Explaining why Justice John Roberts' surprising support for the Affordable Care Act remains within the bounds of conservative jurisprudence is the takeoff point for Reason senior editor Root in this exploration of how a 150-year-old political and legal conflict has shaped the country.
Where American political life can be divided between progressives and conservatives, the Supreme Court also polarizes around judicial activism versus restraint. As Root notes, one generation's activists often become the next generation's conservatives. Felix Frankfurter, a Franklin Roosevelt appointee to the bench in the 1930s, supported the New Deal, but in a 1962 case, Frankfurter opposed extending the protection of law to voters in a Tennessee voting rights case. Robert Bork, appointed by Ronald Reagan and an idol of conservatives, switched from youthful activism in support of the right to contraception to later restraint on the abortion issue. Seemingly opposites, the older Frankfurter and Bork shared judicial views first systematized by early-20th-century judge Oliver Wendell Holmes. For Holmes, the Supreme Court had no business getting involved in political cases that should be left to the responsibility of legislative majorities and the voters who elect them. As Holmes famously remarked in a letter to a friend in 1920, “If my fellow citizens want to go to Hell I will help them. It's my job.” Damon documents how judicial restraint reduced the 14th Amendment's intended protections of citizens' “immunities and privileges” to a matter of contracts. The author also reviews conservative and libertarian efforts on the legal front since the 1980s and provides kudos to the Cato Institute and Institute for Justice for changing the legal agenda. In the last chapter, “Obamacare on Trial,” Root follows that contentious battle and unpacks Roberts’ surprising conclusions.
An intriguing account of judicial and economic policy reflecting controversies within conservatism over civil rights and other issues.