Judicial Engagement and Rational Basis Review

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Is rational basis review the appropriate approach consistent with constitutional text, history, and good public policy, or is it an abdication of judicial responsibility?

Advocates for greater judicial engagement argue that courts have a constitutional obligation to apply meaningful judicial review to infringement of unenumerated “nonfundamental” rights.  Judicial abdication of that responsibility, they argue, permits special interests to interfere with competition, innovation, and economic liberty.

Defenders of rational basis review maintain that judges are ill-equipped to second-guess the policy judgments of elected lawmakers, and that absent a clear violation of a constitutional protection, such determinations are better left to that branch of government subject to democratic accountability.

Ted Frank of Hamilton Lincoln Law Institute and Clark Neily of The Cato Institute will debate the merits of judicial engagement and rational basis review. 

Featuring: 

Ted Frank, Director, Center for Class Action Fairness, Hamiliton Lincoln Law Institute

Clark Neily, Vice President for Criminal Justice, Cato Institute

Moderator: Hon. Paul B. Matey, Judge, United States Court of Appeals, Third Circuit

 

 

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Event Transcript

Operator:  Welcome to The Federalist Society's Practice Group Podcast. The following podcast, hosted by The Federalist Society’s Litigation Practice Group, was recorded on Monday, March 9, 2020, during a live teleforum conference call held exclusively for Federalist Society members.        

 

Wesley Hodges:  Welcome to The Federalist Society's teleforum conference call. This afternoon's topic is titled “Judicial Engagement and Rational Basis Review.” My name is Wesley Hodges, and I am the Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today, we are fortunate to have with us a terrific panel for this topic, and moderating it is the Honorable Paul B. Matey, who is the Judge for the United States Court of Appeals Third Circuit. And with us on our panel today is Ted Frank, who is the Director for the Center for Class Action Fairness at the Hamilton Lincoln Law Institute, and Mr. Clark Neily, who is the Vice President for Criminal Justice at the Cato Institute. After our speakers have their remarks, we will have time for your questions. Thank you for sharing with us today. Judge Matey, the floor is yours.

 

Hon. Paul Matey:  Wesley, thank you for that introduction. Good afternoon to everyone. I’m delighted to join this discussion and delighted to revisit a topic that for most of us first arose when we were first year law students. How should courts assess whether a challenge to legislative classification violates the Equal Protection Clause?

 

      The answer, you’ll no doubt recall, is tiered scrutiny. Laws that classify persons based on a suspect category are subject to strict scrutiny, struck down unless the state can show a compelling interest that is narrowly tailored. Laws that classify based on sex are subject to intermediate scrutiny under which the state must show that the law is substantially related to achieving an important governmental interest. And finally, most everything else is reviewed for a rational basis, requiring a challenger to show that the law could not rationally be believed to serve any legitimate government interest, which leads to today’s topic.

 

      Hopefully many on our call are familiar with Clark Neily’s work and his book, Terms of Engagement. This powerful book contains, among other subtle suggestions, the claim that, quote, “We have a judiciary that refuses to enforce the concept of enumerated federal powers in any serious way,” a criticism of Judge Bork’s, quote, “glib” deference to political majorities and the conclusion that to be confirmed, judicial nominees must embrace the false proposition that judicial activism is a serious national problem.

 

      Well, if you are like me, charges of false judicial modesty and a rebuke of one of the most significant jurists of the last century are a welcome opportunity to rethink longstanding norms. And for those of us who are seriously interested in the role of judges, whether litigants or litigators, electors or elected, and of course, judges, new and old, the proposals Clark champions deserve serious and searching scrutiny. But there are always two sides to the debate, and we’re quite fortunate to have the counterarguments ably offered by Ted Frank because with more searching judicial inquiry certainly comes the possibility of more judicial policy.

 

      So we’ll start this afternoon with Clark, allow Ted to counter, and then give Clark a few minutes of rebuttal. With certainty, a lively exchange will follow, and we’ll turn to your questions at the end. Clark, with that, I turn it over to you.

 

Clark Neily:  I appreciate that, Judge Matey. And thanks to Ted and The Federalist Society for the opportunity to talk about one of my real passions, which is the rational basis test. I guess it’s an anti-passion. I think of myself as the Captain Ahab of rational basis review, sometimes.

 

      I want to start by clarifying one thing. I have a lot of respect for Judge Bork in certain areas, but I do disagree with him very strongly with respect to some of his approaches to constitutional law. I did, in my book, use the word glib to describe one of his propositions, but it’s, I think, important to be really specific about what I was saying. At one point, he asserts in a writing that majorities are entitled to rule simply because they are majorities. I think that is the very antithesis of constitutionally limited government. I think that’s the very antithesis of living in a constitutional republic. And so I think to make such an assertion is, in fact, glib.

 

      And I think it’s important to understand why someone as smart as Judge Bork might make such a glib assertion because once you acknowledge that the Constitution does, in fact, impose at least some limits on what a majority can impose upon the minority by way of laws and specifically restrictions on people’s liberty, then it gets very challenging. And I’m not saying that Judge Bork is incapable of rising to the challenge, but it is the case, in my judgement, that people get quite glib when it comes to some of these very difficulty questions.

 

      And I want to make a couple of points very clear up front. I don’t view this primarily as a discussion about the proper level of judicial deference. I think that is a separate discussion. It’s an important discussion. But that’s not the discussion that we’re having here today because regardless of whether you think that judges should be more or less deferential in a given area, what really matters in the context of critiquing the rational basis test is whether the judiciary is applying a discernably judicial standard in order to achieve that greater deference.

