The Incoherence of Judicial Deference – a Persnickety Illustration

In an otherwise great and insightful interview with Jeffrey Rosen at The New Republic (, the Notorious R.B.G. demonstrated in short order why those who advocate for “judicial deference” or “judicial restraint” manage to eat their cake and demand it whole simultaneously.

The case-in-point, three questions apart:
The Court should have respected the legislative judgment.”
“How could you trust legislatures in view of the restrictions states are imposing?”

These responses are revealing, not so much for what they mean to say in context, but rather what they demonstrate, something which proponents of “judicial deference” so often miss, almost in the same breath. First, they prove the maxim that restraint is in the eye of the beholder. Judicial deference to legislative enactments is a virtue – when the enactment aligns with the values of the judge/justice. When it does not, the idea is a non-starter. Second, they militate against the presumption of constitutionality of legislative enactments that proponents of deference advocate. After all, if legislatures cannot be trusted to behave rightly and constitutionally on some issues, why should they be trusted to be doing so on others? If “judicial deference” is such a take-it-or-leave-it proposition, depending upon the subjective opinion of the judge with respect to the value of the matter at hand, why is it even maintained as a virtue in the first place?

I do not mean to nitpick on a seemingly trifling set of comments. But it is something of a pet peeve of mine when certain matters are deemed to deserve “heightened scrutiny,” and thus the attentive eye of the judiciary to ensure the government is not behaving badly; while other matters (so-called “nonfundamental rights,” or worse, those pesky “liberty interests”) are deemed insignificant, which essentially gives the legislature (or the executive) free reign to curtail/proscribe such matters considered undeserving of judicial scrutiny.

Why not just have judges, when presented with a question of the constitutionality of a law, always take a good hard look at it, rather than say “Congress passed it, I accept it, that settles it”? This is particularly important since, as Justice Kennedy has observed, “the absence of structural mechanisms to require” members of Congress (and the executive branch) to uphold their own duty to preserve and protect the Constitution, along with “the momentary political convenience often attendant upon their failure to do so, argue against a complete renunciation of the judicial role….” (United States v. Lopez, 514 U.S. 549 (1995), Kennedy, J., concurring). Where he hedges, however, I would not – the judiciary is the most effective (and, far too often, the only) safeguard we have against an unbridled assumption of authority by the other branches (political realities being what they are, very rarely do the other components of our federal system truly make an effort to restrain unconstitutional behavior among themselves and one another). Since the judiciary is fundamentally defensive in serving as Constitutional enforcer – meaning that it can only ever curtail the other branches’ exercise of power, and cannot extend its own beyond this (already rather modest) power of review – I do not see compelling reason for them to retreat deeper within this already constrained role.

Judges are appointed, after all, because they are (supposed to be) experts in the craft, whereas legislatures are composed of individuals who, irrespective of their knowledge or skill, managed to convince a plurality of people to vote for them (likewise for executives). Judges are supposed to know the Constitution, as well as governing precedents and contemporary statutes, better than anybody else. They are granted a non-expiring appointment, so that they might become experts, and so that they are insulated from democratic pressures to adjudicate matters in a way the “people” might want but that is nevertheless unlawful/unconstitutional. Not that I am ever a fan of the presumption of institutional competence, but if it ever were to be rightly ascribed, the judiciary would fit the bill far more than the legislature would. It makes sense for them to be in a privileged place, assigned the task of evaluating laws that come before them to examine their validity (of course, this suggestion is complicated by the fact that judicial deference is a long-standing [albeit selectively employed] precedent which judges can cite authoritatively when in need of cover/to dodge hard issues, but I digress…)

Furthermore, accusations of “judicial tyranny,” or “rule by nine in robes,” are grossly overblown. As Clark Neilly III puts it, “Drumbeat charges of activism have helped create the impression that judges on the whole are doing too much to limit government when in fact they are doing far too little” (Terms of Engagement, 10). The idea that the branch of government with neither “sword” nor “purse” could somehow lord over the other branches and rule by judicial fiat is patent nonsense. Additionally, given our adversarial legal system, the courts can only ever “assert their will” – if they are so villainous as to intend to do so – when there is a dispute in need of settling. Judges cannot sit from the bench and issue edicts striking down laws as unconstitutional immediately after the legislature passes them. Someone must sue, and that person must have a legitimate argument to be heard by a court in the first place, meaning that there most likely (almost certainly!) is a legitimate issue at play. Judicial deference, in this context, seems to me to be more aptly termed, as Clark Neilly puts it, “judicial abdication” (id. 8).

It seems to me that a consistently engaged judiciary – one which doesn’t adopt a principle of “review” that really is a principle of non-review – is more in keeping with the envisioned function of the third branch of government, as stated by Alexander Hamilton in The Federalist 78,

…to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.

For a more compelling take-down of the idea of “judicial restraint,” see Randy Barnett’s succinct and compelling post over at Volokh:

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