As goes the Supreme Court, so goes the trajectory of American constitutional law—and partisans on both sides of the political aisle know it. It is therefore entirely unsurprising that the passing of Justice Antonin Scalia and President Barack Obama’s subsequent nomination of Judge Merrick Garland to the Court have given rise to a heated political conflict and produced no end of commentary and strategic advice from scholars and pundits.
But there has been little discussion of precisely what kind of approach Justice Scalia’s eventual replacement should take in constitutional cases. We hear of particular decisions that must either be preserved or overruled but virtually nothing about how the next Justice should evaluate assertions of government power. The silence concerning the latter subject is striking. The outcomes of many constitutional cases turn upon whether judges carefully scrutinize the evidence in the record, strive to identify the government’s true ends, and evaluate the constitutional propriety of those ends, or instead systematically defer to the government officials’ factual assertions and assurances that they are pursuing proper ends.
In this essay, I will argue that all Americans who believe that it is the function of the federal judiciary to “guard the Constitution and the rights of individuals” should insist that the next Justice be committed to a particular judicial approach. That approach is judicial engagement.
I will begin by identifying a constitutional duty that any proposed judicial approach must equip judges to discharge: the duty of independent judgment. I will go on to discuss historical attacks on independent judgment and corresponding calls for “judicial restraint,” understood as systematic judicial deference to the legislative and executive branches in constitutional cases, and detail how judicial restraint has failed to deliver constitutionally limited government. Finally, I will explain how judicial engagement can ensure that Americans receive the kind of adjudication that they expect and deserve in our courts of law.
“The Duty of the Power”: The Constitutional Duty of Independent Judgment
Article III’s textual commands to judges are sparse. The Constitution assumes that judges will bring an understanding of their constitutional duties to their office. “The judicial power” incorporates a rich conception of judicial duty that can be traced back through hundreds of years of Anglo-American jurisprudence.
As Professor Philip Hamburger has shown in his exhaustive historical study, Law and Judicial Duty, common law judges were understood to have a duty of independent judgment—a duty to independently interpret and give effect to what Chief Justice Edward Coke called the “artificial reason” of the law of the land. Judges were not to give way to external or internal will—that is, to beliefs or desires of government officials, or to judges’ own beliefs and desires that had no foundation in the law. In eighteenth-century America, this ideal of independent judgment had profoundly countermajoritarian implications. The principal threats to liberty during the founding era came from state legislatures and popular majorities that (as Hamburger puts it) “repeatedly threatened the freedom of various racial, religious, political, and propertied minorities.”
The establishment of a structurally independent federal judiciary, staffed by judges who were duty-bound to give effect to “[t]his Constitution” was not, as one scholar recently put it, a mere “afterthought.” When the Supreme Court in Marbury v. Madison (1803) declared the Judiciary Act of 1789 to be void, it was discharging a well-established duty of independent judgment. That duty is central to maintaining the rule of law that the Constitution is designed to establish and safeguarding individual rights that it is designed to secure.
The Progressive Assault on Independent Judgment and the Rise of Judicial Restraint
In the late nineteenth century, Harvard Professor James Bradley Thayer and a small collection of students initiated a vigorous attack on the ideal of independent judgment. These students would go on to become some of the most influential jurists and scholars in the nation’s history, including Oliver Wendell Holmes, Jr., Louis Brandeis, Learned Hand, and Alexander Bickel.
Thayer viewed the Constitution as pervasively indeterminate and constitutional law as largely the product of judges’ beliefs and desires—their will. As Hand would recount, Thayer taught that “most of constitutional law had been constructed out of circular propositions, which justified the predetermined attitudes of the judges.” What, then, should judges do? In an influential 1893 article, Thayer argued that judges should broadly defer to majoritarian will— that they should only strike down congressional statutes if their unconstitutionality is “so clear that it is not open to rational question.”
Such judicial restraint was attractive to progressives, who rejected the very concepts of limited government and individual rights as outmoded, and who had come to perceive the judiciary as an impediment to social and economic goals that they hoped to achieve through majoritarian politics. In his important book Rehabilitating Lochner, Professor David E. Bernstein documents how the Supreme Court of the late nineteenth and early twentieth century was far more deferential to economic regulations than conventional wisdom has long held. But the Court did make genuine efforts to determine whether regulations that burdened individual rights were actually designed to protect public health and safety, or served only to impose the mere will of the politically powerful. Such rights included the right to earn a living in the lawful occupation of one’s choice—a right that the Court (properly) deemed to be protected by the Fourteenth Amendment.
Lochner v. New York (1905) showcased the then-prevailing legal order and the critique that brought about the fall of that order. In Lochner, the Court held that a provision of New York’s Bakeshop Act that prohibited the employment of biscuit, cake, and bread bakers for more than ten hours in one day or sixty hours in one week arbitrarily deprived bakers and their employers of their “liberty of contract as well as of person.” Writing for the Court, Justice Rufus Peckham determined that there was “no reasonable foundation for holding [the hours provision] to be necessary or appropriate as a health law” and concluded that it was “in reality, passed from other motives.”
