Activism, Deference, and Judicial Engagement

Last fall I wrote a series of posts explaining the Institute for Justice’s call for “judicial engagement” and the rejection of reflexive deference toward other branches of government. Eugene kindly invited me back for a follow-up in light of recent events that underscore the importance of judicial engagement.

The first, of course, is last week’s arguments over the healthcare law and the avalanche of commentary it spawned, culminating in the Fifth Circuit’s demand that DOJ provide a written statement of its position on judicial review in light of the president’s suggestion that it would be an “unprecedented” act of judicial will for the Supreme Court to strike down the Affordable Care Act.

Rather than focusing on the merits of the case, much of the commentary has suggested that courts have no legitimate role in reviewing the healthcare law at all. Thus, without so much as a nod to any of the substantive legal arguments, Maureen Dowd claimed the Supreme Court “has squandered even the semi-illusion that it is the unbiased, honest guardian of the Constitution. It is run by hacks dressed up in black robes.” Similarly, anticipating a defeat for the ACA, E.J. Dionne predicted “a court that gave us Bush v. Gore and Citizens United will prove conclusively that it sees no limits on its power, no need to defer to those elected to make our laws.”

Given the substantial doubts raised about the constitutionality of the healthcare law during last week’s arguments, the subtext of those scathing criticisms — which are by no means exceptional — must be that courts have no legitimate role subjecting congressional enactments to meaningful judicial review. Rubberstamp review of the kind applied in Wickard, Raich, Kelo, and post-New-Deal economic liberty cases, yes — but not meaningful review. That certainly appears to be the tenor Eric Holder’s letter to the Fifth Circuit, in which he repeatedly invokes the mantra of “deference” and suggests, without apparent irony, that the ACA was the product of a “deliberate judgment” by Congress concerning the scope of its constitutionally enumerated powers.

Of course, there’s nothing new about rhetorical attempts to discourage meaningful judicial review. Despite its current deployment by liberals in the context of the healthcare litigation, antipathy toward robust judicial review has been a centerpiece of conservative judicial philosophy for decades. Perhaps its most eloquent modern expositor is highly respected Fourth Circuit Judge J. Harvie Wilkinson III, whose recently published book, Cosmic Constitutional Theory, is a veritable paean to judicial deference bordering on abdication.

In his book, Judge Wilkinson critiques four leading constitutional theories, which he characterizes as Living Constitutionalism, Originalism, Political Process Theory, and Pragmatism. Concluding that none of those theories delivers on what he esteems the preeminent judicial value — restraint — Judge Wilkinson rejects each of them and disclaims any constitutional theory of his own. This is extraordinary: how could a judge with no theory of the Constitution possibly decide close cases like the ACA challenges? Simple: He doesn’t.

Instead of exercising judgment in close cases where the text of the Constitution does not clearly compel a specific result, Judge Wilkinson counsels restraint in the form of reflexive deference to other branches of government with no serious attempt to determine (or “theorize”) what limits the Constitution might impose unless it speaks with ineluctable clarity, which it rarely does.

That is not adjudication, it is abdication. It casts aside one of our most important institutional safeguards against tyranny — meaningful judicial review — and replaces it with a one-way ratchet towards ever-expanding government power: precisely what the Constitution was designed to prevent. Refusing to go down that road is not activism, it’s engagement.

Both Judge Wilkinson and President Obama overlook a simple insight at the very core of the Constitution: Power is dangerous, and it must be checked. The Framers of the Constitution understood that, and we must as well if America is to remain a free country in anything but name.