All Around Judicial Engagement

Anthony Sanders · January 23, 2020

How do you get judges engaged with the Constitution? Well, one method is to make it so they have to rule against the government one way or the other.

Yesterday’s argument at the United States Supreme Court in IJ’s school choice case Espinoza v. Montana Department of Revenue was, as they say, a “hot bench.” There were tough questions from all sides of the Court, spatially and ideologically. (If you want to “read the transcript!” you can click here.) So-called conservative justices had questions about religious discrimination. So-called liberal justices had questions about entanglement between government and religion. And justices from both sides had questions about the rather odd procedural posture of the case.

And I think it may have been because of that odd posture, with “governments” on both sides, that the argument went as it did.

“Judicial engagement” means, at bottom, judges not deferring to the government, either on the law or the facts, just because it is the government. Often that means a judge has to resist the fashionable temptation to take the government’s description of facts as true even though that description is highly questionable. And often that means a judge has to resist the siren song of “judicial restraint” imploring the judge to declare a law constitutional even though the text of the Constitution is pretty clear that it’s not. But in Espinoza it’s a bit more complicated.

In a nutshell, (and as explained on the latest edition of our podcast Bound By Oath), the Montana legislature adopted a school choice program, allowing taxpayers to take a credit to fund scholarships that parents could then use to send their children to private schools. This included religious schools. The Montana Department of Revenue, however, thought that allowing religious schools into the program would violate the state constitution’s “Blaine Amendment” (click here to learn the back story on that provision if you’re not familiar with it). So IJ’s clients, who wanted to use the scholarship to help send their children to a religious school, sued, claiming the rule was invalid under the legislature’s statute and under the First Amendment. The issue went to the Montana Supreme Court, who ruled that the Blaine Amendment did, indeed, forbid scholarships from going to religious schools, that the statute otherwise would violate the state constitution, and that the barring of religious schools from the program did not violate the First Amendment’s Free Exercise Clause.

On one side you have the Montana Supreme Court and the state tax authorities saying giving the money to parents to send their children to a religious school violates the state constitution. On the other you have the parents who are fighting to save a program that the Montana legislature passed, arguing that preventing the original program from going forward violates the First Amendment. On either side, therefore, there’s an arm of the government with an interest.

So what’s a judge to do? “Defer to the government?” No! The “government” is on either side. Now, a judge could reflexively defer to the side they like, but she or he won’t be doing so just because it’s the government. And that makes judicial engagement more likely.

Does this mean we need the government involved on more sides of constitutional cases? Absolutely not! Government governs best when it governs least in the first place. But sometimes governments do end up on either side. And when they do it’s an illustration of what happens where reflexive judicial deference isn’t as easy to find. The lesson to draw from it is that judges can resist deferring to the government and they shouldn’t need the government on both sides to do that.