Judicial Engagement or Judicial Tyranny?
By Eric Segall
Last Thursday, George Will wrote yet another op-ed advocating that non-elected, life tenured judges play a stronger role in protecting individual liberty (read that as economic liberty), and that this issue should be used by the GOP both in the next presidential campaign and to appoint the next Supreme Court Justice. This argument, against the judicial restraint philosophy advocated by Robert Bork and Ed Meese circa 1980, has been given deep scholarly meaning by Professors Richard Epstein of NYU and Professor Randy Barnett of Georgetown, two of this country’s most intelligent and deep-thinking legal academics. Both of these men have written scores of articles and books arguing that our Constitution, properly understood, as well as society’s current best interests, lie in judges strongly enforcing a libertarian conception of government power where minimum wage laws, union protections, and even non-discrimination laws are inherently suspect. They have been joined by right-wing think tanks like the Cato Institute and the Heritage Foundation as well as by top notch litigators like Clark Neilly, whose book “Judicial Engagement” is a call to arms for judges to seriously question much economic legislation. In addition, Evan Bernick has written thoughtfully in favor of strong judicial engagement at the Huffington Post. Against all of this is nary a word from liberal academics and pundits, though old-guard conservative Ed Whelan is trying hard to block this call for aggressive judicial review by reminding folks about the dangers of allocating more power to government officials we do not elect and cannot vote out of office.
Last Thursday, George Will wrote yet another op-ed advocating that non-elected, life tenured judges play a stronger role in protecting individual liberty (read that as economic liberty), and that this issue should be used by the GOP both in the next presidential campaign and to appoint the next Supreme Court Justice. This argument, against the judicial restraint philosophy advocated by Robert Bork and Ed Meese circa 1980, has been given deep scholarly meaning by Professors Richard Epstein of NYU and Professor Randy Barnett of Georgetown, two of this country’s most intelligent and deep-thinking legal academics. Both of these men have written scores of articles and books arguing that our Constitution, properly understood, as well as society’s current best interests, lie in judges strongly enforcing a libertarian conception of government power where minimum wage laws, union protections, and even non-discrimination laws are inherently suspect. They have been joined by right-wing think tanks like the Cato Institute and the Heritage Foundation as well as by top notch litigators like Clark Neilly, whose book “Judicial Engagement” is a call to arms for judges to seriously question much economic legislation. In addition, Evan Bernick has written thoughtfully in favor of strong judicial engagement at the Huffington Post. Against all of this is nary a word from liberal academics and pundits, though old-guard conservative Ed Whelan is trying hard to block this call for aggressive judicial review by reminding folks about the dangers of allocating more power to government officials we do not elect and cannot vote out of office.
The history of strong judicial review of economic legislation
is not a pretty one. Starting in the early 1900’s the Court began striking down
laws relating to mild progressive efforts to protect workers, wages, and unions.
Over 200 such laws were struck down by the Supreme Court from 1900-1936, and of
course many more by lower court judges. This torrent of strong judicial review
ended with the New Deal, FDR’s Court-packing plan, and the realization by most academics that the line between pure rent seeking and
monopolistic efforts, on the one hand, and legitimate government regulation, on the other, is too fine to be
trusted to lawyers and judges. As Holmes said in the first few lines of his
famous dissent
in the Lochner decision overturning a
maximum-hour law for New York bakers: “This case is decided upon an economic
theory which a large part of the country does not entertain. If it were a
question whether I agreed with that theory, I should desire to study it further
and long before making up my mind. But I do not conceive that to be my duty,
because I strongly believe that my agreement or disagreement has nothing to do
with the right of a majority to embody their opinions in law.”
Justice Holmes’ answer to his brethren in Lochner is persuasive and underlies
where Whelan, federal judge Harvey Wilkinson, and progressive liberals like
Mark Tushnet and yours truly all center our arguments. Whereas Randy Barnett
and Richard Epstein believe passionately and sincerely that we would all be
better off with strong judicial protection of economic rights, I think our
society would be much worse without egalitarian protections for the poor and
for workers everywhere. Moreover, I think reproductive freedom is perhaps our
most important personal right, given both the bodily integrity interests involved
and the dramatic social and economic consequences of unplanned pregnancies. Who
is right and who is wrong? I say let the
voters decide whereas Barnett and Epstein want judges to strongly enforce their
vision of the right and the good.
