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Frequently Asked Questions About Judicial Engagement

Got questions about judicial engagement? Let us know (link to “Contact Us”). We’ll answer them. Judicial engagement stands up under any level of scrutiny.

1. What does judicial engagement mean?

Judicial engagement describes a process of judging that consists of a genuine effort to determine whether the government is pursuing constitutionally permissible ends using constitutionally permissible means. That inquiry is made on the basis of actual, admissible evidence rather than speculation or conjecture, and a properly engaged judge will remain impartial rather than helping the government win by inventing hypothetical justifications for its actions. Today, judicial engagement is the exception and not the rule, as the default setting in constitutional cases is the rational basis test—a test that requires judges to ignore the government’s true ends, accept factual representations for which the government has no evidence and abandon judicial impartiality by helping invent justifications for the government’s conduct. This process under the rational basis test is the opposite of judicial engagement; it is judicial abdication.

2. How does judicial abdication lead to more government than the Constitution permits?

When judges fail to enforce constitutional limits on government power fully, the political branches are left to restrain themselves. Experience has shown that this is no restraint at all. Between 1954 and 2002, the U.S. Supreme Court struck down less than two-thirds of one percent of all laws passed by Congress and less than one-twentieth of one percent of all state laws. It is simply not plausible that legislators are hitting the constitutional strike zone more than 99 percent of the time, and a judiciary that pretends otherwise leads to more government and less liberty than the Constitution guarantees.

3. What are some specific examples of judicial abdication?

The U.S. Supreme Court’s 2005 term saw two particularly notable examples of judicial abdication. In Kelo v. City of New London, the Court upheld the use of eminent domain for private economic development purposes, effectively deleting from the Fifth Amendment the public use provision that forbids the government from taking private property for private use. In Gonzales v. Raich, the Court held that the federal government could criminalize the purely intrastate, noncommercial distribution of homegrown medical cannabis using its constitutional power to regulate commerce among the states. This decision turns the doctrine of enumerated powers completely on its head and utterly repudiates James Madison’s famous promise that the power of the federal government would be “few and defined.”

A more recent example of judicial abdication was the U.S. Supreme Court’s decision, in NFIB v. Sebelius (2012), to uphold the Patient Protection and Affordable Care Act’s requirement that individuals purchase government-approved health insurance. Although five justices properly rejected the government’s Commerce Clause argument, the Court nevertheless upheld the requirement by rewriting portions of the law to transform Congress’ unconstitutional “mandate” that people purchase health insurance into a constitutionally authorized tax on people who simply choose not to do so.

You can find more examples here.

4. Is it really true that judges are sometimes required to help the government win by inventing justifications for the government’s action? That doesn’t seem fair.

Yes, it is true, and it is absolutely unfair—and unconstitutional. Under the so-called “rational basis test,” which is the default standard of review in constitutional cases, judges are obligated to seek out every conceivable justification for upholding a law, even if it means making one up out of whole cloth.

Of course, it is impossible to negate an infinite list of possible justifications, including purely hypothetical ones that the government (or the judge) has invented on the spot. This shows what an utterly unserious endeavor much of constitutional law has become and how thoroughly judges have abdicated their responsibility to enforce constitutional limits in many areas of law, such as property rights, economic liberty and a whole host of individual rights deemed “nonfundamental” by the U.S. Supreme Court.

5. Is it really true that, under the rational basis test, the government need not support restrictions on constitutionally protected freedom with any evidence at all?

Yes, it is true. Unlike cases involving various forms of “heightened scrutiny,” where the government must support its factual assertions with actual, admissible evidence rather than “speculation or conjecture,” in rational basis cases the government need not offer any evidence and may instead base its policies on “rational speculation.”

6. Are there particular areas of law in which the need for judicial engagement is most acute?

Yes. The federal government has racked up more than $80 trillion in unfunded obligations and micromanages the lives of ordinary Americans through a dizzying array of bureaus, agencies and commissions. The U.S. Supreme Court has abetted this usurpation of power by failing to confine the federal government to its constitutionally authorized powers. The judiciary has been similarly neglectful of private property rights and economic liberty, and its approach to enforcing other important but unenumerated rights, such as the right to seek potentially lifesaving medical care, is utterly incoherent.

7. We hear a lot of talk about “judicial activism.”  Isn’t that the biggest problem with our courts?

No. While judges should not legislate from the bench, “judicial activism” is a mostly meaningless term that is used to criticize judges for decisions certain people happen to disagree with. It is frequently used by politicians who prefer a more docile judiciary and who seem to believe that the Constitution provides relatively few limits on government power. In reality, a far bigger problem than judicial activism is judicial abdication, which has led to an explosion in the size and intrusiveness of government.

8. Isn’t judicial engagement just code for “judicial activism”—that is, courts inventing rights that aren’t really in the Constitution?

Absolutely not. Engaged judges do not treat the Constitution as an empty vessel into which they may simply pour their personal policy preferences, including a preference for majoritarianism. Properly understood, the Constitution imposes substantial limits on government power and far more limits than courts recognize today. If we want those limits to be enforced instead of ignored, we must have a properly engaged judiciary.

9. Is there a danger that engaged judges will encroach on the legitimate prerogatives of other branches and limit government officials in ways that are not only extra-constitutional but dangerous or counterproductive as well?

While there have certainly been instances when courts have overreached, a far greater threat to America’s future is overly deferential judges allowing government officials to undermine systematically the rule of law and ignore constitutional limits on their own power. Reflexive judicial restraint is incompatible with the Constitution, is unrealistic in its assumptions about the political process and has demonstrably failed to limit government. As between an improperly activist judiciary and an improperly activist legislature or executive, the latter is clearly the greater danger. Consider this: How many federal, state and local laws are you subject to at the moment? How many regulations? The answer is so many you cannot possibly identify or count them all. Now, how many court orders are you subject to? For most people, the answer is zero.

10. What should judges be doing differently in order to be more engaged?

Judges should provide meaningful scrutiny of government action in all constitutional cases and not just a select handful of cases as they do now. Properly engaged judges should require the government to provide an honest account of its actions in court and support its factual assertions with admissible evidence. In America, the government must justify restrictions on freedom to individuals. We don’t have to justify our freedom to the government.

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