Occasionally, the stars align to illuminate important civic matters for all to see and understand. Such an alignment occurred last week in the June 18 hard-copy edition of the New York Times, in the form of two articles running just pages apart.

The first was a front page news story on the Supreme Court’s 7-2 decision in California v. Texas, upholding the Affordable Care Act (ACA) from a challenge by 18 states and two individuals. The second was an opinion piece in the same edition entitled “Justice Sotomayor, the Supreme Court’s Truth Teller,” authored by Linda Greenhouse, the retired legal affairs writer for the Times.

Taken together, the two stories illustrate the difference between the philosophies of judicial restraint and judicial activism.

Adherents of judicial restraint see the judge’s role as modest. Judges should be umpires, calling balls and strikes, regardless of who wins the game as a consequence of their calls. Judges should recognize the boundary between judging and legislating, and take care not to cross it. Judicial activists, on the other hand, expect judges to do more than merely apply the law to the facts, disregarding the result. Instead, they believe judges should strive to reach the “right” result; i.e., the result embodying their vision of a just and moral society.

The front page story on the Court’s ACA decision illustrates judicial restraint. The story expressed surprise at the fact that Justice Amy Coney Barrett joined the majority in turning back the challenge to the ACA, noting that at her confirmation hearings last year, “Democrats portrayed her as a grave threat to the health care law.” In fact, they did more than that. Then Senator, now Vice President, Kamala Harris warned that the Republicans were “trying to get a justice onto the Court in time to ensure they can strip away the protections” of the Act, resulting “in millions of people losing access to health care.” In an article tellingly entitled “The Top Contender for RBG’s Seat Has a Fundamentally Cruel Vision of the Law,” Slate’s legal commentator predicted that once confirmed, Barrett would “join the other four conservatives to destroy [the Act] root and branch.”

If the liberal media and politicians were surprised by Barrett’s vote to turn back the challenge to the ACA, it was because they failed to understand judicial restraint. As a political conservative, Barrett likely opposes the ACA. But the case before her did not seek her opinion on the wisdom of that particular piece of legislation. Rather, the case required her to consider the threshold question of “standing.”

The doctrine of standing limits courts to resolving actual cases or controversies between parties who can allege injury traceable to the other parties’ wrongful conduct; and then only if that injury can be redressed by the requested relief. Standing is a quintessential element of judicial restraint. It restrains judges from roving across the polity fighting injustice wherever they perceive it to exist. Instead, the standing doctrine operates as a harness, forcing them to focus only on the issues and parties before them.

The plaintiffs in California v. Texas claimed that the individual mandate of the ACA, which requires individuals to maintain a certain level of health insurance, is unconstitutional. As originally enacted, that provision imposed financial penalties on anyone failing to comply with the mandate. But in 2017, Congress amended the Act to reduce the penalty to $0.  The majority ruled that since the plaintiffs could suffer no injury traceable to the allegedly unlawful impact of this provision, they lacked standing. Case closed.

The majority opinion was authored by Justice Stephen Breyer, who is generally viewed as being on the liberal wing of the Court. But it was joined by Justices Roberts, Kavanaugh, and Barrett, all considered conservatives. Even Justice Clarence Thomas, who had voted in two earlier cases to invalidate the Act, concurred with the majority this time because of the standing issue.

Had Justice Barrett and the other conservative members of the Court wished to indulge their personal opposition to the ACA, it would have been easy to do so. The standing issue was by no means clear-cut. Justice Samuel Alito, joined by Justice Gorsuch, offered strong arguments in dissent for finding standing. But the fact that four conservative Court members voted to preserve the ACA because of standing illustrates how important that doctrine is to the philosophy of judicial restraint.

While the Times’ front page story illustrated judicial restraint at work, Linda Greenhouse’s tribute to Justice Sotomayor depicted and extolled judicial activism. She praised the judge for assuming the role of the Court’s “truth teller”– which Greenhouse defined as one who calls attention “to the world beyond the four corners of a particular legal dispute” to impart some larger wisdom.

Greenhouse cited Sotomayor’s dissent in Utah v. Strieff, a case posing the question of whether evidence obtained in an unlawful police search should be suppressed. The majority in that case voted to allow the evidence because the connection between the initial unlawful search and the discovery of the incriminating evidence was attenuated. The initial stop led to the discovery of an outstanding arrest warrant; the ensuing lawful arrest, in turn, led to the discovery of the incriminating evidence.

Justice Sotomayor dissented, in an opinion that ranged well outside the bounds of the case. As  Greenhouse approvingly wrote:

In dissent, Justice Sotomayor noted that “it is no secret that people of color are disproportionate victims of this type of scrutiny” and went to say: “For generations, Black and brown parents have given their children ‘the talk’— instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger — all out of fear of how an officer with a gun will react to them.” She cited the Black writers Michelle Alexander, Ta-Nehisi Coates, James Baldwin and W.E.B. DuBois in making her point.

