The Case Against Deference

Judges should be unafraid to review government actions

By David B. Rivkin Jr. and Elizabeth Price Foley

For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.

The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.

Fortunately, a younger generation of conservative lawyers has come to recognize that there is no principled distinction between inventing new rights, unmoored from the Constitution’s text or history, and refusing to uphold constitutionally anchored limits on government power. In both instances, judges are ignoring the Constitution and engaging in—for lack of a better term—judicial activism. Judicial deference may have reined in judicial power, but at an unacceptable constitutional price. For both doctrinal and pragmatic reasons, the concept needs rethinking.

First, the “counter-majoritarian difficulty” that lies at the heart of judicial restraint has been oversold. The label itself suggests that judges should esteem current majoritarian preferences and be loath to overturn them. But why, when the Constitution instructs otherwise? Article VI declares that the Constitution is the “supreme law of the land,” and trumps conflicting ordinary laws. Judges take an oath to “support this Constitution,” reflecting their duty to heed the constitutional language. Enforcing the written Constitution—not reflexively deferring to extant legislative majorities—was (and still is) the will of We the People. If the people desire constitutional change, Article V provides the mechanism, allowing every generation to put its stamp on our fundamental legal charter.

In Federalist 78, Alexander Hamilton described the crucial judicial role in ensuring that the Constitution reigns supreme, explaining that judicial independence was “peculiarly essential in a limited Constitution,” where the government possessed only enumerated powers. In such a government, he observed, “[l]imitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.” Hamilton and other Framers understood that robust judicial review was essential to enforce limited and enumerated powers.

Second, the virtues of judicial deference have declined over time. Early Supreme Court decisions justified deference as necessary to ensure that the newly established federal government could fulfill its essential responsibilities. As Chief Justice John Marshall explained in the famous 1824 case Gibbons v. Ogden, a “narrow construction” of government powers “would cripple the government, and render it unequal to the object for which it is declared to be instituted.” Accordingly, the Court concluded “we cannot perceive the propriety of strict construction, nor adopt it as the rule by which the Constitution is to be expounded.”

Deference to exercises of government power arguably made more sense in the republic’s early days, to ensure that federal power could accomplish the Constitution’s basic, enumerated ends. But as the administrative state has matured, the sheer weight of government has grown exponentially, and every new accretion weighs more heavily on individual liberty. Complex statutory frameworks increasingly operate at cross-purposes, and statutes rarely get repealed, with new regulations being piled on top of old ones. Today, the cumulative reach of government power is far more than adequate to counsel judges against knee-jerk deference to all exercises of government power. The unfolding IRS scandal, accompanied by the Obama administration’s remarkable claim that the president should not oversee the federal government’s law enforcement activities, makes the need for vigorous judicial review of governmental actions all the more apparent. The courts must unapologetically enforce constitutional boundaries to facilitate trust in, and accountability of, government.

Third, the early Court’s notion of deference was distinct from its modern incarnation. Today’s judicial deference is the product of the progressive era of the late 19th and early 20th centuries. Judges schooled in the original understanding had no qualms about being perceived as “counter-majoritarian,” conceptualizing their role as enforcing the written Constitution against the daily assaults of ordinary legislation. Progressives, who wanted to remake American society, viewed such judges and the written Constitution as an impediment. Achieving progressive goals was possible only if judges could be restrained from scrutinizing ordinary laws for adherence to higher constitutional principles.

One of the most powerful early advocates of judicial deference was progressive Harvard law professor James Bradley Thayer, who, in 1893, argued in the Harvard Law Review that judges “can only disregard [an] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, so that it is not open to rational question.” He justified this “rational basis” review by asserting that the Constitution “often admits of different interpretations; that there is a range of choice and judgment,” and that a judge’s role “is merely that of fixing the outside border of reasonable legislative action.” Thayer remarkably asserted that, in applying such light judicial review, “virtue, sense, and competent knowledge are always to be attributed to that [legislative] body.” It is ironic that modern conservatives, concerned about the freewheeling behavior of liberal judges during the Warren Court era, have chosen as their principal bulwark against activism a doctrine of judicial deference whose genesis lies in the progressive era’s desire to expand government power.

