an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
JB: Your book is about the idea of judicial engagement. What is judicial
engagement and how does it differ from other familiar views about the
engagement” is a term we coined at the Institute for Justice, the
nation’s leading libertarian public interest law firm, to distinguish
where judges make a serious effort to enforce constitutional limits on
government power and cases where they do not.
example, when the government imposes an advertising restriction on a
particular product or service, such as interior design (true story!),
alcohol, or cigarettes,
courts will apply a deferential but still meaningful level of scrutiny
referred to as the
Central Hudson test for commercial speech. Even though it is only considered an “intermediate” form of scrutiny, the
Central Hudson test bears all the hallmarks of real
judging: i.e., a genuine quest for truth in which the constitutionality
of the challenged regulation will be determined by identifying the
government’s true end, assessing
the relationship between that end and the means chosen to advance it,
and considering whether there is some fairly obvious way the government
could have achieved that end with less of an imposition on liberty.
Notably, the government carries the burden of
proof and persuasion on all of those points, and that burden cannot be
satisfied with “mere speculation and conjecture.”
By contrast, if the government were to ban all
sales of the same product or service, a reviewing court
would apply the rational basis test—or, as Solicitor General Donald
Verrilli referred to it more precisely in his recent DOMA argument, “Lee
Optical rational basis review.” This is the
most deferential standard of review in all of constitutional law, and it
is the one applied to most economic regulations, including occupational
licensing laws. As a public
interest lawyer who has been litigating occupational licensing cases
for thirteen years under rational basis review (as well as commercial
speech cases under
Central Hudson and myriad other constitutional cases), I can say from firsthand experience that what General Verrilli referred to as “Lee Optical
rational basis review” bears none of the hallmarks of real judging.
Central Hudson test and other forms of so-called “heightened”
scrutiny (I say “so-called” because I believe “heightened” in this
context is simply a euphemism for “real” or “genuine”), the rational
basis test does
not involve a genuine search for truth, and judges in rational basis
cases act more like advocates than neutral adjudicators.
other things, the Supreme Court has held that the government’s true end
is irrelevant in rational basis cases, and the government need not
of its factual assertions with evidence.
Instead, the government may base its actions on “rational speculation,”
and the plaintiff must “negative” every conceivable justification for
the law. Of course,
even a moment’s reflection makes clear why it is impossible to negate an infinite set of purely hypothetical justifications.
(Imagine what discovery would look like if plaintiff’s counsel
were serious about trying to satisfy that burden. What am I supposed to
do, send the government a list of every object, substance, phenomenon,
and condition known to man—from aardvarks and
angioplasty to zebras and zygomatic arches—and ask the government to
admit or deny whether each particular item has anything to do with the
wait, it gets better (or worse, depending on your perspective). If the
government lawyer proves insufficiently creative to invent a
for the law, the judge is supposed to help out by inventing her own
Is there any other area of law—breach of contract or employment
discrimination, for example—where we would countenance ostensibly
neutral judges inventing justifications for potentially wrongful conduct
in order to help the government win?
I can’t think of any. And let’s be honest: that’s really
not judging; it’s advocacy.
be clear, the rational basis test is not the only form of fake judging
(or “judicial abdication,” as I refer to it in my book,
Terms of Engagement).
But it is perhaps the most glaring example, and more importantly I
believe it is a learned behavior—a kind of “dog ate my homework”
approach to judging that has gradually seeped (slunk?) into other areas
of constitutional law, such as enumerated-powers
federalism cases, administrative law, and eminent domain, as we saw in
Kelo v. City of New London (2005).
So judicial engagement means nothing more than real judging—what current doctrine calls “heightened” scrutiny—in all cases.
To be clear, it does not categorically reject tiered scrutiny
(though I confess I am uneasy about it, as are the Chief Justice and
many other thoughtful commentators), but it does reject the radical
disconnect between standards of review where judges
make a sincere evaluation of the government’s conduct and cases they
deliberately turn a blind eye instead.
