Judicial Restraint. Really?

The Chief Justice is being widely praised for showing judicial restraint in yesterday's Affordable Care Act decision. And, to be sure, the result is consistent with what he said is the Court's obligation to uphold the handiwork of the people's representatives whenever possible.

But Neal Katyal has explained today in the New York Times why, in his view, the medicaid and Commerce Clause rulings in yesterday's decision pose grave threats to congressional authority. He sees those rulings as of a piece with the Court's (and thus the public's) increasing comfort in throwing out legislation on constitutional grounds.

I want to write about something else that concerns judicial restraint: Why did the Chief Justice reach the Commerce Clause issue at all? If the so-called "mandate" was constitutional under Congress's taxing power, why did the Chief need to give his views on whether it was constitutional under the Commerce Clause? The Commerce Clause ruling ended up resolving nothing. Or put another way, the taxing power ruling ended up resolving everything about the constitutionality of the "mandate." The 5-justice "ruling" on the Commerce Clause issue is arguably dicta and not a holding of the Court. But that's not really my point. If the Court's membership stays constant for a while, the Commerce Clause analysis in yesterday's decision may become influential whether it's a holding or not. My point is simpler: Under standard principles of restraint, the issue did not need to be reached by the Chief Justice, who, because he did reach the issue, ended up forming a majority of sorts on the Commerce Clause issue. (The other four members of the taxing-power majority reached the Commerce Clause issue as dissenters.)

A similar thing happened in Wal-Mart v. Dukes last Term. The Court had before it the overall question whether a large class of women alleging sex discrimination in employment had been properly certified. Two separate issues were presented: whether the class met the prerequisites for certification under Federal Rule of Civil Procedure 23(a), and, if so, whether the class could be certified as an injunctive/declaratory relief-type class under Rule 23(b)(2). The Court decided both issues against the class -- the second one by a 9-0 vote -- even though the ruling under Rule 23(a) definitively nixed the class certification. Indeed, the Court could have ruled only on the 23(b)(2) question because, as a practical matter, that also would have nixed the nationwide settlement (and, as noted, on that score, the Court was unanimous). But, as also noted, exercising no restraint, the Court went ahead and ruled on everything.

UPDATE

A couple additions:

First, as a friend of mine suggested to me today, it seems only fair to point out the Chief Justice's side of the story (from page 44 of his opinion):

JUSTICE GINSBURG questions the necessity of rejecting the Government’s commerce power argument, given that §5000A can be upheld under the taxing power.  …  But the statute reads more naturally as a command to buy insurance than as a tax, and I would uphold it as a command if the Constitution allowed it.  It is only because the Commerce Clause does not authorize such a command that it is necessary to reach the taxing power question. And it is only because we have a duty to construe a statute to save it, if fairly possible, that §5000A can be inter-preted as a tax.  Without deciding the Commerce Clause question, I would find no basis to adopt such a saving construction.

And here's Justice Ginsburg's view (from page 37 note 12 of her opinion):

The CHIEF JUSTICE states that he must evaluate the constitution­ality of the minimum coverage provision under the Commerce Clause because the provision “reads more naturally as a command to buy insurance than as a tax.” ... THE CHIEF JUSTICE ultimately concludes, however, that interpreting the provision as a tax is a “fairly possible” construction.  ...(internal quotation marks omitted).That being so, I see no reason to undertake a Commerce Clause analy­sis that is not outcome determinative.

Second, Prof. Bradley Joondeph over at scotusblog says that the Chief Justice's opinion is "a brilliant act of judicial statesmanship," a "Marbury for our times." And Marbury, too, could have avoided saying some pretty important stuff if it simply had held first (rather than last) that the Court lacked original jurisdiction to rule on Marbury's petition.

Comments

[Max Kennerly]

Marbury came to my mind when I read CJ Roberts' opinion. The case was long on dicta and reached a politically convenient conclusion that the status quo should persist. This can be good or bad depending on your preference for the result and the reasoning, but it is not exactly a model of judicial restraint, it is just a more sophisticated version of judicial activism.