The fourth problem with judicial deference is pragmatic, stemming from the judiciary’s inconsistent application of restraint. Since the New Deal, economic regulations, for one example, have received the utmost deference. Yet when it comes to so-called individual rights—a category that, for some inexplicable reason, does not include economic rights—courts jettison deference and apply heightened scrutiny. This bifurcation between “individual” and “economic” rights makes zero sense, as neither the Constitution itself, nor any theory of individual rights, suggests that the former are more important than the latter, or indeed that they are different in kind. The artificial distinction, moreover, invites judicial manipulation and selective invocation of aggressive scrutiny.

In 2005, for example—after over 200 years of constitutional history—the Supreme Court, in Roper v. Simmons, determined 5-4 that the death penalty for 17-year-olds violated the Eighth Amendment’s prohibition of cruel and unusual punishments. Just 15 years earlier, in Stanford v. Kentucky, the Court had decided precisely the opposite. According to the Roper majority, the Constitution’s meaning changed in the intervening 16 years because a “majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment.”

Since 20 of the 38 states that allowed the death penalty at the time of Roper also allowed it for 17-year-olds, the Court cooked the numbers. It included in its calculations 12 states that prohibited the death penalty altogether, leading it to find a “consensus” of 30 states against the juvenile death penalty. As Justice Scalia’s dissent observed, this “is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue,” because a total prohibition on the death penalty reveals nothing about whether juveniles should receive an exemption.

The Roper decision disregarded the policy preferences of at least 20 states—policy preferences that neither the Constitution’s text nor its historical context condemned—based on the “evolving standards of decency” that five justices wanted the Eighth Amendment to reflect.

Similarly, in the 1980 decision Stone v. Graham, a 5-4 Supreme Court concluded that requiring display of the Ten Commandments in public schools—funded entirely by private dollars—violated the First Amendment’s Establishment Clause. The Stone majority believed posting the commandments had no secular educational purpose, despite the fact that they are the foundation upon which much of the Western world’s legal codes rest.

The Stone and Roper decisions did not “defer” to the reasoned policy judgment of legislators; quite the opposite. Even though legislators had rational reasons for believing that a 17-year-old is capable of cold-blooded murder and deserving of the death penalty, or that posting the Ten Commandments may have a positive, nonreligious educational effect, the Supreme Court was eager, under the guise of constitutional construction, to impose its own views and stifle further democratic debate.

In contrast to the overly aggressive scrutiny applied in “individual rights” cases such as Roper and Stone, the Supreme Court has shirked its duty to scrutinize many other exertions of government power. The net result is an odd mixture of judicial activism and restraint, whereby judges actively and unapologetically overturn laws purported to infringe certain favored individual rights, yet simultaneously espouse a duty to be restrained in reviewing laws alleged to exceed the proper scope of government power.

Take the case of Grutter v. Bollinger (2003), in which the Court was asked to determine the constitutionality of the University of Michigan law school’s use of race as a “predominant” admission factor. An unsuccessful white applicant asserted that such a race-conscious policy violated the Constitution’s guarantee of equal protection.

The law school claimed race-based admissions were needed to achieve a “critical mass” of minority students, needed for the educational benefit of “diversity.” A five-justice majority agreed, concluding, “The Law School’s educational judgment that such diversity is essential to its educational mission is one to which we defer.”

The Grutter majority did not see the case as involving an individual’s right to be free from state-sponsored racial discrimination, but instead as one involving the right of a public university to define and implement its educational mission. Consequently, the Court deferred to the university, allowing it to exercise its power the way it saw fit. The Grutter Court’s choice—to view affirmative action as an exercise of power requiring deference rather than an individual right requiring scrutiny—emphasizes the manipulability inherent in the modern deference doctrine.

