It is not often that a progressive columnist offers full-throated praise for judicial decisions to invalidate regulations that are said to be necessary to protect public health and safety. And yet the New York Times recently presented its readers with that rare spectacle.
In a column for the Times, longtime (now semi-retired) Supreme Court reporter Linda Greenhouse praises the Supreme Court for “calling out legislators” in Whole Woman’s Health v. Hellerstedt, a decision in which the Court carefully scrutinized and ultimately struck down Texas legislation requiring physicians who provide abortions to have active admitting privileges at a hospital within 30 miles of the location where the abortions were provided and mandating that any facility at which abortions were provided satisfy the state’s standards for “ambulatory surgical centers.” Greenhouse also praises a decision by the Fourth U.S. Circuit Court of Appeals in a case involving a controversial North Carolina election reform law that wrought a number of changes in voting mechanisms and procedures, including a voter ID requirement and restrictions on early voting, same-day registration, out-of-precinct voting, and preregistration. Writing for a unanimous three-judge panel in North Carolina State Conference of the NAACP v. McCrory, Judge Diana Motz parsed the evidence in a voluminous record and determined that the “new provisions target[ed] African Americans with almost surgical precision”; that they “constitute[d] inapt remedies for the problems assertedly justifying them”; and that they “impose[d] cures for problems that did not exist.” The Fourth Circuit panel concluded that the law had been enacted “with discriminatory intent”—to impede “a particular race’s access to the franchise because its members vote for a particular party”—and remanded the case to the district court with instructions to enjoin the challenged provisions.
Greenhouse lauds the justices and judges in these cases for “expressing a new willingness to call out legislatures for what they are really doing, not just what they say they are doing.” She commends the justices and judges for being “highly attentive to facts — not only to isolated facts, but facts in suggestive patterns, facts in context” and thus rejecting “official justification[s] that the evidence, examined in close detail, can’t support[.]”
One need not agree with Greenhouse’s assessment of the merits of these decisions to be struck by her approval of a judicial approach that she has repeatedly criticized in the past: judicial engagement, understood as evidence-based inquiry into the constitutional propriety of the government’s true ends and means, without unwarranted deference to government officials’ unsupported factual assertions or professed good intentions. There would be appear to be something of a cross-ideological consensus concerning the value of such an approach—at least, in certain contexts. Conservatives have (rightly) criticized the Supreme Court for declining to review a decision in a case involving Washington regulations that require pharmacists and pharmacies to dispense lawfully prescribed emergency contraceptives—even if they have a sincerely held religious belief that doing so terminates a human life. In Storman’s, Inc. v. Wiesman, a three-judge panel of the Ninth U.S. Circuit Court of Appeals upheld the regulations on the ground that the government had a legitimate interest in “ensuring that its citizens have safe and timely access to their lawful and lawfully prescribed medications.” This despite the fact that the government stipulated that “facilitated referrals do not pose a threat to timely access to lawfully prescribed medications.”
Which brings us to the question of why judicial engagement is the exception rather than the rule in our constitutional jurisprudence today. The default standard of review in constitutional cases—the so-called “rational basis test”—is used to evaluate all governmental burdens on our peaceful pursuits that do not implicate one of a handful of rights that the Supreme Court has deemed “fundamental,” some of which “fundamental” rights are expressly listed in the Constitution (like the right to speak freely and the right to keep and bear arms) and some of which are not (like the right to the right to choose whether to have children, the right to guide the upbringing of one’s children, and the right to terminate a pregnancy in its early stages). In recent years, the Court has articulated and applied the rational-basis test in a manner that creates an effectively irrebuttable presumption of constitutionality, declining to pursue the government’s true ends and upholding legislation by hypothesizing justifications for the government’s actions that have no basis in the record. “Fundamental” rights, on the other hand, trigger various forms of “heightened scrutiny” that place the burden on the government to demonstrate—with evidence—that its actions are calculated to achieve a proper governmental end.
As Justice Clarence Thomas detailed in a forceful dissent in Whole Woman’s Health, this disparate treatment is no accident. It is the product of doctrine that the Supreme Court has fashioned—doctrine traceable to a fateful footnote (known simply as “Footnote Four”) in the 1938 case of United States v. Carolene Products, which laid the foundations for the framework of “tiered scrutiny” that is now central to our constitutional law. (Although the rational-basis test applied by the Carolene Products Court was a far cry from modern rational-basis review—the Carolene Products Court expressly stated that evidence mattered; that constitutional challengers could demonstrate that a statute held to be rational at time A could be invalidated as irrational at time B if circumstances changed; that “a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis.”)
