For Judges: Throw The Flag On judicial Activism

WASHINGTON — Disabusing the Republican Party of a cherished dogma, thereby requiring it to forgo a favorite rhetorical trope, will not win Clark M. Neily III the gratitude of conservatives who relish denouncing judicial activism. He, however, and his colleagues at the libertarian Institute for Justice believe America would be more just if judges were less deferential to legislatures.

In “Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government,” Neily says America is not “a fundamentally majoritarian nation in which the ability to impose one’s will on others through law is a sacred right that courts should take great pains not to impede.” America’s defining value is not majority rule but individual liberty.

Many judges, however, practicing what conservatives have unwisely celebrated as “judicial restraint,” have subordinated liberty to majority rule. Today, a perverse conservative populism panders to two dubious notions — that majorities should enjoy a largely untrammeled right to make rules for everyone, and that most things legislatures do reflect the will of a majority.

Conservatives’ advocacy of judicial restraint serves liberalism by leaving government’s growth unrestrained. This leaves people such as Sandy Meadows at the mercy of government acting as protector of the strong.

She was a Baton Rouge widow with little education and no resources but was skillful at creating flower arrangements, which a grocery store hired her to do. Then Louisiana’s Horticulture Commission pounced.

It threatened to close the store as punishment for hiring an unlicensed flower arranger. Meadows failed to get a license, which required a written test and the making of four flower arrangements in four hours, arrangements judged by licensed florists functioning as gatekeepers to their own profession, restricting the entry of competitors. Meadows, denied re-entry into the profession from which the government had expelled her, died in poverty, but Louisianans were protected by their government from the menace of unlicensed flower arrangers.

What Louisiana does, and all states do in conferring favors through regulations that violate individuals’ rights, is obviously unjust and would be declared unconstitutional if courts would do their duty. Their duty is to protect individual liberty, including the right to earn a living, against special-interest legislation. Instead, since judicial abdication became normal during the New Deal, courts almost invariably defer to legislatures’ economic regulations, which frequently are rent-seeking by private factions.

Courts justify dereliction of judicial duty as genuflection at the altar of majority rule, as long as the court can discern, or even imagine, a “rational basis” for any regulation — even if the legislature never articulated it. Never mind the absurdity of the fiction that a majority of Louisianans know about, let alone care about, licensing flower arrangers.

Conservatives clamoring for judicial restraint, meaning deference to legislatures, are waving a banner unfurled a century ago by progressives eager to emancipate government, freeing it to pursue whatever collective endeavors it fancies, sacrificing individual rights to a spurious majoritarian ethic.

The beginning of wisdom is recognizing the implications of this fact: Government is almost never disinterested. Today’s administrative state is a congeries of interests, each of which has a metabolic urge to enlarge its dominion and that of the private-sector faction with which it collaborates. As Neily says, “Much of modern constitutional law depends on denying — or at least ignoring — the realities of the political process.” Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals says of “rational basis” jurisprudence: “The judiciary justifies its reluctance to intervene by claiming incompetence — apparently, judges lack the acumen to recognize corruption, self-interest, or arbitrariness in the economic realm — or deferring to the majoritarian imperative,” which means “the absence of any check on the group interests that all too often control the democratic process.”

This process, Neily rightly insists, is not self-legitimizing, which is why judicial passivity is inconsistent with constitutional government. Between 1954 and 2002, the Supreme Court invalidated 103 of the 15,817 laws that Congress passed — 0.65 percent. It struck down about 0.5 percent of federal regulations and less than 0.05 percent of state laws. Neily says, “In light of history, experience, and common sense, it is implausible to suppose the federal government hits the constitutional strike zone 99.5 percent of the time.”

Neily argues that to say that judicial invalidations of legislative acts should be rare is no more sensible than saying NFL referees should rarely penalize players for holding. Conservatism’s task, politically hazardous but constitutionally essential, is to urge courts to throw as many flags as there are infractions.

George Will’s email address is georgewill@washpost.com.