 

      Let me give you an example. Imagine that in order to achieve a high level of deference, the Supreme Court said that in all property rights cases, the Court should flip a coin. Only if the coin comes out heads four times in a row does the plaintiff win. And if you get any other result, then the government wins. Well, this would very clearly provide us with a high level of deference, but it would be demonstrably improper. It would be a violation of due process and it would be an impermissible standard. Why? Because that’s not a judicial standard.

 

      Take another example of a way that cases have been resolved throughout time immemorial, the trial by ordeal. You stick your hand in a pot of boiling water to grab a pebble. You pull it out. A few days later, they examine your arm. If it’s been injured, then you’re guilty. If it’s not injured, then you’re fine.

 

      Or to take yet another example, trial by combat. Trial by combat would plainly provide a great level of judicial deference in this setting. If Susette Kelo, for example, who is the plaintiff in the infamous Kelo v. City of New London case involving eminent domain for economic development, well, what if the Supreme Court had said that cases involving eminent domain will be resolved through trial by combat, and the government gets to nominate whoever it wants, and then Susette Kelo has to try to beat in physical combat whoever the government nominates? Again, very high level of deference but very clearly not a proper way of deciding constitutional cases, or any other kind of case.

 

      So for me, what it all comes down to is whether the rational basis test is a truly adjudicative test, or whether it’s just purporting to be, whether it’s just trying to pretend to be. And I think, very clearly, it’s the latter. The rational basis test has much more in common with deciding cases by a coin toss or trial by combat or trial by ordeal than it does with any genuine standard of judicial review.

 

      And one of the biggest missed conceptions about the rational basis test is that it is on the continuum with the other standards of review, strict scrutiny, the various forms of intermediate scrutiny, so-called rational basis with bite. And in fact, it’s not. Anybody who thinks that the ration basis test is on a continuum with these other tests doesn’t really understand how the rational basis test works. It’s not a judicial standard. It’s not an adjudicative standard. An adjudicative standard is one that involves the application of a particular legal principle to a judicially determined set of facts. And that’s not what happens with rational basis review.

 

      Rational basis test is about hypothesizing and making things up, not applying actual law to actual facts. And I’d like to illustrate that in the following way: Pick an example. Pick an only barely hypothetical. Imagine that police officers went through a particular neighborhood ordering people to stay indoors until further notice. Is that constitutional or unconstitutional? And a lot of people are tempted to say, “Well, that must be unconstitutional,” and they’re wrong.

 

      The true answer is you can’t know unless you know why the order was given. Possibility one: It’s Birmingham, Alabama, in the early 1960s. There’s an election tomorrow. They’re only doing this in certain neighborhoods, and I think we all know which neighborhoods those would be; plainly unconstitutional. Possibility two: It’s a few days after the Boston Marathon bombing. The police are going around ordering people to stay indoors until further notice to protect them from the terrorists that are on the loose and also to aid in the apprehension of those terrorists; almost certainly constitutional.

 

      The exact same government action might be constitutional or unconstitutional, depending on what the government’s true end was in issuing that liberty-restricting order. If you don’t ask that question, if you do not make any genuine attempt to ascertain why the government is doing what it’s doing, what end is the government seeking to advance by restricting people’s freedom, then you cannot assess the constitutionality of the government’s conduct. You simply cannot do it. That’s the rational basis test. The rational basis test makes no effort to assess the government’s true end. It simply doesn’t ask what is actually going on in this case.

 

      And a judge applying rational basis review, therefore, has no more ability to properly assess the constitutionality of the government’s freedom-restricting action than a judge would be able to do in the hypothetical I gave if the judge doesn’t ask why the government is actually ordering people to stay inside. Might be constitutional, as with the Boston Marathon bombing; might be unconstitutional if they’re trying to throw an election, as actually happened in the past. Again, a judge who fails to ask that question cannot get the constitutional answer right because they’re not trying to figure out what end the government is actually pursuing.

 

      Now, just a quick application of these principles to the rational basis test. As I assume everybody knows, the rational basis test provides that the burden is on the plaintiff to negate or to negative every conceivable justification for a law, or else it must be upheld. There are so many fallacies packed into that standard.

 

      So think about, just off the bat, how on earth do you go about negating a justification? I mean, if the government says this might have something to do with stopping the spread of the Coronavirus, how on earth would you go about trying to negate that as a conceivable justification? Would you bring in epidemiologists? Would you bring in cruise ship captains? Would you bring in airline pilots? At what point would you have negated? And then think about this: Every conceivable justification -- my former colleague at the Institute for Justice, Bob McNamara, suggested, only somewhat tongue in cheek, that maybe you have to go out an hire an imagineer from Disney to be part of the case so they can think of potential justifications for a given policy.

 

      So to sum up, the rational basis test is not actually a test. It makes no effort to ascertain the government’s true end, and therefore, a judge applying the rational basis test has no more ability to determine whether the government is acting in a constitutional or an unconstitutional way when the judge hearing a case about the government ordering people to stay indoors would -- if that judge didn’t ask why it was really being done. For a variety of reasons that I think Ted will likely get into next, both lawyers and law professors and judges have decided to give the rational basis test a free pass and pretend as if it doesn’t work the way that I’ve just described.

