I appreciate the opportunity to comment on Timothy Sandefur’s essay. I always learn something from his writings. And I particularly appreciate, of course, the engagement with my own scholarship. With that politeness out of the way, let me get straight to the point and say up front that I agree with most of what Sandefur says here.
Yes, I agree. That might be surprising, given that the essay casts me as an antagonist. But the role doesn’t entirely fit, because I don’t quite subscribe to the views that Sandefur opposes. To put the point more precisely, with elaboration to follow, I agree that courts should enforce substantive constitutional provisions against the will of the majority. I just have a slightly different view of how best to go about this. That might be a good thing as far as this exchange goes (it’s nice to have agreement on fundamental principles) or it might be a bad thing (the devil in the details can be harder to exorcise). But let me try to explain.
Sandefur opens with a brief discussion of the concept of judicial activism, which he seems to understand as deciding cases so as to advance the judge’s political views. The definition is useful in a minor way, in that everyone can agree that it is bad, but useless in a more significant way, in that no one endorses it and people seldom agree on when it applies to particular decisions. He therefore moves on to the idea of judicial restraint.
It turns out, however, that restraint is just as opaque a concept. (For this reason, I would prefer to define activism vs. restraint in objective terms such as invalidating vs. upholding some government act.) Sandefur seems to use it to mean refusing to enforce a substantive constitutional provision on the grounds that courts should only supervise the mechanisms of the political process. In this guise, of course, it’s a bad thing. But it’s in many ways the mirror image of the unhelpful term “activism,” because no judges of whom I’m aware conceptualize their decisions this way, and no scholar of whom I’m aware advocates it.
What advocates of restraint generally tend to say is something more along the following lines. Many constitutional provisions are vague or unclear in their application. It can be hard to determine whether a particular law violates such provisions. Sometimes, this determination will turn on a question that political actors are better at answering than judges. (It might require, for instance, an assessment of military necessity, or the resolution of a complicated economic question, or the balancing of important societal interests.) In such cases, unless there is reason to doubt that the political actors have done their best to answer the question accurately, judges do best to defer, to strike down the law only if it is a clear and unmistakable violation of the constitution.
This is not quite the Dogma of Deference as Sandefur describes it. It is not based on the idea that democracy, rather than liberty, is our central value. As I have set it out (different and more complicated formulations are possible), it is just a means of maximizing the accuracy of judicial decisions. Nor, importantly, is it a Progressive invention. The basic idea of deference to other governmental actors on the grounds of institutional competence features prominently in the controversy over the Bank of the United States. Thomas Jefferson, advising President Washington, stated that he believed the Bank was unconstitutional. It did not follow that Washington should veto the bill: Jefferson noted that the veto should be used only in cases of clear unconstitutionality, or where the legislature had been led astray by “ambition or interest.” Otherwise, a “just respect for the wisdom of the legislature” should lead the President to sign the bill.
When the question (now about the Second Bank) reached the Court, in McCulloch v. Maryland, John Marshall’s opinion addressed two issues: whether Congress had the power to create the Bank, and whether Maryland had the power to tax it. With respect to the first question, he said, deference was appropriate: the issue was not one of “the great principles of liberty” but rather the boundaries between state and federal authority (“the respective powers of those who are equally the representatives of the people”). Whether Maryland could tax the Bank, however, was a different kind of question. Because the benefits of such a tax would go to Maryland residents while the burdens would fall primarily on out-of-staters, Marshall reasoned, there was no place for deference (“confidence that [the legislature] will not abuse [the power]”).
McCulloch, in my view, is an early paradigm of sound judicial decisionmaking. For each issue it confronts, it makes a choice about whether to defer or not, and it gives a reasonable explanation as to why it made the choice it did. (This makes it a much better opener for a constitutional law course than Marbury, which is judicial activism along many dimensions.)
What I think, then, is not that courts must police mechanisms of decision rather than enforcing constitutional principles. It is that they must have a good reason for the choice of aggressive or deferential judicial review. Courts should enforce substantive principles, but they should do so deferentially when other actors will do a better job of identifying and observing the constitutional limits on their powers. (Correlatively, they should do so aggressively when other actors will do a worse job.)
My real differences with Sandefur are probably about how aggressive baseline judicial review should be and about when departures from that baseline are warranted. Here again, there are areas of agreement. I too believe that judicial review is a crucial component of our separation of powers. Judicial review is more crucial than in the founders’ day, I would say, because the party system has eroded horizontal separation of powers (at least, when one party controls Congress and the presidency), and the 17th Amendment has weakened vertical separation of powers.
Still, I doubt that my baseline is as high as Sandefur’s, and I find myself unmoved by some of his arguments. The point that the Constitution creates a system of limited powers goes only so far, because that is true only of the federal government. State governments have the police power, and it is worth remembering that the founders’ Constitution put very few limits on what states could do to their own citizens. The Reconstruction Constitution did, of course, but pointing to Reconstruction gives with one hand and takes with the other, since the Reconstruction Amendments also expanded federal power and suggest greater deference to Congress. A high baseline of judicial review just shifts decisionmaking power to judges, and an attempt to justify that via a generalized distrust of politics rests on the questionable assumption that judges are somehow immune from that influence.
Another justification might be that excessive judicial review can only invalidate laws, so that it serves the ends of liberty anyway. That is true if fewer laws necessarily mean more liberty, but I doubt that. Some people might believe so because they believe that only the government can restrict liberty, but that premise, which is really a particular definition of liberty, strikes me as wrong. Surely the government enhances my liberty if it forbids other people from using their superior physical power to kidnap me and lock me in a room.
What about departures from the baseline, whatever it is? I think Sandefur would be happy with my account, or at least happier, if I expanded my view of the vulnerable groups needing protection so as to produce something like heightened scrutiny of rent-seeking economic legislation. I have some sympathy for this desire. I largely agree with Sandefur as to the meaning of the Due Process Clause, and I also agree that the current rational basis approach allows some unconstitutional laws to survive. But the question is not whether mistakes ever occur; it is whether higher scrutiny would be preferable, all things considered.
I doubt it. Judges are not significantly better than legislatures at deciding economic questions, so they will erroneously strike down some laws that should be upheld. That carries costs. Judicial decisions based on the Constitution are harder to undo than mistaken laws. (Congress corrected Ledbetter, as Sandefur notes, but that was an issue of statutory interpretation.) Mistakenly striking down laws may reduce liberty: I believe the government enhances my liberty, in much the same way as it does when it bans kidnapping, by forbidding other people from using their superior economic power to force me to consent to conditions of employment that include being locked inside a factory for 15 hours a day. Mistakenly upholding an economic regulation, on the other hand, may crush the dreams of aspiring barmaids or plumbers, and those people may lack political power as sorely as racial minorities. But it is far easier to exit the oppressed class, making judicial intervention less necessary. Last, I believe there are problems with identifying an appropriate baseline from which to measure rent-seeking or impermissible government favoritism.
In sum, if we understand the activism/restraint dilemma in terms of assertive versus deferential judicial review, it should be plain that neither is always appropriate. The question is when each should be used, and here people will differ. But this, perhaps, is a debate that can make progress.