Barry McDonald, "The Case for Judicial Disengagement ... Except Where Appropriate," Cato Unbound (UPDATED)
September 27, 2016 -- Professor Barry P. McDonald's essay, "The Case for Judicial Disengagement ... Except Where Appropriate," was published in Cato Unbound, the Cato Institute's journal of debate. Professor McDonald was asked by the Cato Institute in Washington D.C. to contribute to a debate titled "Do We Need Judicial Engagement" with three other constitutional law scholars and commentators regarding the appropriate role of the federal judiciary and proper judicial philosophy of the next Supreme Court justice.
Excerpt from "The Case for Judicial Disengagement...Except Where Appropriate"
"The day is gone when this Court uses the Due Process Clause … to strike down state laws, regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought. … For protection against abuses by legislatures the people must resort to the polls, not to the courts." So wrote Justice William O. Douglas for a unanimous Court in 1955 after that body had learned a valuable lesson from the Lochner era—in a democracy, it is not for five or more unelected judges to second guess the economic policy decisions of the people's elected representatives. Yet Evan Bernick urges a return to the Lochner approach of judges vigorously scrutinizing the importance or need for laws adopted by those representatives whenever they are alleged to conflict with any "genuine constitutional right." And he does so under a new veneer: the duty of judges to exercise independent judgment or "judicially engage," an approach he equates with the judicial practice of applying heightened scrutiny to challenged laws in certain areas of constitutional law.
This argument has many problems, most notably the implication that exercising independent judgment is the same thing as applying such scrutiny. It is not. I am all for Supreme Court justices and other judges applying "principles of reason in our law," as Bernick puts it. In other words, judges should and do have a duty to apply legal rules in a neutral, objective and principled fashion when deciding cases—as much as possible keeping their own political and ideological preferences, and those of political majorities, out of the mix when doing so. This is the essence of the rule of law, and not the rule of particular individuals wearing black robes or that of transient majorities.
The complete article may be found at www.cato-unbound.org.
The debate issue may be found at www.cato-unbound.org/issues.
Updated Oct 3, 2016
The online debate has continued at the Cato Institute on Do We Need Judicial Engagement:
- Evan Bernick (Institute for Justice) has published Judicial Engagement and the "Will of the People": Dispelling the Myth of Majoritarianism in response to Barry McDonald's The Case for Judicial Disengagement … Except Where Appropriate.
- Professor McDonald in turn has published a response, Bernick Leaves Important Questions Unanswered.