 

      But, in fact, it does work that way, and therefore, the rational basis test has far more in common with flipping coins, trial by combat, and trial by ordeal, none of which are adjudicative standards, even though they have been used to decide court cases since time immemorial until several hundred years ago. The rational basis test belongs in that category. It’s not a mechanism for deciding constitutional cases. It’s not a judicial standard. It is a fudge. And probably the best description I’ve ever heard of it, not original to me, it is a rigged carnival game designed to give the appearance of fairness to the rubes who don’t understand how it works while ensuring that the house always wins. That’s the rational basis test on a plate, and it has no part in our constitutional jurisprudence, or should have no part.

 

Hon. Paul Matey:  An engaging opening and a perfect point to segue to Ted. Ted, much to respond to. The floor is yours.

 

Ted Frank:  Thank you, Judge Matey. And thank you to The Federalist Society and to Clark. I’m a big fan of all three of you. I’m a bit of an underdog here because Clark’s book identifies some really stupid and indefensible laws that end up getting upheld because of the rational basis review test. And I’m confident everyone here can easily think of even stupider ones. I’m not here to defend individual policy results from individual decisions but our constitutional structure as a whole and the holistic effects of the sort of tests that Clark is asking for.

 

      Justice Scalia used to joke that his job would be a lot easier if he simply had a stamp that said “stupid but constitutional” that he could just pound on cert petitions. And as funny as that is, I’m here to defend that position. I think it’s correct as a matter of the original meaning of the Article III judicial power and the constitutional structure of separation of powers. I think it’s good public policy in terms of who is making these decisions. And I think the results are ultimately better in terms of costs and benefits, even if it means the legislature will pass stupid laws without the judiciary striking them down.

 

      We’re not talking about a policeman’s individual decision. We’re talking about a legislature passing a law signed by the executive. And when you ask what government’s true ends are, you have an odd conundrum where you can have identical laws of identical text, but they might have different constitutional valance depending upon the purity of the hearts of the legislators.

 

      Litigation over the constitutionality of such laws, when you’re looking beyond the text into what evil lies in the hearts of men, it’s a horrific mess. Each side is going to subpoena legislative evidence and depose legislators. You can look at their tweets. A trier of fact is going to decide what the true motive is. And it seems a huge infringement on the separation of powers to hail legislators into court. You’re essentially establishing judicial supremacy where the judiciary decides whether the legislator is acting for a sufficiently noble end.

 

      But I think more importantly, and Justice Scalia and Judge Easterbrook have written some marvelous law review articles on this, what is legislative intent, anyway? Legislation is the product of compromise between hundreds of lawmakers with votes. The balance is struck by the text, and judging intent or motive gives too much power to some lawmakers over others.

 

      I think one of my favorite examples of this is the Title VII prohibitions on sex discrimination. Sex discrimination prohibitions were added into Title VII, proposed as an amendment to the 1964 Civil Rights Act by southern segregationists who added that language hoping that it would be a bridge too far and would break the coalition that supported ending race discrimination. The amendment passed anyway, over the objections of the bill’s authors, who worried that including a prohibition on sex discrimination might hurt the chances of the bill passing and being able to stop government intervention into race discrimination. But the amendment passed with the support of some idealistic liberals who agreed with the principle that sex discrimination should be illegal. And then ultimately, of course, as we know, the 1964 Civil Rights Act passes, including the sex discrimination prohibition, despite the lack of support from southern Democrats.

 

      Are we going to look at the motive? How are we going to determine the motive? Or are we going to look at the text? And I think the correct answer is you need to look at the text. If you start looking at other elements of what legislative intent is, well, statements on the floor, or somebody who writes the committee reports, or somebody’s tweets saying why they’re voting for a bill, you’re giving that legislator more power over, say, another legislator who voted for a bill as a compromise, or because he liked the author, or because he was whipped into supporting it, or he was hoping to get another legislator’s vote on an issue that was more important to him.

 

      The way to interpret legislation and motive and intent is to look at the product of the compromise, which is the text of the law passed. And the judicial engagement Clark proposes makes that impossible and, I think, beyond the scope of the Article III power. And we know this because when we look at the language and the intent, even, of the Founders in creating the judicial power, one of the things that was proposed was something very much what Clark wants. The Virginia Plan suggested that the Article III branch would have a judicial veto and no law would pass unless the legislature supported, and the executive signed it, and a council of revision would get to say, “Yes, this is good,” or “No, this no good.” And the idea of a judicial veto was expressly rejected. The judiciary was going to be a judiciary and the legislature was going to be a legislature.

 

      When you start reviewing the factual predicate of legislative decisions, the government’s true ends, you’re reading that back in. If you second guess the legislature, you have a stupid law, say, New Jersey, pumping gas is illegal unless it’s done by the gas station attendant. Well, I think we can all agree that’s a stupid law. Forty-eight other states allow you to pump your own gas, and people manage to do it without setting themselves on fire. But if the legislature comes in and just says, “We did this for safety means,” are we really going to second guess that? Are we really going to hail legislators in and say, “Did you do this for safety means, or are you trying to protect jobs, or help a cartel, or whatever it is you’re helping to do to pass this stupid law?”

 

      And the judiciary is the least democratic institution. It’s poorly situated to resolve these issues. And contrary to what Clark says, we do recognize this elsewhere. We have judicial doctrines such as the business judgement rule where the judiciary does not second guess the good faith decisions of businessmen when shareholders sue over whether they’ve improperly exercised their authority as officers and directors. There’re are all sorts of judicial extension doctrines where the judiciary just says, “We’re not well situated to resolve these issues, and this is effectively a legislative judgement role. We’re not going to second guess the legislature’s motives. We’re going to look at the underlying text, and if they possibly had a legitimate motive for doing it, we’re going to say that’s within the legislative powers so long as it’s otherwise within the limited constitutional powers established.”

