For those who, like me, have trouble decoding why certain SCOTUS justices make the rulings that they do, Richard Epstein propounds an interesting theory in the WSJ ($) today. He says that you can't relay on traditional conservative or liberal monikers to predict when a justice will back an expansion of government and when she/he will rule to reign it in.
In principle, it would nice if both sides of the
ideological spectrum displayed a sound and consistent position on
statutory construction. Unfortunately, each bloc is opportunistic. The
litmus test for this erratic behavior boils down to a factor not found
in any statute: trust.
The court's two wings share one trait: They defer only
to the government officials they trust. Otherwise, they read a statute
carefully to rein in the authority of officials they don't trust. The
two factions don't differ in their philosophy of language, or in their
on-again, off-again adherence to the rule of law. Rather, the court's
liberal wing profoundly distrusts this president, but has great
confidence in the domestic administrative agencies that regulate
matters such as the environment. The conservative wing of the court
flips over. It willingly defers to the president on national security
issues while looking askance at expansionist tendencies of the
This feels as right as any theory I have read of late. And I certainly can get behind this:
Our Constitution starts out with a presumption of distrust of all
government actors, which is why it drew a sharp line between the
legislative and executive branches. We can argue until the cows come
home whether national security or environmental protection presents the
greater threat of executive or administrative misuse. But that ranking
really doesn't matter, because there is no reason why the Supreme Court
has to defer to overaggressive public officials in either context.
Justice Stevens rightly chastised the president for flouting the rule
of law in Hamdan. But he was tone deaf on the easier question
of statutory construction when blessing the Corps' extravagant reading
of the statute in Rapanos.