The Supreme Court’s recent rescue of an important federal agency from the hands of a hostile lower court was an exercise in the evolving definition of originalism.
Justice Clarence Thomas, writing for all seven members of a surprisingly lopsided majority, excavated precedents deep in the country’s colonial history for the funding mechanism that Congress chose for the Consumer Financial Protection Bureau. A mechanism that the United States Court of Appeals for the Fifth Circuit deemed unconstitutional was clearly known to and accepted by the Constitution’s framers, Justice Thomas concluded.
Justice Elena Kagan wrote a concurring opinion to say that while the old history was enlightening and adequate to support the agency’s constitutionality, modern practice supported it as well. “All the flexibility and diversity evident in the founding period,” she wrote, has “continued unabated” when it comes to financing government operations.
Notably, two of the court’s conservatives, Justices Brett Kavanaugh and Amy Coney Barrett, in addition to Justice Sonia Sotomayor, joined Justice Kagan’s endorsement of the significance of later, even contemporary, practice when interpreting the Constitution. A true “originalist” would reject such evidence as irrelevant, insisting that all that matters is what the framers did and how people at the time understood their actions. (The two dissenters were Justices Samuel Alito and Neil Gorsuch.)
It was a fascinating development, highly significant if it turns out to mean that the pure originalism invented in conservative think tanks during the 1970s and embraced by judges like Robert Bork and Antonin Scalia is no longer the only interpretive game that a conservative judge can play. The originalist theme was the focus of much of the commentary on the decision, Consumer Financial Protection Bureau v. Community Financial Services Association of America.
However, it is another opinion in the case, one that did not deal with originalism at all, that interests me the most. It was by the court’s junior justice, Ketanji Brown Jackson, and it is a mere five paragraphs long.
A bit of background is necessary in order to understand Justice Jackson’s move. While most federal agencies rely on an annual appropriation, Congress set up the C.F.P.B. differently in order to insulate it from political pressure. Up to a specified cap, the bureau draws its spending money directly from the Federal Reserve system without relying on Congress to grant an annual budget request. In the Fifth Circuit decision that the Supreme Court overturned, a panel of three Trump-appointed judges declared that the Constitution’s Appropriations Clause didn’t permit Congress “to cede its power of the purse” in this way. According to the panel, the bureau’s funding mechanism violated the constitutional separation of powers.
Rejecting this analysis, Justice Thomas wrote that the country’s “pre-founding history supports the conclusion that an identified source and purpose are all that is required for a valid appropriation.” He noted that “under the Appropriations Clause, an appropriation is simply a law that authorizes expenditures from a specified source of public money for designated purposes.”
According to Justice Jackson, that simple definition sufficed to resolve the case. “In my view, nothing more is needed,” she wrote. She then turned to the deeper question of whether federal courts should even involve themselves in disputes of this kind, writing that “an essential aspect of the Constitution’s endurance is that it empowers the political branches to address new challenges by enacting new laws and policies — without undue interference by courts.”
The separation of powers argument actually cuts in the opposite direction, Justice Jackson continued. The trade groups representing payday lenders that challenged the bureau’s constitutionality “would have us undercut the considered judgments of a coordinate branch about how to respond to a pressing national concern.”
Her short opinion is worthy of more attention than it has received. What Justice Jackson is calling for, as a liberal, is what conservatives once said they wanted: judicial restraint. The case is one of several challenges to the modern operation of government that the justices will decide before the end of the current term. One such case asks the court to repudiate a 40-year-old doctrine known as Chevron deference, which requires judges to defer to an administrative agency’s policy choices as long as the choice is plausibly within the boundaries of the agency’s statutory authority. Chevron deference is basically a policy of judicial restraint, even of judicial humility. Even though the doctrine was once embraced by conservatives on and off the court, incumbent conservative justices are impatient for its demise, eager to untie judges’ hands to confront the administrative state.
In her opinion, Justice Jackson quoted from a 90-year-old decision, Nebbia v. New York, upholding a New York law that regulated minimum retail prices for milk. The majority opinion by Justice Owen Roberts was an encomium to judicial modesty. “With the wisdom of the policy adopted, with the adequacy or practicability of the law enacted to forward it, the courts are both incompetent and unauthorized to deal,” he wrote in the passage Justice Jackson quoted. The vote was 5 to 4, with the outcome in favor of economic regulation anomalous for a conservative court that would soon be at war with regulatory aspects of President Franklin D. Roosevelt’s New Deal.
There are many more familiar expressions of judicial restraint that Justice Jackson might have selected. Without presuming to know why she chose this one, I like to think she shares my concern about the collapse of the settlement that emerged from the struggle between Roosevelt and the Supreme Court. The justices, having stared down the president’s “court-packing” plan and newly amenable to upholding New Deal legislation, made a bargain with the American people. It went something like this: We will back off from second-guessing the choices the political branches make about the country’s basic economic arrangements, and we will reserve our strictest judicial scrutiny for legislation that impinges on the welfare of members of “discrete and insular minorities,” to quote a famous footnote in a 1938 decision, United States v. Carolene Products Company.
That approach, having held for half a century, yielded to political reality as courts filled up with anti-regulatory judges and as a societal consensus over which group constitutes a minority in need of special judicial protection evaporated. Is that group defined as straight, white Christian men? Some people, even some justices, may think so.
While concurring with Justice Thomas’s majority opinion, Justice Jackson wrote only for herself. I understand why: Judicial restraint was not a subject the other members of the majority were drawn to at this time. But I take her opinion, modest in its brevity and measured in its tone, as a call to think deeply not only about the lessons of the past but also about the needs of the present.
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