But it is Justice Oliver Wendell Holmes’ pithy, pungent dissent that everyone remembers. Holmes denied that the principle of “liberty of contract as well as of person” was embodied in the Constitution or even consistently enforced in the Court’s jurisprudence. He put forward an alternative principle: “[T]he word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles.” Thus did a version of Thayer’s “clear-error” rule make its way into the United States Reports.
Holmes’ dissent, widely celebrated by progressives, was the future. Eventually, the Court would adopt a posture of systematic judicial restraint in all cases involving “economic” regulations. A majority of justices came to believe that Holmes had been right about the Court’s jurisprudence. The Court did, however, carve out some ground on which to stand in the future. In a famous footnote (known today simply as “Footnote Four”) in the 1938 case of United States v. Carolene Products, the Court laid the foundation for what would become a defining feature of our jurisprudence—the framework of “tiered scrutiny,” according to which different standards of review are deployed in different constitutional contexts. While economic regulations would be presumed constitutional until proven otherwise, Footnote Four left open the possibility that legislation implicating rights that were specifically enumerated in the Bill of Rights, targeting “discrete or insular minorities,” or interfering with the political process might receive “more exacting judicial scrutiny” (today, “heightened scrutiny,” which requires the government to affirmatively demonstrate the constitutionality of its actions.)
The Warren Court: The Decline of Progressive Judicial Restraint and the Rise of Conservative Judicial Restraint
As Footnote Four suggested, progressives’ commitment to judicial restraint did not last. The political and jurisprudential career of Earl Warren, appointed Chief Justice of the Supreme Court in 1953, is illustrative. Warren’s jurisprudence was informed by his prior experience as an executive official in California, which taught him that progressives’ vision of (in the words of G. Edward White’s illuminating biography) “a beneficent government, staffed by nonpartisan experts” needed to be amended. Warren saw firsthand how much room there was for government officials to abuse their power, and his battles with the California legislature led him to become “a thoroughgoing skeptic about the representativeness or democratic character of the legislative forum.”
The cases with which Chief Justice Warren was soon confronted would confirm his experience and lead him to adopt a judicial approach that progressives once rejected. No case did more to forge Warren’s approach than Brown v. Board of Education (1954), in which the Court unanimously held racial segregation in public education to be unconstitutional. White explains that Brown led Warren to bring about a “return to a scrutinizing role for the courts that was of longer standing in American life than the role that Holmes helped to originate.” The Warren Court’s most famous cases primarily saw the Court carefully scrutinizing and invalidating assertions of government power. Many of these cases fell outside of the Footnote Four framework—among them, cases involving unenumerated “fundamental” rights like the right to marry, the right of married couples to use contraceptives, and the right to associate with others for lawful purposes.
The modern conservative legal movement was borne of opposition to the Warren Court’s jurisprudence. Conservatives charged that many of Court’s decisions were the product of the justices’ mere will rather than law. They adopted Holmes’ critique of the Lochner Court, and turned it against the Warren Court’s “judicial activism.”
Conservative restraint proponents did not attack the ideal of independent judgment free from will—they argued that the Warren Court was disregarding that ideal. But their proposed judicial approach differed scarcely, if at all, from that of the progressives. The Constitution, they contended, did not protect any unenumerated rights—thus, neither the right of married couples to use contraceptives nor the right to earn a living merited judicial enforcement. As Judge Robert Bork memorably put it, “in wide areas of life majorities are entitled to rule if they wish, simply because they are majorities” (emphasis added)—and outside of a few settings, judges who required government officials to offer more than majoritarian will to justify legislation were anathema.
Judicial Restraint in Practice: The Decline of the Rule of Law
Calls for judicial restraint have demonstrably failed to produce constitutionally constrained government. By requiring judges to abdicate their duty of independent judgment, judicial restraint prevents the judiciary from maintaining the rule of law.
For every governmental depredation of which conservatives rightly complain, one can point to a doctrine that tips the judicial scales in the direction of government officials’ mere will. Consider “Chevron deference,” which requires judges to defer to federal executive agencies’ interpretations of congressional statutes when agency officials write and enforce regulations pursuant to the statutes unless those interpretations are “unreasonable.” There is also “Auer deference,” a doctrine which commands sweeping judicial deference to agencies’ interpretations of regulations that they write and enforce. Consider also the modern rational basis test, the standard of review that is used to evaluate all government burdens that do not implicate one of a handful of rights that the Supreme Court has deemed “fundamental.” In FCC v. Beach Communications (1993), the Court stated that challengers in rational basis cases must “negative every conceivable basis which might support [the government’s actions]”—a logically impossible feat. Rational basis review has led the Supreme Court and lower courts to uphold patently protectionist restrictions on everything from pushcart food vending to floristry to teeth-whitening. It even led the Court to approve the bulldozing of an entire working-class neighborhood by a private corporation, exercising the government’s power of eminent domain, for so-called “economic development” in the infamous case of Kelo v. New London (2005).
