The New Republic

For the past few months, the legal discussion in Washington has centered around the Supreme Court’s upcoming ruling on health care reform. Far less attention has been paid to a decision issued by the U.S. Court of Appeals for the D.C. Circuit on April 13—even though it may prove, in the long run, to be similarly significant.

At first glance, the case, Hettinga v. United States, doesn’t seem to merit much attention, since it concerns a less-than-scintillating subject: the production and distribution of milk. The challengers, Hein and Ellen Hettinga, who own two large milk production and handling companies, were seeking to overturn a federal mandate based on the Agricultural Marketing Agreement Act of 1937. This mandate requires large milk producers and distributors to contribute to a common fund so that the small operators get the same price for their milk. (The mandate could arguably be viewed as one of the last vestiges of centralized, New Deal–style price controls.) Not surprisingly, in a short, unsigned opinion, the D.C. Circuit upheld the mandate, citing a 1993 Supreme Court opinion saying that laws involving economic policy deserve “a strong presumption of validity.”

But one of the D.C. Circuit’s judges, Janice Rogers Brown, issued a remarkable opinion in the case, making clear that she vehemently disagreed with the majority’s presumptions. The opinion was notable not only for its anti-statist editorializing, but also because it suggests that the Affordable Care Act will be far from the last federal regulation to be threatened by conservative judicial activism.

IN 2005, IN AN ARTICLE for The New York Times Magazine, I described a nascent movement of pro-business and libertarian federal judges and think tank activists who hoped to resurrect what one judge called “the Constitution in Exile.” The term referred to a series of legal doctrines that have been dormant since the New Deal but which judges could use to dismantle the post–New Deal regulatory state, including economic regulations, health and safety laws, and environmental laws.

Janice Rogers Brown has long been sympathetic to these goals. A daughter of sharecroppers, she denounced the New Deal in a series of speeches before her confirmation to the D.C. Circuit in 2005. She called 1937—the year the Supreme Court began to uphold the New Deal—“the triumph of our own socialist revolution.” In the same speech, she argued that “protection of property was a major casualty of the revolution of 1937.” During her first years on the federal bench, however, Brown was mostly quiet about her anti-regulatory views.

Then, in her April 13 opinion, she dramatically unmasked herself. Although Brown concurred with the decision to uphold the mandate because there were too many Supreme Court precedents for a lower court to ignore, she also made clear her disagreement with the past 75 years of Supreme Court cases directing judges to defer to Congress and the executive branch on economic regulation.

The milk regulation, she wrote, “reveals an ugly truth: America’s cowboy capitalism was long ago disarmed by a democratic process increasingly dominated by powerful groups with economic interests antithetical to competitors and consumers.” She added that the courts “have been negotiating the terms of surrender since the 1930s.” Brown went on to denounce landmark Supreme Court decisions issued after Franklin Roosevelt’s Court-packing plan, lamenting that “the Court abdicated its constitutional duty to protect economic rights completely.” And she decried “the political temptation to exploit the public appetite for other people’s money—either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.” (The unattributed reference to Louis Brandeis’s classic exposé of economic populism, Other People’s Money, is perverse, since Justice Brandeis supported the very Supreme Court decisions deferring to economic regulations that Brown is denouncing.)

In plain English, Brown was calling into question “broad-based entitlements,” such as Social Security and Medicare, and the “licensing restrictions” at the heart of regulations passed by the Federal Communications Commission and the Environmental Protection Agency. She concluded by citing Randy Barnett, the intellectual architect of the challenge to the health care mandate, and she reiterated that deferential review of economic regulations “means property is at the mercy of the pillagers.”

Brown’s concurrence was joined by Judge David Sentelle, another pillar of the Constitution in Exile movement. But more surprising was the separate concurrence of Judge Thomas Griffith, considered to be the most moderate conservative on the panel. Griffith refused to join his colleague’s “spirited criticism of the Supreme Court’s long-standing approach to claims of economic liberty,” but not because he disagreed with it—he said he was “by no means unsympathetic to their criticism.” Instead, he was demurring only because he was “reluctant to set forth my own views on the wisdom of such a broad area of the Supreme Court’s settled jurisprudence that was not challenged by the petitioner.”

