New Year’s Resolutions for an Engaged Judiciary

Adam Shelton · January 3, 2022

Happy New Year from your friends at the Center for Judicial Engagement! We look forward to continuing our advocacy for judicial engagement throughout the year. We will be hitting the road again and discussing the importance of state constitutions in both Georgia and Michigan. And we will keep plugging judicial engagement on your favorite podcast on the federal courts of appeals: Short Circuit. But we also wanted to start something new this year: New Year’s Resolutions.

Certainly, New Year’s Resolutions are not new themselves. We are just joining the trend—but with a little twist. Instead of making resolutions for ourselves, we have drafted some resolutions that, if adopted, would make the federal and state judiciaries more engaged.

First, look at the facts in every case. This seems like an easy one. Many think an inherent part of judging is looking at real facts and real evidence before coming to a reasoned decision. Those who think that are correct. Sadly, judges in many constitutional cases do not look seriously at facts or evidence. Instead, when a court considers a constitutional right to be non-fundamental, it applies something known as the rational basis test. Long time readers may remember a series we posted on the rational basis test earlier this year and more importantly the book Clark Neily wrote about the topic. Whether a right is fundamental is up to the sensibilities of the Supreme Court. As a result, many rights are considered non-fundamental and thus subject to the rational basis test.

Under the rational basis test, a court will only hold a law unconstitutionally burdens a non-fundamental right when an individual proves that the law has no relationship to any legitimate government purpose. In many cases, the relationship between the law and the government’s purpose can be purely hypothetical. Often the “legitimate government purpose” does not have to be the real purpose behind the law, but just a possible purpose. And sometimes, a court will even help the government come up with potential justifications. This means that courts applying the rational basis test rarely look at the real-world facts of a situation and allow governments to enact laws for unconstitutional purposes as long as there is another theoretical lawful purpose behind the law.

To be sure, sometimes a court will look at the facts even when applying the rational basis test. But that doesn’t happen often enough. Too often, courts allow laws blatantly based in favoritism to withstand constitutional challenges by ignoring the evidence of favoritism and protectionism. But it does not have to be this way. In fact, it was not always this way. Originally, arbitrary and discriminatory laws were struck down under previous versions of the rational basis test. And the courts cannot determine whether a law is arbitrary or discriminatory without looking at the actual facts and evidence. Yet courts rarely do this now.

This year is as good as any for the courts to decide to look at the facts and evidence in every case, even if the rights are “non-fundamental.”

Second, recognize that your constitution is important. This one is directed at state courts. Each state has its own independent constitution. Unfortunately, state court judges often hold that their constitution—especially the Bill/Declaration of Rights—should be interpreted just like the U.S. Constitution. In doing this, state court judges ignore the simple fact that state constitutions can provide more protections than the federal version.

To be fair, some state constitution provisions were intended to provide the same level of protection as the U.S. Constitution. The problem is when judges reflexively hold this to be the case without diving into actual language and the circumstances surrounding the adoption of said constitution. For example, the Minnesota Constitution lacks an equal protection clause, but that has not stopped the Minnesota Supreme Court from interpreting the Constitution to guarantee equal protection.

This is not necessarily a problem, especially when the Court interpreted the equal protection guaranteed by its Constitution independently of that guaranteed by the 14th Amendment. But last year, in Fletcher Properties v. City of Minneapolis, the Minnesota Supreme Court abandoned this independent interpretation of the Minnesota Constitution and determined that the equal protection guaranteed by the Minnesota Constitution was no more than the protection guaranteed by the 14th Amendment. The Court, in coming to this conclusion, did not grapple with the fact that there were no textual similarities between the two clauses, and that the Minnesota Constitution was adopted over a decade before the 14th Amendment. It was a reflexive decision that did not engage with the text and history of the Minnesota Constitution.

This is the type of (non)interpretation that needs to end. The state courts should engage with their own constitutions and not reflexively hold their constitutions to provide the same protection as the federal constitution. Sometimes they will. But other times, state constitutions provide much more protection.

Third, focus on law, not policy. The courts, especially the federal courts, should focus on the law. Nowhere is this need greater than with suits against government officials. Originally, federal officials were held strictly liable for their constitutional violations. In cases like Little v. Barreme, Wise v. Withers, Mitchell v. Harmony, and Bates v Clark, federal employees and even military officers were held liable and required to pay damages where they violated an individual’s constitutional rights. The Supreme Court consistently held that it was their duty to focus only on whether the law was violated, and if so, provide an appropriate remedy. The Court left it to Congress to determine whether federal officials deserved to be held liable for their constitutional violations. This policy of sticking to the law was applied equally to state officials after Congress created a right of action against them known as Section 1983.

Policy began leaking into the decision of the federal courts in constitutional suits against government employees in the mid-1900s, notably with the 1967 decision of Pierson v. Ray. But it was not until 1982 that the Supreme Court went the distance and abandoned law for policy in creating qualified immunity in Harlow v. Fitzgerald. There, the Supreme Court heard a constitutional case alleging that senior aides in the Nixon Administration violated the constitution in conspiring to fire a whistleblower.

The Supreme Court decided that whether the law was broken and the Constitution violated was of little consequence. Rather, what mattered was consideration of how such suits would impact federal officers in carrying out their duties. The Court focused on the substantial cost that suits would have on federal officials, especially officials who were ultimately innocent. As a result, the Court created qualified immunity to allow government officials to escape accountability for their unconstitutional conduct. This decision has had a disastrous effect on government accountability.

In this upcoming year, the courts should listen to the growing chorus against qualified immunity and return to their role of focusing on law, not policy.

Adam Shelton is IJ’s Immunity and Accoutability Fellow.

If you’re interested in hearing more about the importance of state constitutions, join us in Atlanta on February 4th for an event on the Georgia Constitution. And stay tuned for details about an event in Michigan focusing on its Constitution. Also please check out a Twitter series on each state’s constitution.