Antonin Scalia

How to Fix the Supreme Court

Institute for Justice lawyer Clark Neily on judicial activism, fundamental rights, and suing the government.

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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.

Reason: I wanted to ask you about Justice Hugo Black. He grappled with these issues and his solution was to draw a bright line between the Bill of Rights, which he believed judges should actively and aggressively protect, and unenumerated rights, which he believed deserved no judicial protection whatsoever. What's wrong with the line he drew?

Neily: I emphatically reject the line that he drew, although it's a line that has been resurrected in large measure by conservative minimalists today, including some very well-respected judges and commentators, including J. Harvie Wilkinson, who's a judge on the 4th Circuit Court of Appeals. The basic problem with that way of approaching the Constitution is that it ignores, or at least reduces to meaninglessness, some of the really important, value-laden provisions in the Constitution. The people, in ratifying the Fourteenth Amendment, chose to use the terms equal protection, due process, and privileges or immunities, and I think a fair reading of the history of the Fourteenth Amendment indicates that they had some particular practices in mind that they wanted to put an end to when they used those terms.

But they wanted to leave the provisions open-ended enough to empower the federal government, and specifically the federal courts, to put an end to other practices that were existing at the time or that might come into existence in the future that would violate those principles. The framers of the Fourteenth Amendment knew very well that you couldn't produce a catalogue or a bullet-point list of the things that government should be forbidden from doing in a free country governed by the rule of law, and they didn't attempt to do that. Instead, they used these value-laden terms—they're not terms of infinite meaning but they are terms of open-ended meaning. And Justice Black's approach really deprives those terms of any significance and that seems to me a very strange and objectionable thing for a self-professed textualist to do. But unfortunately, we see echoes of that for example in Justice Scalia's jurisprudence today, and I think it really undercuts the credibility of people like Justice Scalia who claim to be textualists when they simply ignore constitutional text that does not square with their personal preference for a minimalist judiciary.

Reason: What's an example of a significant unenumerated right the courts have refused to protect?

Neily: It's difficult to think of a right more fundamental than the right of self-preservation, whether it's a matter of self-defense, or putting a roof over one's head, or working and putting food on one's table. The idea of the individual's ability to preserve oneself, to have a life, has to be obviously the most fundamental right there is, and yet the courts have managed to really screw up their interpretation of the Constitution even on that level. I mention a decision in the book, just an appalling decision from the D.C. Circuit Court of Appeals, in which they found that terminally ill cancer patients have no fundamental right of access to experimental cancer drugs that might save their lives. If you're wondering if you have gotten off-course somehow, and you find yourself saying there is no fundamental right of access to potentially life-saving drugs, then the answer is, yes, you have definitely gotten off course if you are purporting to interpret and apply the Constitution consistent with all of its terms.

Reason: Where should judges look to determine the scope of unenumerated rights?

Neily: Reasonable minds can differ about the appropriate sources. One is certainly the history and traditions of the country, which is reflected in current constitutional doctrine. I would also say, a kind of logical consistency, so that you are not, for example, bending over backwards to protect relatively trivial rights in one area while totally declining to protect a much more important right, like the right not to have your house bulldozed by your government for no good reason.

I would also say, a real commitment to the text of the Constitution. To take one example, the Privileges or Immunities Clause was included in the Fourteenth Amendment, and the Fourteenth Amendment itself was ratified, for a very clear purpose. And that was to put an end to the systematic violation of civil rights in the wake of the Civil War, particularly in Southern states. And one way you can try to determine its meaning is to just look at what were the rights that were being systematically violated. And those would include free speech, the right to own a gun, the right to work in an occupation of your choice, the right to move around freely looking for better opportunities, the right to own property and enter into contracts—those are some of the ones that are just indisputable if you take a fair look at the history. And that gets you off to a pretty good start with the Privileges or Immunities Clause.

Reason: Robert Bork used to argue that we live in a fundamentally majoritarian society, and the first principle of that society is that majorities get to rule in wide areas of life, if they wish, simply because they are majorities. What do you say to that?

Neily: There's so much wrong with that view that it's difficult to know where to start. But I think we should probably start with the fact that it is philosophically preposterous. There is absolutely no philosophical support for the proposition that majorities have a right to rule over minorities simply because they are majorities. He cites no philosophical principles for that. I don't know anyone who would agree with Judge Bork that that is an accurate statement of moral philosophy. And to attribute that purpose to the framers of the Constitution, who had just fought an eight-year war to throw off the tyranny of what was arguably a majoritarian system is deeply ahistorical as well. And I would just simply add that the Constitution is not a fundamentally majoritarian document. I don't know how anyone could read it and suppose that it is. The Constitution is chock-full of provisions that are designed either to limit government or at least to put significant hurdles in the path of the majoritarian process. So to look at the Constitution and to see in it a fundamentally majoritarian document is to me just deeply incoherent.

