Legislation and Nullification

One of the favorite epithets conservatives love to hurl at the American court system is that they "legislate from the bench." It's a term related to that amorphous blob of a protest, "Judicial Activism." While at least "judicial activism" is so void as to be substantively meaningless (and thus might theoretically encompass whatever it is conservatives are complaining about), "legislating from the bench" seems to be misapplied almost on its own terms. Jonathan Rowe elucidates, responding to Thomas Sowell. Sowell argues that one of the primary harms of "legislating from the bench" is that one does not know in advance if one has broken a law--presumably because the Court is announcing the law in the context of deciding whether you violated it.

The problem with Sowell's analysis is that much of what is called "judicial activism" looks nothing like what he's just described. In particular his assertion that "[w]hen legislators change a law, that change is announced, so that everyone knows what is and is not illegal from now on." This is one of the most laughable statements I think I've seen in a long time....

Much of what is termed "judicial activism" is simply the Court exercising its judicial review power to nullify a piece of legislation, usually a piece of legislation which impinges on liberty. Is that really "legislating"? In my eyes, judicial review is the very opposite of legislating. Legislatures, by their very nature, pass laws. Nullification is negating, or taking away, legislation. It's reverse legislating.
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Finally, regarding the "nobody knows that they have violated the law until after the fact" assertion, Sowell's argument doesn't fit well to circumstances where courts exercise their judicial nullification power. Again, legislating, in my mind, is passing a command and control like rule which binds the people like "you can't drive over 55 mph." If, for instance, you were driving 60 in a 65mph zone and some court, after the fact, found you guilty of breaking the 55mph speed limit, then Sowell's argument would make sense.

Let's actually see what goes on with judicial nullification, using Lawrence as an example. A court says, perhaps after the fact, "sorry government, you can't do that." Government may respond, "well that's unfair, we were relying on our ability to make laws which forbid the sexual conduct of consenting adults behind closed doors, and now, after the fact you say we can't do this?" To which I respond with a big "BOO HOO." That's not the kind of reliance -- the reliance of majoritarian mob-rule to use the legislative process to tyrannize other segments of the population -- about which we should be concerned. Certainly not in a nation where liberty in its broad and general sense is an unalienable right that individuals possess prior to majority rule. This is why our Founders refused to enumerate the rights of man; because the rights of man are so numerous that they are unenumerable.

The principle of reliance is important, but for citizens obeying the laws, not governments enforcing them (or at least, not as much).

Nullifying legislation that improperly criminalizes protected activity is not a problem. Where there would be a problem is if the Courts made something into a crime that had not been legislated one (i.e., Lawrence v. Texas in reverse: holding that Sodomy must be illegal even in states where it is currently permissible because it violates God's law or whatever). That never happens though. The closest thing is a Court broadly interpreting an ambiguous criminal statute to encompass an act that seems to border between legal and illegal (for example, a law which punishes ex-felons for possessing ammunition being applied when the police found a single bullet in a man's house, which he claimed to not know was there). That's obviously troublesome, but a) that type of judgment call is unavoidable in statutory interpretation (which everyone agrees is the court's job--"interpret the law, don't make it") and b) the same people who attack courts for being too "activist" also blast them for being "too soft on crime" and letting criminals off on technicalities. So in the one case where judges might arguably be "legislating from the bench," it tends to be conservatives who would support them.

Unfortunately, Rowe starts to make some very odd claims as he progresses. Like this one:

Judicial supremacy is when the court exercises a command and control power, ordering other branches to government, or the people, to affirmative enact a particular policy or otherwise behave in a particular way. Cass Sunstein, as I understand, desires courts to behave in this manner by constitutionalizing the New Deal.

And this one:

There may be some kind of relation between the principle of equality and Judicial Supremacy (whereas there clearly is a relation between judicial nullification and liberty). Although I find Equality to be a laudable and foundational ideal (along with Liberty, a twin pillar of classical liberalism), keep in mind that egalitarianism or "leveling" can result (because it has resulted) in tyranny. Therefore, Liberty must come before Equality and Property rights must also be part of the liberal ideal.

To the first, Rowe is a libertarian, so I understand that he dislikes the New Deal. But I fail to see how the court exercised "command and control power" in its new deal decisions. It did not "order" any other branch of government to do anything. It certainly permitted the legislative and executive branches to take certain actions--improperly, in Rowe's view. But permitting a government agency to act according to the laws it freely chose to pass is the precise opposite of "commanding" them to do something. In fact, the cases that had to be overturned to validate the New Deal, such as Lochner and Adkins, that traditionally have been seen as the first instances of "judicial activism" ("Judicial restraint," now a conservative buzzword, came into the vogue due to the efforts of liberals like Felix Frankfurter who wanted to sanction FDR's new deal). There have been "command and control" decisions by the federal court system (the school busing decisions would be the obvious ones), but the New Deal was promulgated by the legislative and executive branches, with which the Supreme Court only went reluctantly along.

As for the second statement, that has to be the most bizarre syllogism I've seen in a long time. Going after egalitarianism has (at times) caused tyranny, so liberty must be prioritized over egalitarianism. First of all, if "liberty" is presumed to be the antonym of "tyranny," then the statement borders on being tautological. Second, it's an abysmal argument--virtually every principle (including liberty) has been used to justify bad things. I could just as easily argue "liberty has (at times) caused grinding economic inequality and despair, therefore egalitarianism must be privileged over liberty." Or "liberty has justified economic discrimination against racial minorities, so we must privilege egalitarianism over liberty." And that would be stupid too. The proper lesson to draw from communism (extreme privileging of egalitarianism) and the gilded age or Southern private segregation (extreme privileging of liberty) is not that another ultimate value is better. It's that every value taken to an extreme and not subject to countervailing pressures will result in bad things happening. What's needed isn't a better ultimate principle, what's needed is a thick web of values that can all support and counterbalance each other. So at times a liberty interest will outweigh an equality interest, and at times an equality interest will outweigh a liberty interest.

Heads up: Randy Barnett