The Name Game

Evan Bernick’s interesting essay describes, and also contributes to, the oscillating path that rhetoric about the Supreme Court has taken over the last century. In the first third of the twentieth century, when the Court was often hostile to social welfare and regulatory legislation, progressives were advocates of “judicial restraint.” Toward the middle of the century, when the Court attacked racial segregation and expanded civil liberties and the rights of criminal defendants, it was the conservatives who called for restraint and accused the Court of “judicial activism.” Liberals often celebrated the Supreme Court, and judges generally, as voices of principle and reason. When the Court turned conservative again, in the 1970s and after, liberals stopped being so enamored of judges, but conservatives began to think that maybe judges aren’t so bad after all. And now, since “activism” is a dirty word, from the libertarian conservative side we have: “judicial engagement.”

There’s a fallacy that crops up in all of these discussions. It’s sometimes called the “Nirvana fallacy,” although that seems like an odd term. Advocates of free markets are familiar with this fallacy in a different context: it’s what happens when someone identifies a market failure and then asserts, without further argument, that government intervention is justified because the government will correct the failure. The fallacy is to compare the messy, real-life version of one institution with an ideal version of its competitor. In the example I just gave, the contrast is between a real-world market and an idealized version of the government, not a government that is subject to incomplete information, interest group pressures, and the like, and that therefore might fail to correct the deficiencies of the market or even make things worse. The fallacy often goes in the other direction too: people argue against regulation by saying (fairly) that the government is flawed, but then just assume that the market is free of serious imperfections and don’t entertain the possibility that even regulation by a flawed government might make things better.

Bernick, I fear, commits this fallacy in his treatment of courts and judges. He is well aware of how the political process can go awry, but he implicitly treats all judges as paragons of their profession. Judges, he suggests, should “carefully scrutinize the evidence in the record, strive to identify the government’s true ends, and evaluate the constitutional propriety of those ends.” 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.” Courts should be “a neutral forum in which government power is measured against the law of the land.” “[G]enuine constitutional rights should be enforced, and … judges should distinguish constitutionally proper from constitutionally improper reasons for burdening people’s rights or treating them differently.”

As a prescription for an all-knowing, all-wise judiciary, these ideas sound great. But, to state the obvious, judges might mess up, in good faith or bad. They might misapprehend “the government’s true ends.” They might be mistaken about what rights the Constitution actually protects. They might be wrong about what the constitutionally proper objectives of government are. Their decisions might be unduly affected by their own experiences or commitments. Stranger things have happened.

Even if the judges themselves are paragons, the judicial process has characteristic weaknesses. Courts are passive institutions; they depend on the parties to bring lawsuits and to make the appropriate arguments. Bernick talks about how interest groups influence legislatures, but interest groups are also pretty good at getting their way in court, by bringing strategically timed, well-financed litigation. Beyond that, judges, compared to officials in the other branches of government, have a very limited ability to get information. They can’t initiate investigations into complex empirical issues; they have, at most, only a very limited ability to solicit the views of experts.

And then there are the complicated normative issues—issues about what the legitimate ends of government are, about what kinds of tradeoffs among those ends are justified, about when it is acceptable to sacrifice some of those ends in order to obtain a legislative outcome that is better on balance than what would otherwise exist. Those seem like exactly the kinds of issues that we ordinarily entrust to the political process, which is in the hands of officials who are more democratically accountable than judges. Is there a reason to think that a group of federal judges (that is, lawyers who are selected by those officials) will do a better job?  Judicial review in any form—whether or not you call it “engagement”—enables flawed judges, operating a flawed judicial process, to overturn the decisions of an (also flawed) political process. Sometimes that is a good idea. The Carolene Products footnote, which Bernick discusses, tried to say when it’s a good idea: when the political process fails in a way that is unlikely to be self-correcting, so judges are really the only hope. That may be right or wrong, but at least it  addresses the important question: when should we prefer flawed judges—not ideal judges, who do not exist—to the political process. That question has to be answered, but Bernick does not even seem to ask it.[1]

I think the reason Bernick does not ask that question is that he already assumes the answer. His treatment of NFIB v. Sebelius, at least, suggests as much. “Judicial restraint” in that case, he says, “facilitated the greatest expansion of federal power since the New Deal.”

