“The day is gone when this Court uses the Due Process Clause … to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. … For protection against abuses by legislatures the people must resort to the polls, not to the courts.” So wrote Justice William O. Douglas for a unanimous Court in 1955 after that body had learned a valuable lesson from the Lochner era—in a democracy, it is not for five or more unelected judges to second guess the economic policy decisions of the people’s elected representatives. Yet Evan Bernick urges a return to the Lochner approach of judges vigorously scrutinizing the importance or need for laws adopted by those representatives whenever they are alleged to conflict with any “genuine constitutional right.” And he does so under a new veneer: the duty of judges to exercise independent judgment or “judicially engage,” an approach he equates with the judicial practice of applying heightened scrutiny to challenged laws in certain areas of constitutional law.
This argument has many problems, most notably the implication that exercising independent judgment is the same thing as applying such scrutiny. It is not. I am all for Supreme Court justices and other judges applying “principles of reason in our law,” as Bernick puts it. In other words, judges should and do have a duty to apply legal rules in a neutral, objective and principled fashion when deciding cases—as much as possible keeping their own political and ideological preferences, and those of political majorities, out of the mix when doing so. This is the essence of the rule of law, and not the rule of particular individuals wearing black robes or that of transient majorities.
Moreover, judges should adhere to this practice no matter what degree of scrutiny they apply to a challenged law—be it strict or vigorous scrutiny (where the government bears a very heavy burden of showing constitutionality), intermediate scrutiny or a general balancing of interests (where the government bears a more realistic chance of demonstrating constitutionality), or the deferential scrutiny that Bernick complains of where the plaintiff bears a heavy burden of demonstrating the unconstitutionality of a law. The level of scrutiny the Court applies is an analytical tool based on its judgment about the importance of the right allegedly being infringed or the suspectness of the government’s actions in passing a law. Independent judgment, on the other hand, should be a pervasive judicial philosophy and practice no matter what tools a court is applying to aid its review.
What Bernick is really complaining about is which rights the Court has chosen to apply heightened scrutiny to, and those it has judged to be worthy of only minimal judicial review. The former includes those due process rights of personal autonomy deemed fundamental or important, and certain equal protection, free speech and freedom of religion rights where illicit government discrimination seems to be afoot. Notably absent from this list, however, are the conservative favorites of economic and property rights. After the Lochner era, the Court decided that protection for the latter sort of rights was best left to the push and tug of the political process rather than the judiciary. As noted, this decision was based on the notion that heightened judicial protection for such rights inevitably involved courts in the business of making judgments about economic and social policy that they were ill-equipped to make—and that were more appropriate for legislatures to make in a democratic republic.
Now one can certainly make a decent argument that the Court overreacted to the Lochner era criticisms, and that economic and property rights do not deserve the severity of downgraded constitutional treatment they have been given—particularly in cases where it seems that special interest groups have captured the legislature or government bureaucrats are pursuing agendas divorced from the popular will. But the product of such an argument should be a discussion about the importance of those rights and the ability of courts to protect them consistent with democratic principles, rather than an end run around that discussion by urging heightened scrutiny for all rights—and thereby elevating the treatment of economic and property rights through the back door.
Which brings me to my biggest complaint about Bernick’s arguments concerning independent judgment. Not only are they misguided in equating such judgment with a given level of judicial scrutiny, but they miss the boat in terms of where independent judgment is really needed. As noted, the level of scrutiny used in a particular case is a function of the Court’s a priori determination about whether to recognize an asserted right and how much importance to accord it. That is where most of the judicial work is done in a particular case, since the particular scrutiny applied too often tends to be a post hoc rationale for a result driven by the initial “ranking” (e.g., should an asserted due process right be deemed fundamental or not, or should a non-discrimination claim be viewed as implicating a suspect class). If the right is ranked as really important or the government’s action suspect, strict scrutiny applies and the law will be invalidated; if not, the dreaded rational basis review applies and the law will be upheld (unless some sort of middle tier scrutiny is used). And it is that initial determination that generates the criticism that Supreme Court justices are either making up rights that cannot fairly be derived from the Constitution, or they are otherwise according rights importance (or not) depending upon their personal ideological preferences.
Examples of such contested rights abound. Rights to gay marriage, abortion, and even the Lochnerian liberty of contract that Bernick applauds, have all been inferred from a constitutional provision that protects people from being deprived of “liberty” without due process of law—a provision designed to ensure the government uses fair and lawful procedures when denying someone their liberty, and not affirmative rights against a government that complies with them. A right to keep guns in one’s home (and perhaps other places) for purposes of general self-defense has been found in a provision that was designed to prevent the professional standing army created by the new Constitution from disarming the citizen-soldier militias of the states—just in case that army was used to oppress Americans. A right of large corporations to spend their earnings to get favored politicians elected has been found in free speech guarantees designed to ensure Americans would be able to freely debate and keep tabs on what the new federal government they were creating was doing. To make matters worse, virtually all of these rights were found to exist, and to deserve the heightened scrutiny Bernick extols, by bare majorities of five justices coalescing in predictable ideological voting blocs. And this problem of “politics dressed up as law” is not limited to the enforcement of constitutional rights. As the Obamacare decision illustrates, it also extends to questions about the nature and scope of federal power. There, the key ruling depriving Congress Commerce Clause power to pass the law was decided along typical ideological voting lines, even though Chief Justice Roberts joined the liberal wing of the Court to find Taxing Clause power for the law, which he probably did to avoid even harsher criticisms of a politicized Court.
This state of affairs is the exact opposite of one might expect from a Court that was truly exercising “independent judgment” grounded in neutral legal principles. If one wants to urge Supreme Court justices to exercise more of such judgment, this is the place where one should make a stand—particularly when the advocate admits the question of what rights the Constitution protects is “hotly contested.” To urge greater judicial engagement and independent judgment to protect “genuine constitutional rights” is simply ignoring the huge elephant in the room. Bernick also argues that such greater engagement is needed to prevent majorities from trampling individual rights. But when the very existence and strength of rights involve such debatable and contestable judgments that are being made in the manner described above, who do you want recognizing and protecting them in a self-governing democracy? Five lawyers appointed to the Court who do not even reflect the diversity of values and beliefs of Americans generally—almost all being drawn from the Boston to Washington, D.C. corridor—or Americans themselves? The answer seems obvious.
Accordingly, I would not attack judicial restraint as the abdication of a judge’s role to vigorously challenge the will of the majority whenever an individual right is alleged to be implicated. Properly understood, such restraint should be praised. It calls on unelected judges to recognize their proper role in a democracy, making sure that when they foist their will on over 300 million Americans, the exercise of that power is clearly authorized by the Constitution and the rule of law. If it is not, if claims of constitutional right are open to honest debate by fair and reasonable people, deference to majoritarian resolutions of those issues in the give and take of the political process is the most appropriate course. At least that is the judicial attitude I hope to see in our next Supreme Court justice.