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.