 

      So I think it’s good as a matter of the original constitutional structure. I think it’s good as a matter of public policy. I think it’s good in terms of democratic accountability. But I think it’s also good in terms of the long-term results because the minute you give the judges these powers, they can effectively de facto act as legislators. And we actually see examples of this.

 

      The Wisconsin Supreme Court, in a case called Ferdon, struck down a medical malpractice reform bill on the grounds that, “Well, we’re going to determine the legislative motive. And we’re going to look at these studies, and we’re going to take these studies over these studies. And we’re going to find that medical malpractice caps don’t actually reduce insurance costs and don’t actually reduce the costs of medicine, ignoring the studies that say otherwise and ignoring common sense. And therefore, we hereby determine that the legislature must have had an improper motive, and we’re going to strike down this exercise of democratic accountability that favored doctors over lawyers.”

 

      And we can imagine all sorts of other legislation out there that would do that. So for example, Georgia passes a law forbidding individual towns from increasing the minimum wage beyond what the state legislature does. A judge can say, and in fact, an Eleventh Circuit panel says, “We think you did this for the impermissible motive of discriminating against African American low wage workers, and we’re hereby doing to demand that you let individual cities increase the minimum wage over the pretext of the state constitution.”

 

      “I think the legislature is wrong” isn’t a judicial function, and the idea of subpoenaing everybody and finding the true purpose seems problematic for the reasons discussed, and in practice, devolves into the judiciary making the same sort of choices as a judicial veto. And if the other way of deciding this is defer to the legislative judgement, then you have the status quo and what is effectively rational basis review.

 

Hon. Paul Matey:  Clark, I’m going to turn it back over to you now for some rebuttal. As a lifelong resident of the Garden State, I’m tempted to ask you to focus your comments on our gas pumping restrictions, but I think instead I wonder if you could focus a bit on what Ted says regarding the doctrine of textualism. How does what you propose in general square with the recent scholarship and judicial pronouncements on both textualism and, perhaps, original public meaning?

 

Clark Neily:  Thank you. I appreciate Ted basically ceding the field. I hope everybody notices that Ted made no effort whatsoever to defend the actual rational basis test. What he did, essentially, was throw up his hands and say, “There should be no judicial review, or at least no meaningful judicial review.”

 

      Let’s be clear on something right off the bat. The approach that Ted proposes would be an absolute disaster for values that conservatives care about and that the Founders of the Constitution cared about. That would lead to the rubber-stamping of every imposition on the free exercise of religion. We’ve already seen the way it’s disastrous with respect to enumerated powers. The single most important protection for liberty in the entire Constitution arguably, at least in the minds of the Founders, was enumerated federal powers. And we know what happened to those because the Supreme Court effectively applies rational basis review in federalism cases.

 

      So let me talk just really quick -- so this issue of textualism. Text means something. So for example, “nor shall private property be taken for public use without just compensation” has always been understood in this country to require a public use. The Supreme Court rewrote that provision in the 2005 Kelo case so that now it reads “public purpose,” and you can stretch really far so that economic development is a public purpose.

 

      Guess who dissented, or joined the dissent in the Kelo case? Justice Scalia. So there’s two different kinds of laws -- stupid but constitutional. An example of that is income tax. That is an extraordinarily stupid law. It gives the federal government the power to raise revenue in a way that is like giving alcohol and car keys to a teenager. It also enables them to pry into every little corner of a person’s private life. But I will absolutely acknowledge that that is a constitutional law, no matter how stupid it is to give the federal government the power to tax incomes.

 

      But an example of stupid but unconstitutional is giving states the ability to play the real estate market by bulldozing private homes and replacing them with nicer homes occupied by more wealthier people. That is something that Justice Scalia did not countenance. He wrote that -- or he joined the dissent in the Kelo case, and so Justice Scalia makes a distinction on the basis of text because if you don’t have a judiciary that is prepared to enforce textual limits on government power, then you don’t have anything. You really don’t even have a constitutionally limited government.

 

      I’ll give one more example. We are currently seeing right now a struggle in the lower courts over the proper way to interpret and enforce the Second Amendment or to apply it as interpreted by the Heller decision in 2008 that I, Bob Levy and Alan Gura litigated. Right now, what we’re seeing is that most courts are applying the -- or taking the approach that Ted proposes, which is stay out of it. Don’t try to figure out what’s really going on in the minds of legislators. Don’t try to figure out what the true legislative end is, and just rubber stamp whatever restriction the state or local government wants to put on gun ownership. That is how it’s been playing out in the lower courts.

 

      The Supreme Court has granted cert. Obviously, there’s a question about mootness in the New York Rifle and Pistol case, but I would say that case and, more broadly, litigation over the Second Amendment in the 12 years since the Heller case really throws into stark relief the very debate that we’re having here today. The lower courts have been applying rational basis review, which has rendered the Second Amendment right to own a gun effectively meaningless in those jurisdictions. And a small handful of courts have been applying the kind of judicial engagement that I call for in my book, which is to make at least some effort to figure out what end the government is truly pursuing and whether it’s done so in some reasonable fashion.

 

      And the Supreme Court hopefully will decide which of those two approaches is more appropriate in the context of the Second Amendment. But if they rubber stamp what the most lower courts have been doing, make no mistake, the Second Amendment will become meaningless. And if that approach, the one that Ted advocates in this call, were extended to things like free exercise of religion, those rights too would become meaningless.

