Saturday, October 24, 2015

Judicial Engagement or Judicial Tyranny?

By Eric Segall

Last Thursday, George Will wrote yet another op-ed advocating that non-elected, life tenured judges play a stronger role in protecting individual liberty (read that as economic liberty), and that this issue should be used by the GOP both in the next presidential campaign and to appoint the next Supreme Court Justice. This argument, against the judicial restraint philosophy advocated by Robert Bork and Ed Meese circa 1980, has been given deep scholarly meaning by Professors Richard Epstein of NYU and Professor Randy Barnett of Georgetown, two of this country’s most intelligent and deep-thinking legal academics. Both of these men have written scores of articles and books arguing that our Constitution, properly understood, as well as society’s current best interests, lie in judges strongly enforcing a libertarian conception of government power where minimum wage laws, union protections, and even non-discrimination laws are inherently suspect. They have been joined by right-wing think tanks like the Cato Institute and the Heritage Foundation as well as by top notch litigators like Clark Neilly, whose book “Judicial Engagement” is a call to arms for judges to seriously question much economic legislation. In addition, Evan Bernick has written thoughtfully in favor of strong judicial engagement at the Huffington Post. Against all of this is nary a word from liberal academics and pundits, though old-guard conservative Ed Whelan is trying hard to block this call for aggressive judicial review by reminding folks about the dangers of allocating more power to government officials we do not elect and cannot vote out of office.

The history of strong judicial review of economic legislation is not a pretty one. Starting in the early 1900’s the Court began striking down laws relating to mild progressive efforts to protect workers, wages, and unions. Over 200 such laws were struck down by the Supreme Court from 1900-1936, and of course many more by lower court judges. This torrent of strong judicial review ended with the New Deal, FDR’s Court-packing plan, and the realization by most academics that the line between pure rent seeking and monopolistic efforts, on the one hand, and legitimate government regulation, on the other, is too fine to be trusted to lawyers and judges. As Holmes said in the first few lines of his famous dissent in the Lochner decision overturning a maximum-hour law for New York bakers: “This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law.”

Justice Holmes’ answer to his brethren in Lochner is persuasive and underlies where Whelan, federal judge Harvey Wilkinson, and progressive liberals like Mark Tushnet and yours truly all center our arguments. Whereas Randy Barnett and Richard Epstein believe passionately and sincerely that we would all be better off with strong judicial protection of economic rights, I think our society would be much worse without egalitarian protections for the poor and for workers everywhere. Moreover, I think reproductive freedom is perhaps our most important personal right, given both the bodily integrity interests involved and the dramatic social and economic consequences of unplanned pregnancies. Who is right and who is wrong?  I say let the voters decide whereas Barnett and Epstein want judges to strongly enforce their vision of the right and the good.

Both Epstein and Barnett position their sophisticated analysis in the context of historical arguments about the original Constitution. But, this is 2015, not 1787 nor even 1868, and the history is contested enough and the text vague enough where arguments about what our Constitution really “means,” are silly. We should have a country that works for us today. 

We know what happened the last time judges felt free to second guess normal economic legislation and the results were court packing plans and undue judicial interference with presidential and congressional efforts to address the worst economic depression in our history. No wonder generations of law students have been taught the dangers of returning to that kind of system of judicial review.

The other strategy used by the new “judicial engagement” advocates is to find a few uncommonly silly rent seeking laws passed by state legislatures clearly for the benefit of special interest folks (with the aid of course of aggressive judicial review campaign finance decisions by the Supreme Court), and argue these laws should not be rubber stamped by federal judges under the rubric of an overly deferential rational basis test for economic legislation. But, as George Will favorite Justice Don Willett of the Texas Supreme Court implied strongly in a well thought out and balanced discussion of these issues, state Constitutions and state judges are up to the task of policing the boundary between legitimate regulation and overt rent seeking. We as a society do not need the federal judiciary to play that role.

