Clark Neily is a senior attorney at the Institute for Justice, where he specializes in constitutional litigation on behalf of economic liberty, property rights, free speech, and school choice. In his private capacity, he served as co-counsel for the plaintiffs in the landmark Second Amendment case District of Columbia v. Heller, where the Supreme Court held that the Constitution secures an individual right to keep and bear arms, not a collective one. In his new book Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, Neily explains why judges should stop deferring to lawmakers and start “deciding cases on the basis of actual facts, without bent or bias in favor of government.” Reason Senior Editor Damon Root recently spoke with Neily by telephone.
Reason: One of the biggest complaints about the Supreme Court is that the justices are engaging in judicial activism. But you write, “We don’t have an activist judiciary. Not remotely.” What leads you to say that?
Clark Neily: First of all, if you’re characterizing a certain decision as “activist” you’re essentially saying “this is clearly contrary to either statutory law or the Constitution.” So it’s not just an erroneous decision but a decision that is so obviously erroneous that it could only have been the product of a bad-faith effort to privilege the judge’s policy preferences and put them above that of the actual written law. There are very few Supreme Court decisions striking down laws that in my judgment are indisputably erroneous.
Second, just look at the total output of law from legislatures and then compare the number of times the Supreme Court has struck down laws. It just doesn’t add up. I mention in the book that former Senator Arlen Specter on his way out of the Senate in 2010 complained that the Supreme Court “is eating Congress’ lunch with judicial activism.” But when you actually look at the numbers, of the more than 15,000 laws that Congress passed between 1954 and 2002, the Supreme Court struck down just 103—that’s two-thirds of 1 percent. That’s barely sweeping up the crumbs, it’s not eating anybody’s lunch.
Reason: So the real problem is that the courts have been too passive?
Neily: The courts, starting with the Supreme Court and trickling down, have essentially talked themselves into a kind of knee-jerk deference to the legislature, where in many cases they’re not really making any serious effort to determine whether the government’s action is in fact constitutional. Instead, they’re starting with what amounts to a predetermined belief that the government’s action must be upheld, and their job is to sort of reason backwards from there. I try to document in the book the particular mechanism by which that happens in various areas of constitutional law, including the rational-basis test that applies to supposedly non-fundamental rights and non-invidious discrimination. The rational-basis test is nothing of the kind. It’s not a test and it’s not rational. It’s all about rationalizing what the government’s doing.
Reason: What’s the origin of the idea that there are fundamental rights that deserve serious judicial protection, and non-fundamental rights that get judged under the rational-basis test?
Neily: That arises out of a famous Supreme Court case called Carolene Products from 1938. Carolene Products contains the most famous footnote in Supreme Court history, Footnote Four, in which the Supreme Court asserts the idea that some rights are fundamental and entitled to meaningful judicial protection, and those are basically the rights contained in the Bill of Rights, and perhaps one or two others; and then every other right you might think of—and that includes everything from the right to earn a living to the right to seek potentially life-saving medical treatment, neither of which are specifically mentioned in the text of the Constitution—should be considered non-fundamental rights that are not entitled to any meaningful judicial protection.
Reason: You say the courts routinely fail to engage in real judging. What‘s a recent example of fake judging by the Supreme Court?
Neily: The Affordable Care Act decision, NFIB v. Sebelius. Chief Justice Roberts virtually announces in his controlling opinion that he’s not trying to base his decision on the most natural interpretation of the individual mandate, but on any fair meaning of it that results in the law being upheld. So instead of reading the individual mandate as imposing a penalty on people who don’t purchase health insurance—which is what the law says some 18 times—he transformed that penalty into essentially just an option that we can exercise as we will. And people who choose not to obtain that insurance will just have to pay a little more in taxes. I think that‘s a preposterous reading of the statute and was quite clearly one that was intended just to reach a particular result, which was to uphold it. It’s one of the least persuasive decisions I’ve ever read, which is really saying something.
Another example is Kelo v. City of New London, allowing the government to use eminent domain to take private property from one individual and give it to another for economic development purposes. Any fair understanding of the public use provision of the Fifth Amendment makes clear that what happened in New London is precisely the reason why that provision was included in the Constitution. What the framers knew was going to happen, or what they feared would happen, is that private entities would try to essentially manipulate the political process to obtain property from other private individuals through non-voluntary means and they wanted to prevent that from happening. Well, that’s exactly what was happening in the Kelo case and the Supreme Court rubber-stamped it.
Reason: When did judges start putting their thumbs on the scale in favor of the government?
Neily: The idea that judges should try to actively find ways to uphold laws appears to trace its lineage back to a Harvard law professor named James Bradley Thayer, who wrote an influential law review article in the late nineteenth century in which he argued that courts should not strike down laws unless they are unconstitutional beyond any reasonable doubt. Pretty much unless the text of the Constitution just comes right out and says, “this particular law is unconstitutional.”
There are a lot of problems with that. The first problem is that the Constitution almost never speaks with that level of clarity. If that were really the standard that we wanted the courts to apply, the only function of the courts would be to make sure we never got a 34-year-old president, which is foolish.
Second, it puts courts and judges in the role of advocate. In other words, they view their job not so much as just making a dispassionate ruling on the constitutionality or unconstitutionality of a given law, but in fact view their role as trying to figure out if there is some way to uphold it. Imagine the difference between a football game in which the referees simply call penalties as they see them, and a football game in which referees say, “when the question is, ‘did the home team commit a penalty?,’ our job is to try and interpret the rule and the facts on the field to find no penalty, if we can do that.” I think everyone can recognize that wouldn’t be genuine refereeing, that would be something quite different, and quite disturbing. But that’s exactly what’s going on in our courts in most constitutional cases today.