What we require is not judicial restraint, but a different sort of judicial engagement that develops the traditions of republican government.
We have seen many examples of an “engaged judiciary” at the state court level, and it isn’t always pretty.
Advocates of resuscitated constitutional protection for economic liberties—which were demoted to second-class status during the New Deal with the abandonment of the “substantive due process” doctrine in West Coast Hotel Co. v. Parrish (1937)—often argue in favor of a more rigorous standard of judicial review, across the board, when laws are challenged. This heightened judicial role is sometimes referred to as “judicial engagement.” Some conservatives have expressed concern (for example, here and here) that giving judges such broad discretion will lead to judicial usurpation of lawmaking, which is a legislative function, and may legitimize past and future instances of liberal judicial activism, such as Roe v. Wade (1973).
Proponents of judicial engagement sometimes question whether “judicial activism” even exists, and attempt to minimize the risk of judicial usurpation resulting from a less-deferential role by emphasizing the relatively small number of cases in which the U.S. Supreme Court has ruled state or federal laws unconstitutional (for example, here and here). Proponents also sometimes contend that judicial activism—when it does occur—is not so bad, because when judges invalidate a law, they are ruling in favor of individual liberty (by vindicating unenumerated rights, for example).
When we think of constitutional law, and allegations of “judicial activism,” we generally think of the U.S. Supreme Court. This focus is somewhat myopic. The Supreme Court hears very few cases—less than 100 per year. The 13 federal courts of appeal, in contrast, handle about 35,000 each year. However, the overwhelming bulk of litigation, trial and appellate, takes place in state court. Accordingly, judges have the greatest impact at the state court level.
As Justice William Brennan cannily observed long ago, as the Burger Court was putting the brakes the breathtaking activism of the Warren Court era, each of the 50 states has its own judiciary responsible for interpreting state laws and state constitutions. In interpreting their own constitutions, using “independent state grounds,” state supreme courts are neither bound by Supreme Court precedents nor subject to Supreme Court review. Their decisions are largely unguided and essentially final—subject only to the justices’ own consciences. Brennan recognized that the potential for judicial innovation and lawmaking at the state court level is considerable, and emphatically urged state supreme courts to continue the activist legacy of the Warren Court by interpreting state constitutions to go beyond the requirements of the U.S. Constitution.
Heeding Brennan’s call, albeit with a much different philosophical approach, in my state (Texas), the Institute for Justice has undertaken a campaign to defend economic liberties based on a provision of the 1876 state constitution, Art. I, section 19, which states that “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.” A lawsuit filed by IJ challenging occupational licensure for “eyebrow threaders” resulted in a decision by the Texas Supreme Court last year, Patel v. Texas Department of Licensing and Regulation (issued, coincidentally, the same day the U.S. Supreme decided Obergefell v. Hodges, the same-sex marriage case). In Patel, IJ succeeded in overturning a state law requiring 750 hours of training in order to obtain a cosmetology license to pluck unwanted hair from eyebrows using a thread.
The court, by a 6 to 3 vote, ruled that the state law was invalid under Article I, section 19 because the training requirements were so burdensome as to be “oppressive.” Observant readers will notice that Article I, section 19 has nothing to say about occupational licensure, eyebrow threading, or the “right to earn a living,” and certainly does not contain the word “oppressive.” Article I, section 19 is not even a close facsimile of the Due Process Clause in the Fifth and Fourteenth Amendments of the U.S. Constitution. The court’s decision in Patel, which prompted several lengthy dissenting and concurring opinions, is noteworthy because the majority employed a “substantive due process” analysis, instead of the typical “rational basis” test, to strike down the law. Patel has generated nationwide attention as an example of “judicial engagement” at work.
Chief Justice Nathan Hecht’s dissent accused the majority of unleashing the ghost of Lochner v. New York (1905), reopening an era in which courts second-guessed policy determinations made by the legislature, with neither express textual basis nor investigations, hearings, or input from all affected parties.
“Oppression is very much in the eye of the beholder,” Hecht scoffed. He questioned whether the courts will next be fly-specking the licensing requirements for lawyers and doctors, and warned darkly of other potentially deleterious consequences.
I have not yet reached a conclusion on whether Article I, section 19 of the Texas Constitution creates the Lochner-like rights that the Patel majority (urged by IJ) contends it does—or whether reading such meaning into boilerplate language is akin to hearing secret messages by playing Beatles records backwards—but it must be acknowledged that state supreme courts (in Texas and elsewhere, and especially in California) have often used vague language in state constitutions to reach activist decisions. In this regard, Hecht’s admonition against allowing judges to become roving arbiters of the wisdom of legislation cannot be disregarded as empty hyperbole.
In a future post I will analyze the various opinions in Patel in greater detail, including the widely celebrated concurring opinion authored by Justice Don Willett. In the meantime, it is useful to explore briefly the types of mischief in which state courts have historically engaged, as an indication of how trustworthy or reliable courts are as policymakers. It is not a pretty picture.
