The Supreme Court’s recent rescue of a key federal agency from the hands of hostile lower courts was an attempt to demonstrate the evolving definition of principle.
Justice Clarence Thomas, writing for a stunningly biased seven-member majority, unearthed precedent for the funding mechanism Congress chose for the Consumer Financial Protection Bureau that stretches deep into the nation’s colonial history. Justice Thomas concluded that the mechanism the Fifth Circuit found unconstitutional was clearly known to and accepted by the Framers of the Constitution.
Justice Elena Kagan wrote a concurring opinion saying that while the ancient history is enlightening and sufficient to support the agency’s constitutionality, modern practice also supports it. “All of the flexibility and diversity that was evident in the founding period,” she wrote, “continues unabated” when it comes to financing government operations.
Notably, the Supreme Court’s two most conservative Justices, Justices Brett Kavanaugh and Amy Coney Barrett, and Justice Sonia Sotomayor, joined Justice Kagan in supporting the importance of later and even contemporary practice in constitutional interpretation. True “fundamentalists” would dismiss such evidence as irrelevant and argue that what matters is what the Framers did and how people at the time understood those actions. (The two dissenting Justices were Justices Samuel Alito and Neil Gorsuch.)
This is a very interesting development, and very significant if it means that pure principlinism, invented in conservative think tanks in the 1970s and championed by justices like Robert Bork and Antonin Scalia, is no longer the only interpretive game conservative justices can play. The theme of principlinism was a focus of much of the commentary on the Consumer Financial Protection Bureau v. American Community Financial Services Association decision.
But what intrigued me most was another opinion in the case, one that didn’t touch on principle at all. It was by a junior judge on the court, Ketanji Brown Jackson, and it was only five paragraphs long.
To understand Judge Jackson’s actions, a little background is needed. While most federal agencies rely on annual appropriations, Congress created the CFPB differently to protect it from political pressure. Up to a specified limit, the bureau draws its expenditure funds directly from the Federal Reserve. It does not have to rely on Congress’s approval of its annual budget requests. In a Fifth Circuit decision that was overturned by the Supreme Court, a three-judge panel appointed by President Trump declared that the Appropriations Clause of the Constitution does not permit Congress to “cede fiscal power” in this way. According to the panel, the bureau’s funding mechanism violates the Constitution’s separation of powers.
Rejecting this analysis, Justice Thomas wrote that the nation’s “pre-Founding history supports the conclusion that valid appropriations require only a specific source and purpose.” He noted that “under the Appropriations Clause, an appropriation is simply a law authorizing the expenditure of funds from a specified source for a specified purpose.”
That simple definition settled the case, according to Justice Jackson: “In my view, nothing more is necessary,” she wrote. Then she turned to the deeper question of whether federal courts should intervene in these types of disputes: “An important aspect of the survival of the Constitution is that it empowers the political branches to meet new challenges by enacting new laws and policies without undue interference by the courts.”
Judge Jackson continued that the separation of powers argument actually works the other way: Trade groups representing payday loan companies that challenged the bureau’s constitutionality “are seeking to undermine the department’s considered judgment about how to respond to a pressing national problem.”
Her brief opinion deserves more attention than it has received. Justice Jackson, a liberal, is seeking something conservatives once desired: judicial self-restraint. This case is one of several challenges to modern government administration that the justices will decide by the end of their current term. One of them asks the court to reject a 40-year-old principle known as Chevron deference, which requires judges to follow an executive branch’s policy choices as long as they are within the branch’s statutory authority. Chevron deference is essentially a policy of judicial self-restraint, or even judicial humility. While the principle was once embraced by conservatives on and off the court, sitting conservative justices are impatient to see it abolished, eager to avoid tying judges’ hands in confronting the administrative state.
In his ruling, Justice Jackson cited the 90-year-old case of Nebbia v. New York, which upheld a New York law that regulated minimum retail prices for milk. Justice Owen Roberts’ majority opinion was a tribute to judicial humility: “Considering the wisdom of the policy adopted, or the propriety or practicability of the laws enacted to further it, the Court is powerless and unable to address itself,” he wrote in the passage Jackson cited. The vote was 5-4 in favor of economic regulation, an anomaly for a conservative court that would soon contend with the regulatory aspects of President Franklin D. Roosevelt’s New Deal.
There are many other familiar expressions of judicial restraint that Justice Jackson could have chosen. I don’t know why she chose this one, but I like to think she shared my concern about the breakdown of the settlement that had emerged from President Roosevelt’s battle with the Supreme Court. Having glared at the president’s “court expansion” plans and newly agreed to uphold the New Deal, the justices made a deal with the American people: to quote a famous footnote in the 1938 decision, United States v. Caroline Products, Inc., “we cease to question the choices made by the political branches as to the fundamental economic institutions of the nation, and we reserve the strictest judicial review for legislation affecting the welfare of members of an ‘isolated and isolated minority.'”
This approach, which held for half a century, succumbed to political realities as the courts became filled with anti-regulation judges and the social consensus about which groups constituted minorities that needed special judicial protections evaporated. Is that group defined as heterosexual, white, Christian men? Some people, even some judges, might think so.
Justice Jackson, while concurring with Justice Thomas’ majority opinion, wrote only for herself. I understand why she did so: the other justices in the majority at the time were not interested in judicial restraint. But I see her brief, understated opinion as a call to reflection not only on the lessons of the past but also on the needs of the present.
Linda Greenhouse, a 1998 Pulitzer Prize winner, covered the Supreme Court for The Times from 1978 to 2008 and was a contributing opinion writer from 2009 to 2021.
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