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 [...]