 

Hon. Paul Matey:  Ted, I’ll summarize a lot of what Clark offered with another quote that he has in his book. “I’ve sometimes called the rational basis test a fraud just to see whether anyone will challenge me on it. So far, no one has.” Ted, is today the day?

 

Ted Frank:  There’s a certain aspect of it that it’s there, and it’s there as a safety valve. If you have something really ridiculously, ludicrously abusive, it gives the judiciary the possibility to strike it down, that a tier rule of the legislature, the government always wins, would not. I think it might be poorly phrased and people can be frustrated by it. How can this law against tour guides or barber shops or hair braiding be rational? And you do end up getting some really irrational laws being held to have a rational basis. Price gouging, I think, is another example which is broadly unpopular, but any economist will tell you that that’s a better way of allocating scarce resources and end the shortages much quicker than if you don’t have the price gouging laws.

 

      Of course, if you apply broad legislative deference to fundamental constitutional rights of speech or religion or other things in the Bill of Rights, you’re going to have problems, but I’m not calling for that. I’m simply defending the idea that the legislature has the power to make political decisions on a majoritarian basis that may have economic consequences. But that’s within their legislative power, and there will be bad consequences if we allow the judiciary to second guess those sorts of decisions.

 

Hon. Paul Matey:  And I think, picking up on that, Clark, perhaps could you provide some more specificity as to what standard you advocate to replace the rational basis review that we currently are familiar with?

 

Clark Neily:  Sure. I think any standard of review that involves an actual search for the truth by the judiciary would be fine. It doesn’t have to be strict scrutiny. It doesn’t even have to be intermediate scrutiny.

 

      An example would be the City of Cleburne case. This was a case from, I think, 1985 where the city of Cleburne, Texas, not far from where I went to high school in Plano, refused an application to open a group home for mentally retarded adults. That was then challenged, and the question essentially was whether or not that was a permissible political decision on the part of that body.

 

      Because it went up to the Supreme Court as a rational basis case, the city of Cleburne did the sorts of things that government does in rational basis cases, which is to say, it lied. It asserted things that it knew to be false like, for example, “One of our considerations is that that group home lies in a 500 year floodplain and we’re afraid that people might not be able to get out of there’s a flood. Oh, also, it’s across the street from a middle school and we’re afraid that kids will stop off on their way home from school to ridicule the residents of the home.” And sort of engaged in this kind of free thinking, like we all know that the reason why we denied the permit was because we didn’t want mentally retarded adults living in this town, but maybe now that we have this opportunity and we’re invited by the Supreme Court to make things up that aren’t true, let’s see what we can come up with.

 

      Interestingly, the Court rejected this effort. And while it purported to apply the rational basis test, it did something that courts in true rational basis cases never do. So for example, it castigated the city for advancing obviously insincere justifications that had no evidentiary support in the record. And Justice Marshall picked up on this in his concurrence and said, “Look, I agree with the Court’s result which is to reverse this zoning decision, but I think we should be honest about what we’re doing. We’re not applying rational basis review. And if we really did apply rational basis review in this case, we would uphold what happened here like we do in economic liberty cases by just turning a blind eye to what the government’s really doing. But instead in this case, we looked at what the government was really doing, which is displaying animus towards a group of citizens who happen to have a similar trait, and we’re not going to let the government do that. We should just at least be honest about what we’re doing.”

 

      So again, my proposed standard of review is not strict scrutiny. It doesn’t have to be intermediate scrutiny. It just has to be honesty. Look and see if you can figure out what the government’s really doing, and then rule on that basis. Let me give you just one concrete example. My colleague, Scott Bullock, litigated a case that some of you are probably familiar with involving a state regulation of who can sell caskets. There’s a small handful of states where you have to be a fully licensed funeral director to sell a casket, which is, of course, a large wooden or metal box. Very obviously, this is an attempt by the state to give a monopoly on the sale of this very expensive consumer item to a politically influential group of people.

 

      So during the oral argument, the judge, the presiding judge in the Fifth Circuit, said the following to Scott Bullock, “Look, we know your clients are really fine, upstanding people. In fact, they’re monks, and they’re not going to rip anybody off. But we can’t just be concerned with what they might do. We also have to be thinking about that casket chop shop down the street.” Well, there is no such thing as a casket chop shop. There’s no suggestion in the record that there is such a thing, and no one’s ever heard of such a thing or even conceived of such a thing. That’s not a basis on which a court should be upholding a law. Just because you can think of that and put those words together, that is not a fundamentally truth seeking standard.

 

      And to its immense credit, the Fifth Circuit in this case did not uphold Louisiana’s restriction on casket sales on the possibility that somebody might get ripped off at an unregulated casket chop shop. They instead struck down the law. That’s an example of judicial engagement. I don’t really care where the standard of review is as long as it’s somewhere in the vicinity of a truth seeking process, unlike the rational basis test.

 

Hon. Paul Matey:  Ted, judges traditionally engage with facts and are required to parse the record closely to determine how to decide a case. What dangers do you see with what Clark is proposing?

 

Ted Frank:  Any test you have is going to have false negatives and false positives, and you want to minimize the costs of those. The danger is that the more you put things into the judicial system and ask judges to make these legislative determinations, “Well, you say your motive is this, but the economic effect is that, so isn’t that your real motive?”, that sort of fact finding where you end up with a battle of the experts, and one set of economists is going to say this is the real effect, and another set of economists is going to say that is the effect, you’re eventually inviting the judge to insert his or her own policy preferences into the factfinding. I just think that’s not what we have a judiciary for.

