What is it that judges should do?
“Judge” sounds like an obvious answer, but prominent jurists on both the left and right would disagree. When confronted with constitutional issues, they believe this nation’s judiciary should excuse itself from that responsibility and defer endlessly to the faulty judgments of the legislative and executive branches.
Harvard law professor Laurence Tribe recently wrote that the correct outcome in the legal battle surrounding “Obamacare” is an easy one to decide: No one should question the ability of Congress to command the personal decisions of Americans in the context of health care. To do so relies on the “confused assertion that what is at stake here is a matter of personal liberty.” What is at stake, according to Tribe, is the unfettered power of the government to control the economic lives of its citizens, a power that Supreme Court precedent emphatically affirms.
One might hope that those on the political right would battle this notion of unrestrained government authority, but one would be disappointed. Writing on the same subject, Professor Robert Nagel recently argued generally against using the courts to defend the Constitution. He follows esteemed Judge Richard Posner, who in 2008 urged his colleagues on the bench to stick to “judicial modesty,” a policy that cautions the judiciary not to “interfere” with the wisdom of the other branches.
It is all too easy for commentators on both the left and the right to assert that judicial intervention is somehow illegitimate — after all, commentators can assume that judges will, of course, come to the defense of issues they care about. The courts are expected to come to the defense of flag burning, for commentators on the left, or the rights of gun owners, for those on the right. But since each side has essentially gutted the process of judicial review, it is unclear how this confidence could arise from a coherent theory of constitutional law.
Today, Americans are increasingly convinced that their government has grown far beyond their control. This change occurred in part because judges have submitted to the legislative and executive branches under the guise of modesty. In doing so, they have undermined the separation of powers and have given those in government carte blanche to do as they please without regard to the rights and principles enshrined in the Constitution.
What this nation needs is not judicial “deference” or “modesty,” but judicial engagement. Judges must embrace their duty to enforce the real limits that the Constitution places on the government’s ability to interfere in the lives of American citizens. The Constitution is designed to prevent the kind of runaway government that we have today, but when judges refuse to question the power of the other branches, they abdicate the responsibilities of their office and transform the Constitution from a charter of liberty to a source of virtually limitless government power.
Jason Orr works at the Institute for Justice. To learn about IJ’s Center for Judicial Engagement, visit www.ij.org/CJE.