Day 2—Judicial Abdication Is a Bigger Problem Than Judicial Activism

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 — altogether the Court invalidates about three out of every 5,000 laws passed by Congress and state legislatures every year.

As Professor Adler and others pointed out, it is difficult to objectively measure the Supreme Court’s activity in this fashion. But the point of the Government Unchecked report was not to establish an affirmative position regarding so-called “judicial activism”; rather, the point was to evaluate the assertion, advanced by Senator Specter and others, that the Supreme Court is systematically thwarting Congress’s legitimate policymaking efforts. The report found that in comparison to the vast quantity of laws passed, the Court is not “eating Congress’s lunch.” It is barely sweeping up the crumbs.

Being human and therefore imperfect, legislatures and administrative agencies are going to enact a certain amount of unconstitutional regulation. A properly functioning judiciary should therefore have a strike-down rate greater than zero. It seems reasonable to ask those who make generalized accusations of “judicial activism” to explain why they are so sure that, on balance, courts are striking down more enactments than are actually unconstitutional — or, if that is not their claim, then to say so explicitly and confine their accusations of “judicial activism” to specific cases, which very few of them do.

Consistent with these empirically unsubstantiated claims of widespread activism, there appears to be a growing consensus among constitutional elites on both the left and the right that the proper mindset for judges is one of default restraint, meaning strong reluctance to strike down government action absent a crystal-clear textual basis for doing so. Because constitutions do not — indeed, cannot — speak with perfect clarity on every important subject, that approach will inevitably create what amounts to a one-way ratchet in favor of more government power. I believe this constitutes judicial abdication.

Specific instances of judicial abdication abound, and I would include as particularly clear examples the Supreme Court’s interpretations of Congress’s Commerce-Clause power in Wickard and Raich; Home Building & Loan Ass’n v. Blaisdell, which reduced the Contracts Clause to a practical nullity; Kelo v. City of New London (argued by my colleague Scott Bullock), which did the same for the public use provision of the Fifth Amendment; and of course the Slaughter-House Cases, which essentially deleted the Privileges or Immunities Clause from the Fourteenth Amendment and held that the Amendment itself effected no meaningful change in the balance of power between the states and the federal government with respect to the enforcement of civil rights — a holding that, as several of my colleagues and I explain in this new Center for Judicial Engagement video, was self-evidently wrong at the time and continues to warp the Court’s Fourteenth Amendment jurisprudence to this day.

Thomas Jefferson warned that “the natural progress of things is for liberty to yield, and government to gain ground.” It was not a casual observation. But somewhere along the way, our courts seem to have stopped heeding it.

UPDATE: I meant to include this link to a podcast recorded by my colleague Steve Simpson and I in which we discuss the Government Unchecked study and respond to various criticisms.