Striking down the soda ban wasn’t activism, it was good judging

Steve Simpson Senior Attorney, Institute for Justice

Monday’s decision by New York State Judge Milton Tingling striking down Mayor Bloomberg’s sugary soda ban was a welcome setback for nanny-staters, like Bloomberg, who seem to view Aldous Huxley’s “Brave New World” as an instruction manual for modern government, rather than a warning. But the decision was a surprise, because both the left and the right seem to agree these days that government can do pretty much whatever it wants and judges are not supposed to say otherwise. We got a dose of this attitude during the debates over the Affordable Care Act when Nancy Pelosi responded to a question about Congress’s authority to force all Americans to buy health insurance with disbelief: “Are you serious?”

Expressing this sentiment on Slate.com, Emily Bazelon castigates Judge Tingling for engaging in — what else? — “conservative judicial activism.” It’s a curious charge, as Judge Tingling has consistently run as a Democrat in a city where conservative judges can’t even get on the ballot. But whatever. He struck down a law Bazelon favored, so he must be part of the conservative judicial cabal.

Unfounded as Bazelon’s claim appears to be, it’s hard to blame her for tossing around the activism charge, because practically everyone does it these days. As Bazelon points out, it was conservatives who popularized the term as a response to what they saw as the excesses of liberal judges imposing their own value choices on the Constitution. Their proposed antidote was “judicial restraint.” The idea, as Bazelon correctly describes it, is that “judges shouldn’t substitute their own values for the ones expressed by the legislature and the executive. Not without a very good reason, anyway, such as protecting the rights of a disempowered minority.”

Sounds great, right? Judges should defer to the political branches of government except where the Constitution unambiguously limits their power. And if both the left and the right agree with this approach, then what could be wrong with it?

The answer is, quite a lot.

For starters, how are judges to know when to be restrained and when not to be restrained? Supporters of judicial restraint have long comforted themselves with the notion that courts will not defer to the other branches of government when the results of doing so would be seriously unjust. For Bazelon and her allies on the left, that mostly means protecting “disempowered minorities.” According to the influential appellate judge Richard Posner, judges should only overturn laws if, in the absence of binding precedent or clear constitutional provisions, they have an “overwhelming gut feeling, that the statute has intolerable consequences.”

Great. So judges should exercise restraint based on which interest groups they like or what their stomachs tell them to do. And this is offered as an antidote to judges imposing their values on the rest of us?

More fundamentally, why should courts defer to the elected branches of government at all? It’s worth remembering that we have three branches of government under our system, and all three have a role to play in making and enforcing the law. The courts’ role is to ensure that the other two branches stay within their constitutional limits. There’s no better reason to favor the legislative and executive branches over the judiciary than there is to claim that pols like Mayor Bloomberg should ignore the other branches entirely and just issue dictates from on high.

Ironically, that’s just about what happened in this case. Bloomberg’s office wrote the large soda ban and the New York City Board of Health adopted it verbatim. It seems pretty clear that Bloomberg took that route because the City Council would have rejected the ban. So an elected judge overturned a regulation that Mayor Bloomberg rammed through an unelected bureaucracy in order to avoid taking it to the elected City Council. Bloomberg’s approach to lawmaking may make the trains run on time, but it’s hard to see why we should criticize a judge who doesn’t think that it comports with the way government is supposed to function in a free society.

The fact is, loose charges of activism and calls for restraint have become little more than an excuse for the left and the right to hurl charges of illegitimacy and hypocrisy at one another. They neither help clarify disputed legal issues nor provide meaningful guidance to judges. They just undermine respect for judicial review by questioning the integrity of judges based on nothing more than a disagreement with their reasoning.

We should always approach all branches of government, including the judiciary, with a healthy measure of skepticism and concern for whether they are exercising their powers legitimately. But it’s hard to understand why people like Bazelon and others who support judicial restraint and decry activism are so willing to cast their lots with the elected branches of government over the judiciary. As Judge Tingling said in his order, a government that ignores constitutional principles “has the potential to be more troubling than sugar sweetened beverages.” He’s right, and we ought to take his point seriously. History is littered with examples of societies that traveled down the road to serfdom because they gave too much power to “the people” and their representatives. But I’m not aware of any societies that came to ruin because their courts struck down too many laws.

Steve Simpson is a senior attorney with the Institute for Justice.