seemingly unlimited.Even the liberty to grow wheat on one’s own farm to feed one’s own livestock could be restricted as a “reasonable means” of regulating interstate commerce.In the 1950s, the Warren Court made the “presumption of constitutionality” irrebuttable for any law that did not violate an “express prohibition” of the Constitution, such as those in the Bill of Rights.

But even before the Warren Court arrived, the New Deal justices became divided on the judicial enforcement of some of those “express prohibitions.” In the 1940s, those New Deal justices who were more inclined to protect these rights were dubbed by progressive historian Arthur Schlesinger Jr. “judicial activists”—apparently the first time this term of opprobrium was used. Why? Because they abandoned the progressives’ previous tenet of judicial restraint.In the 1950s and ’60s, the Warren Court’s “liberals” began to expand the protections of the Equal Protection clause and the rights of criminal defendants under the Fourth and Fifth Amendments over the objections of their more “conservative” New Deal brethren, who continued to urge judicial restraint. All of this was then amped up in the 1960s and ’70s, when the Court cited an unenumerated “right of privacy” to protect the use of contraceptives and the right of a woman to obtain an abortion.
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