A Brief History of Fake Judging

The Constitution is a singular triumph in the timeless quest for liberty and limited government. Properly understood and enforced, it secures the “blessings of liberty” better than any political system in human history. But the U.S. Supreme Court has abdicated its duty to fully enforce the Constitution, with the result that its historically unprecedented promise of individual freedom remains unfulfilled.

How did it happen? Over the course of a series of decisions in the 1930s, the U.S. Supreme Court abandoned meaningful judicial scrutiny in vast areas of law. In Nebbia v. New York (1934), for example, the Court declared that the government could regulate businesses of any sort, so long as that regulation was rationally related to a legitimate government interest. The Court emphasized that judges were to indulge “every possible presumption . . . in favor of (the) validity” of challenged regulations.

In the famous footnote four to United States v. Carolene Products (1938), the Court created a dichotomy between fundamental rights, which receive meaningful protection, and nonfundamental rights, which do not. The Court stated that in cases involving “ordinary commercial transactions,” such as buying and selling goods or running a business, “the existence of facts supporting the legislative judgment is to be presumed” and a regulation is not to be struck down unless “it is of such a character as to preclude the assumption that it rests upon some rational basis.”

This so-called “rational basis test” quickly become a euphemism for a rubber-stamp style of “judging” featuring no actual judgment and no serious attempt to enforce constitutional limits on government power. By contrast, cases involving rights expressly listed in the Bill of Rights, affecting one’s ability to participate in the political process (like voting), or involving “prejudice against discrete and insular minorities,” might warrant “more searching judicial inquiry.”

Why did it happen? These legal changes were made possible by the Progressive movement; they were the product of an intellectual assault on the Framers’ political philosophy that began in the late 19th century. Progressives sought to use government to control virtually every aspect of society and viewed the Constitution’s limits on government as impediments to addressing social problems. Decisions like Nebbia and Carolene Products ensured that government officials had the “space” they needed to enact broad restrictions on individual liberty.

It only got worse over time. In decisions like Williamson v. Lee Optical (1955), the U.S. Supreme Court openly disclaimed any responsibility to seek truth in rational basis cases. More recently, in FCC v. Beach Communications (1993), the Court stated that in rational basis cases judges should uphold a law “if there is any reasonably conceivable state of facts that could provide a rational basis for (it).” Unlike cases involving genuine judicial review, the government has no obligation in rational basis cases to support its factual assertions with “evidence or empirical data,” and its actual ends—good, bad, constitutional or unconstitutional—are “entirely irrelevant.” Lower courts have interpreted this language to require judges to abandon judicial neutrality in rational basis cases and actively help the government win by inventing justifications for its conduct. Tellingly, the Supreme Court has never disavowed that approach, presumably because it represents a correct—and in the Court’s view unobjectionable—application of rational basis review.

What does our constitutional landscape look like today?

  • In cases involving “fundamental” rights, such as speech, religion and voting, judges require the government to justify restrictions on liberty with evidence and a search for the truth.
  • In cases involving “nonfundamental” rights, such as the right to earn an honest living and the right to own and enjoy property, judges apply the “rational basis test.” They do not require any evidence, they do not search for truth, and they base their decisions on government-favoring speculation and conjecture.
  • As Judge Janice Rogers Brown of the District of Columbia U.S. Circuit Court of Appeals has put it, “The practical effect of rational basis review . . . is the absence of any check on the group interests that all too often control the democratic process.” Because of judicial abdication, it is fast becoming nearly impossible for ordinary Americans to live productive, fulfilling lives without arbitrary government interference.

Today, judicial abdication is the rule, and judicial engagement is the exception. The rational basis test remains the default standard in constitutional cases, and reflexive judicial deference to government is commonplace. CJE is working to challenge this status quo.