This tension, when it gets acute, gives rise to what I would call ‘two-faced’ or ‘Janus-faced liberalism’. Over the last 40 years, during a period characterized by increased faith in free markets, in deregulation, and in privatization, America's Janus-faced liberalism has worsened and fueled the uniquely American paradox of laissez-faire and mass incarceration. In the country that has done the most to promote the idea of a hands-off government, our government runs, paradoxically, the single largest prison system in the whole world.As a kind of case study for his argument, Harcourt highlights two apparently contradictory recent bits of Supreme Court news – the oral arguments about the constitutionality of the Affordable Care Act and the Court’s decision in Florence v County of Burlington, in which the Court upheld the policy of a pair of local jails in New Jersey to strip search everyone who comes into their possession, without any need for suspicion that they are dangerous or in possession of contraband. In particular, he notes that Justice Kennedy (ever the swing vote in close cases) appeared to have real difficulty with the ACA mandate during oral argument, but authored the opinion upholding the searches in Florence.
I saw a lot of similar comments on the web in the wake of Florence – it came out the week after the ACA arguments, which were still being dissect ad nauseum in the press. While I sympathize with them, I think they reflect a layperson’s misunderstanding of how courts work. Harcourt has his own theory about where the Janus stuff comes from in modern America, but he, too, overlooks the practicalities of court decisions.
Hard as this is to imagine, when lawyers go to court and ask a court to do something – or to stop someone else from doing something – the winning argument is not going to be “because it’s wrong.” Or “because it violates ideals of liberty.” Although those kinds of generic sentiments might come up in the rhetoric around an issue, when you drill down into things, courts deal with laws on the books and prior precedent, not first principles.
As an example, a lot of the populist outrage over the ACA comes from the “gubmint can’t make me do that!” standpoint, regardless of what gubmint it is we’re talking about. The actual legal case against the ACA mandate, on the other hand, is rooted in a much more technical and (usually) boring question – does the Constitution give the federal government the power to regulate this activity? Yes, “liberty” in the generic sense plays a role in the debate, but it’s really more about the Commerce Clause and the cases interpreting it.
By contrast, Florence isn’t about a grant of power to the federal government, but about limits on that power and the power of the states (via the Fourteenth Amendment). Again, the question isn’t whether a blanket strip search policy violates generic ideals of “liberty.” It’s whether the Fourth Amendment, and the cases interpreting it, prohibits the state from having such a policy. Whether such a policy is necessary* is not as important as whether it’s permissible. Like it or not, the Fourth Circuit is pretty much dead on its feet for civilians, much less inmates. Courts have to deal with that baggage when resolving new questions in that area.
When viewed in light of those realities, Kennedy’s position in both cases makes a bit more sense, mainly because it’s clear he’s not dispensing opinions based on generic concepts of “liberty” or what have you. He (and the rest of the Supremes and every other judge in the country) decide individual cases that raise discrete issues, not big picture questions of political philosophy. His views on those sorts of questions probably inform his decisions in some way, but they are hardly the only concern.
Popular reaction to court decisions, Supreme Court decisions in particular, tend to break down into either “good” or “bad,” and rarely go beyond that. To the extent that they do, reactions most often arise from a particular person’s political or philosophical positions, not the law that actually controlled the decision. I understand why such folks can find the Court to be two-faced in some areas, and maybe it really is. More likely, it is as I have said many times before, much more complicated than that.
* As Harcourt points out, none of the federal agencies responsible for dealing with prisoners use a blanket strip search policy and rely on individualized determinations of risk. Nonetheless, the Obama administration argued in favor of the decision the Court ultimately made. Another swing and a miss.