Day 1—Why the Call for “Judicial Engagement”?

First, I’d like to thank Eugene for the opportunity to guest-blog about judicial engagement this week.

The Institute for Justice coined the term “judicial engagement” (and created the Center for Judicial Engagement) out of our conviction that America has more government than the Constitution authorizes and that this is largely due to the failure of our courts to properly enforce constitutional limits on government power. In calling for judicial engagement, we are simply asking judges to actually judge the constitutionality of government action in all constitutional cases. What does that entail?

In cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them. And, as Judge Sykes recently explained in analogizing the Second Amendment right to keep and bear arms to the First Amendment right of free expression in Ezell v. City of Chicago, “the government must supply actual, reliable evidence to justify” its restrictions. 2011 U.S. App. LEXIS 14108, *62 (7th Cir. July 6, 2011).

While reasonable minds may differ about whether it is possible to identify the government’s “true” ends or determine whether there is an appropriate “fit” between ends and means, the fact remains that courts routinely assume both inquiries are not only possible but essential in protecting key constitutional values. Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do.

The most obvious example is rational basis review, where courts apply a strong presumption of constitutionality that may only be overcome by “negativing” every conceivable justification for the challenged law. The government’s true objectives are irrelevant in rational basis cases, and “legislative choice is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.” FCC v. Beach Communications, Inc., 508 U.S. 307, 315 (1993).

Consider IJ’s ongoing challenge to Florida’s interior design licensing law. The state stipulated it has no evidence that the law benefits the public or that the unlicensed practice of interior design presents any bona fide public welfare concerns. The record makes clear that the only end plausibly advanced by the law is the suppression of competition at the behest of a rent-seeking interest group called the American Society of Interior Designers. If occupational freedom were considered a “fundamental” right, then the reviewing court would evaluate the government’s true objectives based on “actual, reliable evidence.” In rational basis cases, however, courts abandon that inquiry altogether and simply ask whether some conceivable justification may be hypothesized, no matter how clear the government’s actual — and in this case wholly illegitimate — objectives might be.

And it’s not just the rational basis test. Even when supposedly applying more robust standards of review, judges frequently accept implausible justifications and unsupported factual assertions from the government. Examples abound in post-Heller gun litigation. Federalism is another problem area. As suggested by the Eleventh Circuit’s admonition in striking down the Affordable Care Act’s individual mandate, when Congress approaches the outer limits of its power, “the Constitution requires judicial engagement, not judicial abdication.”

Judicial engagement is not a call for judges to strike down laws willy-nilly. Rather, it is a call for judges to recognize the importance of constitutionally limited government and to maintain a basic level of analytical consistency. Judges should refuse to ignore evidence, invent facts, or accept implausible justifications in some constitutional settings that they would flatly — and correctly — reject in others.