By Clark M. Neily III

Does America have an “activist” judiciary that constantly involves itself in policy disputes best left to the other branches? Several Supreme Court justices have publicly expressed that view recently, but they are dead wrong.

Indeed, given the breathtaking abuses of power we have seen by other branches lately, the prospect of judges becoming even less vigilant about protecting citizens from overweening government should be deeply troubling.

As I explain in my new book, Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government, the very institution of limited government has become imperiled by an epidemic of judicial abdication. What America needs is judicial engagement: consistent, conscientious judging in all cases, without bent or bias in favor of government. Unfortunately, we’re not getting it.

Take the Supreme Court’s decision to uphold the greatest expansion of federal power since the New Deal by rewriting the Affordable Care Act (aka “ObamaCare”) to transform the requirement that Americans purchase government-approved health insurance from a mandate enforced by a financial penalty, into an option with an additional tax payment for those who choose not to exercise it.

Never mind that the Affordable Care Act refers to this payment as a “penalty” 18 times; and never mind Chief Justice Roberts’s recognition of the fact that the “[t]he most straightforward reading of the mandate is that it commands individuals to purchase insurance.” According to Roberts’s understanding, the justices’ role was not to strike down or uphold the law based on “the most natural interpretation of the mandate,” but instead to bring their own creativity to bear in rationalizing a constitutional basis for the law if possible.

But that’s not judging; it’s advocacy. Judges are supposed to remain strictly neutral in all cases, including ones challenging the constitutionality of a law. Recall how Roberts compared judges to umpires in his confirmation hearing to be Chief Justice. Umpires, of course, do not bend over backwards to avoid calling outs or strikes against the home team the way Roberts did in changing ObamaCare’s insurance provision from a mandate to an option in order to uphold the law.

For those who take seriously James Madison’s assurance that the powers of the federal government would be “few and defined,” that decision was a travesty. Unfortunately, it was not an anomaly. Instead, it reflects a judicial mindset much in vogue among conservatives (and sophisticated liberals who understand its power to clear the way for even more government) that calls for reflexive deference toward the other branches in most areas of law―from the allocation of power between federal and state governments, to economic and business regulations, to property rights and the use of tax policy to manipulate individual behavior.

Compare the absence of meaningful judicial review in those areas with Justice Ruth Bader Ginsburg’s recent lament in The New York Times that the current Supreme Court is “one of the most activist courts in history,” or Justice Antonin Scalia’s characterization of activist judges as “Mullahs of the West.” Even Justice Anthony Kennedy has jumped on the bandwagon, arguing that “[a]ny society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy.”

But America is not a democracy. It is a constitutional republic in which majorities are forbidden from pursuing a host of policies, including ones that violate individual rights or enable legislators and bureaucrats to exercise powers they do not lawfully possess. Preventing those things from happening is not judicial activism; it’s judicial engagement. And as recent events involving the IRS, the NSA, the Department of Justice, and countless other misbehaving agencies make plain, we need a lot more of it.

*This article originally appeared on

Clark M. Neily III is a senior attorney at the Institute for Justice and director of the Institute’s Center for Judicial Engagement. He is the author of Terms of Engagement: How Our Courts Should Enforce the Constitution’s Promise of Limited Government. Neily will be a guest speaker for Cascade Policy Institute in Portland in March 2014.

One thought on “Wanted: Less Judicial Activism, More Judicial Engagement

  1. As one of four Plaintiffs who took the Oregon Secretary of State to court in 2012, for disregarding the statute to destroy unused ballots on election day. I was most distressed when the judge sided with the Secretary telling her she could interpret the law as she pleased or make up new administrative rules to deal with these ballots.
    The Secretary agreed and admitted that she had not obeyed the law. She kept the ballots for over 45 days after the election, including through a recount of a challenged race. Thousands of unused ballots were found on the loading dock, in opened boxes, spilling onto the floor, located in the basement of the elections building on the day of the recount for US Representative race was also occuring. A few of these ballots could have been exchanged to alter the count. The seals on the challenged boxes had been opened prior to the recount process without any witnesses present. These loose standards gave much cause for concern for authentic results. Confidence in the election process was lost that day, and destroyed completely on the day the judge gave all authority to the Secretary to act as she pleased, regardless of the laws on the books.

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