Proponents of judicial engagement assume that judges are neutral decisionmakers untainted by bias or consideration of their personal predilections, who will decide each case in good faith, employing an intellectually honest (as opposed to a result-oriented) analysis of the relevant constitutional text and statutory provision. The ample record of errant state court holdings (briefly summarized below) suggests that this conception of the judiciary is naïve. Judges are just government officials who wear robes, no different (and certainly no more noble or wise) than any other functionary of the state. There is no logical reason to believe that judges as a group are more reliable stewards of liberty than are legislators or executives. Nor is there any basis for believing that “judicial engagement” at the state court level necessarily increases individual liberty; it often has the opposite effect.
Judges are drawn from the elite ranks of lawyers, or occasionally law professors, and they generally reflect the liberal views that prevail in the legal profession and the legal academy. (The policy positions of the American Bar Association serving as a barometer.)
For example: In California, where I practiced for 30 years, appellate courts circumvented the express statutory presumption of at-will employment in Labor Code section 2922 to literally invent a cause of action for “wrongful termination” (and in the process created an avalanche of litigation in the 1980s); concocted various defenses to the enforcement of voluntary contracts, including a broad (and frequently abused) notion of “unconscionability”; interpreted the state constitution to recognize a right of same-sex marriage and for minors to have abortions without parental consent; enacted, by judicial fiat, a tort cause of action against insurers that failed to settle insurance claims quickly enough; adopted innovative theories of tort recovery for “product liability,” including the controversial notion of “strict liability,” without legislative authorization; allowed union organizers and picketers access to employers’ private property; and (under the leadership of Chief Justice Rose Bird) conferred on criminal defendants a host of criminal procedural rights that hamstrung law enforcement and thwarted implementation of the death penalty.
California is a pioneer but is hardly exceptional. In Texas and many other states, appellate courts “discovered” in vague boilerplate language contained in state constitutions a right to equitable funding of public schools, despite the fact that the U.S. Supreme Court held in Rodriguez v. San Antonio Independent School District (1973) that the U.S. Constitution does not contain such a right. Judicial meddling in school finance has frequently compelled increased spending (and therefore higher taxes), and by definition distorted the allocation of funding made by the politically accountable branches.
In 1988, when the Texas Supreme Court—whose members stand for statewide partisan election—was controlled by Democrats supported by trial lawyers, the court struck down a statutory cap on medical malpractice damages on the grounds that it violated a provision of the state constitution providing that “[a]ll courts shall be open,” and “every person . . . shall have remedy by due course of law.” (This language appears in the same Article (the Bill of Rights) as the language relied upon in Patel.)
In California and several other states, appellate courts have conferred on public employees entitlements to pension benefits that, once conferred, can—unlike private sector pensions subject to ERISA—never be modified or abrogated. New York’s highest court has recognized a “right” to shelter for the homeless under the state constitution. State courts frequently find creative reasons to thwart civil justice reform legislation enacted by the legislature. Writing in City Journal, Steve Malanga states that “liberal judges and legal scholars are calling for state courts to push the positive-rights agenda even further by guaranteeing minimum welfare payments and government subsidies for food, clothing, housing, and medical care to every citizen.” Recall that the U.S. Supreme Court was compelled to intervene in Bush v. Gore (2000) only after the Florida Supreme Court brazenly attempted to throw the election to Al Gore by rewriting the vote-counting rules.
This litany barely scratches the surface, but state court judges clearly need no further encouragement to engage in imaginative decisionmaking. In a prevailing academic climate that fosters judicial activism—and, ironically, that harbors antipathy for the very conception of economic liberty promoted by IJ—more and more state courts decide cases based upon their personal policy preferences and current intellectual fashions. Instead of being limited to a few liberal hotbeds such as California, activist rulings are now the norm and judicial restraint is the exception.
The risk of judicial lawmaking is greater at the state court level than it is at the federal level for many reasons.
First, state courts, unlike federal courts, often decide disputes between private parties, involving subjects such as contracts, torts, real property, family law, employment law, consumer remedies, and corporate law. Erroneous decisions can substantially alter the legal rights of large groups of citizens.
Second, state appellate courts decide far more cases and issue far more opinions than do the federal appellate courts. In terms of sheer volume, there are many more opportunities for state court activism.
Third, since state supreme courts are the ultimate arbiters of state law, state courts aren’t bound by federal precedents. Federal court precedents establish a constitutional floor; state courts can further diminish the political rights of the executive, the legislature, and the people, but they cannot increase them.
Fourth, state court decisions resting on “independent state grounds” are completely insulated from review and reversal by the federal courts, even by the U.S. Supreme Court; the finality of their decisions undoubtedly emboldens state supreme courts.
Fifth, and finally, state constitutions, unlike the U.S. Constitution, tend to be lengthy, poorly drafted, and haphazardly revised documents, full of idiosyncratic terms susceptible of a contrived interpretation by a results-oriented judiciary. (When it was adopted in 1876, the Texas Constitution—cobbled together from a variety of sources—consisted of over 63,000 words.) Moreover, the justification for judicial engagement for state courts is weaker than it is at the federal level. Unlike the federal government, which was granted limited (and enumerated) powers, the states are the basic unit of the social compact and, as such, possess broad regulatory authority—usually referred to as the “police power.” Thus, the “presumption of liberty”/unenumerated rights rationale often used by proponents of judicial engagement to justify a heightened standard of review simply doesn’t apply to state constitutions.
I will review the various Patel opinions in an upcoming post.
 Clark M. Neily III, Terms of Engagement (Encounter Books, 2013), pp. 126-27 and note 26.