JB: You argue that it is important for judges to take judging seriously in
every case. What does that mean? Do you feel these days that
judges are not sufficiently serious about judging? Can you give an
example of some cases that might come out differently if judges were
properly engaged with the Constitution? Are judges who
don't approach the Constitution this way violating their oaths of
CN: I do believe judges should take judging seriously in
every case, and I’ve tried to provide my litigator’s-eye perspective on what that means in my preceding response.
also believe that judges these days are not sufficiently serious about
judging in many constitutional cases, but I hasten to add that
they have been instructed—even ordered—by the Supreme Court to adopt a non-serious approach in
cases involving supposedly nonfundamental rights, as well as other
limits on government power deemed unworthy of meaningful
As for examples of cases that might (would) come out differently if judges properly engaged with
the Constitution, the examples are legion.
I will offer three from a virtually endless list.
In December 2012, just six months after the Supreme Court upheld
the Affordable Care Act as a valid exercise of the federal government’s
tax power while supposedly laying down a marker on the almost infinitely
elastic commerce clause, the Eleventh Circuit
upheld a purported exercise of commerce power by the U.S. Department of
Agriculture so whimsical as to be downright humorous.
Long story short, there is a federal law that regulates “exhibitors” of animals.
The law was originally enacted to empower the feds to regulate laboratories that use primates in scientific experiments.
Fair enough—presumably most lab chimps actually have moved in foreign or interstate commerce at some point.
But could the law also be applied to non-paripatetic animals like
the polydactyl cats of the Hemingway Home and Museum in Key West,
of whom had ever been bought or sold in interstate commerce and all of
whom were in fact marooned on an island at the very southern tip of
Yes, said the Eleventh Circuit! Why?
Because the museum featured the cats on its website and sold
cat-related merchandise in its gift shop, which means they
“substantially affect[ed] interstate commerce.” 907 Whitehead St., Inc. v. U.S. Dep’t of Agric.,
701 F.3d 1345 (11th Cir. 2012).
In 2003, a group of terminally ill cancer patients filed suit
asserting a constitutional right of access to potentially lifesaving
experimental drugs that had completed FDA Phase I testing, meaning the
drugs were safe enough for widespread human trials
but had not yet been determined to be efficacious.
After initially upholding the patients’ claim, the D.C. Circuit
reheard the case en banc and reversed, concluding that there is “no
fundamental right . . . of access to experimental drugs for the
being textually, doctrinally, and morally insupportable, I find that to
be an extremely upsetting conclusion for personal reasons,
as I suspect do many other people with family members who are battling
or who have recently succumbed to cancer.
I will therefore allow Judge Judith Rogers’ masterful dissent (in
which she was joined only by Judge Douglas Ginsburg) to speak for me.
Abigail Alliance v. Eschenbach, 495 F.3d 695, 714 (D.C. Cir. 2007) (en banc) (Rogers, J., dissenting).
As noted above, I specialize in occupational licensing cases.
The hardest case I ever worked on, from a personal standpoint, was a challenge to Louisiana’s florist licensing law.
Alone among the states, Louisiana requires a license to sell
floral arrangements—supposedly to protect the public from the physical
dangers of unlicensed floristry and to elevate the quality and
reputation of Louisiana’s floral industry.
This is preposterous, of course; only in infant would suppose
that Louisiana legislators were genuinely trying to protect the public
from incompetent florists instead of industry insiders from fair
federal judge upheld the law anyway, partly on the basis of the specter
of infected dirt, which Louisiana’s spectacularly subjective
licensing exam (pass rate: 36%) was somehow supposed to protect people
Meadows v. Odom, 360 F. Supp. 2d 811, 824 (M.D. La. 2005)
vacated as moot 198 Fed. App’x 348 (5th Cir. 2006).
(Hurricane Katrina caused all of our clients to
retire or flee the state, which is why the case was dismissed as moot on
lead client in that case, Sandy Meadows, was a widow with no vocational
skills other than the ability to create simple—but perfectly
attractive and serviceable—floral arrangements.
She tried five times to pass the licensing exam, but it was just
too subjective and (I can say this with a reasonable measure of
confidence, not only because public choice theory has won several Nobel
Prizes, but because I personally conducted exhaustive
discovery in the case) deliberately rigged to exclude newcomers.
When the Louisiana Horticulture Commission discovered that Sandy
was managing the floral department of an Albertsons grocery store
without a license, it threatened to shut it down unless the store hired a
state-licensed florist instead.
They had no choice but to let Sandy go.
