At Law & Liberty, John McGinnis: The Umpire’s Limits. From the introduction:
A Constitution that divides power among three branches and between the federal government and the states needs an umpire. Politicians, responding either to their own interest in expanding their authority or to public passions, will frequently overstep constitutional boundaries.
Through judicial review, the Supreme Court therefore serves as a neutral arbiter charged with maintaining the Constitution’s boundaries. But the Court itself is an institution that must respect its own boundaries. Thus, in every constitutional case, the preliminary question is whether the Court can reach and resolve the constitutional issue in a manner consistent with the proper limits on its own power. This term, in two of its most notable cases, Trump v. Barbara and Trump v. Cook, the Court transgressed those constraints. In both cases, it could have decided against the president but on narrower grounds that would have respected the bounds of its institutional role.
The problem in both cases is that the Court decided constitutional questions, although doing so was unnecessary.
On the Barbara case:
Despite this longstanding practice [of avoiding constitutional issues], the Court reached out this term to decide constitutional issues in two of its most important cases, setting aside original structure, precedent, and prudence. In Trump v. Barbara, the majority passed up the opportunity to decide the case based on the Immigration and Nationality Act’s citizenship criterion and instead interpreted the Fourteenth Amendment to favor birthright citizenship. It is true that the words in the Act and the Constitution were the same. But the context of the Act made the meaning of its words much more obvious.
In his concurrence, Justice Brett Kavanaugh supported a statutory disposition. Before the Act was passed, he noted, the Court had decided United States v. Wong Kim Ark, holding that the Fourteenth Amendment was “declaratory” of the “fundamental rule of citizenship by birth” that prevailed at common law. That rule included as citizens all those born “subject to the jurisdiction” of this country, in the language of the Amendment, and exempted only the children of ambassadors and those born into Indian tribes, who were not subject to the jurisdiction. All others were citizens at birth, whether born to permanent residents or temporary visitors. It is well settled that Congress is deemed to legislate against the background of Supreme Court precedent. If Congress had aimed to take issue with the Wong Kim Ark understanding, it had every opportunity to make that clear in the statute, but did not do so. Thus, the words in the Act are properly given the meaning they had been given by the Supreme Court, whatever the original meaning of the Fourteenth Amendment.
Moreover, Kavanaugh observed that birthright citizenship, with these exceptions, had been the consistent interpretation of the executive branch before the Immigration and Nationality Act and was also the contemporaneous interpretation of that Act. Neither the majority nor any of the dissents disputed his analysis. It is hard to know what they could have said. No one challenged Congress’s authority to confer citizenship beyond what the Fourteenth Amendment requires. Birthright citizenship is a constitutional floor, not a ceiling; the Fourteenth Amendment question did not need to be resolved.
Agreed — at minimum, I don’t see how the majority and the dissents could simply ignore the statute and Justice Kavanaugh’s analysis. Perhaps the original meaning of the statute was that it adopted the original meaning of the citizenship clause, whatever that was. But it would require some evidence and analysis to reach that conclusion, which no one provided.
As to Cook:
In some ways, Trump v. Cook is even more problematic. There, unlike in Trump v. Slaughter, the administration did not challenge the constitutionality of the for-cause language of the Federal Reserve Act, nor did it argue that the Federal Reserve could not be deemed an independent agency. Yet again, however, the Court reached out and declared that insulating the Federal Reserve from presidential at-will removal was constitutional. It did so on the theory that Congress had authorized the First and Second Banks of the United States in the early Republic. But restrictions on the removal of the officers of those earlier central banks were never contested, and it is far from clear that those banks exercised executive power comparable to that of the modern Federal Reserve, with its substantial regulatory responsibilities.
Justice Amy Coney Barrett here played the role that Justice Kavanaugh did in Barbara, noting in her concurrence that this constitutional issue was unnecessary to decide. The Court’s majority defended its choice to wade into the constitutional waters by noting that Justice Thomas had raised the issue in his dissent. But that was no answer: the government had conceded the point, and the Court’s own party-presentation principle required it to honor the concession.
Agreed on this point as well. Cook seems problematic on multiple grounds.
In conclusion:
Sadly, justices—perhaps most of all chief justices—have trouble resisting the urge to go big in the biggest cases. Preserving birthright citizenship as a constitutional rule and securing the independence of the Federal Reserve will likely appear in the opening paragraphs of any retrospective on the chief justice and the Roberts Court. Yet at his confirmation hearing, John Roberts famously said that “no one ever went to a baseball game to see the umpire.” But umpires’ names are generally lost to history, but the names of Supreme Court justices are not. They therefore face an ever-present temptation to favor legacy over duty—not necessarily in their votes on the bottom line, but in writing opinions broader than the case requires. The duty of restraint may be less obvious than the duty to reach the right result, but it is no less compelling. A Court charged with maintaining the Constitution’s boundaries must respect its own.
Yes, and this is why both judicial restraint and originalism face practical challenges as doctrines of actual adjudication (as opposed to as academic theories). Judges want to make everything come out right, according to their political instincts. Only a very strong legal culture of originalism and/or judicial restraint will actually constrain them.
Posted at 6:12 AM