Unrestrained Hostility Toward Judicial Restraint: The Ugly Reactionism of Cal Thomas

While our previous post on Obamacare focused on the plutocracy’s aggressive interpretation of federalism through the odious Rick Scott, there are many other aspects of the corporate right’s strategy for us to assess, resist, and ridicule. Predictably, the Leesburg Daily Commercial has done its part to assist this strategy by beating readers over the head with the drivel of Cal Thomas. Even on Independence Day itself – a day that is supposed to unite all Americans in a kind of civic harmony analogous to December 25th for Christians – the Daily Commercial saw no impropriety in running a particularly inflammatory piece portraying Obamacare as a duplicitous “bait and switch” and presenting all manner of falsehoods as unquestionable facts. Such is balanced reporting, Chief Justice RobertsLake County style. But beyond Thomas’s hyperbolic and manipulative outrage at “a massive tax increase” and “a loss of individual freedom and the wrong solution to reforming health insurance,” there is one, overarching element of the right wing’s response to NFIB v. Sebelius that demands strict scrutiny. As today’s cartoon illustrated perfectly, the right is furious with Chief Justice Roberts’ perceived apostasy. In channeling this fury, Cal Thomas allows his self-righteous indignation to obliterate one of the right’s allegedly favorite axioms – the call for judicial restraint. This call has always been bogus, of course, for the plutocracy has benefited mightily from judicial activism, but we must miss no opportunity to expose the double standard being marketed as fealty to the Constitution.

Restraint, Activism, and Hypocrisy

The very concept of judicial review of legislation – be that state or federal – presents a thorny problem for democratic theory. Why should unelected judges, insulated from the everyday world by indefinite tenures and accountable to no-one except in cases of extreme misconduct, enjoy the extraordinary privilege of reversing – or undermining – the will of the people as expressed through the products of their elected representatives? In siding with the Court’s four so-called liberals to uphold the individual mandate of the Affordable Care Act (ACA), Chief Justice Roberts deferred to the intentions of the political branches and, indirectly, to the citizens who elected them. And his opinion made that logic very clear. Republican blowhards who have railed for so long against “activist” judges reading their own value judgments into the Constitution in order to strike down conservative-sponsored legislation – particularly, in recent years, of the social variety – need to explain to the country why Roberts’s adherence to the doctrine of restraint was wrong. To fully appreciate the predicament into which Cal Thomas has placed himself, it is worth spending some time with the apostles of restraint.

One of the greatest expressions of the restraintist position was Justice Felix Frankfurter’s dissent in West Virginia State Board of Education v. Barnette (1943), often referred to as the “flag salute” case. Just three years earlier, in Minersville School District v. Gobitis, the Court had upheld the state’s power to compel Jehovah’s Witnesses to salute the flag, despite their objections that their religion forbade the veneration of graven images. Frankfurter, who had written the majority opinion in Gobitis, now found himself in the minority, and the vehemence of his dissent was undoubtedly due partly to personal resentment. Nonetheless, his dissenting opinion continues to feature prominently in textbooks on constitutional law. Some key excerpts follow:

When Mr. Justice Holmes, speaking for this Court, wrote that ‘it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts’, Missouri, Kansas & Texas R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971, he went to the very essence of our constitutional system and the democratic conception of our society. He did not mean that for only some phases of civil government this Court was not to supplant legislatures and sit in judgment upon the right or wrong of a challenged measure. He was stating the comprehensive judicial duty and role of this Court in our constitutional scheme whenever legislation is sought to be nullified on any ground, namely, that responsibility for legislation lies with legislatures, answerable as they are directly to the people, and this Court’s only and very narrow function is to determine whether within the broad grant of authority vested in legislatures they have exercised a judgment for which reasonable justification can be offered….

The reason why from the beginning even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process. The fact that it may be an undemocratic aspect of our scheme of government does not call for its rejection or its disuse. But it is the best of reasons, as this Court has frequently recognized, for the greatest caution in its use.

Frankfurter, as is obvious from the foregoing extract, was a great admirer of Justice Oliver Wendell Holmes, who had come to be known as The Great Dissenter at the turn of the century when the Court was engaging in one of its most notorious periods of judicial activism. Justice HolmesReading into the Due Process Clause of the Fourteenth Amendment a “liberty to contract,” the Court repeatedly struck down various attempts by state legislatures to improve the conditions of workers. Holmes’s most famous, and typically pithy, dissent against this version of “substantive due process” came in Lochner v. New York (1905), in which Holmes castigated his colleagues for imposing the prevailing socioeconomic theories of their class (essentially, Social Darwinism) upon the rest of the country. Having written in The Common Law (1881) that “the life of the law has… been experience,” Holmes believed that the states had every right to experiment with new measures to deal with a changing society.

