Author Archive | Clark Neily (Institute for Justice), guest-blogging

Last fall I wrote a series of posts explaining the Institute for Justice’s call for “judicial engagement” and the rejection of reflexive deference toward other branches of government. Eugene kindly invited me back for a follow-up in light of recent events that underscore the importance of judicial engagement.

The first, of course, is last week’s arguments over the healthcare law and the avalanche of commentary it spawned, culminating in the Fifth Circuit’s demand that DOJ provide a written statement of its position on judicial review in light of the president’s suggestion that it would be an “unprecedented” act of judicial will for the Supreme Court to strike down the Affordable Care Act.

Rather than focusing on the merits of the case, much of the commentary has suggested that courts have no legitimate role in reviewing the healthcare law at all. Thus, without so much as a nod to any of the substantive legal arguments, Maureen Dowd claimed the Supreme Court “has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.” Similarly, anticipating a defeat for the ACA, E.J. Dionne predicted “a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws.”

Given the substantial doubts raised about the constitutionality of the healthcare law during last week’s arguments, the subtext of those scathing criticisms — which are by no means exceptional — must be that courts have no legitimate role subjecting congressional enactments to meaningful judicial review. Rubberstamp review of the kind applied in Wickard, Raich, Kelo, and post-New-Deal economic liberty cases, yes — but not meaningful review. That certainly appears [...]

The key question posed by the Institute for Justice’s call for judicial engagement is not whether everyone can agree on a single theory of the Constitution, but whether we should insist that judges make a sincere effort to interpret and apply the Constitution in all cases.

It appears most people believe there are at least some unenumerated constitutional rights that courts should protect, including the right to travel, to marry outside one’s own race, to conceive and raise one’s own children, and perhaps to support oneself through work. In any given case, the government may be seeking to advance legitimate ends or illegitimate ends. A properly engaged judge makes a sincere effort to tell the difference in all constitutional cases.

For example, if you believe someone has an unenumerated constitutional right not to be forcibly sterilized at the whim of democratic majorities — as Carrie Buck was along with thousands of other women following the Supreme Court’s infamous decision in Buck v. Bell, 274 U.S. 200 (1927) — then it matters a great deal whether courts apply a sincere or an insincere standard of review. If the government claims, without evidence, that the sterilization is necessary to protect the life of the woman because she is non compos mentis and physically unable to endure a pregnancy, should a court accept that assertion at face value even in the face of evidence that the government’s true (and illegitimate) objective is eugenic, as it was in Buck v. Bell? That’s precisely what the rational basis test tells judges to do, and hopefully we can agree that the right not to be forcibly sterilized for improper purposes would be a cruel hoax if it were subject only to rational basis review.

The same is true of other constitutional rights, whether enumerated [...]

As discussed in my first two posts, the Institute for Justice coined the term “judicial engagement” out of our conviction that judges are not properly enforcing constitutional limits on government power. This is not merely a disagreement with particular interpretations or results, but rather a belief on our part that in many settings — including, for example, rational basis review — judges are not actually judging, but are instead going through the motions of judging in order to reach an essentially preordained outcome favoring the exercise of government power.

There are three main alternatives to judicial engagement, and I find all of them unworkable.

The first and most popular approach is to simply embrace the status quo, with courts providing conscientious, fact-based review of government action in some cases, and an ends-oriented, rubber-stamp simulacra of “review” in others. As noted in yesterday’s post, the Supreme Court has effectively deleted an array of power-limiting provisions from the Constitution — including the Privileges or Immunities Clause, the Contracts Clause, the public use provision of the Fifth Amendment, and any real semblance of enumerated federal powers. I do not believe those results represent defensible interpretations of the Constitution, and a jurisprudence that embraces them seems to me self-evidently defective.

The second proposal is to amend the Constitution, an idea that generated much enthusiasm among participants on the “Enumerated Powers, Tenth Amendment, and Limited Government” panel at last year’s National Lawyers Convention of the Federalist Society. The basic problem with this approach is that there appears to be no way to phrase a government-limiting constitutional amendment of general applicability with sufficient clarity to prevent proponents of judicial restraint from eventually substituting their own preference for majoritarianism, as I believe they have done in the areas listed in the preceding paragraph.

For example, after a [...]

As I noted yesterday, the Institute for Justice created the Center for Judicial Engagement in response to our belief that America has more government today than the Constitution authorizes and that courts are systematically failing to enforce constitutional limits on government power. A significant factor in that underenforcement may well be the drumbeat accusations of “judicial activism” emanating from the right and the left, often unconnected with any specific court ruling.

Broadly speaking, judges can make two types of errors in exercising judicial review: incorrectly forbidding that which the Constitution permits, and incorrectly approving that which the Constitution forbids. The debate over judicial engagement versus judicial restraint is largely about which direction courts should err in.

Those who favor restraint often accuse the courts of “judicial activism,” a nebulous epithet that packs a powerful rhetorical punch with very little content. For example, Arlen Specter famously claimed the Supreme Court “has been eating Congress’s lunch by invalidating legislation with judicial activism.” But he identified no specific cases and appears instead to have been making an essentially quantitative assertion: namely, that the Supreme Court inappropriately strikes down legislation with such frequency as to impair the legitimate policymaking efforts of Congress.

The Institute for Justice’s Center for Judicial Engagement sought to evaluate that claim by comparing the total number of laws and regulations enacted over the past several decades with the total number struck down by the Supreme Court. As documented in the “Government Unchecked” study about which Jonathan Adler posted here two weeks ago, the data do not support Senator Specter’s claim. To the contrary, the Supreme Court very rarely invalidates legislation or agency regulations: about 0.6 percent of all federal laws are struck down; 0.5 percent of federal regulations; and 0.05 percent of all state laws — [...]

First, I’d like to thank Eugene for the opportunity to guest-blog about judicial engagement this week.

The Institute for Justice coined the term “judicial engagement” (and created the Center for Judicial Engagement) out of our conviction that America has more government than the Constitution authorizes and that this is largely due to the failure of our courts to properly enforce constitutional limits on government power. In calling for judicial engagement, we are simply asking judges to actually judge the constitutionality of government action in all constitutional cases. What does that entail?

In cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them. And, as Judge Sykes recently explained in analogizing the Second Amendment right to keep and bear arms to the First Amendment right of free expression in Ezell v. City of Chicago, “the government must supply actual, reliable evidence to justify” its restrictions. 2011 U.S. App. LEXIS 14108, *62 (7th Cir. July 6, 2011).

While reasonable minds may differ about whether it is possible to identify the government’s “true” ends or determine whether there is an appropriate “fit” between ends and means, the fact remains that courts routinely assume both inquiries are not only possible but essential in protecting key constitutional values. Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis [...]