Why would a relative moderate like Griffith profess himself “by no means unsympathetic” to the views of the most radical partisans of the Constitution in Exile? Perhaps because the terms of legal debate have been so dramatically changed by Barnett. In less than two years, he has managed to transform the notion that the health care mandate was unconstitutional from a far-fetched idea into a principle that may soon be endorsed by all five of the Supreme Court’s conservatives.

Barnett has strategically framed his challenge to the mandate as an argument about protecting federalism—not as an argument about reviving the Constitution in Exile. But it would be foolish to think that his main concern is defending states’ rights. Nor do he and his allies share the commitment of more traditional conservatives (like Brown’s colleague Judge Laurence Silberman, who upheld the health care law) to judicial restraint or to only enforcing rights that appear in the text of the Constitution. Instead, the Constitution in Exile movement’s real objection to the mandate is that it violates economic liberty.

At a recent conference at Yale Law School, Michael Greve of the American Enterprise Institute, another leader of the Exile movement, took aim at what he called the philosophy of “naïve originalism,” championed during the 1980s by conservatives like Edwin Meese. Naïve originalism, Greve stated bluntly, was framed as a methodology of restraint—a way of preventing judges from second-guessing democratic decisions. But more recently, Greve went on, certain legal conservatives—especially in the business community—had lost faith in judicial restraint and become more interested in protecting their economic interests through judicial activism. “Naïve originalism has nothing to offer people worried about government overreach and that includes the business community,” Greve said. Pro-business conservatives, he argued, were now more interested in embracing constitutional doctrines that could “discipline a wayward politics”—even if that means rule by judges. It was a stunning admission, and it signals that, whether or not the health care mandate falls, we can expect future constitutional challenges to financial regulations, such as the Dodd-Frank law, and to the rest of the post–New Deal regulatory state.

To be sure, not all legal conservatives have embraced this activist position. Professor Michael McConnell of Stanford Law School, a former judge on the U.S. Court of Appeals for the Tenth Circuit and one of the most respected conservative defenders of traditional judicial restraint, noted in a response to Greve at the Yale conference that “democracy still seems to me to be a worthy project,” and that, once “everything is thrown into the court,” it “means a politicized judiciary ... that ceases to be a rule of law instrument.” But McConnell ruefully admitted that, among legal conservatives, he is in the minority. “It’s quite evident that, on the right side of the legal world, the ascendancy is people like Randy Barnett who want a more muscular judiciary,” he said.

President Obama understands these constitutional stakes. In a press conference following the health care reform oral arguments, he reminded conservative commentators “that for years what we’ve heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint—that an unelected group of people would somehow overturn a duly constituted and passed law.” Obama’s accurate observation prompted an extraordinary rebuke from Judge Jerry Smith, a conservative activist who, in 1996, wrote the opinion that overturned affirmative action in higher education even before the Supreme Court’s precedents authorized the move. Smith demanded that the president reaffirm his faith in judicial review; Obama responded temperately by having Attorney General Eric Holder cite 75 years of Supreme Court cases that instruct judges to review economic regulations deferentially. These are precisely the cases that Janice Rogers Brown is now urging the Supreme Court to discard.

This, then, is John Roberts’s moment of truth: In addition to deciding what kind of chief justice he wants to be, he has to decide what kind of legal conservatism he wants to embrace. Of course, if the Roberts Court strikes down health care reform by a 5-4 vote, then the chief justice’s stated goal of presiding over a less divisive Court will be viewed as an irredeemable failure. But, by voting to strike down Obamacare, Roberts would also be abandoning the association of legal conservatism with restraint—and resurrecting the pre–New Deal era of economic judicial activism with a vengeance. This is the era that Judge Brown and Randy Barnett yearn to revive: a time when crusading judges struck down progressive economic regulations in the name of hotly conservative economic doctrines that a majority of the country didn’t favor. We’ve seen this script play out before, and it didn’t end well for the Court.

Jeffrey Rosen is the legal affairs editor of The New Republic. This article originally appeared in the May 24, 2012 issue of the magazine.

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