Monday, October 21, 2013

A Conversation with Clark Neily about Judicial Engagement


This week I interviewed Clark Neily about his new book, Terms of Engagement: How Our Courts Should Enforce the Constitution's Promise of Limited Government.  Here is our exchange:

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 judicial role?

CN: “Judicial engagement” is a term we coined at the Institute for Justice, the nation’s leading libertarian public interest law firm, to distinguish between cases where judges make a serious effort to enforce constitutional limits on government power and cases where they do not. 

For 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.

Unlike the 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. 

Among other things, the Supreme Court has held that the government’s true end is irrelevant in rational basis cases, and the government need not support any 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 challenged law?)

But wait, it gets better (or worse, depending on your perspective).  If the government lawyer proves insufficiently creative to invent a hypothetical justification for the law, the judge is supposed to help out by inventing her own imaginary explanation.  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.

To 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 office?

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.

I 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 judicial enforcement.

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.

Federalism.  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, Florida—none 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 Florida?  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).

Medical Self-Determination.  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 terminally ill.”

Besides 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).

Occupational freedom.  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 competition.

But a 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 from.  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 appeal.)

The 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.

I’m 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 judicial engagement?

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 engagement.  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.

As 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.

Finally, 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?

CN: (It’s 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 elsewhere.)

As for 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 Clause (constitutional)?

That 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 dictated.)

According to the argument for judicial engagement I try to articulate in my book, 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 that.

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 landscape.

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 and justifiability?  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 have personally 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 Younger abstention.  

The only 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).

I think 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.

JB: What 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?

CN: No, they would not.  There are intellectually defensible—indeed, compelling—reasons for principled application of certain nonjusticiability doctrines, 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.

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