IJ Sets the Terms of the Debate With the Call for Judicial Engagement

November 21, 2011

By Clark Neily

The Institute for Justice’s Center for Judicial Engagement continues to set the terms of the debate with the release of a strategic research report debunking the myth of judicial activism, the kickoff of a national debate series, and high-profile attention from courts and commentators.

The strategic research report, Government Unchecked, examines the charge that the U.S. Supreme Court is are striking down so many laws as to impair the other branches’ legitimate policymaking efforts. Or, as former Senator Arlen Specter put it more colorfully, the U.S. Supreme Court “has been eating Congress’ lunch by invalidating legislation with judicial activism.” As the figures on the next page make clear, that assertion is unsubstantiated and inaccurate. The fact is, government will produce at least some unconstitutional enactments, and a properly functioning judiciary must therefore have a strike-down rate greater than zero. The relatively tiny number of decisions declaring laws unconstitutional shows that far from “eating Congress’ lunch,” the Supreme Court is barely sweeping up the crumbs.

The Center also launched a debate series this fall, working with the Federalist Society to bring the concept of judicial engagement to law schools nationwide. The series has featured more than 20 events, including high-profile debates at Harvard, Yale, Duke, Virginia, Texas and Northwestern, with plenty more to come. Among the highlights was a debate at Georgetown with leading conservative Ed Whelan, a sharp critic of judicial engagement who believes courts should be far less active in limiting government power.

Even though IJ coined the term just a few years ago, “judicial engagement” has already received a number of high-profile mentions. For example, in striking down Obamacare’s individual mandate in August, the 11th U.S. Circuit Court of Appeals explained that when Congress exceeds the limits of its authority, “the Constitution requires judicial engagement, not judicial abdication.” In October, prominent Supreme Court reporter Linda Greenhouse wrote a detailed piece about the Center for Judicial Engagement for the New York Times’ Opinionator blog in which she quoted from the Center’s declaration and expressed the hope that, while she may not agree with its objectives, public embrace of the term “engagement” might send the charge of “judicial activism” into retirement.

The question is not whether judges should be activist or restrained, but whether they are properly enforcing constitutional limits on government power. That is judicial engagement, and we expect to see a lot more of it.

Clark Neily is director of IJ’s Center for Judicial Engagement.

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