It’s nice to see that Timothy Sandefur and I do disagree on some things. Again, though, I see the disagreements a bit differently than he does. Let me start with the distinction between aggressive and deferential judicial review, because this is a theoretical point that really does matter. Our legal system imposes different burdens on particular actors in particular contexts. To win a civil trial, for instance, you need to prove your case by a preponderance of the evidence. To put someone in jail, by contrast, the government needs to prove guilt beyond a reasonable doubt. To sustain agency decisionmaking, for another example, the government often need only demonstrate that some evidence supports the agency’s action.
The difference between aggressive and deferential judicial review is similar. In some cases, courts will start with a presumption that a given law is constitutional and strike it down only if the individual challenging it can show that it is not rationally related to any legitimate government purpose. In others, they will start with a presumption that the law is unconstitutional, and uphold it only if the government can show that it is necessary to serve a compelling interest. These different tests are not a result of different constitutional provisions—both the tests just mentioned are used to implement the Equal Protection Clause, for instance—but rather a result of how willing the court is to trust the judgment of the legislature or other government actor.
And here is where Sandefur seems to think our difference lies. He believes that “our checks and balances system does not vest any branch of government with the power to determine independently what constitutional limits restrain their own powers.” But of course I believe that too. So what is the difference? If there is one, it is that I believe our Constitution imposes on every government actor a duty not to knowingly violate it. A legislator violates that duty, I believe, by voting for a bill she believes is unconstitutional. If Sandefur shares this belief—and I would be astonished if he does not—then we agree that conscientious legislatures must make a determination as to the constitutionality of bills they pass. And then the question is what weight that determination should have when the question of constitutionality reaches the courts. Sandefur’s answer seems to be, consistently, that it should have no weight at all. But unless we think that legislatures never honestly try to decide whether their bills are constitutional, or that they are never any better at it than judges, there are surely cases in which giving some weight to a legislative determination will enhance the accuracy of judicial decisionmaking. (And if we do think that our legislatures are so corrupt, why should we have so much faith in judges?)
A court that chooses rational basis review is expressing its trust of the government actor whose conduct it is reviewing. It is not “shrugging at the Constitution’s language”; it is enforcing that language as best it knows how. Rational basis review generally upholds government acts, but not always. It has struck down discrimination on the basis of mental disability and sexual orientation, and also, before the Supreme Court adopted a higher standard of scrutiny, sex discrimination. It tends to uphold economic discrimination, but again, not always—unless Sandefur thinks that his victory in Bruner was based on a mistaken application of the law. Indeed, Bruner seems to be rather strong evidence that Sandefur’s complaints about deference are overstated—courts applying deferential review do still strike down laws supported by nothing more than “lame excuses” and “pseudo-intellectual econo-speak.” The Sixth Circuit has held, in fact, that “protecting a discrete interest group from economic competition is not a legitimate governmental purpose,” which I would think Sandefur finds a relatively congenial principle.
Is Kelo perhaps a better example of the tyranny of deference? I don’t think so, but then again, I see Kelo somewhat differently than Sandefur does. He seems to think that the word “public” in “public use” means something like “the general public”—i.e., a large number of private individuals as distinct from a particular single private individual. I don’t read it that way, and, importantly, neither did the Supreme Court. (Indeed, the majority noted that this reading had been rejected for about a century.) They thought, and I agree, that it meant the government, rather than a private individual. In Kelo, the government took private property via its power of eminent domain and then used it by including it in a development plan that was supposed to create local jobs, increase tax revenue, and revitalize an economically distressed city. Yes, the plan was going to be executed by a private developer, but making the plan happen is use by the government, i.e., public use. We can argue about which reading (general public vs. government) is correct, but that’s a question of interpreting a particular constitutional phrase—it has nothing to do with deference. The Kelo Court did not say it would allow the legislature to decide what constitutes a public use.
But if public use just means use by the government, where does the “public purpose” limit that Kelo enforced come from? The Due Process Clause, which has long been interpreted to require that government action pursue a public purpose or serve the public interest. And here is where the issue of deference enters Kelo: who is better at deciding what serves the public interest, judges or legislatures? I think there are good reasons to pick legislatures on this issue, and consequently good reasons to defer. That is what the Court did.
This deference is not a rubber stamp, as Bruner shows, and Justice Kennedy’s concurrence identified some factors that would lead to closer review—suggestions that the taking was based on “impermissible favoritism to private parties.” That accusation, he noted, had been raised and seriously considered in a “careful and extensive inquiry” by the trial court—which, again, is hardly allowing the legislature to decide what counts as a public use.
Sandefur’s very success in Bruner suggests to me that the picture is not as dire as he suggests—that, in fact, his description of the Dogma of Deference misstates what scholars actually advocate and courts actually do.