Judicial Engagement Continues to Make Waves

June 5, 2015

Over the past few months, IJ’s Center for Judicial Engagement (CJE) has been at the center of a fresh dialogue about the proper role of courts in constitutional cases, a dialogue that shows signs of finally moving beyond the false dichotomy of “judicial activism” and “judicial restraint.” The result? Not only is judicial engagement squarely on the table in limited-government circles—it is becoming a focal point of those discussions.

In January, Senator Rand Paul shook up the right-of-center legal movement when he criticized knee-jerk judicial deference and described himself as a “judicial activist” who favors robust protection of individual liberty by the courts. He further challenged the status quo by praising the U.S. Supreme Court’s 1905 decision in Lochner v. New York. The Lochner decision has been anathema to generations of conservatives and liberals for its principled defense of economic liberty. Appearing days later on Mark Levin’s widely syndicated radio show, Senator Paul clarified that he is a proponent of “judicial engagement”—not activism—and believes that courts should fully enforce all constitutional limits on government power instead of a select handful, as they do now.

CJE responded immediately. We published an op-ed at National Review Online praising Senator Paul’s challenge to conventional wisdom and arguing that reflexive judicial restraint has been a disaster for constitutionally limited government. This op-ed prompted a reply from conservative legal scholars and gave rise to a thoughtful exchange about judicial duty—whether judges should accept implausible and factually unsupported justifications for government action at face value or should instead insist upon honest explanations and reliable evidence. That exchange is ongoing, and it has attracted numerous other participants.

Of course, this is not merely an academic dispute. As the Supreme Court prepares to decide cases involving same-sex marriage and whether the IRS can provide billions of dollars in Obamacare subsidies without explicit congressional authorization, partisans on the left and right have accused the Court of “activism” for involving itself in those matters at all. CJE responded with a USA Today op-ed, arguing that all cases involving asserted abuses of government power merit the kind of engaged judging currently reserved for a small handful of privileged constitutional values.

Importantly, the call for judicial engagement is not limited to the High Court. Several hundred thousand cases are filed in federal court every year, and of the 40,000 or so decided by the courts of appeals, only a few dozen are heard by the Supreme Court. In the last issue of Liberty & Law, we announced a weekly online newsletter and podcast called Short Circuit to highlight key decisions from the nation’s federal circuit courts, which are a level below the U.S. Supreme Court. Editor John Ross’ intriguing case summaries and irreverent humor have made Short Circuit an instant hit among hundreds of subscribers while earning favorable mentions on leading legal blogs, including Overlawyered and The Volokh Conspiracy.

While judicial engagement is not yet the coin of the realm, it has never been more widely—or seriously—discussed. The day courts start providing meaningful judicial review in all constitutional cases will be a rough day for Leviathan but a fine day for freedom.

Clark Neily is an IJ senior attorney and director of CJE.

Evan Bernick is the assistant director of CJE.

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