 

      And you will have cases like that even if on an individual basis, you can identify some cases where the judges will come to the right decision and strike down bad laws and other cases that are going to strike down good laws. You’re going to add on top of that just the cost of having that additional level of review and litigation over what laws are and reduce certainty and increase transactions costs. Now, that’s good to the extent you think the First Amendment that starts “Congress shall make no law” should just end there, but we do give legislators power, and at a certain point, you have to say this is where that power rests.

 

Hon. Paul Matey:  Wesley, I’d love to open up the conversation to some of the participants at this time.

 

Wesley Hodges:  Fantastic. Let’s go to our first caller.

 

Caller 1:  Yeah, a few years ago, when the Republicans regained the U.S. House of Representatives, they adopted a rule that whenever a member introduces a bill, he or she has to explain the constitutional basis for where the federal government gets the power to enact a bill like what’s been introduced. Maybe that could be expanded to also require a concise statement of what the purpose of the bill is and why the representative introducing the bill believes that that purpose would be advanced by the enactment of the legislation as proposed. Maybe that would cut down, at least at the federal level, on the kind of creative, imaginative arguments by counsel coming up after the fact with what might have been the purpose.

 

Clark Neily:  So this is a very interesting point. One of the most fascinating dividing lines that comes up in Supreme Court jurisprudence is when in some cases, the justices will say in justifying this law, you have to identify genuine justifications as opposed to post hoc rationalizations. And so it’s an interesting tell that the Court itself is aware that there’s this distinction. There’s, on the one hand, honest explanations for a law that the government can advance, and then there’s sort of dishonest, post hoc, baseless justifications that the government can advance.

 

      I would say two things about the proposal to require the government to provide the justification in the legislation itself. First of all, legislators are extraordinarily adept at gaming the system. They have no problem whatsoever reciting government purposes and justifications that are patently false. And once they know that judges are going to be parsing the legislative text to see if the law has been justified, they’ll throw whatever they think needs to go in there. And by the way, if you ever want some really hilarious reading, go and look at some of the justifications that have been offered for legislation according to that House resolution that requires House members to identify the text in the Constitution that supports the enumerated power that supports their proposed bill. It does get quite hilarious at times.

 

      The second point is I’d be very leery -- so I think there may be some sort of benefit to trying to constrain, but I’d be very leery of judges giving any real weight to legislative statements of purpose. Again, they’re very adept at gaming the system. They’re just as capable of being insincere as anybody else is. And maybe it would have an effect of you could constrain them by saying you can’t go outside of what you already said in the statute, but even that I’m not sure is a very good idea. So long story short, I like the idea. I think the execution would be problematic.

 

Ted Frank:  Yeah, I think I agree with Clark on that. If you’re just going to create a magic words requirement the legislature has to recite some sort of incantation, “I hereby have the noble public purpose of insuring that gas station attendants can earn an honest living, and that will improve our economy,” okay, he says that. Does that change the valance of the constitutionality of the bill, or are they going to give a judicial veto over that? I don’t think this will improve the economy, so I’m not sure where that really makes a difference at the margin.

 

Wesley Hodges:  Thank you, caller. Let’s go now to our second caller.

 

Mitchell Keiter:  Hi. Mitchell Keiter from Los Angeles. I know it was said that there could be problems with the more aggressive form of review, but there are really problems with the deferential review. And if you look at a company like Amazon whose whole business model has been based on getting favorable treatment from the government, it throws out [inaudible 35:26] businesses by avoiding sales taxes. It’s trying to get favorable tax deductions in New York City. Now, of course, it’s suing the government because it’s allegedly been discriminated against in the wording of the contract, it just seems that there are different laws that are applied to different parties based on political connections. And I don’t see what the basis is for applying different rates and different policies to different parties just on the basis of political size and power.

 

Wesley Hodges:  So speakers, I don't know if you were able to pick up the question.

 

Clark Neily:  Yeah, I think that one’s about Amazon. I don't know what to say to that. There are going to be some stupid laws passed with respect to Amazon. I’m generally against where an Amazon or any other corporation gets local governments to bid against each other to play this zero-sum game. I mean, Amazon is going to build that HQ2 no matter who gives it the tax break. It’s going to build it somewhere.

 

      0I think this would actually be a good place for Congress to step in on the federal level to tax those tax benefits to take away the incentive to award them or just otherwise prevent that sort of rent seeking and rent extraction. But I don’t see a place for judicial review there. The answer is vote out your legislators who do the giveaways and ask other legislators, the federal legislatures, this is what the Commerce Clause is for, to prevent that race to the bottom.

 

Wesley Hodges:  Let’s go now to our next caller.

 

Caller 3:  Hi. This question is for Clark. And I was wondering even if we thought the rational basis test wasn’t very good, I was wondering what makes you think that it would be sustainable for courts to engage in this sort of practice. Wouldn’t this engage in a flood of cases at the courthouse which would force courts to reinvent the rational basis question all over again, whether they want to or not?

 

Clark Neily:  Right. Well, if you work in constitutional litigation like I did for 20 years, you get the floodgate argument thrown in your face every single time you argue that the courts should be protecting something they are not currently protecting. We certainly heard a lot of that in the Heller case, heard it all the time when I was litigating eminent domain property rights cases at the Institute for Justice. Same with economic liberty. And I’m sure those same things were said when the court finally got in the business of protecting free speech in the early 20th century. So I don’t think the floodgates argument does much work standing by itself.

 

      Furthermore, let me just give you an economic hypothesis, and it’s this: A great deal of legislation does not originate, really, in the legislature. It actually originates with special interests and lobbying interests that go and propose it to the legislature because, again, like the casket law, they’re trying to get some kind of a special benefit using the government.

