Positive Liberty

I recently finished reading Prof. Kermit Roosevelt’s The Myth of Judicial Activism, and it left me with some mixed feelings. On one hand, I agree with Roosevelt that much of the charge of “activism” is baseless, and that the term is a rhetorical political term, not a legal term. Yet there are cases where the courts have engaged in behavior that can’t really be called anything else.

The case of Guinn v. Legislature of Nevada is one example of a decision so completely devoid of legal foundation, and so obviously aimed at accomplishing a political outcome—an outcome foreclosed by the obvious text of the Constitution—that it’s hard to describe the case as anything but improper “judicial activism,” whatever that term might mean in the specifics.

But I have some deeper objections to Roosevelt’s argument. He contends that, in the main, courts ought to defer to legislatures, because legislatures are better suited to addressing many controversies than are courts. Yet in his defense of this claim, he nowhere discusses the insights of public choice theory, which have done irreparable (and long-overdue) damage to the Progressive myth that legislatures really weigh the benefits and costs of proposed legislation. The theory of judicial review has always been based—and certainly the idea of heightened scrutiny in certain circumstances has always been based—on the insights of public choice theory, or, as it was called in years past, the problem of “faction.” Yet Roosevelt is entirely silent on this point, which is very disturbing in a book on judicial activism.

Second, and in the only place where Roosevelt comes close to discussing public choice, he claims that in some cases, judges ought to be more skeptical of legislative judgments because there are some cases in which the legislature can’t be relied upon to make a reasonable decision. Roosevelt, who is a typical Footnote Four guy,* argues that these cases are to be detected based on the fact that those on whom the law in question shall have its heaviest burden are under-represented in the legislature. Racially discriminatory law, for example, should be viewed with skepticism because racial minorities tend to be under-represented and less politically influential. Laws infringing on the rights of women or of blacks are enacted by legislatures that “contain very few blacks and women,” and given the long history of discrimination against these groups, it is likely that those laws are motivated by “reprehensible” attitudes. Further, the lawmakers who enact such laws will not themselves be subject to such laws, and “the political power of blacks and women may be insufficient to prompt correction” of such decisions.

That’s fine so far as it goes, but the same could be said, in some degree or other, of any minority affected by a law. Take the homeowners in Kelo or the bakery-shop owner and his employee in Lochner. Legislatures tend to be dominated by lawyers, intellectuals, and activists, rather than practicing businessmen; their homes are rarely threatened with the use of eminent domain. The history of politics is replete with legislative action aimed against businessmen or private property owners, and their relative political power is unlikely to prompt correction of wrongful legislation—particularly given the public choice dynamics at work. Lochner and Kelo cannot be shrugged off by claiming that the laws challenged in those cases advanced the public welfare—since legislatures that persecuted blacks and women claimed the same justification for those laws.

Roosevelt’s legislative bias theory weakens still further when he begins fiddling with the relevant minorities. In discussing abortion, for example, Roosevelt notes that such laws have an obviously disproportionate effect on women—but this is not the real minority at risk. Instead,

[t]he question is how well the legislature can be expected to represent the interests of pregnant people…. If we focus the inquiry more narrowly on those who actually seek abortions, the case for deference becomes even weaker. These people…are…generally speaking, younger women. And, again speaking generally, they tend to be poor and unmarried. So the question comes down to whether we trust legislatures to weigh appropriately the interests of young, poor, unmarried women.

Id. at 124-25.

But if a court can manipulate the categories in this way when deciding whether a legislature can be trusted with a question, then the scope of judicial discretion would expand greatly. Opponents of abortion, after all, would be quick to argue that the relevant minority is not pregnant women, but unborn children, who are not members of any legislature on earth, and have no realistic opportunity to defend themselves in the legislative process. The question could very plausibly be put: whether legislatures can be trusted appropriately to weigh their rights, assuming they have any, and the answer would have to be no! And courts with political axes to grind can be relied upon to manipulate the relevant categories in just this way to justify varying levels of scrutiny.

Roosevelt really offers no convincing explanation for using higher standards of scrutiny in cases involving speech, religion, abortion, and so forth, than cases involving property rights or economic freedom. This lends credence to the skepticism that Justices Scalia and Thomas have voiced elsewhere: “The picking and choosing among various rights to be accorded ‘substantive due process’ protection is alone enough to arouse suspicion; but the categorical and inexplicable exclusion of so-called ‘economic rights’ (even though the Due Process Clause explicitly applies to ‘property’) unquestionably involves policymaking rather than neutral legal analysis.” United States v. Carlton, 512 U.S. 26, 41-42 (1994) (Scalia and Thomas, JJ., concurring in judgment).

At bottom, Roosevelt’s argument is just plain-vanilla double-standard Footnote Four jurisprudence, and it suffers from all the same flaws. Very disappointing.

*-Update: I’ve been asked to explain what this means. Footnote Four of United States v. Carolene Products, 304 U.S. 144, 152 (1938), is the source of modern constitutional law: it declares that laws affecting supposedly non-fundamental rights will be presumed constitutional in almost all cases, but that laws that affect fundamental rights, or laws that are based on “prejudice against discrete and insular minorities,” will be treated with greater skepticism. This is the basic model that the court has followed ever since, although it has diverged from it many times to manipulate the levels of skepticism it applies. It’s all very complicated. Suffice to say that the Court is more skeptical when the law infringes on a right that the Court takes seriously (speech, abortion, travel), but not when the law infringes on private property rights or other economic freedoms that the founders would have considered fundamental.

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