So I don't subscribe to that idea, and I think when you lay it bare in the harsh light of some of the terrible things that have happened in this country, it becomes even more preposterous. I'll just give one example. As I mention in the book, during the twentieth century, more than half of the states had laws on the books not only authorizing but in some cases demanding eugenic sterilization. Those laws were adopted by political majorities, apparently in some cases by wide margins, and when the Supreme Court first looked at the question of whether that violated anyone's constitutional rights in 1927 in a case called Buck v. Bell, the Supreme Court said the Constitution has nothing to say about this. It's one of the most disgraceful decisions in all of constitutional law.

Reason: The author of Buck v. Bell is Justice Oliver Wendell Holmes, one of the Supreme Court's most famous proponents of judicial deference.

Neily: Buck v. Bell was a perfect expression of the distilled essence of judicial restraint and Oliver Wendell Holmes, to the day of his death, thought Buck v. Bell was an excellent decision and a correct understanding of the Constitution. And I think maybe that tells us all we really need to know about the sort of hyper-commitment to majoritarianism and the consequences of not properly interpreting the Constitution as a fundamentally non-majoritarian document.

Reason: Your day job involves suing the government. What's the most outrageous defense you've ever encountered from a government lawyer?

Neily: The one that's most colorful is the Louisiana florist case. Louisiana, alone among the states, requires a government license to engage in the occupation of florist. That law was obviously enacted for the purpose of suppressing competition and enabling industry insiders to keep out newcomers. But given that it's a rational-basis case, of course the true reason for its enactment is irrelevant in court. And so the government lawyers got to just make up any explanations they could think of. And as the government typically does in a rational-basis case, they tried to come up with a health and safety argument; in other words, that the law was perhaps enacted to protect the citizens of Louisiana from the dangers of unlicensed floristry.

This is preposterous, of course, but it's a rational-basis case so that doesn't matter. And among the things they mentioned as possible concerns with unlicensed floristry were misplaced corsage pins, the possibility that floral wire—which is used to hold the stems together on a bouquet—if improperly installed could come unsprung and get entangled in the bride's gown and then she could trip in the aisle on the day of her wedding and that would be very embarrassing. This was actually said to me by somebody under oath who worked for the Louisiana Horticulture Commission. And then of course there's the specter of "infected dirt," which is actually cited by the judge in upholding the law. I don't know to this day what that dirt was supposed to be infected with, or what good it would do to require people to pass an exam that has nothing on it about infected dirt. But the judge apparently felt otherwise and upheld the law partly on that basis.

Reason: I laughed out loud when I first read the words "infected dirt." But this case has also has a very sad element, right?

Neily: As humorous as it can be to laugh at the state of Louisiana for going into court and arguing that licensing florists has something to do with infected dirt or errant corsage pins, the story has unfortunately a very sad ending. My lead client in the case, Sandy Meadows, was a high school dropout from Mississippi and a widow. She was living in Baton Rouge at the time and the only vocational skill that she had, the only means she had to support herself, was making flower arrangements. And she was good at it. So good, in fact, that the Albertsons grocery store in Baton Rouge hired her to run its floral department.

Unfortunately, she was not able to pass the exam. It was just too outdated, too subjective. She tried five times and couldn't pass it—not because she's not a good florist, it's just because the exam is designed to make it difficult to pass. And when the Louisiana Horticulture Commission discovered she was running the floral department at the Albertsons without a license they threatened to shut it down unless the store hired a state-licensed florist, which they did. But then they didn't need Sandy to work in the floral department anymore, so they had to let her go. And she died a couple months later, unemployed and destitute because the state of Louisiana wouldn't let her work as the florist.

I think that's terribly sad and frankly outrageous. And I don't think that we should embrace a judicial philosophy that allows that to happen, and I don't think we should embrace a judicial philosophy that makes people laugh at the decision-making process by which laws like that are upheld, where judges pretend to believe that the state might actually be trying to protect people from infected dirt.

Reason: You've been working on cases like this for a number of years now. Are you getting more or less optimistic about the future?

Neily: It depends which side of the bed I wake up on. I'm increasingly discouraged at the willingness of judges to accept demonstrably preposterous explanations for government action and to turn a blind eye to what government is really doing in a wide range of cases. I do find that very discouraging. On the other hand, that is ultimately unsustainable. The public, young law students, people I talk to in various situations, no one thinks that this approach to judging has any integrity. And in fact it doesn't. It's gotten so bad that just shining a light on it could be all that is necessary to bring it to an end.