Since then, liberals have engaged in a constitutional strategy of getting to five justices — tailoring their arguments to the court’s “swing” justice — whether it was Potter Stewart, Lewis Powell Jr., Sandra Day O’Connor or Anthony Kennedy. Liberals had no constitutional theory other than finding a fifth vote to protect the rights of minorities and women.
Conservatives, on the other hand, have spent several decades developing a constitutional theory — originalism (interpreting the Constitution based on the original intent of the drafters or on the original public meaning at the time of the provision’s enactment) — designed to roll back the New Deal administrative state
and to overturn the Warren court’s precedents protecting minority or privacy rights.
As the leaked draft opinion in Dobbs v. Jackson overturning Roe v. Wade should make abundantly clear, the liberal search for a swing vote on a 6-3 conservative court is a fool’s errand. The democratic political process — suspending the filibuster and passing a federal law preventing the states from abridging abortion rights — is their only hope.
In that vein, perhaps liberals should reconsider a constitutional theory that many of them championed for the first half of the 20th century yet abandoned during the 1960s — judicial restraint. Judges who practiced judicial restraint often upheld state and federal laws and rarely overturned the court’s precedents. This approach appealed to liberals who believed that the court should defer to democratically elected bodies while ensuring that minorities were not discriminated against or shut out of the political process.
Deference to democracy was inspired by Chief Justice John Marshall’s 1819 opinion
in McCulloch v. Maryland upholding the constitutionality of the National Bank. In McCulloch, Marshall described the Constitution as a “great outline” that was intended to “endure for ages to come” and to “be adapted to the various crises of human affairs.”
Marshall contrasted the Constitution’s generalities with “the prolixity of a legal code
.” He recognized that the Constitution granted the federal government broad powers and that the document empowered the people and their representatives, not the states, to make national policy.
One of the first scholars to highlight the significance of Marshall’s deference to democracy was Harvard law professor James Bradley Thayer. In an 1893 Harvard Law Review essay, “The Origin and Scope of the American Doctrine of Constitutional Law
,” Thayer said that the court should not invalidate a federal law unless it was unconstitutional “beyond a reasonable doubt.” Any doubts, Thayer argued, should be resolved in favor of constitutionality to encourage elected officials, not nine unelected justices, to govern the country.
The progressive push for deference to democracy gained steam during the early 20th century. From 1910 to 1912, former President Theodore Roosevelt attacked the court
for invalidating state and federal minimum wage laws, child labor laws and laws protecting the right to belong to a union.
At the court, Justices Oliver Wendell Holmes Jr. and Louis Brandeis dissented from many of those decisions and endorsed Marshall’s and Thayer’s ideas about a flexible, democratic Constitution. Holmes believed
that the country would be OK if the court lacked the power to invalidate a federal law; Brandeis viewed the states as laboratories of democracy and warned that the court
should strive to avoid constitutional questions.
A young Harvard law professor, Felix Frankfurter, praised Roosevelt’s speeches and Holmes’ and Brandeis’ dissents as articulating the proper role for the court in a democracy. In 1916 and 1917, Frankfurter successfully defended
Oregon’s minimum wage and maximum hour laws before the Supreme Court.
In 1923, he attempted to defend Washington, D.C.’s minimum wage law
for women based on McCulloch’s broad conception of federal power. The court, however, invalidated the minimum wage law in Adkins v. Children’s Hospital
as violating the “liberty of contract” in the due process clause. Frankfurter believed that the due process clause gave a conservative court too much leeway to impose its values on the country.
A decade later, the court struck down
many of President Franklin Roosevelt’s New Deal programs as exceeding the power of the federal government. After Roosevelt won a second term and proposed expanding the number of Supreme Court justices
in 1937, the court overruled Adkins
and upheld the constitutionality of minimum wage laws as well as Roosevelt’s New Deal programs, including Social Security.
As a Roosevelt-appointed Supreme Court justice, Frankfurter established himself as a leading exponent of judicial restraint
. He was willing to overturn precedent to outlaw racial discrimination and to protect the rights of criminal defendants. Yet, unlike many of his liberal Warren court colleagues, he preferred to defer to the elected branches.
Might — in the form of five votes to overturn a precedent — did not always make right. He embraced Marshall’s idea of the Constitution as a framework of government, Thayer’s reasonable doubt standard of judicial review, and Holmes’ and Brandeis’ deference to legislatures and willingness to avoid constitutional questions. Frankfurter opposed government by judiciary
and put his faith in democracy — despite its imperfections such as the Electoral College and the malapportioned US Senate.
A plea for judicial restraint in the name of democracy probably won’t change the outcome in Dobbs or prevent Roe from being overturned. But it may be important for those who don’t want the court to act like a third legislative chamber.
Liberals have criticized the court for its hostility to Congress and to the administrative state. But they need a constitutional theory to counter originalism, rather than simply saying, “We’re right, you’re wrong.” A more robust theory of judicial restraint could curb the court’s excesses and reinforce the country’s commitment to democracy.