Friday Interview: Seeking Engagement From Federal Judges | Eastern North Carolina Now

    Publisher's note: The author of this post is CJ Staff, from the Carolina Journal, John Hood Publisher.

Institute for Justice attorney pans pleas for judicial restraint

    RALEIGH — The U.S. Supreme Court is supposed to uphold the U.S. Constitution's limits on the federal government's powers. Clark Neily, senior attorney at the Institute for Justice, argues that the nation's highest court has fallen short of meeting its obligations. Neily details his concerns in the book Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government. Neily discussed key themes from that book with a John Locke Foundation audience earlier this year. He also spoke with Mitch Kokai for Carolina Journal Radio. (Click here to find a station near you or to learn about the weekly CJ Radio podcast.)

    Kokai: That really is what we think of the Supreme Court — it's sort of the final arbiter on whether laws and the execution of laws are constitutional or not. Your book sort of takes a look at just how good a job or bad a job the court is doing. What is your progress report?

    Neily: It's not good. Unfortunately, for about the last 75 or 80 years, the Supreme Court has really refused to enforce some of the most important constitutional limits on government in any meaningful way. And that includes, for example, economic liberty, property rights, the idea that the federal government is one of enumerated and therefore limited powers. None of these important limits on government power are enforced in any meaningful way by the Supreme Court or by the lower courts.

    Kokai: You mentioned the past 75 or 80 years, which suggests that the court did a good job of addressing this obligation beforehand. What changed?

    Neily: Well, the Supreme Court's track record was mixed before the New Deal, but after the New Deal [it] was almost uniformly negative when it comes to things like federalism, property rights, economic liberty, tax policy. The list could go on and on.

    And what changed essentially was that the Supreme Court threw in the towel on trying to impose any significant limit on particularly the federal government's ability to micromanage the economy, and then everything that comes with it. And then as years went past, the Supreme Court also threw in the towel on trying to restrict the exercise of state power, at least in the areas of economic liberty, business regulation, and so forth.

    And the result since then has basically been unrelenting judicial abdication in all of those areas, to the point, really, where as I say in the book, there are two kinds of judging in constitutional cases — real and fake. And in most constitutional cases you get the fake kind.

    Kokai: If you get this fake kind, what are the negative results for us as a society?

    Neily: The negative result for us as a society is the complete abrogation of constitutional limits on government power in the areas that I've mentioned, a reduction in liberty, and essentially the government being allowed to control areas of our life where it has no business being — from, you know, a constitutional standpoint and from a policy standpoint, where it has been an absolute disaster for the government to be there.

    And, of course, we're seeing the latest one as the rolling train wreck of Obamacare continues to move forward towards its, I think, hopefully, inevitable disastrous end, but one that's going to be very expensive and could have been avoided had the Supreme Court fulfilled its constitutional duty to enforce constitutional limits on the federal government.

    Kokai: Some people listening to us are going to say, "Now, wait a minute. Wait a minute. I've heard about this conservative court. We have a conservative court led by Justice John Roberts, and maybe — outside of that Obamacare decision that people found a little puzzling — it's generally been a court that's been conservative." That sounds like a different take than what you're putting forward in Terms of Engagement.

    Neily: Oh, absolutely. Look, the sort of old dichotomy between the supposedly liberal side of the court and supposedly conservative wing of the court is not a very useful paradigm. The really important paradigm these days is those justices who reflexively defer to the government in most constitutional cases and those who do not.

    Unfortunately, right now, at least within the areas of property rights and economic liberty, most justices tend to defer reflexively to the government. There is a very bright division on the court on matters of federalism, where five justices refer reflexively to the government and four do not. But, generally speaking, I don't think that the conservative/liberal divide is the most useful paradigm anymore.

    It really is a question of those justices who think that all constitutional cases should involve real judging and those justices who think that at least some constitutional cases should involve fake judging. Right now, I hate to tell you, it's 9-0. The entire Supreme Court subscribes to the principle that, in many constitutional cases, the people who are bringing suit should just get fake judging, and that's wrong.

    Kokai: It sounds like a very bad situation right now. What can we do, if anything, to change it?

    Neily: We can insist on judges going forward who believe in constitutionally limited government and don't just say that they believe it, but actually walk the walk. In other words, we should have a Senate Judiciary Committee that sits down with every judicial nominee going forward and says, "The first thing we're going to talk about is your theory of constitutionally limited government. And you better have a concrete theory. You better be able to back it up with specific examples. And if you can't, this is going to be a very short hearing." That's what needs to change going forward.

    Kokai: Is there any hope for any of the justices who are on the high court now? I mean, conservatives, conservatives politically, often like Clarence Thomas or Antonin Scalia, even Samuel Alito. Do any of them have a chance of being better at dealing with these issues?

    Neily: Maybe somewhat. Unfortunately, all of those justices that you mention — Alito, Scalia, Thomas — embrace, at least in certain circumstances, this thing called the rational basis test, which is really none of those things. It is the Supreme Court's default standard for resolving constitutional cases. It applies in cases involving economic liberty, property rights, federalism, tax policy — most unenumerated rights.

    The rational basis test is a fraud. And it doesn't involve any real judging whatsoever, and it's just the judge's rubber-stamping whatever the government has done. As long as we have a Supreme Court all of whose members embrace the application of rational basis review at least in some settings, we're not going to have a properly engaged judiciary.

    And that's what we need. We need a judiciary that engages the facts of every constitutional case, to ensure that the government is legitimately exercising constitutionally authorized powers. That's what's missing in most constitutional cases today.

    Kokai: What about someone who is listening to us and says, "Wait a minute. If Scalia and Thomas and Alito, if those guys are off base, this has got to be kind of an extreme argument?" Why is this not an extreme argument but is something that people outside of the Institute for Justice should be also focusing on?

    Neily: Yeah, it's a great point. And I know that people probably think, "Well, you know, they're getting it right sometimes." Justice Thomas wrote a wonderful dissent in the Kelo eminent domain case. Justice Scalia got it right in the Heller gun case. I was one of the lawyers representing the plaintiffs in that case.

    So, unfortunately, those are more sporadic than they are consistent. In other words, it is sort of accidentally the case that the conservatives get it right on many of these issues, like economic liberty or property rights, where rational basis applies. And instead the consistent trend of the court is to get it wrong in those areas, to get it wrong on federalism, to get it wrong on property rights, and to get it wrong on economic liberty, business regulations, tax policy, and so forth.

    And that's what needs to change, is that the underlying theory has to be one of judicial engagement so that the court can more consistently get it right and the times when the court strikes down a government law are not sporadic and sort of disjointed as they are now. But the underlying doctrine today is very much one of rubber-stamping whatever the government does in most areas of life. And that's wrong.