Bench Memos

Clark Neily’s Terms of Engagement—Part 5

See Parts 1, 2, 3, 4

Let’s now address Clark Neily’s contention that the courts should apply the same mode of searching review—what he calls judicial engagement—to any claim that the government has violated an asserted constitutional right.

I’m very open to Neily’s argument that the Supreme Court’s distinction between fundamental rights and nonfundamental rights, and its different tiers of scrutiny of alleged intrusions on those rights, are arbitrary and contrived and illegitimate. What I don’t understand, though, is the logical or legal basis for Neily’s claim that the appropriate judicial alternative is to apply heightened scrutiny to all constitutional claims.

Neily nakedly asserts that “there is no other way to do constitutional law” than “to determine the government’s true ends [and to] evaluat[e] the ‘fit’ between the government’s ends … and the means chosen to advance them.” [37] But rather than being rooted in the Constitution, his assertion appears to buy into much of the Court’s current doctrine and to extend the reach of that doctrine. I don’t see how the textualism that Neily says he embraces requires courts to inquire into supposed “true ends” and “fit.”

Neily says that his book “is not about constitutional theory.” [4] That’s a curious defect in a book that undertakes to prescribe how judges should apply the Constitution. But it’s even more troubling that Neily opportunistically adopts inconsistent approaches, making originalist-sounding arguments when they help his mission to limit government and eschewing them when they don’t.

While I’m at it, here are some other indicators of Neily’s striking one-sidedness:

Invoking public-choice theory, Neily contends that too many judges commit “judicial abdication” because they wrongly assume that laws and policies are adopted for genuinely public-spirited reasons. I actually doubt that very many judges who go through the confirmation process have too rosy a view of how and why legislators act. (Nor, contrary to Neily, do I believe that that factor should generally have any bearing on how judicial review is exercised.) But what I find remarkable is that Neily never seems to contemplate that judges can likewise be tempted to act in ways that wrongly aggrandize judicial power.

While Neily correctly recognizes that the president and Congress shouldn’t consider themselves bound to accept a mistaken Supreme Court holding that a particular policy is constitutional, he thinks that they should be bound to accept a mistaken holding that a policy is unconstitutional. [29] It’s a good thing that he wasn’t advising Abraham Lincoln on how to respond to the Dred Scott ruling.

Neily’s contempt for democratic processes and his corresponding desire for judges to preside as roving nannies are made stark by an analogy in which he depicts judges as babysitters and members of Congress as the kids in their charge. Indeed, he insists that Congress, given its out-of-control spending, “has little room to complain about being compared to a child who eats too much candy or stays up past his bedtime.” [123]

In sum, while Neily maintains that his book isn’t “a veiled call for judicial activism” [136], I don’t see how to read it as anything but that.


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