Virtually all state judges stand for re-election from time to time, and most of the terrible laws cited by the judicial engagement folks are local in nature. The best answer is to allow state judges to decide what is valid and what is not when local legislatures enact statutes at the behest of local rent seekers. In fact, Justice Willett’s fine opinion came in a case involving a silly Texas licensing law that elected judges in Texas correctly rejected under the Texas Constitution. If that decision is wrong it can be corrected by the people of Texas. There is no reason to insert federal judges into this kind of controversy but much danger when unelected and life tenured judges base decisions on the virtually unamendable federal Constitution.

But of course, overturning silly state laws is not the real agenda of constitutional heavyweights Epstein and Barnett. They want existing federal protections for workers, minorities, and the poor to be overturned by federal judges. I am not an economist nor do I pretend to know whether this strong libertarian perspective would be a cure or an epidemic. But I am an expert on constitutional law and the Supreme Court. And I know that Holmes was correct. Our Constitution should not be interpreted by the federal judiciary to be libertarian or socialist or to put in place one unwavering economic theory. The Constitution, in the words of Chief Justice John Marshall, is a broad blueprint designed for the ages. It is emphatically not a license for unelected judges to replace the reasonable but contestable value judgments of more accountable leaders with those of life-tenured government (and federal) lawyers.

Unlike Barnett and Epstein, I don’t want my value judgments imposed as law by federal judges. I am decidedly pro-choice, and I also like the one person, one vote rule announced by the Warren Court in 1964. But, I also know reasonable people can disagree with both value judgments and that the Constitution is silent on both issues. I wish I had a constitutional theory that would allow me to argue honestly that my view of the Constitution is correct or at least better than my friend Randy's. But, many liberals have tried and I remain unconvinced their arguments amount to anything more than "my values are better than yours."

I hold strong  political values, but I am humble about imposing them on the voters against their will. Absent complete irrationality, or clear inconsistency with constitutional text or uncontested history, federal judges (and legal academics and pundits) should be humble as well.


James Longfellow said...


Let me play devil's advocate for a moment and ask the following question: if you believe in judicial restraint where does that stop? Doesn't taking judicial restraint to its logical extreme imply the institutional reduction of the judiciary to its Constitutional minimum? I.e, the existence of only SCOTUS and the complete elimination of the courts of appeals.

You quote Holmes but it's worth nothing that Holmes' opinion was written in 1905 which was only a decade after Judiciary Act of 1891. So Holmes' vision of judicial restraint is focused on judicial power as held by an individual judge because that's what he knew from personal experience, and not on any institutional analysis of judicial restraint. The social impact of the expanded judiciary and the professionalism of legal culture were far in the future

So respond to the criticism that it is not the lack of judicial restraint that is the problem today but the lack of judiciary restraint that is most threatening to "the right of a majority to embody their opinions in law."

Eric Segall said...

Judicial restraint ends where the Condtitution is clear and that mode of review would return the Court to its original conception. I don't advocate such deference for that reason though but for a host of other reasons I can't detail here.

Shag from Brookline said...

The NYTimes has a review by Dahlia Lithwick of Melvin Urofsky's "Dissent and the Supreme Court: Its Role in the Court's History and the Nation's Constitutional Dialogue" that touches a tad on judicial tyranny with some dissents in more recent times.

Joe said...

As I recall, you felt the laws at issue in the SSM cases met your high test, the one that was decided 5-4. Also, the voters repeatedly by the only way the counts at the end of the day in our system -- the people they elect to pick and confirm judges -- have decided that a strong judiciary that strikes down laws by a weaker standard than yours is acceptable.

Joe said...

OTOH, the people don't appear overly desirable to give judges more power, or at least the type Barnett et. al. want, in respect to economic legislation, even the somewhat greater judicial review given to such legislation in certain states.

This is both a judgment, a "value" judgment on some level, that economic matters are somewhat less fundamental and that they are more "public" in nature, more appropriately decided by non-judicial officers. The Constitution does make certain value judgments and judges have a role, affected in part by voters and public understandings of the day, in applying them. It is not just that, e.g., I "support" same sex marriage, but that it is constitutionally required. The same applies to abortion rights. OTOH, two senators for both Montana and California or unfair tax policies that burden the poor might not be nice, but the Constitution doesn't stop that sort of thing.