Although the preceding quotes come from cases that involved the Due Process Clause of the 14th Amendment, they capture the essence of the restraintist position; namely, deference to the legislature. The “reasonableness test” articulated by Holmes and Frankfurter is the least demanding level of review in such cases (at the opposite end of the scale from strict scrutiny) and generally leads a court to uphold legislation as constitutional. While NFIB v. Sebelius was not a due process case, and therefore entailed a different mode of analysis, it was not surprising to see our current Chief Justice turn to Justice Holmes in seeking to explain his unwillingness to invalidate the individual mandate. Roberts relied heavily on these words from Holmes: “[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” And in language of his own that could easily have been penned by Frankfurter, Roberts concluded that “[t]he Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Unable, or unwilling, to respond to Roberts’s decision on this level, Cal Thomas resorts to ridiculous epithets, accusing the Chief Justice of the United States of ignoring the Constitution in order to indulge in Oprah-like sentimentality. This is the ugly shallowness of Fox News – for whom Thomas is a pundit – brought to bear at the local level. Instead of a discussion about competing theories of the proper role of the Supreme Court in an ostensibly democratic society, we are treated to plutocratic mythology and veiled racism. In this fantasy land, rugged individualism made the country great, and is now being suppressed by a government that “penalizes achievement and subsidizes failure.” So many buttons are being pressed here, all of which should sound an alarm in the minds of objective readers. The reality is that the federal government has been facilitating success all along, and the wealthiest Americans of every generation have always known how to harness it to advance their interests. The millions of Americans who lack health insurance would be shocked to be regarded as failures for having the temerity to need medical care. And when a thug like Thomas decries food stamps as the wrong conception of the general welfare, we know very well that his target audience is being incited to think about African Americans sponging off the system.

No-one in their right mind would believe that President Obama and Chief Justice Roberts conspired to foist a “bait and switch” on the nation. But it is plain for all to see that when conservatives advocate judicial restraint they mean judicial restraint that saves their legislation. Arizona’s attempt to make immigration policy provides a prime example of this hypocrisy. That case was a textbook example of what is known as preemption, the concept that the states may not legislate in areas the Constitution has given exclusively to Congress. There was no possibility of restraint here; that law had to be struck down. But, just as it was for George W. Bush, the Constitution that conservatives claim to revere is nothing more than a piece of paper when it stands in their way, and the Court was lambasted for overreaching. On the other hand, when it comes to legislation they despise – legislation passed because they lost political elections – they like activism just as much today as their plutocratic forebears did in the Lochner era. And Holmes’s dissent in Lochner, sadly, remains every bit as relevant today as it was over a century ago.

Methinks Thou Doth Protest Too Much….

Having said all this, we do need to bear in mind that the principal duty of propagandists like Cal Thomas, or his local equivalent, Russ Sloan, is to manipulate attitudes and perceptions. All the outrage to which we are being subjected is, to a large extent, a smokescreen, preventing us from seeing the conservative successes that will have ramifications for years to come. As we noted in our previous post, the Court’s Obamacare ruling was anything but a sweeping victory for the left. There is little doubt that Roberts’s unexpected opinion was a clever attempt to safeguard his own institutional prerogatives. But in looking after Number One he has drawn a line in the sand in Commerce Clause jurisprudence, agreeing with four others that the power to regulate interstate commerce could not be used to compel people to engage therein. This is a precedent of enormous importance, hearkening back to the pre-1937 era when the reactionary bloc known as the Four Horsemen used a crabbed reading of the Commerce Clause to frustrate Roosevelt’s early attempts to respond to the Great Depression.

Similarly, the 5-4 holding that Congress could not “coerce” the states into expanding Medicaid opens a Pandora’s Box of possible challenges to other uses of the Spending Power. Arguably, NFIB v. Sebelius was two-thirds of the way to a conservative sweep of all the major issues. And the undoubtedly conservative Chief has bolstered his own position within the polity, preventing his institution from becoming marginalized – a vital consideration, in the long term, for the advancement of the conservative agenda. The Chief Justice understands something that Cal Thomas could never admit: In order for the plutocracy to continue its sumptuous feast, an occasional bone must be thrown to some of the lesser creatures scrabbling about under the table. And, make no mistake about it, NFIB was a very small bone indeed.

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