Several years ago, I wrote a review of The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom by Cato Institute chairman Robert A. Levy and Institute for Justice co-founder William Mellor. As its subtitle suggests, the book criticizes twelve U.S. Supreme Court decisions that are especially offensive from a libertarian perspective, such as Wickard v. Filburn, Korematsu v. U.S., and Kelo v. City of New London.
Because I’m a libertarian myself, I agreed with most of their criticisms of the twelve decisions.
I had reservations, though, about their proposed remedy: “judicial engagement” on liberty’s behalf — that is, getting judges on board with (for example) the idea that Congress’s powers under the Commerce Clause are much narrower than the Supreme Court has said they are since the New Deal era. This struck me as naive. Judges, after all, are part of the federal government, and the President and Congress both try to ensure that the people they put on the bench believe in maximum executive and legislative power. Judges haven’t increased government power because libertarian lawyers didn’t put the right arguments in front of them; they’ve increased government power because that’s what they were put on the bench to do.
In a response to my review, Levy and Mellor claimed that I was “far too cynical” — which only cemented my view that, for self-described libertarians, these two gentlemen weren’t nearly cynical enough about the federal courts. In fact, they seemed to have a faith in “good government” that is antithetical to libertarianism.
Lately, however, I’ve come to think that, whatever Levy and Mellor’s personal attitudes may be (it’s possible that I misread them), favoring “judicial engagement” for liberty does not require one to be naive about government and therefore is not contrary to the spirit of libertarianism.
My view on this has been influenced by Clark Neily, director of the Institute for Justice’s new Center for Judicial Engagement, who has lately been elaborating on the concept of judicial engagement in appearances at Federalist Society events (I attended one) and in a series of posts at the Volokh Conspiracy.
As Neily describes it, “judicial engagement” is about prodding judges to do their putative job of interpreting and applying the Constitution — which, for Neily, means striking down laws that don’t comport with the Constitution rather than just rubber-stamping legislatures’ decisions in every case under the useless “rational basis” standard of review as courts do most of the time. It is essentially about “calling judges out” when they allow constitutional rights to be violated.
Described that way, judicial engagement appears to be consistent with a libertarian attitude toward government. In the libertarian view, government officials are never to be trusted to do the right thing; instead, the people must be ever vigilant to ensure that government does as little damage to liberty as possible. In the judicial context, this means that we must constantly remind judges of their supposed job and accuse them of abdicating their responsibility when they fail to give legislation the scrutiny it deserves.
The belief in a need to promote judicial engagement is duly cynical inasmuch as it’s premised on the idea that judges can’t be expected to protect liberty in the absence of persistent, intense pressure. The IJ lawyers’ strategy of promoting their pro-liberty legal positions in the court of public opinion, which they believe influences judges, also reflects a “legal realist” attitude appropriate for libertarians, not a deluded vision of judges as unbiased, neutral arbiters.
Judicial engagement is not a panacea, of course. I still doubt that federal courts will meaningfully narrow their expansive reading of the Commerce Clause anytime soon; no 2012 presidential candidate strikes me the sort of person who would appoint judges who would limit federal power. Indeed, there’s every reason to think they would do the opposite. (Ron Paul and Gary Johnson are exceptions, but they are unlikely to win.)
As I have emphasized elsewhere, libertarians’ primary job is education — first of themselves, and then of others. This is essential to building a solid, long-term foundation for liberty. But just as it would be wrong for libertarians to neglect that duty, it would also be wrong to reject a means by which liberty can be increased — and people’s lives can be improved — in the short run. Going to court to fight for people’s liberty accomplishes this, at least sometimes, as one can see from libertarian legal activists’ victories in the Heller and MacDonald gun cases and in the Institute for Justice’s many victories. It also serves an educational function, even when the court battle is lost, by calling the public’s attention to the underlying issues; Kelo, for example, educated the public on the evils of the eminent domain power.
I can’t see how a libertarian could disapprove of this kind of judicial engagement — and to the extent that I have done so in the past, I’ve changed my mind.