POLITICS NOVEMBER 24, 2011
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Ever since Bush v. Gore, we’ve come to expect that federal courts will divide along predictable ideological lines: Judges appointed by Democrats are supposed to vote for Democratic priorities, while judges appointed by Republicans are supposed to prefer Republican priorities. In short, many people now assume judicial institutions will behave like legislative ones.
But four recent decisions from the federal appellate courts call this assumption into question. On November 8, Judge Laurence Silberman, writing for the U.S. Court of Appeals for the D.C. Circuit, upheld President Obama’s mandate requiring all Americans to buy health insurance. Silberman is one of the most respected conservative judges in the country; and his decision—along with that of another conservative hero, Judge Jeffrey Sutton of the Sixth Circuit Court of Appeals, who in June voted to uphold the mandate—revealed the legal campaign against Obamacare to be at the margins of conservative thinking, rather than in the mainstream.
That same day, the Supreme Court held oral arguments in the most important privacy case of the past decade: U.S. v. Jones, which will determine whether the police can use GPS technology to track citizens without a warrant. No one was surprised when the four liberal justices questioned the government’s claim that there are no limits to its power to keep tabs on us outside the home. What was surprising was that John Roberts, Antonin Scalia, and Anthony Kennedy seemed just as alarmed as the liberals. During the arguments, justices on both sides indirectly invoked two libertarian conservatives who had voted against the warrantless surveillance—Judge Douglas Ginsburg of the U.S. Court of Appeals in D.C. and Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals.
The fact that four respected conservative judges on the federal appellate courts recently voted against the partisan grain may or may not ultimately convince the conservative justices on the Supreme Court to follow their lead. But they have provided a welcome reminder that, even in an ideologically polarized age, some judges are still willing to be governed by law rather than politics.
THE QUESTION in the GPS case is whether the police can surreptitiously place a GPS device on the bottom of someone’s car without a warrant and monitor his or her movements 24-7 for a month. Nearly all the Supreme Court justices acknowledged that GPS tracking would be far more invasive and susceptible to abuse than the limited forms of electronically enhanced surveillance that the Court has approved in the past, such as using a concealed beeper to help police tail a suspect’s car for 100 miles. When a GPS device is “installed against the will of the owner of the car on the car, that is unquestionably a trespass” on private property, Scalia said. Roberts asked whether the government thought it had the power to put a GPS device on every one of the justices’ cars without a warrant and “monitor our movements for a month.” When the deputy solicitor general said yes, he may have lost the case.
The justices had clearly been influenced by Ginsburg, whose conservative credentials are impeccable. In an opinion striking down GPS surveillance in August 2010, he emphasized that “prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.”
The appellate courts’ most passionate denunciation of GPS dragnets came from Kozinski, who confirmed his reputation as the leading defender of privacy on the federal bench. “There is something creepy and un-American about such clandestine and underhanded behavior,” wrote the judge, who was born in Bucharest. “To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu.”
Kozinski’s and Ginsburg’s opinions may well influence the conservative justices, to whom they are personally and intellectually close. Indeed, of the conservative justices who spoke at the oral argument (Clarence Thomas was silent), only Samuel Alito expressed consistent sympathy for the government’s case.
When it came to the health care mandate, the opinions by Judges Sutton and Silberman were as striking as those by Ginsburg and Kozinski. Sutton noted that, since the Supreme Court has allowed Congress to regulate economic activities that have a far smaller effect on interstate commerce, “it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.” Silberman, for his part, stressed that those challenging Obamacare’s mandate were calling into question civil rights laws, drug laws, and other reasonable activities of the federal regulatory state. “The right to be free from federal regulation,” he wrote, “is not absolute, and yields to the imperative that Congress be free to forge national solutions to national problems, no matter how local—or seemingly passive—their individual origins.”
Judges Ginsburg, Kozinski, Sutton, and Silberman deserve great respect for refusing to rule along predictable, partisan lines. Now, as they contemplate how to rule in the GPS and health care cases, Chief Justice Roberts and the other conservatives on the Supreme Court have a chance to do the same.
Jeffrey Rosen is legal affairs editor of The New Republic. This article appeared in the December 15, 2011, issue of the magazine.
10 comments
since the Supreme Court has allowed Congress to regulate economic activities that have a far smaller effect on interstate commerce I suspect those arguing against the individual mandate would find those other regulations equally wrong. This all depends on whether you blindly follow precedent or from time to time you question them.
- karlwk
December 4, 2011 at 12:01am
I would think that a constitutional conservative (in the traditional formulation of individual liberty, limited government, etc.) would have the same visceral reaction to the GPS privacy cases as he or she would have to the mandate cases: they violate the constitution. Is Rosen's point that some "conservatives" often react depending on the circumstances, in this instance law enforcement vs. regulation, while other "conservatives" (the non-partisans in Rosen's formulation) don't adhere to a rigid view of the constitution. My own view is that the true conservative isn't blind to changed circumstances and reality; but the true conservative in today's highly charged political environment is about as rare as a sighting of bigfoot. As Rosen points out, however, bigfoot lives!