All interesting points, but irrelevant. The defendant in the case was white.

But to a fan of judicial activism like Greenhouse, the opinion’s relevancy was itself irrelevant:

Whether the books [Justice Sotomayor] cited added weight to the constitutional argument was beside the point. What Justice Sotomayor was doing … was enlarging the frame within which the debate over the precise legal issues play out. She understands that no Supreme Court case is just a matter of petitioner versus respondent. Each is inevitably part of the larger unfolding story of where the country stands with respect to a particular part of the legal fabric by which we govern ourselves.

This of course is the exact opposite approach taken by the Court majority in California v. Texas. There, the Court preserved the ACA precisely because they viewed the case as being just a matter of petitioner versus respondent and, since that particular petitioner had suffered no injury traceable to that particular respondent’s unlawful conduct, standing did not exist and the case could not go forward.

It deserves mentioning that Justice Sotomayor’s approach proved too much even for her fellow liberals on the bench. The passages cited by Linda Greenhouse were all taken from Part IV of her dissent. The late Justice Ruth Bader Ginsburg was the only Court member to join Sotomayor’s dissent, and she limited her joinder to Parts I, II, and III. Justice Sotomayor’s “truth telling” exercise in Part IV went too far for Ginsburg to support.

The juxtaposition between Justice Barrett’s vote to uphold the ACA because of the plaintiffs’ lack of standing, and Justice Sotomayor citing the “the talk” in a completely inapplicable case, shows judicial restraint and judicial activism at their extremes. Most judges and most opinions fall somewhere in between the poles.

But even as extremes, these examples serve an important educational purpose.

Federal courts command no military, no police, and no enforcement mechanisms of any kind. The source of their judicial power, as Alexander Bickel noted in The Least Dangerous Branch, is their “great and mystic prestige.” Because of that prestige, when the Court speaks, presidents, governors, and legislators, all of whom do command such resources, listen and comply.

The source of that prestige is the conviction widely shared by the public that judges, sitting on elevated benches enrobed in black, are applying the law strictly to the parties and issues before them. They are not merely articulating their personal views on politics, economics, or ethics. After all, presidents, governors, and legislators have personal views on such things too. And they, unlike judges, must stand for election and be answerable to the voters. If judges get to engage in “truth telling” – i.e., moralizing on issues “beyond the four corners of a particular legal dispute” — why can’t they? And if their “truth” contradicts the “truth” of some unelected person on a bench, who’s to say which truth should prevail?

When questions of that kind arise, the “great and mystic prestige” of the judiciary disappears, and the judiciary becomes not only the least dangerous branch but also the least effective. It becomes ignorable.

Regardless of one’s politics, all should agree on the value of preserving the prestige of the federal judiciary. Therefore, the kind of judicial activism ascribed to Justice Sotomayor by Linda Greenhouse deserves to be criticized, not celebrated. The judicial restraint exhibited by Justice Barrett and her fellow conservatives in invoking the standing doctrine to reject a challenge to the ACA deserves to be honored. And for publishing the two articles illustrating these different philosphical strands in the same edition, even if it did so inadvertently, the New York Times deserves commendation.


Filed under Law

4 responses to “BARRETT v. SOTOMAYOR

  1. avatar910

    Linda Greenhouse spent time years ago (35+) at my former college girlfriend’s home in Virginia whilst working on briefs for the Supreme Court with her father who was a brilliant lawyer that happened to be the General Counsel for the Transit Workers National Union. Her ideology is apparent, although she writes well and has a keen intellect. Barrett can separate those attributes (intellect and ability from ideology), Sotomayor (and Greenhouse) cannot.

  2. Larry, are you serious?

    Dear avatar,
    Are you serious? Also, the following addresses the myth of conservative judicial restraint:

    • That article by Tom Schaller seems to equate “overturning statutes” with judicial activism, and uses the count of statutes overturned to determine the degree of a court’s activism. That’s just silly – in his words, “a magnificent farce that insults all of us.”

  3. Robert Anson

    The problem with this analysis is that the entire doctrine of standing as used in the Federal Court is judicial activism. Have a case where the facts direct an outcome that will cause political heat? Just declare no standing to avoid deciding. Want to move a case forward that the plaintiffs have no business bring? Just declare the law of standing “murky” and move forward.

    The current doctrine of standing was invented in the 1930’s-40’s to protect the the unconstitutional acts of the New Deal. Later the Court adopted the fiction that standing was a constitutional requirement. Judicial activism on top of judicial activism.

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