Serious Catholics and political conservatives since the 1950s have strongly criticized the Supreme Court for making public policy and acting as a kind of “super-legislature” to further a leftist socio-political agenda, instead of interpreting the law and judging. We have seen such judicial lawmaking on pornography, abortion, legislative reapportionment, sodomy laws, and the list could go on. While this has certainly been a valid and much-deserved ongoing criticism of the Court, cases in each of its last three terms indicate a new, contrary problem: over-deference to the political branches on both the federal and state levels.
In 2011, the Court decided the companion cases of Camreta v. Greene and Alford v. Greene, which concerned whether a child protective system (CPS) operative and a law enforcement official who backed him up could be sued under federal civil rights laws for an aggressive interrogation of a nine-year-old girl—which under international norms possibly constituted psychological torture—to get her to say that her father abused her. Along with many other organizations, the Society of Catholic Social Scientists filed an amicus curiae brief supporting the girl’s claim (I drafted the brief), mostly because we wanted to focus the Court’s attention—as we tried to do over a decade before in the important parental rights case of Troxel v. Granville—on the CPS’s systemic misconduct that in one article I called “a grave threat to the family.”
In Camreta/Alford, the Court showed no interest in parental rights or addressing CPS abuses, or even in making their abusive operatives legally accountable in any way for their outrageous actions; it used strained procedural norms to avoid the question. The decision must be understood as simply unquestioning deference to an executive agency, in this case a state one. The prerogatives of government trumped parental rights, the family, and even abusive behavior against children by agencies supposedly set up to stop abuse. It was not entirely surprising, since in Troxel the Court did not think parental rights deserving of the highest standard of constitutional protection. One wonders if the Court kept in mind the insistence of The Federalist Papers that while government needed to have enough power to carry out its rightful responsibilities, it also had to keep itself under control.
In 2012, the Court handed down its crucial decision about the Obamacare law, National Federation of Independent Business v. Sebelius. The Court engaged in legal and intellectual gymnastics to uphold the law. While a majority of the justices agreed that Congress had no power under either the commerce clause—whose broad interpretation has been a major basis for expending federal power since the New Deal—or the necessary and proper clause to regulate economic inactivity (that is, requiring people to buy health insurance), the Court still upheld the crucial individual mandate. While the text of the law stated specifically that failure to purchase health insurance would incur a financial penalty—the drafters apparently went out of their way to avoid calling it a “tax”—the Court’s majority nevertheless decreed it to be a tax in order to save the law. While the leftists on the Court almost certainly voted to uphold the law for policy reasons—for decades the left has looked to the Court to decree its agenda into existence—Chief Justice Roberts’ deciding vote, which caused many to scratch their heads, probably reflected the tendency of most “conservative” judges and legal scholars to just almost instinctively defer to the legislative.
Scalia and the other “conservatives” may have jumped off the bandwagon on this one because of the other central principle of “conservative” jurisprudence: federalism. After all, Obamacare for the first time in a major way got the federal government into insurance. Of course, federalism rightly triumphed when the Court struck down the portion of the law requiring states to expand Medicaid. While conservatives can at times almost absolutize federalism—in contrast to the stress on the principle of subsidiarity in Catholic social teaching, which is more flexible and realistic in acknowledging that activities at times have to go to the higher level—this was a welcome part of the decision, since along with the broad view of the commerce power federal grants-in-aid programs have for decades been the other main reason for the excessive expansion of federal power.
The confusion and turmoil resulting from the Obamacare law have already become almost legendary. Instead of such ready deference to Congress, the Court’s “conservatives” should have rethought their long-standing view—forged, to be sure, with the good intention of trying to stop the judicial legislating embraced by their leftist colleagues and the classical liberal jurists of an earlier time—that they cannot strike down laws because the legislative branch acted unwisely or even bungled. A statute whose meaning and contents “we’ll have to wait to learn about,” to paraphrase Nancy Pelosi, hardly meets any traditional legal or moral criteria for being a valid law. Moreover, the upheaval—the word is not an exaggeration in light of what has happened in the past several months—was foreseeable with this 2,700-page law whose parts do not even fit together well. The justices should have recalled what Federalist 78 said about the courts needing to act to insure moderation. They have a role “in mitigating the severity and confining the operations” of “unjust and partial laws” and “to moderate the immediate mischiefs” of laws that have been passed. So, contrary to the criticisms of some conservatives that the courts have no role in trying to correct social wrongs, Federalist 78 says they should go further than that and even respond to unjust laws.
