The Progressive-Conservative View of Judicial Restraint

From the U. Va. Fed-Soc blog on the student conference that took place this past weekend:

Professor [Jeffrey] Rosen responded with a call to resist Professor Barnett’s libertarian interpretive approach and look to the traditional conservative model of judicial deference to the political process…. Professor Rosen proposed a framework of three divergent “conservative” approaches to constitutional interpretation:

(1) the traditional view of judicial restraint and deference – Justices Jackson, Frankfurter, Holmes, and Scalia were discussed as models of this approach. Judge J. Harvie Wilkinson III, the moderator of our second panel, was also discussed as a model of this interpretative philosophy.”

Rosen is undoubtedly correct that conservatives such as Scalia and Wilkinson have adopted and advocated views regarding the role of the judiciary previously championed by the likes of Frankfurter and Holmes.

The oddity, however, is that Holmes was the favorite Justice of early 20th century Progressives, and was despised by contemporary conservatives. And Frankfurter, of course, was a leading Progressive legal activist and academic, and never abandoned his basic Progressive (i.e., statist) presumptions as a Justice.

Consider Holmes’s Lochner dissent. Progressive historian Charles Beard effused that Holmes’ opinion was “a flash of lightning [in] the dark heavens of juridicial logic.” Progressive jurist Benjamin Cardozo asserted that Justice Holmes’s dissent was “the beginning of an era…. [I]t has become the voice of a new dispensation, which has written itself into law.” In 1915, the Progressive New Republic praised Holmes’ “classic” Lochner dissent.

By contrast, conservative George Wickersham, writing in the Harvard Law Review in 1915, argued that if Holmes’s view in Lochner became the rule, “constitutional government, in the sense in which it has been understood for a century and a half, will be at an end, and the doctrine of the police power will have been swallowed up in the capacious maw of unrestrained democracy.” Libertarian-conservative H.L. Mencken complained that if Holmes’s judicial opinions “were accepted literally, there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu.”

It wasn’t until after World War II that the few remaining influential conservative commentators on constitutional law abandoned traditional conservative limited-government and natural rights constitutionalism, and instead focused on containing the Warren Court’s emerging judicial liberalism. In the process of doing so, they adopted the Progressives’ majoritarian critique of the Supreme Court’s pre-New Deal liberty of contract jurisprudence, joining the remaining old-school Progressives like Learned Hand, Herbert Wechsler, and Frankfurter.

A telling example is a short 1952 memo written by a young conservative Supreme Court clerk (and future Chief Justice of the United States), William Rehnquist, to Justice Robert Jackson. Rehnquist argued that the Court should rule against the plaintiffs in the pending school segregation cases, lest it write its own views into the Constitution. He accused the pre-New Deal Court of ignoring Justice Holmes’s wise admonition “that the Fourteenth Amendment did not enact Herbert Spence’s [sic] Social Statics” and instead allowing “business interests” to “dominate the Court.” Rehnquist wrote that if the Court invalidated public school segregation laws, “it differs from the McReynolds court only in the kinds of litigants it favors and the kinds of special claims it protects.” (Holmes, not coincidentally, was by far the Justice least willing to question segregation laws in his heyday.)

In short, until folks like Richard Epstein and Randy Barnett upset the apple cart, modern constitutional debate, especially with regard to the Fourteenth Amendment, was a battle between New Progressive ideology advocated by modern liberals, and Old Progressive ideology advocated by modern conservatives.

There is nothing actually conservative, however, about Old Progressive ideology, and it was only adopted by conservatives as an attempt to stop or at least slow the march of New Progressive ideology. Now that conservatives are no longer simply playing defense, there is no good reason, politically or ideologically, for them to continue to defend an ideology invented and promoted by their historical Progressive enemies: Roscoe Pound [in his early years], Holmes, Frankfurter, Brandeis, Corwin, etc.