In Whole Woman’s Health, Justice Steven Breyer, writing for the majority, pointedly distinguished the kind of scrutiny appropriate in cases involving abortion from that appropriate in cases involving burdens on the “right to conduct a business or to practice a profession without unnecessary state regulation.” When challenged in court, regulations that burden the right to earn a honest living in the occupation of one’s choice, like the abortion regulations at issue in Whole Woman’s Health, are defended by government officials as means of protecting the public. But—in contrast to what routinely takes place in cases involving mere “economic” regulations—the Court in Whole Woman’s Health made a genuine effort to determine whether the challenged regulations were actually calculated to protect the public, ultimately finding that the admitting privileges and ambulatory surgical requirements were not justified by the states’ asserted ends. For instance, Justice Breyer noted that “[c]olonoscopy, a procedure that typically takes place outside a hospital (or surgical center) setting, has a mortality rate 10 times higher than an abortion” and “the mortality rate for liposuction . . . is 28 times higher than the mortality rate for abortion”—and yet neither of those procedures were subject to Texas’ ambulatory-surgical requirements.
So—why the difference? Three justifications for what Professor Suzanna Sherry (herself a defender of the status quo) has termed “selective judicial activism” are often advanced. One justification is that the democratic process generally works pretty well and there are only a few contexts in which judges should be particularly concerned about legislative abuses. Another justification is that those burdened by economic regulations that serve no constitutionally proper governmental purpose can generally “throw the bums out.” Finally, “economic” rights are simply said to be less important than the “personal” rights that the Court has deemed “fundamental.”
The first and second justifications depend for their strength on the available evidence. That evidence does not in fact support those justifications—quite the opposite. A growing body of public-choice scholarship has documented the phenomenon of “rent-seeking” in the context of occupational licensing—the use of occupational licensing by industry incumbents as a means of protecting themselves from competition while imposing costs on everyone else. There is a rich literature detailing such regulatory abuses, literature that has garnered attention on both sides of the political aisle in the wake of a recent explosion of licensing laws. (In the 1950s, only five percent of American workers required a license; today between twenty and thirty percent do.) Even if one believes that the democratic process reliably churns out public-spirited legislation and there are only a few contexts in which judges should be particularly vigilant, occupational licensing is a context that cries out for such judicial vigilance.
The very dynamics which make rent-seeking possible in the first place—among other things, concentrated benefits for industry incumbents, diffuse costs imposed upon the rest of the public—often thwart the possibility of political recourse for would-be entrepreneurs. Professor Robert McCloskey has described the notion that those who are “denied access to an occupation by State-enforced barriers” can readily convince legislatures to remove those barriers as an “amiable fiction”—but it is in fact a dangerous fiction, insofar as it it invoked to justify the abdication of judicial duty. Would-be pushcart vendors, eyebrow-threaders, hair-braiders, and shoe-shiners should not be denied the kind of impartial adjudication to which they are constitutionally entitled on the basis of a majoritarian fable.
Finally, the disparity between the deferential posture that judges strike in cases involving “economic” liberty and the vigilance with which they protect “personal” liberty on the other cannot be justified on grounds that the former liberty is somehow less important than the latter. To begin with, as Justice Thomas noted in his Whole Woman’s Health dissent, “our Constitution renounces the notion that some constitutional rights are more equal than others.” It is not simply that the Constitution does not expressly authorize judges to elevate some rights above others. The Ninth Amendment sets forth a rule of construction that prohibits judges from “den[ying] or disparag[ing]” rights on the grounds that they are not “enumerat[ed] in the Constitution.” The Fourteenth Amendment’s Privileges or Immunities Clause and Due Process of Law Clauses are both properly understood to protect the right to earn a living, albeit in different ways. The Privileges or Immunities Clause expressly secures natural rights (including the right to earn a living) and certain procedural rights designed to protect natural rights (those set forth in the Bill of Rights), casting both natural and procedural rights as rights pertaining to national citizenship. The Due Process of Law Clause serves to safeguard the “life, liberty, [and] property" of every person against the exercise of arbitrary government power, understood as power supported only by political will rather than any public-oriented purpose. Occupational licensing schemes that are designed only to protect the economic interests of the politically powerful, not to protect the public from force or fraud, are arbitrary—and therefore unconstitutional.
Further, there is very little that one can say about the “personal” liberty that the Court has recognized to be “fundamental” that cannot equally be said—perhaps even more forcefully said—about the right to earn a living. Americans spend most of their time at work, and work is not merely a means of making ends meet. Even liberal Justice William O. Douglas—no friend of economic liberty in general—once stated that “[m]an has . . . as much right to work as he has to live, to be free, to own property” and observed that “[f]or many it would be better to work in jail, than to sit idle on the curb.” Regardless of whether he was being sincere, Douglas was right. Through their work, Americans “define and express their identity”; through their work, Americans “develop their faculties”; through their work, Americans “define their own concept of existence.” Our work is fundamental, that is central, to who we are. In denying the fundamentality of the right to earn a living, scholars, lawyers, and journalists may be revealing only that the freedom to sell hot dogs on the street does not strike them as being particularly important.
At one point, Greenhouse identifies a series of questions that the Supreme Court in Whole Woman’s Health and the Fourth Circuit in McCrory asked:
Absence of a documented problem? Check. Singling out a particular practice for onerous requirements? Check. The legislators’ knowledge of the likely impact? Check. An official justification that the evidence, examined in close detail, can’t support? Check.
I have a further question: Why should judges ever decline to ask those questions when the government burdens people’s constitutional rights or treats them differently than others who are similarly situated? The Supreme Court has yet to give a compelling answer.