The same excessive notions of deference to the political branches and federalism appear in the Court’s U.S. v. Windsor and Hollingsworth v. Perry decisions of 2013 on same-sex “marriage.” While Windsor went against the norm of deference to the legislative, since it struck down a provision of the Defense of Marriage Act as it pertained to same-sex “married” couples in states that had legalized such “marriages,” it did so because of a convoluted deference to state decision-making (an absolutist view of federalism). While the leftist justices were perhaps prepared to invent a fundamental constitutional right to same-sex “marriage,” most of the “conservatives” clearly were prepared to accept such a radical, unprecedented redefinition of marriage if states duly enact it. What we have is a leftist jurisprudence promoting immorality and a “conservative” jurisprudence of amorality. Something like same-sex “marriage” would have been as unthinkable to our Founding Fathers as the proposition that two plus two equals five. This likely would not have been seen as a valid exercise of state power, any more than the federal government viewed Mormon polygamy in Utah Territory that way.
Hollingsworth might be understood as a sweeping deference to state politicians—both legislators and executives—irrespective of the people’s wishes. Not only did it let stand a lower federal court’s overruling of Proposition 8 against same-sex “marriage” adopted by a citizen referendum, but it also allowed state officials to abdicate their responsibility to defend the law in court. The people enacted a law that the officials didn’t want, and then would not allow lawyers representing the people to have standing to defend it. In effect, they amended the California Constitution’s provisions on referenda by permitting recalcitrant officials to veto the people’s decision. Two “conservative” justices, Roberts and Scalia, were part of the majority, and doubtless some notion of federalism influenced their thinking. This is deference with abandon. How does it square with Federalist 78’s insistence that “the power of the people is superior to both” the legislative and judicial branches—and Alexander Hamilton doubtless meant the executive, as well.
Further, contrasting these decisions and the Court’s Lawrence v. Texas decision (2003) that legalized sodomy with Camreta/Alford—and Troxel before that—makes one see that a near-majority or sometimes majority of the Court will, first, elevate ersatz rights to a greater importance than such fundamental traditional rights as those of parents and, second, afford special protections to groups whose status as disadvantaged minorities or categories of people at all is in question—not only are homosexuals on average in a better economic situation than the general population, but the evidence is that homosexual orientation is far from rigid and immutable—while it allows the family, a natural institution whose health is crucial for the state, to be imperiled. At one time, early in the twentieth century, the Court held that parental rights trumped the state’s child-rearing preferences. Now, if sexual liberties do not trump all else for the Court they are certainly high on the constitutional priority chart.
In the Obamacare case, the Court could not see its way to defending a majority against a public policy with truly serious implications for one of the most intimate of human concerns, physical health—and possibly (with the likelihood of rationing on the horizon) life itself. Nevertheless, it was ready to give a self-styled minority—spearheaded by a juggernaut political movement—at least part of what it wants even though this departed from age-old human understanding and has enormous social implications in the long-term.
Conservatives have been correct, by and large, to get the Court to stop legislating. However, as I wrote in an article in the mid-1990s—which was republished in my book, The Public Order and the Sacred Order (2009)—one should not condemn “judicial activism” across the board. It depends on what is meant by the term. If judicial activism means creating ersatz constitutional rights, it is to be rejected. On the other hand, it should be embraced if it means upholding traditional, clear constitutional principles when the political branches no longer want to do so, as we see in the Obama era. It should be embraced even if it means resorting to the true natural law (as opposed to some imitator, such as the notion of substantive due process that in different eras has been the rationale for absolutist notions of private property and abortion rights) when necessary and when something in the black-letter Constitution cannot more immediately be pointed to. (The “conservative” Scalia probably refused to view parental rights as “fundamental” in Troxel because they do not appear in so many words in the Bill of Rights.) After all, as the great constitutional scholar Edward S. Corwin and others showed, the Constitution came out of the natural law tradition. Nor is reliance on natural law an open door to judicial arbitrariness, as often claimed (especially by certain “conservative” jurists and legal scholars, many of whom have really bought into a positivist jurisprudence). As Catholic legal scholar David Forte has written, the natural-law judge is more likely than the positivist judge to be restrained.
At a time of unprecedented governmental intrusion into people’s lives and public officials who seem to think that traditional constitutional principles are outmoded, the courts may become an increasingly crucial institutional force to rely on. All things being equal, a regimen of judicial deference to the political branches makes sense, but the times call for more careful discernment about when to defer and a reassessment of the view of Scalia-type judicial “conservatives” that traditional rights not specifically in the text of the Constitution or Bill of Rights are somehow not valid or fundamental. Nor should they continue to think that respect for federalism means that anything should be allowed to go, even if it deeply offends the natural law and the norms of civilization, just because it was adopted at the state-level.