Unemployed and lacking any other vocational skills, Sandy Meadows died
five months later, alone, unemployed, and in poverty because the state
of Louisiana cared nothing for her constitutional right to earn a living
and I couldn’t persuade a federal judge to
protect that right in a properly engaged manner.
That, for me, will always be the slap and the sting of judicial abdication.
honestly not sure whether I think lower-court judges who faithfully
execute the Supreme Court’s instruction to practice fake judging
in cases involving supposedly nonfundamental rights are violating their
oath of office.
But I am convinced that justices who perpetuate those doctrines are.
JB: Where does judicial engagement fit into current theories of
constitutional interpretation? Does it assume some form of originalism?
If so, what kind? Could a living constitutionalist also be in favor of
CN: I must confess that as a constitutional litigator (rather than an academic or theorist), I may well be out of my depth here.
So I’ll be brief.
Judicial engagement fits disjointedly into current theories of constitutional interpretation.
All cases involving “heightened” scrutiny (from strict scrutiny
all the way down to what has been called “rational basis with bite”)
are, at least according to my perception, examples of judicial
But heightened scrutiny is the exception, not the rule.
The Supreme Court’s default setting—that is, the level of
scrutiny applied to non-privileged rights and non-invidious
discrimination—is rational basis review, which is the paradigmatic form
of judicial abdication.
for whether judicial engagement assumes some form of originalism, I
think probably it does—at least to the extent “originalism” implies
a commitment to some form of textualism and a recognition that judges
are (or should be) bound to respect external norms to which their own
preferences or convictions must yield in cases of conflict.
I’m not sure I’ve ever met a self-avowed “living constitutionalist,” so
I don’t feel confident saying precisely what, if anything,
they stand for. That said, anyone who thinks the
government should be repudiated when it disregards the rule of law,
denied when it is false, and chastened when it usurps powers not granted
to it by the Constitution
should feel some affinity for judicial engagement.
JB: If you have never met a living constitutionalist, I suspect that you
need to get out more. You probably have and didn't know it! In any
case, take two issues that liberals care about a good deal: abortion and
gay rights. It
sounds as if you are suggesting that judges should be far more
suspicious of TRAP (targeted regulation of abortion providers)
laws whose barely concealed purpose is to make abortion difficult if not
impossible in a particular state. The same might apply to
mandatory ultrasound laws. And your approach might also call for
searching scrutiny of laws that burden gay and transgender people.
Could you say a few words about that?
probably true that I need to get out more—my wife and I are expecting
our first child in two weeks, so we’re in full nesting mode!—but just to
be clear, I said I wasn’t sure I’d ever met a
self-avowed living constitutionalist. Perhaps that’s because as a
litigator I spend most of my time in and around courts, where I suspect
living constitutionalists tend to keep a lower profile than they might
your question, let me preface my answer by saying I think the issue of
abortion may be the single worst setting in which to test the
general implications of particular theories or approaches to
constitutional law. That’s because unlike, say, free speech, abortion
involves a fundamental philosophical issue over which people disagree
both passionately and reasonably. So in order to
have a coherent constitutional discussion about abortion, you
have to be very careful—far more careful than I think most people tend
to be—about the extent to which you are really having a
philosophical discussion. For example, are you disagreeing over
what is a “person” (philosophical); whether “person” is the relevant
term (philosophical and constitutional); or whether all “persons”
(whoever they may be) are covered by the Equal Protection
said, I suppose the obvious response to your question whether judges
should be “far more suspicious of TRAP laws” is “far more suspicious”
than what? I’m not sure what the current doctrinal baseline is on that
question or whether
it is even fair to say there is one. But certainly if a state were to
pass a law that said something like, “Every person who works in a
facility where abortions are performed must be at least seven feet
tall,” then I would expect properly engaged judges to
ask the same question of that law that they are supposed to ask in all
cases: “So, what’s really going on here?” Of course, different judges
will have different takes on that in different cases, and we should not
be so naïve as to suppose that the lines they
draw between “illegitimately pretextual” (requiring abortion providers
to be at least seven feet tall) and “plausibly/sufficiently related to a
legitimate government interest” (holding abortion facilities to the
same hygienic standards as urgent care clinics)
will not be influenced at the margins by their own feelings about the
underlying policy. (Notice I said “influenced,” not controlled or
According to the argument for judicial engagement I try to articulate in
the bottom line is this: Laws are passed to advance particular ends;
sometimes those ends are constitutionally legitimate and sometimes they
are not; judges ought not pretend that laws that serve demonstrably
illegitimate ends—e.g., suppressing dissent, expressing animus,
avoiding accountability, discouraging fair competition, etc.—were in
fact passed to serve legitimate ones. If you as a judge believe it that
is impossible to say what ends a given law serves;
say that. If you believe it is possible to say what ends a given law
serves but you can’t say whether those ends are constitutionally
legitimate or illegitimate; say that. And if you believe that a given
law so entangles legitimate and illegitimate ends
as to render judicial review impossible in a particular case, then say
My thirteen years of experience litigating
constitutional cases convinces me that doing nothing more than asking
and answering those questions honestly in
every case (and not just a favored handful, as current doctrine
calls for) would produce significant changes to the constitutional
JB: Is judicial engagement only about what we now call judicial scrutiny,
or does it also extend to the scope of judicial power? For example,
would you call for a serious reexamination of the doctrines of standing
Take the Clapper case, in which the Court followed a fairly long
practice of avoiding any serious engagement with covert government
surveillance programs. Would judicial engagement require a different
approach, if not a different result?
