Bench Memos

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Judge’s Harsh Words for High Court


This past Friday, Judge Janice Rogers Brown of the D.C. Circuit Court of Appeals voted to uphold a blatantly protectionist law designed to prevent competition in the dairy industry. As a matter of judicial doctrine, the case is unremarkable — such laws are upheld all the time. And that — as Judge Brown explained — is the problem.

The case concerned a 2005 federal law designed to prevent dairies that both produce and process milk from having a competitive advantage over dairies that only produce milk. More precisely, the law was written to hamstring a specific Arizona dairy business whose competition had led to a 20-cent drop in the regional price of milk.

The three-judge panel unanimously upheld the law. But Judge Brown, in a scathing concurrence joined by Chief Judge David Sentelle, made clear that she wasn’t happy about it. Her vote, she explained, was compelled by decades of bad U.S. Supreme Court precedent.

Since the 1930s, the Supreme Court has ordered lower courts to review economic regulations with an extremely deferential “rational basis test,” which requires only that such regulations be “rationally related” to a “legitimate government interest.” In practice, this amounts to no meaningful review at all. Courts applying the rational-basis test have concluded, for example, that states may shut down unlicensed florists to protect consumers from the hypothetical dangers of stray corsage pins. Indeed, the test is so deferential that one federal court of appeals upheld a law that restricted the sale of caskets for the sole purpose of “dishing out special economic benefits” to licensed funeral directors.

With that kind of precedent, it is no surprise the D.C. Circuit upheld a law primarily designed to subsidize milk producers by forcing consumers to pay artificially inflated prices for milk. As Judge Brown aptly put it, the Supreme Court has “abdicated its constitutional duty to protect economic rights.”

Brown’s rebuke comes in the midst of a nearly unprecedented national debate over the judiciary’s role in enforcing constitutional limits on government power. Supporters of the Patient Protection and Affordable Care Act have been quick to declare that any ruling striking down the health-care law would amount to improper “judicial activism.” President Obama himself claimed that it would be “unprecedented” and “extraordinary” for the Court to overturn “a law that was passed by a strong majority of a democratically elected Congress.”

Judge Brown’s concurrence shows that there is some truth to the president’s claim. Since the Supreme Court adopted the rational-basis test, very few economic regulations have been struck down. Indeed, what really distinguishes the president’s comments from Judge Brown’s is that she recognizes what an unmitigated disaster this has been for the nation. Over the past 80 years, judicial abdication has led to an explosion in the size and scope of the government, including an alphabet soup of federal agencies, massive public debt, special-interest bailouts, and the lowest government-approval ratings in history.

These results would not surprise those who drafted and ratified the Constitution. As Judge Brown notes, the Constitution’s “countermajoritarian” design was a deliberate attempt “to thwart more potent threats to the Republic: the political temptation to exploit the public appetite for other people’s money — either by buying consent with broad-based entitlements or selling subsidies, licensing restrictions, tariffs, or price fixing regimes to benefit narrow special interests.”

Despite her criticisms of our current state, Judge Brown’s concurrence is not a jeremiad, but a bold call for change. The rational-basis test is a judicial invention. Nothing in the Constitution requires its use, and the Supreme Court routinely applies far stricter tests in noneconomic cases involving rights like freedom of speech. There is no reason why courts cannot apply a meaningful level of judicial review to cases involving economic or property rights as well.  

To be sure, there are those who would call such a change “judicial activism.” But what Judge Brown is really calling for would more accurately be described as judicial engagement — a simple willingness on the part of the judiciary to fulfill its role as a coequal branch of government and as a vital bulwark against legislative and executive overreach. For far too long, she observes, the rational-basis test and the judicial abdication it represents have meant that “property is at the mercy of the pillagers.” Her conclusion? “The constitutional guarantee of liberty deserves more respect — a lot more.” It certainly does.

— Paul Sherman is an attorney at the Institute for Justice, which in September 2011 released “Government Unchecked: The False Problem of ‘Judicial Activism’ and the Need for Judicial Engagement.”


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