Wanted: More Judicial Activism! Our disengaged judiciary is failing to protect the liberties of Americans
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The Institute for Justice (IJ) has released a new study titled, “Government Unchecked: The False Problem of ‘Judicial Activism’ and the Need for Judicial Engagement.” One of the authors, Clark Neily, published a commentary in The Wall Street Journal summarizing its findings. According to IJ’s accounting, between 1954 and 2003, Congress passed 16,015 laws, only 104 of which were struck down by the Supreme Court. During the same period, state legislatures passed 1,209,075 laws of which 455 were found unconstitutional by the Supreme Court. Rather than paint a picture of judicial activism, the authors conclude that the empirical evidence shows a disengaged judiciary failing to meet its responsibility to protect the liberties of American citizens.
In reaction to the IJ report, Ed Whalen, of National Review Online, lamented “that the good folks at the Institute for Justice … continue their misguided campaign against the very real problem of ‘judicial activism.’” Mr. Whalen’s objection is not surprising. It seems that everyone—on both sides of the aisle—loves to hate judicial activism. But the folks at IJ have a point that lovers of liberty, whether on the left or the right, should heed.
Almost twenty years ago I presented a lecture at the Heritage Foundation titled, “A Case for Principled Judicial Activism.” For a mid-day lecture, it drew a pretty good crowd. At the conclusion there was polite applause, but my sense was that only Roger Pilon, a constitutional scholar at the Cato Institute, was in enthusiastic agreement with my thesis.
In a nutshell my thesis was that courts in the United States should be restrained in second guessing legislative and administrative policy decisions, but activist in the protection of liberty and the enforcement of constitutional limits on government power. Many at Heritage were sympathetic with my argument for protecting neglected economic liberties, and for confining Congress to its enumerated powers. But most were also admirers of former Attorney General Ed Meese and Judge Robert Bork, both of whom were staunch critics of “judicial activism.” With Mr. Meese being a resident scholar at Heritage, it seems that few, if any there, had had the temerity to make a case for judicial activism—even if principled.