Both Epstein and Barnett position their sophisticated analysis in the context of historical arguments about the original Constitution. But,
this is 2015, not 1787 nor even 1868, and the history is contested enough and the
text vague enough where arguments about what our Constitution really
“means,” are silly. We should have a country that works for us today.
We know what happened the last time judges felt free to second guess normal economic legislation and the results were court packing plans and undue judicial interference with presidential and congressional efforts to address the worst economic depression in our history. No wonder generations of law students have been taught the dangers of returning to that kind of system of judicial review.
We know what happened the last time judges felt free to second guess normal economic legislation and the results were court packing plans and undue judicial interference with presidential and congressional efforts to address the worst economic depression in our history. No wonder generations of law students have been taught the dangers of returning to that kind of system of judicial review.
The other strategy used by the new “judicial engagement”
advocates is to find a few uncommonly silly rent seeking laws passed by state
legislatures clearly for the benefit of special interest folks (with the aid of
course of aggressive judicial review campaign finance decisions by the Supreme
Court), and argue these laws should not be rubber stamped by federal judges
under the rubric of an overly deferential rational basis test for economic
legislation. But, as George Will favorite
Justice Don Willett of the Texas Supreme Court implied strongly in a well thought
out and balanced discussion of these issues, state Constitutions and state judges
are up to the task of policing the boundary between legitimate regulation and
overt rent seeking. We as a society do not need the federal judiciary to play
that role.
Virtually all state judges stand for re-election from time to
time, and most of the terrible laws cited by the judicial engagement folks are
local in nature. The best answer is to allow state judges to decide what is
valid and what is not when local legislatures enact statutes at the behest of
local rent seekers. In fact, Justice Willett’s fine opinion came in a
case involving a silly Texas licensing law that elected judges in Texas correctly
rejected under the Texas Constitution. If that decision is wrong it can be
corrected by the people of Texas. There is no reason to insert federal judges
into this kind of controversy but much danger when unelected and life tenured
judges base decisions on the virtually unamendable federal Constitution.
But of course, overturning silly state laws is not the real
agenda of constitutional heavyweights Epstein and Barnett. They want existing federal protections for workers, minorities, and the poor to be overturned by federal judges. I am
not an economist nor do I pretend to know whether this strong libertarian perspective
would be a cure or an epidemic. But I am an expert on constitutional law and
the Supreme Court. And I know that Holmes was correct. Our Constitution should not
be interpreted by the federal judiciary to be libertarian or socialist or to
put in place one unwavering economic theory. The Constitution, in the words of Chief
Justice John Marshall, is a broad blueprint designed for the ages. It is
emphatically not a license for unelected judges to replace the reasonable but
contestable value judgments of more accountable leaders with those of
life-tenured government (and federal) lawyers.
Unlike Barnett and Epstein, I don’t want my value judgments
imposed as law by federal judges. I am decidedly pro-choice, and I also like the
one person, one vote rule announced by the Warren Court in 1964. But, I also
know reasonable people can disagree with both value judgments and that the Constitution
is silent on both issues. I wish I had a constitutional theory that would allow me to argue honestly that my view of the Constitution is correct or at least better than my friend Randy's. But, many liberals have tried and I remain unconvinced their arguments amount to anything more than "my values are better than yours."
I hold strong political values, but I am humble about imposing them on the voters against their will. Absent complete irrationality, or clear inconsistency with constitutional text or uncontested history, federal judges (and legal academics and pundits) should be humble as well.
I hold strong political values, but I am humble about imposing them on the voters against their will. Absent complete irrationality, or clear inconsistency with constitutional text or uncontested history, federal judges (and legal academics and pundits) should be humble as well.