Judging from these Judicial Engagement Successes, IJ is on the Right Track

May 29, 2012

With Big Government on the march and the U.S. Supreme Court set to decide the most important federalism case since the New Deal, the need for judicial engagement has never been more acute. And IJ’s Center for Judicial Engagement is right in the thick of it.

The driving force behind judicial engagement is the idea that judges are duty-bound to enforce constitutional limits on government power and should do so without putting their fingers on the scale in favor of government. By contrast, many claim the chief judicial virtue is not independence, but deference toward other branches of government.

That tension was on full display both before and after the Supreme Court arguments over the Affordable Care Act, also known as Obamacare.  Indeed, the president himself admonished the Court that it would be an “unprecedented” step to strike down the healthcare law notwithstanding serious questions about Congress’ authority to force people to buy health insurance and the absence of any real limiting principle on that breathtaking assertion of power.

The constitutional challenge to Obamacare has focused the public’s attention on the role of courts like never before, and the Center for Judicial Engagement has been working to frame that dialogue in the courts, the media, public policy circles and law schools across the country.

Last fall the Center kicked off a “Judicial Engagement” debate series in conjunction with the Federalist Society featuring high-profile events at law schools from coast to coast.  Those debates acquainted more than a thousand law students with the concept of judicial engagement and directly challenged the call for blind deference to other branches.  I also wrote a series of posts for the “Volokh Conspiracy” that outlined the theory behind judicial engagement and explained why judicial abdication is a much bigger threat than activism.  (Available at www.volokh.com/author/clarkneily.)

Just three days before the Obamacare arguments in March, the Center sponsored a symposium on judicial engagement at George Mason University School of Law featuring prominent academics who represent a wide array of views, including Harvard Law School’s Mark Tushnet, University of Texas Law’s Sandford Levinson, Pepperdine School of Law’s Doug Kmiec and Northwestern Law’s Steve Presser.  The symposium included panels addressing the role of judicial engagement in protecting individual rights and preserving federalism, as well as the important differences between activism, restraint and engagement.  The George Mason Law Review will publish a special symposium issue on judicial engagement this month.

Meanwhile, in court, IJ Senior Attorneys Scott Bullock and Jeff Rowes have deftly positioned the Louisiana casket case before the 5th U.S. Circuit Court of Appeals to determine whether the rational basis test for economic regulations has any bite at all—or is instead merely a rubberstamp for courts to place their imprimatur on naked economic protectionism.  Federal appeals courts are divided on that question in the wake of IJ’s Tennessee and Oklahoma casket cases, setting the stage for a momentous judicial-engagement ruling from the 5th Circuit later this year.

Finally, together with IJ’s Communications team, the Center has injected the term “judicial engagement” into the terms of the debate over the proper role of courts.  IJ has earned placements on this issue in such prominent outlets as The New York Times, the Los Angeles Times, The Wall Street Journal, The Washington Post, Forbes, National Review Online and CNN.com, which featured as an “editor’s choice” a piece by IJ Director of Strategic Research Lisa Knepper regarding the Center’s “Government Unchecked” study (www.ij.org/govtunchecked).  Focusing on the human face in The Washington Post, former IJ Maffucci Fellow and current Harvard Law student Jason Orr slammed Maryland county officials for shutting down an unlicensed lemonade stand and fining the children who operated it $500.  As Jason explained, that kind of tyranny will persist until judges “become more engaged in deciding constitutional cases instead of deferring reflexively to the supposed wisdom of legislators and regulators.”

Judicial abdication has allowed government to abuse its authority and run roughshod over liberty.  The Center for Judicial Engagement was created to get judges back in the business of actually judging and enforcing constitutional limits on government power, and nothing could be more important.

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

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