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The Case Against Deference

Judges should be unafraid to review government actions

Jun 10, 2013, Vol. 18, No. 37 • By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
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Third, the early Court’s notion of deference was distinct from its modern incarnation. Today’s judicial deference is the product of the progressive era of the late 19th and early 20th centuries. Judges schooled in the original understanding had no qualms about being perceived as “counter-majoritarian,” conceptualizing their role as enforcing the written Constitution against the daily assaults of ordinary legislation. Progressives, who wanted to remake American society, viewed such judges and the written Constitution as an impediment. Achieving progressive goals was possible only if judges could be restrained from scrutinizing ordinary laws for adherence to higher constitutional principles.

One of the most powerful early advocates of judicial deference was progressive Harvard law professor James Bradley Thayer, who, in 1893, argued in the Harvard Law Review that judges “can only disregard [an] Act when those who have the right to make laws have not merely made a mistake, but have made a very clear one, so that it is not open to rational question.” He justified this “rational basis” review by asserting that the Constitution “often admits of different interpretations; that there is a range of choice and judgment,” and that a judge’s role “is merely that of fixing the outside border of reasonable legislative action.” Thayer remarkably asserted that, in applying such light judicial review, “virtue, sense, and competent knowledge are always to be attributed to that [legislative] body.” It is ironic that modern conservatives, concerned about the freewheeling behavior of liberal judges during the Warren Court era, have chosen as their principal bulwark against activism a doctrine of judicial deference whose genesis lies in the progressive era’s desire to expand government power.

The fourth problem with judicial deference is pragmatic, stemming from the judiciary’s inconsistent application of restraint. Since the New Deal, economic regulations, for one example, have received the utmost deference. Yet when it comes to so-called individual rights​—​a category that, for some inexplicable reason, does not include economic rights​—​courts jettison deference and apply heightened scrutiny. This bifurcation between “individual” and “economic” rights makes zero sense, as neither the Constitution itself, nor any theory of individual rights, suggests that the former are more important than the latter, or indeed that they are different in kind. The artificial distinction, moreover, invites judicial manipulation and selective invocation of aggressive scrutiny.

In 2005, for example​—​after over 200 years of constitutional history​—​the Supreme Court, in Roper v. Simmons, determined 5-4 that the death penalty for 17-year-olds violated the Eighth Amendment’s prohibition of cruel and unusual punishments. Just 15 years earlier, in Stanford v. Kentucky, the Court had decided precisely the opposite. According to the Roper majority, the Constitution’s meaning changed in the intervening 16 years because a “majority of States have rejected the imposition of the death penalty on juvenile offenders under 18, and we now hold this is required by the Eighth Amendment.”

Since 20 of the 38 states that allowed the death penalty at the time of Roper also allowed it for 17-year-olds, the Court cooked the numbers. It included in its calculations 12 states that prohibited the death penalty altogether, leading it to find a “consensus” of 30 states against the juvenile death penalty. As Justice Scalia’s dissent observed, this “is rather like including old-order Amishmen in a consumer-preference poll on the electric car. Of course they don’t like it, but that sheds no light whatever on the point at issue,” because a total prohibition on the death penalty reveals nothing about whether juveniles should receive an exemption.

The Roper decision disregarded the policy preferences of at least 20 states​—​policy preferences that neither the Constitution’s text nor its historical context condemned​—​based on the “evolving standards of decency” that five justices wanted the Eighth Amendment to reflect.

Similarly, in the 1980 decision Stone v. Graham, a 5-4 Supreme Court concluded that requiring display of the Ten Commandments in public schools​—​funded entirely by private dollars​—​violated the First Amendment’s Establishment Clause. The Stone majority believed posting the commandments had no secular educational purpose, despite the fact that they are the foundation upon which much of the Western world’s legal codes rest.

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