Oliver Wendell Holmes, Jr. is credited as the godfather of the movement. In The Common Law (1881) and The Path of the Law (1897), Holmes subjected classical legal thought of the nineteenth century to the acid of skepticism. Scornful of what other men called "convictions," Holmes was equally skeptical of a judge's own preferences as the basis of decision and law. He preferred to let the political process take its course.
Karl Llewellyn's The Bramble Bush (1930) gave the judge much more discretion. In that work, Llewellyn set the judge free to weigh the specific facts of the case to reach a desired result, without being bound down either by formal rules of deductive logic or by a Holmesian hesitancy about one's own convictions. Jerome Frank went further. In his Law and the Modern Mind (1930), Frank unabashedly embraced the rightfulness of a judge's will (as opposed to Hamilton's defense of judicial judgment) as the basis of a decision, prompting principled anti-formalists, like Benjamin Cardozo, to issue a public rebuke. But in the end, even Cardozo lost.
Following the judicial revolution of 1938, Progressivism and Legal Realism came to dominate the Supreme Court. It did so in two stages. At first, from 1938 to 1954, a Holmesian skepticism of judicial judgment led to a restraintist attitude that guided the Court (Black, Frankfurter, early Douglas). After 1954 and Brown v. Board of Education, a new stage of Legal Realist jurisprudence came to the court. Both a Llewellyn point of departure (Powell, Burger, O'Connor, Stewart, Stevens) and Frank attitude (Warren, later Douglas, Blackmun, Brennan, Marshall, Rehnquist) brought a full Legal Realist methodology to the Court that held until the 1980s.
Justice Brennan was the consummate realist, followed closely by Marshall and to some degree by Rehnquist. The—not skeptical but cynical—technique of the modern Legal Realist on the Court was to salt one's opinions (particularly majority opinions) with dicta to be used as "authority" in predictable later cases to move the Court ‘s jurisprudence in to result-oriented direction that one wished.
Thus Brennan, in Eisenstadt v. Baird (1972), decided under the Equal Protection Clause that a law banning the distribution of contraceptives was unconstitutional. But Justice Brennan famously added the following substantive dictum: "If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child." He knew Roe v. Wade was on its way, and left this loaded pistol to be picked up when convenient.
Justice Marshall in Hodel v. Virginia Surface Mining and Reclamation Ass'n (1981) so encumbered the right of the states to Tenth Amendment immunity from congressional commerce clause legislation, that the precedent of National League of Cities v. Usery (1976), from which he had dissented, was rendered impotent.
And Justice Rehnquist, seeking to destroy the state action doctrine, likewise, in Jackson v. Metropolitan Edison Co. (1974), imposed so many limits on when private activity can be attributed to the state, that it is now virtually impossible to bring a successful case under the state action doctrine.
Legal Realism lost its dominance on the Court in the 1980s. It was done in by the growth and dynamism of originalism, a trend that Justice Brennan overtly fought against, for Brennan saw originalism as a principled obstacle to his agenda. Although no one form of judicial decision-making is now in control on the Court, it is clear that originalism has created a vocabulary within which the justices have on many instances come to speak to and disagree with one another. It should come then as no surprise that the looked-for conservative/liberal split occurs much more infrequently than it did in the past. Line-ups are mixed and Justice Breyer and Justice Thomas can be found together (though on separate grounds) in dissent, for example, in cases like Brown v. Entertainment Merchant's Ass'n (2011). And there are wide and differing ranges of opinion and approach among the "conservative" justices. An ideological perspective, though still present, is not as ubiquitous as before.
In sum, the Court seems to have become much more of a court than it was in the 1980s. Breyer is far more principled than Brennan, and Roberts, we thought, less manipulative than Rehnquist.
That is, until now.
Conservative scholars gape in wonder at what the Chief Justice gave away in National Federation of Independent Business v. Sebelius. All of the other conservative justices, including Justice Kennedy, were fully on board with a momentous shift in Constitutional doctrine. The Commerce Clause, the Necessary and Proper Clause, the Spending Power, and the Taxing Power, were all—in one case—to be brought closer to their original moorings. Despite differences among the conservative justices, and, in particular, with Justice Kennedy, on other central issues, they were of one mind in this case. But at the last moment (so it is speculated), the Chief Justice bailed out.
With his vote (and four others), there is the finding that Congress cannot use the commerce power to force people to enter a market, Wickard v. Filburn (1942) notwithstanding. With his vote (and four others), there is the finding that the Necessary and Proper Clause must have an "appropriate" connection to the use of a delegated power, Gonzales v. Raich (2005) notwithstanding. With his vote (and six others), there is the finding that the Spending Power cannot be used as a coercive bludgeon against the states, South Dakota v. Dole (1987) notwithstanding.
Yet, with a heavy-handed Legal Realist outreach, he found that Congress can use its taxing power on persons who refuse to engage in Congressionally mandated activity. Despite the government's argument that the penalty provision in the health care law was not truly a tax, and despite President Obama's insistence after the opinion came down, that the penalty provision was never intended to be a tax, the Chief Justice made it one. The administration did not want the law to be validated by a tax, but preferred that the law be seen as constitutional on the ground that Congress can assess a penalty for a person who fails to abide by a valid congressional enactment. But the Chief Justice (and four others) found that the law was not a valid enactment under the Commerce Clause, so the penalty could not stand. The law could only be saved by refashioning the penalty into a generic tax under the Taxing Power, which the Chief Justice did in fact do.
Notwithstanding Art I, Sec. 2, cl. 3 of the Constitution declaring that direct taxes must be apportioned by population, Roberts declared that the penalty was not a direct tax. Notwithstanding Bailey v. Drexel Furniture Co. (1922), which held that Congress could not regulate (and penalize) under the General Welfare Clause, even in the form of a "tax," the Chief Justice simply said that the fine was not a penalty but a tax.
The Chief Justice abandoned the classical canons of the judicial craft. His view of the taxing power failed textually, syntactically, and as a matter of original understanding.
It seems evident to this observer that the Chief Justice resorted to his transparent device saving the health care law in order, so he thought, to protect the Court. He calculated, I conjecture, as follows: we have moved the ball forward on our side on Commerce, Necessary and Proper, and Spending. Three out of four is a great victory. If, however, we complete the grand slam and strike the law down under the Taxing Power, the Court would become the electoral issue before the country, not the law. He was, I suggest, attempting to keep the Court out of politics, and keep it as a court, while leaving Obama more vulnerable on having to defend his law politically. But to do so, he had to abandon reasoning like a judge.
In addition, perhaps the Chief Justice thought that there was a policy bonus in his gambit. Congress can often get away with a regulation, and people certainly don’t care much about whether Congress fulfilled the requirements of Necessary and Proper or the Spending Clause. But say the word “tax,” and everyone notices. By allowing Congress free constitutional rein on taxing, but limited constitutional discretion in the other three areas, the political check on Congress would be a sufficient and predictable restraint. That is why President Obama continues to insist that the penalty is not a tax, for tax is the third rail of American politics.
Yet for all that, the Chief Justice may have made a drastic miscalculation, for the Court should be the central issue this fall. If the striking down in its entirety of the health care law allowed President Obama to declare that the “enemy” is the five conservatives on the Court, so be it. The election would have then become a plebiscite on the Constitution. Should we ratify the Legal Realist Constitution of 1938 and after, or should we reinstate the one that Founders gave to us?
In the end, that is the real question our country has to face.
David Forte is a Fellow at the Claremont Institute's Center for the Jurisprudence of Natural Law