So what? Maybe that great expansion of federal power was a completely legitimate effort by the government to pursue completely appropriate ends, and maybe it was a good thing that the Court was restrained so that it did not exceed its authority under the Constitution and harm people’s lives.[2]  Or maybe not. But in order to make the kind of full evaluation of the propriety of the individual mandate that Bernick seems to envision, you would have to make an enormous number of complex factual and normative judgments—about how health care markets function, about what kinds of health care should be available to people, about which means of accomplishing those objectives comport with the constitutional role of the federal government, and probably about a lot of other things, too. But Bernick seems to think it is an easy question: it’s a significant expansion of federal power, so the Court should not have upheld it.

If you are operating with a simple set of political and moral principles—for example, that government action is impermissible unless it is based on a very limited set of powers recognized by the common law (which I take to be one version of libertarianism)—then asking judges to implement those principles might make sense. Maybe, in that case, all the limitations of judges and the judicial process are outweighed by the supposed shortcomings of the political process, although I have my doubts about that. But before we even get to the question of courts’ ability to enforce libertarian principles, libertarians have to justify those principles to the rest of us. Renaming the judges’ role—calling it “judicial engagement”—doesn’t do the trick.



[1] A couple of less important aspects of Bernick’s account are also questionable. Marbury v. Madison did not “declare the Judiciary Act of 1789 to be void.” It declared unconstitutional only one relatively technical provision of that very important statute. Although there is some uncertainty about what was going on in some of the cases, the English common law judges Bernick refers to operated in a system in which Parliament was sovereign; common law judges did not uniformly, or probably ever, assert the power to strike down legislation. Bernick seems to suggest that the U.S. Supreme Court engaged in vigorous judicial review of federal legislation from the founding onward, but after Marbury, the Supreme Court did not strike down another Act of Congress for over half a century, until the notorious decision in Dred Scott v. Sandford—a decision that I am sure Bernick, like the rest of us, reviles, but that can serve as a reminder of the problems with “judicial engagement.”

[2] I am not sure I disagree with what Bernick says about the claim that the individual mandate was a tax; I think that is a difficult question. But the individual mandate was, in my view, unquestionably constitutional under the Commerce and Necessary and Proper Clauses. The contrary view expressed (in dictum) by five Justices was wrong, and I predict it will have little or no significance in the future.

Also from this issue

Lead Essay

  • Evan Bernick makes the case for what he terms judicial engagement: If it is true that the federal judiciary serves to safeguard the rights of individuals and the basic structure of the Constitution, then judges will necessarily have to disagree at times with Congress, and those disagreements will necessarily mean that laws are struck down, perhaps often. Independent judgment, and an independent judiciary, requires nothing less. Bernick addresses some progressive and conservative arguments for judicial deference and finds them lacking; he commends an engaged and active judiciary to conservatives who want to protect economic liberties more strongly.

Response Essays

  • David A. Strauss argues that “judicial engagement” is little more than a buzzword. The political branches of our government can and do fail, but so does the judiciary, and we are not to imagine that somehow a perfected judiciary will one day come along and set everything in its proper place. Like all institutions, the courts have a design and a function that is particularly their own, and this necessarily entails certain institutional features, including institutional failings. Liberals and conservatives alike have watched as the Supreme Court issued rulings that one side or the other did not like. But the problem is not so much whether the Court does too much or too little. Rather, some coherent and defensible judicial philosophy must be found, and when it is, judges should be active, or not, in response to it.

  • Barry P. McDonald argues that, properly understood, judicial restraint should be praised. In a democracy, unelected judges’ roles are to be narrow, and they must act only with a clear constitutional mandate. When room for reasoned disagreement exists, we already have a method in place to settle it: That method is the ballot box, because legislatures are better than judges at making complex, often discretionary decisions about economic and social policy.

  • Edward Whelan argues that the real question concerns constitutional originalism, not activism or restraint. What matters is how we answer the question of what the Constitution means, because the answer to this question will (or at least should) determine whether any particular law is allowed or forbidden. Whelan charges that “judicial engagement” means nothing more than libertarian judicial activism, and amounts to an attempt to smuggle in libertarian policy preferences that would otherwise be unacceptable.