The Supreme Court’s decision last year in National Federation of Independent Business v. Sebelius, upholding the Affordable Care Act, further shows the extent of modern judicial contortions to uphold aggressive exercises of government power, even when it harms individual liberty. A 5-4 majority upheld the act’s mandate for individuals to buy health insurance as a “tax,” even though the president and congressional leaders repeatedly and publicly denied that the mandate was a tax, and the law specifically denominated the mandate as a “penalty” while simultaneously labeling multiple other provisions as taxes.

The NFIB majority opined that the mandate “may be reasonably characterized as a tax” even though it was not “the most natural interpretation” of it. And since the Constitution allows Congress to impose taxes, the majority concluded, “it is not our role to forbid it, or to pass upon its wisdom or fairness.”

Like GrutterNFIB v. Sebelius demonstrates the breadth of deference in cases viewed by the Court as challenges to government power. And the NFIB majority didn’t merely defer, it rewrote a statute to survive constitutional attack. Leaving aside the fact that functioning as the legislature’s scrivener is not a proper judicial role, the Court was oblivious to the fact that forcing the political branches to articulate what they are enacting is essential to accountability, one of the key purposes of the Constitution’s separation of powers. Indeed, had the Obama administration publicly described the mandate as a tax, it would never have passed, even in a Democratic Congress.

The NFIB decision also illustrates the fifth problem with judicial deference: It has decayed into virtual rubberstamping. Courts bless government actions using either the rationale advanced by the government or—if that proves unsatisfactory—a rationale the courts themselves concoct. This is a far cry from relying on reasons advanced by the government at the time a statute or regulation was adopted.

For example, in Williamson v. Lee Optical Co. (1955), the Supreme Court upheld an Oklahoma law that made it illegal for anyone other than an optometrist or ophthalmologist to replace eyeglass lenses. Opticians challenged the law, asserting that it violated both the Equal Protection Clause and the liberty protected by the Due Process Clause. They offered evidence that opticians could just as safely make replacement lenses, and that optometrists and ophthalmologists received no special training in lens making. The evidence suggested that the law was not designed to guard the public from poor quality lenses, but to protect optometrists and ophthalmologists from the healthy competition of less expensive opticians.

The Williamson Court nonetheless deferred to the legislature, opining it “might have” concluded that limiting lens replacement to optometrists and ophthalmologists was a good thing and that the legislature “need not be in every respect logically consistent in its aims to be constitutional.” It was sufficient that the Court itself could imagine some rational basis for the law, even if the legislature did not actually rely on the basis identified by the Court.

As cases like Williamson show, modern judicial deference doesn’t require the government to prove anything at all to justify exertions of power. Judges must uphold the law if the legislature could have theoretically believed that the law serves a legitimate purpose (even if it actually doesn’t).

Upholding laws if judges can dream up some legitimate justification for them is not being deferential; it is being biased in favor of the government and against the citizen. The net effect is to rubber-stamp government power. Reflexive deference to the government in constitutional cases has undermined the chief goal of originalism—the preservation of the architecture and original meaning of the Constitution—by a steady and inevitable aggrandizement of government power.

It is high time for judges to abandon reflexive deference. Judges should be unafraid to review government actions and defend constitutional principles. This would entail, among other things, beefing up the “rational basis” review of government actions and making it a serious examination of both the government’s ends—are they properly derived from the government’s legitimate purposes?—as well as the government’s means—do they rationally advance the ends that the government articulated at the time it undertook the action being challenged? By making these important shifts in the way constitutional cases and the facts underlying them are viewed, judges can best live up to their obligation to uphold the Constitution—a goal judges of all political stripes should be able to embrace

David B. Rivkin Jr., a veteran of the Reagan and George H. W. Bush administrations, has represented 26 states challenging the constitutionality of Obamacare. Elizabeth Price Foley, a professor of constitutional law at Florida International University, is the author, most recently, of The Tea Party: Three Principles (Cambridge).


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