CN: The short
answer is yes, the call for judicial engagement—real judging in all
cases with no exceptions—most certainly does extend to various
“avoidance doctrines” such as standing, ripeness, justiciability, etc. I
experienced how standing, for example, may be employed as a tool to
avoid reaching difficult constitutional issues instead of avoiding
issuing advisory opinions, which what standing doctrine is actually
meant to do.
For instance, I helped design and litigate the Heller
gun case, where five of our six plaintiffs were found not to have
standing because they had never been personally threatened with
prosecution for violating DC’s gun ban. Well, of course they’d never
been personally threatened with prosecution: none of
them had ever broken the law! And yet, despite crystal clear Supreme
Court precedent that an individual need not risk prosecution in order to
test the constitutionality of a given law, the D.C. Circuit held
otherwise—requiring, in effect, that would-be gun
owners (but not would-be book owners, of course) first violate
the law by acquiring an illegal firearm; draw the fact of their
violation to the attention of the relevant authorities; receive a
personal threat of prosecution; and then, if they wish to
be in federal court, get their complaint on file between the time the
threat is issued and criminal proceedings are initiated in the local
court system in order to avoid
reason Dick Heller was found to have standing was that a friend of his
had advised him to undertake the completely futile act of trying to
register a handgun that he had lawfully acquired in Virginia and left
behind when he
moved to DC. The denial of Heller’s sham registration application was
found to create standing. As the
D.C. Circuit explained, “The denial of a gun license is significant;
it constitutes an injury independent of the District’s prospective
enforcement of its gun laws….” So if Dick Heller hadn’t filled out a
completely meaningless form, our entire case would
have gotten bounced on standing, just like the NRA’s copycat case,
Seegars v. Gonzales (over a simple but devastating dissent by Judge Sentelle).
that is a preposterous—but unfortunately all too common—application of
standing doctrine. And yes, it is inconsistent with judicial engagement
as I conceive it.
As for judicial review of covert government surveillance programs specifically, the answer is yes—notwithstanding
the uniquely (?) sensitive and challenging issues involved, I think it
is becoming increasingly
clear that America has far, far more to lose from withdrawing
meaningful judicial oversight from that area completely than from
whatever risks such oversight may entail.
JB: Similarly, there are parts of the Constitution, like the Republican
Form of Government Clause, that have effectively been made
non-enforceable through the political question doctrine. Does judicial
engagement call for a rethinking
of these doctrines?
CN: No, not unless they are based on reasoning
that is palpably intellectually dishonest, as I believe the toothless
version of the rational basis test is.
about the President's use of military force in places like Libya? It is
widely assumed nowadays that courts will not get involved in disputes
between Congress and the President on the use of military force. Would
judicially engaged courts see things differently?
they would not. There are intellectually defensible—indeed,
compelling—reasons for principled application of certain
including your illustration above. The key words there, of course, are
“principled” and “application.” By contrast, the toothless form of
rational basis review applied to most economic regulations could be
described as an
unprincipled nonjusticiability doctrine, in that its application results in the withdrawal of any
genuine judicial review—though with less candor than when a court applies, say, the political question doctrine. Posted
by JB [link]