Bernick Leaves Important Questions Unanswered

Like Ed Whelan, I will also attempt to respond concisely to Evan Bernick’s main points addressing my initial comments on his piece:

1. Bernick once again equates judicial deference to judicial restraint. While such deference may be viewed as a form of restraint when used as a technique to scrutinize the constitutionality of laws, the broader form of restraint I and many others urge asks Supreme Court justices to ensure that individual rights are clearly based in the Constitution before enforcing them to trump majoritarian choices in a democracy. Such rights should at least be fairly derived from the text and history of the Constitution, and extended to meet modern conditions solely through the application of neutral, consistent, and reasoned legal principles rather than individual policy preferences.

2. I am certainly not offended by being lumped in with Justice Holmes as to the principle of judicial restraint (save, perhaps, the way I think he misapplied it in Buck v. Bell).

3. I’m not sure where Bernick got that I advocate subjecting “all” constitutional rights (I believe he meant rights when he referred to power) to deferential scrutiny. Alleged infringements of those rights clearly guaranteed by the Constitution do deserve some form of heightened scrutiny. And as I noted previously, a good argument can be made the Court overreacted to the Lochner experience in adopting a “rubber stamp” form of deferential scrutiny to scrutinize alleged infringements of economic liberty rights. Indeed, I do not endorse the Williamson decision itself. The facts reeked of special interest group capture of the legislature in that case, and at least meaningful rational basis scrutiny should have been applied (as the Court does in some other areas of the law where illegitimate government motives are suspected). But the more marginal an asserted right is in terms of being grounded in the Constitution, like a liberty of contract derived from a fair procedures clause, the more deferential the scrutiny should be absent special circumstances of the sort present in Williamson.

4. I agree that my case for judicial restraint is “essentially majoritarian,” save where the American people agreed to place limits on authorized exercises of majoritarian will through rights (or other provisions) they specified in the Constitution. Bernick, by contrast, asserts that “our Constitution is not primarily majoritarian, but, rather, individualist.” While making good libertarian rhetoric, I think this assertion would seem somewhat incomplete to the adopters of that compact. While distrusting and separating government power to safeguard individual liberties, the American people in fact were delegating it in the first place to achieve substantial collective goals such as a robust national economy and defense (“the general welfare” in addition to the “blessings of liberty”). Indeed, it is worth noting the Bill of Rights was not even in the original Constitution—being appended later to fulfill a campaign promise made to get the Constitution past a close ratification vote in some states. In sum, the Constitution is both majoritarian and individualistic, and it will not do to deify the latter feature and demonize the former.

5. Bernick is engaging in a lot of question begging. I have no problem with Hamilton’s theory that judges are protecting the will of the people when they enforce the Constitution over laws passed by Congress that conflict with it. But that just begs the question of what rights the people placed in the Constitution in the first place. To the extent Supreme Court justices go beyond a fair reading of the Constitution based on their own notions of the best constitutional policy rather than the result neutral and reasoned principles would support, to that extent they are imposing their own will rather than that of the people.

6. To suggest judges are applying “independent judgment,” understood to mean applying the law in a neutral and principled way divorced from their own “beliefs and desires” just because they are applying heightened scrutiny to a given law (i.e., demanding more proof of an asserted government interest or how well a law is tailored to achieve it), is to blink reality. For instance, has Bernick ever attempted to find a neutral principle that reconciles the varying interests the Court has found to be, or not to be, compelling or important in different areas of constitutional law when it is applying strict or intermediate scrutiny? Or how and why the Court employs different analytical tools in varying cases to assess the degree of required fit between a law and the asserted interest, such as least restrictive alternatives, over/underinclusivity, effectiveness of the law, etc.? From my attempts to synthesize lines of decisions in various areas of the law for purposes of teaching or scholarship, I can attest it is often extremely difficult.

 7. The modern Court is displaying “systemic bias” by applying deferential rational basis scrutiny to some asserted rights but not others? Really? As noted, all asserted constitutional rights are not equal. Some clearly have a stronger legal basis in the Constitution than others (think “no law abridging the freedom of speech” versus a substantive “liberty of contract” found nowhere in the Constitution). Some are considered core rights grounded in the plain text or history of that document, others more arguable and contestable. And the Court’s way of choosing to apply heightened versus deferential scrutiny to an alleged infringement of a particular right is often a simple and proper acknowledgment of that fact.

8. Bernick concludes that “[c]onsistent judicial engagement … would ensure that no rights secured by the supreme law of the land are disregarded by judges as a matter of course….” Once again, he is ignoring the huge elephant in the room—how we determine what those rights are and the appropriate role of unaccountable judges in this process. Indeed, Bernick offers no response whatsoever to this central objection of my initial commentary. His entire thesis places the cart before the horse. And worse, by urging judges to “secure and enlarge individual freedom” without addressing this key question, Bernick seems to be inviting judges, in the words of Hamilton, to exercise the Will reserved to the people and their representatives rather than the Judgment appropriate for the judiciary.


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.