Bench Memos

Clark Neily’s Terms of Engagement—Part 3

See Parts 1, 2

So where shall I begin in explaining my disagreement with Clark Neily’s Terms of Engagement?

I suppose that I might as well start with his amazing claim that “we don’t have an activist judiciary” and that it is “absurd[]” to think otherwise. Neily doesn’t actually undertake to engage, much less refute, recent and ongoing instances of alleged judicial activism. Instead, his brief argument in support of his claim rests on the same sort of statistical flim-flam that I’ve previously criticized him for. It’s telling, I think, that, in a fine book with lots of intelligent arguments, Neily resorts to framing his inquiry on this key point in this way:

Major league pitchers throw strikes about 62 percent of the time. Would we expect government officials to do better? [124]

Neily thinks that it is striking and significant that the Supreme Court has, by his statistics, “struck down” only 103 of 15,817 laws—“just 0.67 percent”—that Congress enacted over a recent 50-year period, only “about 0.5 percent” of federal regulations, and “less than 0.05 percent” of state laws. [125] But these statistics tell us nothing meaningful. They don’t tell us whether the Court was right or wrong in particular cases. They don’t tell us whether the Court should have struck down more or fewer laws (as there is no objective theoretical baseline for how often the Court should strike down laws). And they convey nothing about the magnitude and impact of any judicial errors.

Every time the Supreme Court wrongly invalidates a democratic enactment, it usurps and shrinks the realm of representative government. Further, some of those usurpations are far more significant than others. Take Roe v. Wade, for example. To reduce Roe to a simple statistical point in the calculus is to ignore how Roe has distorted and corrupted American politics for more than four decades—and how it has prevented the passage of countless laws. Ditto for the ongoing judicial assault on the fundamental institution of marriage and for numerous other instances of liberal judicial activism that, especially since the 1960s, have overridden the ability of American citizens to exercise their powers of self-governance on a broad range of issues.

To salvage his claim, Neily also tries to raise the bar for what qualifies as judicial activism. Whereas he had earlier acknowledged that “[i]n legal and policy circles, ‘judicial activism’ is most commonly used to criticize courts for imposing supposedly nonexistent limits on government” [10], he suddenly declares—wrongly—that “[c]haracterizing a given decision as ‘activist’ means that it is so clearly and indisputably wrong that it could only be the result of bad faith.” [126] (I, for one, have made clear from the beginning (see point 4 here) that my charge of judicial activism does not depend on a judge’s subjective motivation.)

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