April 23, 2012

Judicial engagement is not judicial activism

By: Clark Neily

The case for tarring as “activists” justices who question the constitutionality of the Affordable Care Act is even less persuasive than the administration’s floundering attempts to square the law with notions of federalism and limited government. A prime example of that comes from Washington Post columnist E.J. Dionne and his feature, “Judicial Activists in the Supreme Court.”

Judicial activism, properly understood, is when judges substitute their personal preferences for the contrary text of the Constitution or a valid law. But when judges seek to understand and apply the Constitution—in this case the part that en
sures the powers of the federal government remain “few and defined,” as James Madison envisioned—that is judicial engagement, and it is how judges should approach all constitutional cases.

A recent ABC News/Washington Post poll indicates that 72 percent of Americans believe the individual mandate is unconstitutional. E.J. Dionne’s claim that it must be “activist” for justices to share that view stems from a profound misunderstanding of how constitutional cases are presented in court and how they are resolved by a properly engaged judiciary.

The question in the health-care case is whether the federal government may require people to buy health insurance. Although not specifically listed in the Constitution, that power could flow from Congress’s authority to regulate commerce among the states. The Supreme Court has construed Congress’s prerogatives broadly, but it has always insisted (and Justice Kennedy in particular has emphasized) that there must be limits.

At oral arguments, the justices explored that point, as judges often do, through a series of hypotheticals. If Congress can make you purchase health insurance to avoid cost-shifting, can it also force you to buy an American car to support the domestic auto industry, or join a health club to reduce medical expenses, or get funeral insurance to pay for your own burial? Those hypotheticals may seem Orwellian or picayune, but they are hardly “weird” in the context of a 2,700-page law that imposes a federal tax on indoor tanning services. To steal a line from Rooster Cogburn, “I don’t believe in ghosts, sermons, or stories about legislative restraint.”

Justice Alito draws fire for another hallmark of engaged judging, which is careful consideration of relevant facts. Thus, when the solicitor general claimed the individual mandate was designed to address cost-shifting problems caused by uncompensated care, Alito countered that figures from the Congressional Budget Office suggest the mandate’s primary effect will be to transfer wealth from Americans who consume relatively few health-care services to those who consume more. Checking the government’s legal arguments against the facts of the case isn’t legislating from the bench—it’s judging.

Even more unfair is the claim that Chief Justice Roberts “sounded like the House whip in discussing whether parts of the law could stand if other parts fell.” But that is the precise inquiry judges must make in deciding whether one portion of a statute (in this case the individual mandate) may be “severed” from the remainder without dismantling the entire law. Failing to ask that question would be judicial abdication, not restraint.

Finally, Mr. Dionne notes the “irony” of the fact that striking down the mandate may “hasten the arrival of a more government-heavy” single-payer system. Such a system, funded through the tax code and modeled on programs like Medicaid and Social Security, would be on much firmer legal ground than the Affordable Care Act. As a result, the only thing between conservatives and the nightmare scenario of a comprehensive national health care law immune from constitutional challenge will be the very political process they supposedly disdain. That scarcely seems activist.

Judicial engagement is not activism. A properly engaged judge holds citizens and government to the same standard and makes no value judgments beyond those embodied in the Constitution. That reasonable people may disagree about what those values are or how they should apply in a given setting can be exasperating, but it is no cause for name-calling. Loose charges of “judicial activism” undermine public faith in our courts and the Constitution. They deserve better.

Clark Neily is the director of the Institute for Justice’s Center for Judicial Engagement. For more information, visit www.ij.org/CJE.