Epilogue
No Peace
In late April 2012, barely a month after the Supreme Court finished hearing oral arguments in the health care case, Yale Law School hosted a weekend conference featuring a group of distinguished legal scholars debating various forms of constitutional interpretation. Among the participants was Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit and a respected legal conservative. McConnell, it turned out, was none too thrilled about the prospects of a conservative Supreme Court striking down the Affordable Care Act. In fact, he compared the possibility to a feat of right-wing judicial activism.
âDemocracy still seems to me to be a worthy project,â McConnell told the assembled legal experts. âI havenât quite given up on it.â But he also admitted to seeing little cause for optimism. The way things are going now, he said, âeverything is thrown into the courts,â ultimately leaving all political decisions in the hands of unelected judges. âItâs quite evident,â McConnell concluded, âthat, on the right side of the legal world, the ascendancy is people like Randy Barnett who want a more muscular judiciary.â 1
Was he right to worry? Just two months later, after all, Chief Justice John Roberts did what McConnell wanted and left the fate of health care reform in the hands of the voters and their elected representatives. It was the biggest Supreme Court case in decades, and the outcome ultimately hinged on the deferential philosophy of Justice Oliver Wendell Holmes. Perhaps the fear of the libertarian ascendancy was much ado about nothing.
But then again, perhaps McConnell was right to worry. District of Columbia v. Heller, the landmark 2008 ruling that recognized the Second Amendment as a core individual right, was certainly a libertarian win premised on the strenuous flexing of judicial muscle. So was the 2010 gun rights victory in McDonald v. Chicago, which applied the Second Amendment right to keep and bear arms against the states. Going forward, all firearm regulations must now contend with these forceful Supreme Court precedents. Like it or not, the Supreme Court has entered the political thicket of gun control.
Nor are the libertarian lawyers at the Institute for Justice showing any signs of fatigue in their long campaign to spark âjudicial actionâ 2 on behalf of property rights and economic liberty. In fact, theyâre building momentum. In March 2013, for example, IJ scored another bullâs-eye against the regulatory state when its lawyers convinced the U.S. Court of Appeals for the Fifth Circuit to strike down a Louisiana law that forbade a group of Benedictine monks from selling handmade wooden caskets without a license. âThe great deference due state economic regulation does not demand judicial blindness,â the Fifth Circuit declared, ânor does it require courts to accept nonsensical explanations for regulations.â 3 With every such win, the Institute for Justice chips away further at the Progressive-era edifice upholding judicial deference and the rational-basis test.
As for the outcome of the 2012 health care case, the followers of Justice Holmes should not be too quick to drop their guards. Althoughitâs true that Roberts saved the health care law, he also accepted the Commerce Clause arguments put forward by Barnett and the other legal challengers, thereby joining with the four dissentersâScalia, Kennedy, Thomas, and Alitoâto recognize the first new limits on congressional power since the stalled âfederalism revolutionâ of United States v. Lopez, which invalidated the Gun-Free School Zones Act, and United States v. Morrison, which struck down a portion of the Violence Against Women Act. It remains to be seen how this aspect of the health care ruling will play out in future cases.
Finally, while Randy Barnett and his libertarian
No Peace
In late April 2012, barely a month after the Supreme Court finished hearing oral arguments in the health care case, Yale Law School hosted a weekend conference featuring a group of distinguished legal scholars debating various forms of constitutional interpretation. Among the participants was Stanford law professor Michael McConnell, a former judge on the U.S. Court of Appeals for the Tenth Circuit and a respected legal conservative. McConnell, it turned out, was none too thrilled about the prospects of a conservative Supreme Court striking down the Affordable Care Act. In fact, he compared the possibility to a feat of right-wing judicial activism.
âDemocracy still seems to me to be a worthy project,â McConnell told the assembled legal experts. âI havenât quite given up on it.â But he also admitted to seeing little cause for optimism. The way things are going now, he said, âeverything is thrown into the courts,â ultimately leaving all political decisions in the hands of unelected judges. âItâs quite evident,â McConnell concluded, âthat, on the right side of the legal world, the ascendancy is people like Randy Barnett who want a more muscular judiciary.â 1
Was he right to worry? Just two months later, after all, Chief Justice John Roberts did what McConnell wanted and left the fate of health care reform in the hands of the voters and their elected representatives. It was the biggest Supreme Court case in decades, and the outcome ultimately hinged on the deferential philosophy of Justice Oliver Wendell Holmes. Perhaps the fear of the libertarian ascendancy was much ado about nothing.
But then again, perhaps McConnell was right to worry. District of Columbia v. Heller, the landmark 2008 ruling that recognized the Second Amendment as a core individual right, was certainly a libertarian win premised on the strenuous flexing of judicial muscle. So was the 2010 gun rights victory in McDonald v. Chicago, which applied the Second Amendment right to keep and bear arms against the states. Going forward, all firearm regulations must now contend with these forceful Supreme Court precedents. Like it or not, the Supreme Court has entered the political thicket of gun control.
Nor are the libertarian lawyers at the Institute for Justice showing any signs of fatigue in their long campaign to spark âjudicial actionâ 2 on behalf of property rights and economic liberty. In fact, theyâre building momentum. In March 2013, for example, IJ scored another bullâs-eye against the regulatory state when its lawyers convinced the U.S. Court of Appeals for the Fifth Circuit to strike down a Louisiana law that forbade a group of Benedictine monks from selling handmade wooden caskets without a license. âThe great deference due state economic regulation does not demand judicial blindness,â the Fifth Circuit declared, ânor does it require courts to accept nonsensical explanations for regulations.â 3 With every such win, the Institute for Justice chips away further at the Progressive-era edifice upholding judicial deference and the rational-basis test.
As for the outcome of the 2012 health care case, the followers of Justice Holmes should not be too quick to drop their guards. Althoughitâs true that Roberts saved the health care law, he also accepted the Commerce Clause arguments put forward by Barnett and the other legal challengers, thereby joining with the four dissentersâScalia, Kennedy, Thomas, and Alitoâto recognize the first new limits on congressional power since the stalled âfederalism revolutionâ of United States v. Lopez, which invalidated the Gun-Free School Zones Act, and United States v. Morrison, which struck down a portion of the Violence Against Women Act. It remains to be seen how this aspect of the health care ruling will play out in future cases.
Finally, while Randy Barnett and his libertarian
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