On Monday, the Supreme Court closed out a term in which it took the Constitution seriously and struck down laws that couldn’t stand up under careful scrutiny of the facts.
The result? An unusually good year for individual rights.
Since President Obama’s novel attempt in 2012 to make “recess appointments” when Congress was not in recess, the Court has issued 13 unanimous decisions rejecting unprecedented power grabs by the federal government. In handing down the last batch of cases for this term, the Court showcased an approach toward judging that is desperately needed to protect our liberties. That approach is “judicial engagement.”
What is judicial engagement? Simply put, it’s real judging, grounded in the text and history of our Constitution and based on real facts before the court. Engaged judges put the burden of proof on government, demanding that any restriction of liberty be justified by a constitutionally permissible end that is pursued through constitutionally permissible means.
But don’t judges really judge in all cases? Actually, no.
The Supreme Court has held that while some constitutional rights, such as free speech, are entitled to meaningful judicial protection, most—such as the right to earn an honest living or to not have one’s home bulldozed to make way for a shopping mall—are not. As a result, the default standard in constitutional cases is “rational basis review,” which amounts to little more than a judicial rubber stamp. Judges applying rational basis review make no effort to determine the government’s true end, will accept factual assertions for which the government has no evidence, and allow government to regulate with a chainsaw where scissors would do just as well. That isn’t judging, it’s abdication.
This term, however, the Court got more engaged.
In McCutcheon v. F.E.C., the Court held that the mere appearance of corruption doesn’t justify restricting political speech protected by the First Amendment. The Court carefully considered the government’s claims, but ultimately rejected them as “far too speculative.” Similarly, in Riley v. California, the Court unanimously held that the Fourth Amendment requires a warrant before cell phones can be searched. After scrutinizing the government’s arguments, the Court concluded that “neither the United States nor California offers evidence to suggest that their concerns are based on actual experience.” Finally, the Court in Harris v. Quinn rejected Illinois’ farfetched designation of home healthcare workers as “public employees” who could be forced to contribute money to a labor union.
The Court hasn’t always been so vigilant, however. Judicial abdication has punched gaping holes in the Constitution, allowing government to violate individual rights and exercise illegitimate powers.
In Bennis v. Michigan (1996), the Court turned a blind eye to civil-forfeiture abuse and threw due process under the bus by allowing police to forfeit a woman’s interest in a car because her husband, the car’s joint owner, used it to solicit prostitutes without her knowledge. In Kelo v. City of New London (2005), the Court gave its blessing to the condemnation and transfer of an entire working-class neighborhood to a private developer through the use of eminent domain. That decision eviscerated the public-use provision of the Fifth Amendment and left homes and small businesses at the mercy of politically connected developers who bulldoze first and ask permission later. And in 2012, Chief Justice Roberts cast the deciding vote to uphold Obamacare in NFIB v. Sebelius, creatively interpreting a “penalty”-backed mandate to purchase government approved health care as an optional “tax,” which the president himself said it was not.
For decades, discussions of the Court’s decision making have been dominated by drumbeat charges of “judicial activism” and corresponding calls for “judicial restraint.” But the Framers expected judges to “restrain” the government from violating our rights. This term, the Supreme Court reminded us—unanimously, in some cases—about the importance of a properly engaged judiciary in protecting us from overweening government. But the defense of our rights—all of our rights—requires real judging in every constitutional case, not just a select few.
While this term represents progress, it is important to insist that the Court be engaged all the time, every time, and never abdicate its responsibility to keep the government within constitutional bounds.
Evan Bernick is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, the national law firm for liberty.