 

      My belief is that actually we’ll probably see quite a bit less of that legislation if we had a more honest standard of review because think about it his way: Imagine you’re going down to the legislature to get some nice piece of special interest legislation like the casket sales restriction. Right now, if you can get that passed, then you can count on that law that you’ve gotten enacted doing whatever work you thought it was going to do. Let’s say you thought it was going to result in a million dollars’ worth of unearned profits because now you’ve got a monopoly to sell this consumer item, this casket. You really don’t have to discount that by any amount based on the risk of it getting overturned by the judiciary because they’re just going to rubber stamp it.

 

      But now imagine that you’ve got a properly engaged judiciary, and you estimate that the chances of the law getting struck down are, let’s say, 50 percent, in particular because your lobbyist has been really aggressive in terms of making sure that your industry gets every last little bit of economic benefits in this law in a way that’s really offensive to other people’s rights. Now, you might not be willing to spend the same amount of money lobbying to get that law passed because why? Well, getting it passed is only going to be the first step. You then are going to have to survive the -- the law is going to have to survive the inevitable court challenge, and if you think there’s only a 50 percent chance that it will survive that challenge, then the amount of money you’re willing to spend on that law to get it on the books is a lot less, and it’s worth a lot less to you. So you might actually take that money and go put it into something productive like research and development instead of lobbying.

 

      So it’s quite possible that we’ll see less of this legislation over the long term as people begin to realize that, you know what, I might pay this lobbyist a million dollars to get this law on the books, but it might only be there for a few months until this properly engaged judiciary strikes it down. Hey, you know what, I think I’ll just go do something productive with that money like come up with a better mousetrap than pay off a bunch of lobbyists to get economically protectionist legislation on the books because this now more engaged judiciary actually looks like it might perform some sort of a remotely searching analysis and strike down laws that don’t to anything to advance a genuine public interest. So maybe there’ll be a floodgates problem. Maybe there’ll be the opposite of a floodgates problem.

 

Ted Frank:  Clark raises some interesting questions about second order effects, but then I think he needs to look at the third order effects, that the lobbyists just switch their rent seeking to the judiciary. And something The Federalist Society’s been consistent about over the last several decades is the idea that judiciary committee hearings over judicial nominations shouldn’t be these politicized things and should be based on whether judges are going to follow the law and what they’re going to do. And we complain when a judicial nominee, their earlier opinions are scrutinized in, “Well, you came to this decision and it ruled against a truck driver, and therefore, you’re a bad person because you ruled against the plaintiff in this case, or you ruled for the defendant in this other case, or you set somebody free,” I think justifiably express upset that a judge who faithfully followed the law that came to an unpopular result is getting harangued for it at a judiciary committee hearing.

 

      But the minute we turn judges into policy makers, now that they’re going to second guess the legislature and make these sorts of legislative decisions whether these laws are good, the lobbying efforts are going to move to these judicial nominations. They should because the minute we ascribe these legislative and policy making powers to the judiciary, I think it’s important for democracy that we start treating them more like political campaigns because they’re becoming political acts. And I think that’s ultimately not what we want our judiciary to become.

 

Clark Neily:  I certainly agree that we don’t want judges being legislators or policy makers. I am personally, with my colleagues at Cato, fighting against the qualified immunity doctrine, which is a perfect example of judicial policy making, doesn’t have a shred of textual or historical legitimacy whatsoever. So I yield to no one in my opposition to genuine judicial policy making, but it’s in the eye of the beholder to some extent.

 

      I’ll give you another example. We experimented with a policy -- we experimented in the 1900s with the policy of eugenics. And the Supreme Court refused to say that there is a constitutional right not to have your reproductive organs ripped out by a eugenicist state in Buck v. Bell in 1927. I think they got that exactly wrong. I don’t think whether or not people have a right to not be sterilized by a eugenicist is purely a policy question. I think very clearly that is also a constitutional question, one that the Supreme Court missed in that case.

 

      The short answer is this: If you’re going to have a government that puts its nose into every little nook and cranny of our lives — which we do; we shouldn’t, but we do — then necessarily the judiciary will have to come along, unless it’s prepared to say that there are areas of our life where the government has completely free rein and it can do whatever it wants to you for whatever reason it wants. And if it wants to discriminate on the basis of race, that’s fine, or gender, or if it wants to enact completely protectionist or fundamentally irrational laws, that’s fine. Very few people express support for that proposition when it’s phrased that way, that the government should have free rein in very substantial areas of our life to do literally just whatever it wants to. And I think that’s really what’s at stake here.

 

      And I’ll conclude by saying one last thing. I personally don’t think that the process of judicial nominations and confirmations could really get a lot more squalid than it has. I think we’re reaching some asymptotic line of squalor here, so I’m not saying it couldn’t get marginally worse, but I don’t think that a judiciary that was willing to also adjudicate questions of property rights and economic liberty along with reproductive rights and gun rights is likely to be significantly more targeted by the kind of traditional lobbying that you’re describing. I could be wrong about that, but I personally am willing to take that risk because I don’t see it as plausible.

 

Ted Frank:  I think it’s really ironic that you mention Buck v. Bell because I think that’s precisely an example of judicial policy making and judicial engagement. Why that law was upheld was because Justice Holmes liked the law. The opinion speaks out in favor of what a great law this is, and of course the government should do this because, as the infamous line goes, three generations of imbeciles is enough. When you invite the judiciary to get into that policy making range, what are the true purposes? One of the things it’s going to have to do is whether those true purposes are purposes that it supports or will find a reason to not support. And that’s when it becomes policy making.

