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Unreliable Ally

Advocates of small government shouldn’t look to the Supreme Court for help.

Jul 16, 2012, Vol. 17, No. 41 • By ROBERT F. NAGEL
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As is abundantly demonstrated by the commentary on the June 28 decision upholding Obamacare, the drama of constitutional decision-making by the Supreme Court is irresistible. Such a significant issue decided, in effect, by one man! And that man, Chief Justice John Roberts—is he a lawless sellout to political pressure or a brilliant legal statesman? Is the fundamental constitutional principle of limited national powers gone forever? Or has Roberts laid down a subtle doctrinal roadmap that will eventually allow the Court to save our republic?


James Madison

Gary Locke

The drama, of course, began long before the Court issued National Federation of Independent Business, et al. v. Sebelius. There was, for instance, the intense, decades-long strategizing that went into trying to select and confirm reliable and principled conservatives for the High Court. There was the grand theorizing about the best avenues for a legal attack on the so-called Affordable Care Act. There was the surprising questioning by the justices during oral argument. And so on. The best part is that, despite the result in Sebelius, the future holds rich potential for more such drama—more confrontations over judicial appointments, more intellectualizing about litigation strategies, more landmark cases, more disappointments, yes, but—always—more excitement and hope.

Particular cases, arguments, and individuals are not only dramatic but also, of course, important. Nevertheless, fixation on them can divert attention from more significant institutional considerations. One of the most important of these considerations is that relying principally on the Supreme Court to define and restrain the power of the national government is largely a futile exercise. Indeed, it is a capitulation to the excessive centralization that dominates our politics and our thinking.

The Supreme Court, after all, is a part of the national government. The justices are selected by the other two branches of the national government and, unlike the president and members of Congress, they need have no organizational or political ties to state or local governments. Nor can the justices be replaced through political movements based in the states. Moreover, enhancing the power of the central government over the states tends to enhance the power of the federal courts. (How many health care policies, spawned by the vast bureaucracy that will be necessary under the law just sustained, will have to be reviewed by federal judges?) Conversely, empowering states to resist federal power tends to reduce the power of the national judiciary.

Perhaps just as important, being a constituent part of the national government means that the justices identify with that government. States and localities are far away; they deal with relatively mundane issues; their leaders, operating on a smaller stage, seem less able and less significant than those who, like the justices, have risen to national prominence. True, the justices must sometimes harbor a low opinion of the national legislative process. But if the two houses of Congress, which convene just across the street from the Court’s chambers, are not to be trusted, how much worse are all those thousands of state and local legislative bodies spread out across the nation and doing, well, who knows what? If in the minds of cultivated and rationalistic jurists national politics seems only barely to conceal irrationality, disorder, and unadorned power, local politics must seem a nightmare of dark and dangerous forces.

Conservatives have, nevertheless, invested heavily in a litigation strategy for curbing the power of the national government. The dominant idea has been that the judicial branch of the federal government can be trusted with this task if its judges hold the correct constitutional philosophy. The obvious institutional reasons for doubting that the Court will respect and protect state sovereignty will be overcome, so it is thought, by a rigorous selection process. The answer is to pick justices who are deeply devoted to abstractions like the principle of enumerated and limited national power.

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