Few decisions illustrate judicial restraint’s failure to restrain government as vividly as did NFIB v. Sebelius, the 2012 decision in which the Court upheld the Affordable Care Act’s individual mandate to purchase government-approved health insurance. Chief Justice John Roberts cast the deciding vote and wrote the opinion for a fractured Court, determining that the individual mandate was definitely not authorized by the Commerce Clause but could be construed as a tax authorized by Congress’ taxing power—even though the mandate is referred to some 18 times as a “penalty” in the text of the ACA. Roberts’ reasoning was the product of his commitment to restraint—he understood himself to be obliged to adopt any “fairly possible” interpretation that would “save [the statute] from unconstitutionality.” Judicial restraint thus facilitated the greatest expansion of federal power since the New Deal.
Liberals too have reason to reject judicial restraint. All of the concerns about majoritarian politics that led the Warren Court to reject restraint still apply today. Further, a growing body of public choice scholarship has shown that legislation does not even reliably embody majoritarian preferences—it often embodies only the preferences of politically powerful special interests. Finally, majoritarian politics cannot protect criminal defendants or victims of injuries by law enforcement officers. For the latter, judicial deference is a recipe for rights-violations without effective recourse. Consider the impact of the Court-fashioned doctrine of qualified immunity, which insulates government officials from civil liability for constitutional and statutory violations unless their actions violate “clearly established” law. Qualified immunity has become an almost insuperable bar to civil liability for all but the most egregious and incompetent official misconduct. The result: a status quo of constitutional rights without remedies.
Judicial Engagement: A Call to Judicial Duty
Few have discussed in any great detail what the next Justice should do. But what judges are doing in a number of important areas of law is profoundly troubling. The next Justice will be in a position to either ensure that we have more of the same or to challenge the status quo and point the way towards a different approach.
The judicial approach that I advocate is called judicial engagement. As defined and defended by my colleague at the Institute for Justice, constitutional litigator Clark Neily, in his book Terms of Engagement, judicial engagement consists of a genuinely impartial effort to assess the constitutional propriety of the government’s true ends and means in light of evidence in the record. It provides that the government must bear the burden of producing evidence and must articulate a reason for its actions when those actions are challenged in court. Judges must determine whether the government’s actions are in fact calculated to achieve a constitutionally proper end of government.
The text of the Constitution does not command any particular degree of judicial deference. Judicial engagement is a constitutional construction that does not contradict the text and is consistent with a central function (at common law and in the early American republic, the “spirit”) of Article III—ensuring that those burdened by governmental actions that they believe to be unlawful have access to a neutral forum in which government power is measured against the law of the land. Judicial engagement treats both parties as presumptive equals, recognizes that one party is seeking to impose its will upon the other, and requires the party seeking to impose its will upon the other to offer evidence and a reason that justifies its actions. Any deference to mere will would require a departure from the duty of independent judgment—judicial engagement ensures, to the extent possible, that mere will does not sway judgment.
We know that such engagement is possible. Engagement takes place routinely in cases in which judges apply heightened scrutiny, whether intermediate or strict. We occasionally find the hallmarks of engagement even in cases in which the Court has said that it is applying the rational basis test. For example, in City of Cleburne v. Cleburne Living Center (1985), the Court held to be irrational and therefore unconstitutional a decision by a city government to deny a permit for a group home for the mentally disabled. The Court in Cleburne independently evaluated the evidence and rejected asserted purposes that were implausible in light of that evidence, ultimately finding that only “irrational prejudice” could explain the decision. (For example, the Court found the asserted purpose of “avoiding concentration of population and… lessening congestion of the streets” to be implausible because “apartment houses, fraternity and sorority houses, hospitals and the like, [could] freely locate in the area without a permit.”)
The questions of what rights are protected by the Constitution and what reasons are constitutionally proper are hotly contested. But there is substantial agreement that genuine constitutional rights should be enforced, and that judges should distinguish constitutionally proper from constitutionally improper reasons for burdening people’s rights or treating them differently. Liberals have celebrated recent decisions in which the Supreme Court and lower courts have invalidated regulations of abortion clinics and voter-ID laws, precisely because they believe that judges in those cases engaged in fact-sensitive review and careful means-ends analysis. Conservatives have criticized the Supreme Court for declining to review a Ninth Circuit Court of Appeals decision upholding Washington state regulations that require pharmacists and pharmacies to dispense emergency contraceptives, precisely because they believe that the court below brushed aside evidence that the state deliberately singled out religious conduct. Neither liberals nor conservatives want judges taking government officials’ factual assertions at face value and failing to identify and evaluate the government’s true ends when the Constitution is actually implicated—nor should they.
Defending Reason’s Republic
The partisanship that has dominated the debate over Justice Scalia’s replacement has been dispiriting if predictable. But we must not allow that partisanship to obscure a fundamental question that has yet to be sufficiently explored: How should the next Justice adjudicate? Article III promises a means through which ordinary Americans can put government power to the test of the principles of reason in our law. To the extent that Americans who stand to lose their liberty, their property, their livelihoods, or even their lives are denied adjudication that is driven by independent judgment rather than will, they do not live under a government of laws but of men—and their rights are insecure. For the sake of the rule of law, the next Justice must be prepared to engage.