 

      Clark’s test would not have saved Buck v. Bell at all because, at the end of the day, the judiciary liked what the government was doing. Where it went wrong there was the failure to recognize the underlying constitutional right and allowing the second guessing, and that’s why you need the protections of the Constitution and of limited government. And that’s why you want the judiciary to be making the decisions on that basis, is this within the constitutional text, is this outside the constitutional text, rather than the sort of policy decisions that were made in Buck v. Bell.

 

Clark Neily:  With the utmost respect, I’m going to have to push back a bit. It is true that Justice Holmes expressed personal support for the policy, but of course, he was one of only eight justices in the majority in Buck v. Bell. And I think it’s more likely that the rest of the justices, or at least some of the rest of them, joined that opinion not necessarily because they supported eugenics, although it’s quite possible they did. If you look at the lineup, they had a lot in common, those justices. But they had been taking a beating for a number of years for the engagement that they showed in the Lochner case in 1905. And by 1927, they were well on their way to the full-blown judicial abdication that we saw beginning in 1934 and culminating in 1945, I think, in the Wickard case.

 

      So I think there were different narratives that one might use to explain what happened in Buck v. Bell, but I think a fundamental commitment to knee-jerk judicial deference and an unwillingness to countenance the possibility that the Constitution protects rights that are not enumerated in the text is a more likely explanation for the disastrous result in Buck v. Bell than Justice Holmes’s personal support for the policy of eugenics. Reasonable minds can differ, but I would give at least as much blame to knee-jerk deference as I would to the personal policy proclivities of Justice Holmes.

 

Wesley Hodges:  Very good. Final caller, you are up.

 

Anthony Sanders:  This is Anthony Sanders at IJ. Just quickly, Ted, it sounds like some of your reasoning seems to be against judicial review in general, but I’m guessing -- by some of your remarks, I’m guessing that you’re okay with, say, where there’s an enumerated protection like freedom of speech, freedom of religion, you’re okay with the Court finding laws unconstitutional.

 

      So is it that these are unenumerated rights that we’re talking about, not always, but usually talking about in the rational basis context that you’re uncomfortable with it? And if that’s true, if there was a provision in the Constitution that did explicitly protect enumerated rights — I’m guessing you don’t think the Ninth Amendment or the Privileges or Immunities Clause do — but if there was such a one, would you then be okay with the Court finding these laws to be unconstitutional? Or even then is there kind of a meta constitutional problem, separation of powers problem that you would have with that?

 

Ted Frank:  If the question is if we had a different Constitution, would I be okay with judges deciding things differently, we can talk about meta preferences for what the Constitution should be. I would love to have a Constitution that was much more libertarian in scope and limited the government’s powers much more than it does. But I think, given the Constitution that we have and the fairly broad powers that it does give the government, that our approach should not be to ask the judiciary to make those reforms.

 

Wesley Hodges:  Very good. Now, Judge Matey, looking at the time, I think we should move to our closing remarks.

 

Hon. Judge Matey:  Well, I think that’s great. And I want to start by thanking both Clark and Ted for an engaging and enlightening discussion. Perhaps we’ll start with Clark, and then Ted, give you the final word on any last thoughts to sum up the afternoon.

 

Clark Neily:  Thanks so much, and thanks to both of you for such an interesting and stimulating discussion and to our callers. Very quickly, my position is this: Reasonable people can differ about the amount of deference that judges should give to legislative decisions. What I think we should not be able to disagree about is whether all judicial review should be at least identifiably adjudicative. It would be an outrage if judges started deciding constitutional cases by tossing a coin. It would be an outrage if judges started deciding constitutional cases by employing some of these antiquated techniques like trial by combat or trial by ordeal. The rational basis test is every bit as illegitimate, trial by combat, trial by ordeal, or tossing coins. It is a non-standard of review tarted up to look like one to people who don’t understand how it really works.

 

      And if we want to have a discussion about deference, let’s have a discussion about deference. But regardless of whether we like it or we don’t like it, they way to achieve an appropriate level of deference is not by employing a fake standard of judicial review that is absolutely a fraud and a charade and a rigged carnival game that has no business being a part of our jurisprudence. Even if we do want to achieve some higher level of deference, don’t use this fundamentally fraudulent method, the rational basis test, to achieve it.

 

Ted Frank:  Well, I hate to play argument clinic here and simply respond to the idea that the  rational basis review test is like a coin flip and just say no it isn’t, but I don’t know what else to say. I think that’s just a fundamental straw man. And I think the complaint about the rational basis review test is Clark wants to see less deference given to the legislature than that test gives. And maybe he has a legitimate complaint that the name of the test is a misnomer or somehow misleading, but it’s certainly an adjudicative test.

 

      This has been a fascinating discussion. I’m a big fan of Clark’s and admire his willingness to throw himself into the bayonets in battling some of these really stupid laws, having thrown myself into a few bayonets over the last year, myself. But this is a great conversation, and I hope we can continue it in front of other chapters.

 

Hon. Paul Matey:  Well said. And again, thank you both for participating, and thank you to The Federalist Society for hosting this wonderful conference.

 

Wesley Hodges:  Clark, Ted, and Judge Matey, thank you so much. On behalf of The Federalist Society, I would like to thank each of you for the benefit of your valuable time and expertise today. We welcome everyone’s feedback by email at info@fedsoc.org. Thank you all for joining us. This call is now adjourned.

 

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