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The Rise of “Judicial Engagement” and the Future of the Supreme Court

Nan Aron
Nan Aron
Jun 29, 2016 · 6 min read

In 2011, in a decision dangerously limiting Congress’s ability to enact remedial legislation, the Eleventh Circuit became the only federal court of appeals to strike down the Affordable Care Act’s “individual mandate,” the requirement that everyone either purchase health insurance or pay a penalty. The individual mandate is a centerpiece of the health care law, and the decision to discard it, later reversed by the Supreme Court, threatened affordable health care for millions of Americans. The court found that the mandate exceeded Congress’s authority under the Constitution’s Commerce Clause, and asserted its judicial role to put Congress in check: “When Congress oversteps” its authority, the court said, “the Constitution requires judicial engagement, not judicial abdication.”

For those pushing the attacks on health care, the court’s specific use of “judicial engagement” was as much a victory as the outcome. That same year, the Institute for Justice, a libertarian think tank funded by right-wing billionaires Charles and David Koch, established the Center for Judicial Engagement to “fully enforce the limits our Constitution places on the government’s exercise of power over our lives.” It’s a mission that purports to empower judges as protectors of liberty, but the focus is on liberty of a certain kind — namely, the economic liberty of corporations to maximize profits unfettered by regulation or any other government interference. It’s the same legal theory that prevailed in the 1930s when the Supreme Court shielded wealthy interests from regulation even as the Great Depression devastated the country. Now it’s being revived by the Kochs and others billionaires better known for flooding our elections with cash. They’ve turned this fraught legal theory, once thought permanently trashed in the dustbin of history, into a marketable brand — a coded buzzword they are promoting in think tanks and law schools and through the right-wing media — called “judicial engagement.”

The Eleventh Circuit’s decision to dismantle health care was a milestone for the cause, but the real goal, of course, is to make judicial engagement the prevailing approach on the Supreme Court. Right now, the closely-divided Court sits precariously at a tipping point, with one current vacancy and more on the way. The vacancy created by Justice Antonin Scalia’s death, which persists because Senate Republicans refuse to even consider the president’s nominee, is just the beginning. Three more justices — Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer — will be in their 80s during the next administration, making it likely that one or more of them will step down. All of this means that the next president, through multiple lifetime appointments to the highest Court, will set the nation’s course for a generation.

The extraordinary stakes of this moment are clear.

It’s not hard to imagine a world in which the Constitution, in the hands of Koch-approved justices, protects only wealthy corporate interests. We’ve seen it before. In the early 20th century, the Court invoked economic liberty to gut the federal government’s regulatory authority and give corporations expansive rights that trumped social welfare legislation. The most famous case of the time, Lochner v. New York, struck down a labor law limiting the number of hours bakeries could force their employees to work. All told, between 1897 and 1936 — now pejoratively known as “the Lochner era” — the Supreme Court struck down hundreds of progressive reforms designed to protect workers, wages, and labor unions. The result was a nation of massive income inequality, dangerous workplaces, squalid living conditions for huge swaths of the population, child labor, and extreme poverty.

That’s the world we’d live in if judicial engagement captures the Supreme Court, except today we stand to lose even more. Laws and regulations that didn’t exist 100 years ago but that now mark a century of social progress would be swept away. In addition to health care reform, the Commerce Clause has allowed Congress to enact anti-discrimination, environmental protection, labor, and consumer protection laws. All of these reforms — landmark legislative achievements that serve as the foundations of our modern democracy — would be on the constitutional chopping block before a Supreme Court intent on restricting federal power for the sake of economic liberty.

See how arch-conservative interests are building a judicial time machine to erase 100 years of social progress.

But how real is this threat? For starters, the Eleventh Circuit is not the only court to back judicial engagement. Texas Supreme Court Justice Don Willett, often mentioned as a possible Supreme Court candidate, gave the approach a positive review in 2015. The explicit reliance on judicial engagement by judges (including potential Supreme Court nominees) shows that the campaign has already shifted from the theoretical to reality, and its influence is spreading through other platforms as well.

In 2011, for example, David Bernstein, a law professor at George Mason University, published the book Rehabilitating Lochner, which celebrates Lochner for its defense of liberty. (George Mason has long been a beneficiary of Koch funding, and this year its law school was renamed the Antonin Scalia Law School after receiving a $10 million grant from the Charles G. Koch foundation.) Since then, law schools (including George Mason) have held symposia and panels, think thanks have endorsed the theory, and scores of law review articles and books on the subject have been published.

The popular conservative press has also bought in. Washington Post columnist George Will said that “judicial activism,” when used to overturn economic legislation, “isn’t a bad thing” after all, and ridiculed criticism of Lochner — made by none other than Chief Justice John Roberts — as evincing “more animus than understanding.” In the 2015 law review article The Return of Lochner, law professors Thomas Colby and Peter J. Smith declared something of a victory, writing that “conservatives have patiently waited for the theory to come together — for the blueprints to be drawn — before moving forward. But the plans are now largely ready, and we expect that it will not be long before the bulldozers break ground.”

Of course, part of the plan is to explicitly insert judicial engagement into the selection of Supreme Court justices. George Will said the next president should ask Supreme Court candidates whether they believe Lochner was correctly decided (Will also said the next president should appoint Don Willett). Law Professor Randy Barnett, a major proponent of “engagement,” published a “guide” for presidential candidates “on how to fill Court vacancies” with “stalwart constitutional conservatives.” He says that presidents should be unconcerned with “restraint” and look instead for nominees with long “paper trails” proving they are “willing to engage and enforce the Constitution against the other branches,” including by rejecting longstanding Supreme Court precedent. Barnett sees how that might make for a rough confirmation, but so what? He teaches: “Bruising confirmation battles are worth the political capital.”

After Citizens United, the wealthy and powerful are well positioned to manipulate our democracy with big spending. But buying elections is expensive, and must be repeated over and over each election cycle. Buying the Constitution, on the other hand, is far more efficient, and effective. A Supreme Court willing to hamstring the federal government and strike down basic regulations in the name of economic freedom will do far more for corporate interests than the Kochs could ever achieve through the democratic process, no matter how much they spend. And once new rules are enshrined in the Constitution, they are essentially permanent, with the government left powerless to address social problems of all kinds.

The campaign to promote judicial engagement, and to thereby erase a century of social progress, is well financed, well organized, and well on its way. The final pieces are Supreme Court vacancies and a compliant president to fill them. The bulldozers are ready to break ground. This year, we can use our voices to stop them.

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