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September 20th, 2018

Insight

Kavanaugh's judicial restraint

Charles Lane

By Charles Lane The Washington Post

Published Sept. 4,2018

Kavanaugh's judicial restraint
Zach Gibson for Bloomberg

Few Supreme Court decisions in recent memory were preceded by greater furor than National Federation of Independent Business v. Sebelius, the 2012 ruling on President Barack Obama's signature health-care plan.


Unable to thwart Obamacare in Congress, conservatives turned to the federal courts, counting on a five-justice majority of Republican appointees on the Supreme Court ultimately to strike it down.


Obamacare's individual mandate to buy health insurance, enforced by a financial penalty, constituted an expansion of federal economic regulatory power so vast, conservatives argued, that it could empower Washington to order citizens to eat broccoli. Liberals countered that this was a bizarre misreading of well-established constitutional law, which, if validated by the Supreme Court, would undermine the doctrinal basis of all modern social legislation.


The issue bubbled up through the district and circuit courts in the run-up to the 2012 presidential election, which itself would be a referendum on Obamacare and the future of the federal judiciary.


In this situation - fraught with risks to the judiciary's political independence and impartiality, actual and perceived - one lower-court judge urged his colleagues to think twice about plunging into the fray.


In a 65-page opinion dissenting from his court's 2-to-1 decision in November 2011 upholding the individual mandate, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit explained that the 145-year-old federal Anti-Injunction Act barred citizens from suing over the imposition of taxes - or variants such as the individual mandate's enforcement penalty - until they actually had to pay them. Therefore, the federal courts should not decide the merits of the individual mandate until someone was forced to pay the penalty for failing to get insurance: 2015 at the earliest.

Kavanaugh not only convincingly, and comprehensibly, parsed arcane tax law. He also evinced a seasoned understanding of governmental processes, observing that the congressional tax-writing committees, and their staffs, who helped draft Obamacare were familiar with the Anti-Injunction Act, and therefore presumably intended it to apply, since they declined to include an exception in the bill.


Most important, Kavanaugh deferred to the political branches to resolve an issue "rife with significant and potentially unforeseen implications for the Nation and the Judiciary" - unless and until judicial intervention became absolutely necessary. That part of Kavanaugh's opinion may seem unrealistic, given contemporary congressional dysfunction; as a summary of how separation of powers is supposed to work, though, it was spot-on.


In hindsight, it's clear that the Supreme Court's most conservative justices, including, in this case, the man Kavanaugh was nominated to succeed, swing voter Anthony Kennedy, were fired up to strike down the whole Obamacare statute - or so their subsequent joint dissenting opinion trashing the law made clear.


The mandate survived only because conservative Chief Justice John Roberts issued a compromise ruling in tandem with liberals Stephen Breyer and Elena Kagan, avoiding the upheaval that might have followed a 5-to-4 election-year ruling on the sitting president's signature policy achievement.


They could have saved themselves a lot of trouble by heeding Kavanaugh's words: "For judges, there is a natural and understandable inclination to decide these weighty and historic constitutional questions," but, he added, alluding to New Deal-era decisions on religious freedom and labor rights that the court promptly reconsidered, "history and precedent counsel caution before reaching out to decide difficult constitutional questions too quickly, especially when the underlying issues are of lasting significance."

Kavanaugh was probably not free of political considerations himself. His opinion reads like implicit advice to conservative justices, including his old mentor Kennedy, on the true long-term interests of conservatism, and a legally credible means of serving them. By neither upholding nor striking down the mandate, Kavanaugh's opinion avoided overly offending either side in the Obamacare battle, preserving his own viability as a future Supreme Court nominee.


The essential point, though, is that Kavanaugh kept his cool when all about him were losing theirs. The bottom line of his opinion - the individual mandate gets to take effect - was not what the most fervent among his ideological allies wanted.


As today's start of Senate hearings on Kavanaugh's Supreme Court nomination approached, you didn't hear too much about this particular opinion because neither Republicans nor Democrats have an interest in highlighting his capacity for judicial restraint. Both hope to win votes by emphasizing the degree to which he would enact a conservative agenda.


For those who support Roe v. Wade, affirmative action and tougher federal gun laws, and who worry about Obamacare cases still percolating in the lower courts - there is undoubtedly good reason to fret about a life-tenured appointment for Kavanaugh.


His opinion on the individual mandate, though, provides hope that he at least understands the costs - legal and, yes, political - of precipitous judicial action. Given the apparent inevitability of his confirmation, that's better than no hope at all.

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