- rayward
December 5, 2011 at 7:54am
I'm not sure that one instance of "doing the right thing" automatically entails conservative thought proving diversity in the "mainstream" seeming to be more left than usual. I'm not even sure this is wanted. After all, what does doing the right thing actually mean? In our sorely competitive society, a little merging of left and right would obviously be valorized, but are we being too utopian? Utopia's almost always devolve into multiple balkanizations, with each "faction" harboring its own anxiety of the slippery slope. And slippery slopes are always, always fallacies. There has never been a real world example of one. Ultimately diversity must win the day even though it may seem sickening to some. This is the nature of democracy. it must be messy or die.
- markhigham
December 5, 2011 at 8:39am
apart the legal questions, what is the value of the new healthcare legislation? 1. will it spread the burden progressively, by structuring the premium according to the income level of the insured? 2. will it lower the overall charges....like these days, $180.00 for an electronic X-ray test? 3. will it eliminate the profit of private insurance companies which exist by the goodwill of the government regulations? 4. will it set a mean testing for medicare insured citizens?
- sf4200
December 5, 2011 at 10:22am
I hate the headline writers for NR Online. Make that HATE. Who needs, wants, or enjoys the constant hectoring screaming McLaughlinesque tabloidization? And they are too dumb even to read the articles they are trying to hype up. In this case, Rosen was praising four conservative lower federal JUDGES, not the four conservative Supreme Court JUSTICES. His article ends with the express hope that the latter will do as the former did in the health care and GPS cases. (My guess: decent chance in GPS, not so much in health care.)
- tgrey
December 5, 2011 at 11:04am
You hit it, rayward. True conservatives in America are almost extinct. A truly conservative party is necessary to counteract extremism on the Left. But today's Republicans, who advertise themselves as "conservatives," would give Edmund Burke the cold sweats in his grave. They flip-flop like a fish in a boat on almost every issue, which is the definition of relativism. They invade foreign countries to "spread democracy," which is a liberal idea. And they deplete government funds, which leads to disorder in the marketplace and in the streets--a conservative bugaboo. Real conservatives are at least willing to debate the Social Contract, which is what the individual mandate is about. Today's "conservatives," like their template, Ayn Rand, don't even recognize society as legitimate. And when everyone is a self-realizing god, tradition and order go down the drain. Anarchy and gridlock result. It's good to see that a few real conservatives still exist in America. I wish more of them would run for office. But America's electorate, which is becoming less educated by the day, would probably make sure they never got into office.
- magboy47.
December 5, 2011 at 11:54am
"[W]hen everyone is a self-realizing God . . ." The new Christians, or Christianists as some call them, emphasize a "personal" relationship with God, reject the traditional Church (or Protestant churches), and rely exclusively on God's grace (cheap grace in Dietrich Bonhoeffer's dichotomy) as the path to salvation. They are neither conservative nor Christian.
- rayward
December 5, 2011 at 12:43pm
And slippery slopes are always, always fallacies. Is this really true? For example, at one time black people were kept as slaves. I think it accurate to say that slave owners argued that if slaves were freed, white people and black people would mate. (Not that white people and black people ever mated during slave time. Except perhaps for the guy who wrote the Declaration of Independence -- what was his name, anyway?) Then black people were freed. Next thing you know they revolted against the sensible request that they work as slaves on plantations. Many moved North, and mated mated with whites. Then black people wanted to go to the same schools as white people, use the same bathrooms, pee in the same swimming pools. Next thing you know, black people wanted to be on the Supreme Court! (Ha! Thought I could not get on topic, didn't you?) Next thing you know whacko black people like Clarence Thomas would be on the Supreme Court, and whacko black people such as Herman Cain would be running for President of the United States and attacking a moderately moderately black and white President of the United States. If this is not a slippery slope, please explain what is? Unless you mean a literal slippery slope. Yesterday morning I went out to let the chickens out of their coop, and the ground was icy and slippery and I had to be very careful not so slip and break my 67-year-old hip and use my Medicare. Speaking of slippery slopes ... When it came to the health care mandate, the opinions by Judges Sutton and Silberman were as striking as those by Ginsburg and Kozinski. Sutton noted that, since the Supreme Court has allowed Congress to regulate economic activities that have a far smaller effect on interstate commerce, “it is difficult to see why Congress may not regulate the 50 million Americans who self-finance their medical care.” Is that on topic or not? Will the italic bug strike again or not?
- skahn
December 5, 2011 at 4:52pm
Shows that the system works. We shouldn't expect stereotypes.
- Tarquin10
December 5, 2011 at 9:53pm
Except perhaps for the guy who wrote the Declaration of Independence As I recall, the genetic evidence indicated a Jefferson male was in the tree; it wasn't able to distinguish between Thomas and his brother.
- karlwk
December 7, 2011 at 9:20pm