Wanted: Less Judicial Activism, More Judicial Engagement

March 2014 #14-09
Summary:
Courts should protect
citizens rather than rule
with a bias in favor of
government. Instead of
either judicial activism or
deference, America needs
judicial engagement.
Word Count 611
“…[L]imited
government has
become imperiled by
an epidemic of
judicial
abdication. What
America needs is
judicial engagement:
consistent,
conscientious judging
in all cases, without
bent or bias in favor
of government.”
Wanted: Less Judicial Activism,
More Judicial Engagement
By Clark M. Neily III
Does America have an “activist” judiciary that constantly involves itself in policy
disputes best left to the other branches? Several Supreme Court justices have
publicly expressed that view recently, but they are dead wrong.
Indeed, given the breathtaking abuses of power we have seen by other branches
lately, the prospect of judges becoming even less vigilant about protecting citizens
from overweening government should be deeply troubling.
As I explain in my new book, Terms of Engagement: How Our Courts Should
Enforce the Constitution’s Promise of Limited Government, the very institution of
limited government has become imperiled by an epidemic of judicial
abdication. What America needs is judicial engagement: consistent, conscientious
judging in all cases, without bent or bias in favor of government. Unfortunately,
we’re not getting it.
Take the Supreme Court’s decision to uphold the greatest expansion of federal
power since the New Deal by rewriting the Affordable Care Act (aka
“ObamaCare”) to transform the requirement that Americans purchase governmentapproved health insurance from a mandate enforced by a financial penalty, into
an option with an additional tax payment for those who choose not to exercise it.
Never mind that the Affordable Care Act refers to this payment as a “penalty” 18
times; and never mind Chief Justice Roberts’s recognition of the fact that the “[t]he
most straightforward reading of the mandate is that it commands individuals to
purchase insurance.” According to Roberts’s understanding, the justices’ role was
not to strike down or uphold the law based on “the most natural interpretation of the
mandate,” but instead to bring their own creativity to bear in rationalizing a
constitutional basis for the law if possible.
But that’s not judging; it’s advocacy. Judges are supposed to remain strictly neutral
in all cases, including ones challenging the constitutionality of a law. Recall how
Roberts compared judges to umpires in his confirmation hearing to be Chief
Justice. Umpires, of course, do not bend over backwards to avoid calling outs or
strikes against the home team the way Roberts did in changing ObamaCare’s
insurance provision from a mandate to an option in order to uphold the law.
For those who take seriously James Madison’s assurance that the powers of the
federal government would be “few and defined,” that decision was a travesty.
Unfortunately, it was not an anomaly. Instead, it reflects a judicial mindset much in
vogue among conservatives (and sophisticated liberals who understand its power to
clear the way for even more government) that calls for reflexive deference toward
the other branches in most areas of law―from the allocation of power between
federal and state governments, to economic and business regulations, to property
rights and the use of tax policy to manipulate individual behavior.
Compare the absence of meaningful judicial review in those areas with Justice Ruth
Bader Ginsburg’s recent lament in The New York Times that the current Supreme
Court is “one of the most activist courts in history,” or Justice Antonin Scalia’s
characterization of activist judges as “Mullahs of the West.” Even Justice Anthony
Kennedy has jumped on the bandwagon, arguing that “[a]ny society that relies on
nine unelected judges to resolve the most serious issues of the day is not a
functioning democracy.”
But America is not a democracy. It is a constitutional republic in which majorities
are forbidden from pursuing a host of policies, including ones that violate individual
rights or enable legislators and bureaucrats to exercise powers they do not lawfully
possess. Preventing those things from happening is not judicial activism; it’s
judicial engagement. And as recent events involving the IRS, the NSA, the
Department of Justice, and countless other misbehaving agencies make plain, we
need a lot more of it.
“For those who
take seriously
James Madison’s
assurance that the
powers of the
federal
government would
be ‘few and
defined,’ [the
ObamaCare]
decision was a
travesty.
Unfortunately, it
was not an
anomaly.”
*This article originally appeared on FoxNews.com.
Clark M. Neily III is a senior attorney at the Institute for Justice and director of the
Institute’s Center for Judicial Engagement. He is the author of Terms of
Engagement: How Our Courts Should Enforce the Constitution’s Promise of
Limited Government. Neily will be a guest speaker for Cascade Policy Institute in
Portland in March 2014.
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