The judiciary’s convenient paralysis


Author: Timothy Sandefur

I had the honor yesterday of speaking to Prof. Randy Barnett’s class at Georgetown Law Center about The Right to Earn A Living. The students and Prof. Barnett asked unusually incisive and challenging questions, and the exchange of ideas ended up being much more wide-ranging than my book.

One thing I do wish I had addressed more thoroughly, however, was Prof. Barnett’s question about the consensus history of the 1930s Supreme Court: what happened then is usually characterized as the Court realizing it could no longer really determine what constituted the “public interest,” and therefore backed away from skepticism toward laws, and adopted instead “rational basis review.” I said I thought this was a fair description of what happened, but not necessarily of what motivated the judges; they were more driven by old-fashioned politics.

What I wish I’d added was that the Court doesn’t seem to have a very hard time discerning, or trying to discern, the public interest when it comes to laws that censor the press, or that intrude on the right of sexual privacy, or on such legal doctrines as state sovereign immunity or the dormant commerce clause. Of course, the cases aren’t easy, and there’s room for reasonable debate as to the correctness of these decisions, but the justices rarely if ever say that the public interest in free speech or freedom of religion is so complicated that serious enforcement of these rights should be replaced with deferential review like “rational basis.” Instead, the Court remains by and large committed to the text of the Constitution and the classical liberal principles that stand behind that text. Why is it that only here, in the realm of economic legislation or wealth redistribution, it's suddenly so hard to do the same thing? Mighty convenient that in this realm, the Court is unable to really distinguish legitimate public interest legislation from illegitimate private interest favoritism! The Court distinguished mere arbitrary favoritism from genuine public interest in Romer, Lawrence, and Granholm v. Heald. Even in a few rare cases involving economic liberty, they’ve been able to make that call, as in Schware. Maybe they were wrong in these cases, but they did not find the analysis unworkable on principle, or throw up their hands and go home. Yet when it comes to protectionist occupational licensing, or the meaning of “public use” in eminent domain, suddenly the Court’s in no position to judge legitimate from illegitimate uses of government power? I don’t buy it. As Justices Scalia and Thomas said in one case, this singling out of economic liberty for anything-goes “rational basis” review is obviously about politics, not about neutral legal analysis.,

So, yes, the advent of “rational basis” review did signal the Court abandoning the idea of making the call between public interested legislation and private interest favoritism, but not because it discovered some genuine constitutional principle; that retreat was made for political reasons, and it continues today for political reasons. A properly functioning judiciary would not abandon its duty to make that distinction in appropriate cases. No, it’s not always an easy job; certainly no simple formula exists to distinguish legitimate from illegitimate regulations of property or economic activities. But that’s the job of governing and judging: to make those hard calls as best one can within the boundaries of constitutional principle. Judges already willingly undertake that task in any number of cases—but shirk their constitutional obligation when it comes to economic matters, thanks entirely to a body of precedent that has little genuine connection to the American constitutional tradition.