Are the Courts Too Deferential?

Given the constant talk about the Court, the proper judicial philosophy etc. i came upon this oped in the WSJ that makes an interesting point and one that i happen not to have a terrible problem with -- that the courts are too deferential to congress. Its a rather interesting argument and one not heard too often and because of this it should be considered. The idea of "activist judges" has become somewhat received wisdom among conservatives. I think though that looking at this piece demonstrates the problem with a Court that isnt deferential.

The opening three paragraphs actually set the stage for an intersting discussion.

Many conservatives who think of themselves as proponents of limited government would be surprised to discover that conservative judges begin their constitutional analyses in almost every context by placing a thumb firmly on the government side of the scale. It's called "judicial deference." Many liberals, who take pride in being "empathetic," would be surprised to learn that liberal judges also subscribe to judicial deference.

The practical result is that judges of both persuasions almost never enforce any constitutional limit on the power of government to regulate property and the economy. Given that the vast majority of law concerns these two areas, the real crisis in constitutional law is not judicial "activism" but judicial passivism.

It all began in the late 1930s, when the Supreme Court opened the floodgates for New Deal economic regulation. In essence, conservatives have adopted the big-government agenda of that era. The liberal-conservative consensus explains why nomination fights focus on a few "culture war" issues such as gay marriage or guns. Liberals and conservatives squabble over these esoteric questions because there is such harmonious accord on everything else.

People not familiar with SCOTUS history or US history in general might not understand exactly what Mr. Rowes is complaining about here--the end of the Lochner Era.

The Lochner era is considered one of the most embarrassing and troubling periods of the Court. The focus of the Lochner era was economic liberty, the freedom to contract. Basically the Lochner era court used formalistic reasoning and flawed premises to invalidate a great number of economic regulations dealing with the growth and industrialization of America. Child Labor Laws, Minimum Wage Laws etc. were struck down as being outside the power of Congress to regulate. It favored the wealthy and entrenched business interests over the workers.

The problem with striking down these laws dealing with economic regulation is that they were needed as society advanced and industrialized. Eventually when the US ran into the depression the need to take massive, coordinated national action in the economy ran into the Lochner court. This gave us the Roosevelt Court Packing plan. The actions of the Court against the new deal policies almost cost the Court its credibility and power.

since that point in time the Court has generally been wary of asserting such broad authority against congresses ability to regulate the economy. Mr. Rowes' argument is a libertarian based assertion that we should go back to the lochner era. This position isnt one that is too popular. Does Congress go to far in some cases? possibly. Mr. Rowes cites the incredible power given to the treasury secretary under TARP as a case where the SCOTUS should invalidate an act of congress. While i share his concerns about the power alloted to the TS under TARP that presents a perfect case for why Courts are so reluctant to step in.

The TARP bill and how best to handle the economy was a heavily debated and much publicized political and economic debate. The final bill was the result of much political wrangling. For the Court to step in and say sorry, this may be a good way to do things but we think its unconstitutional would be very tough. His case for why its unconstitutional is that it violates congresses duty to control the purse. I think that this would be a very hard sell to make absent an accompanying delegation clause argument which Rowe doesnt have. He wants the unelected Court to step into a giant political fight between elected officials in two other branches of government where it isnt fully competent and nobody has sued. I dont see it happening nor do i think it really should. The Court has learned all about the problems in setting limits on the commerce clause, which is another clause Mr. Rowes doesnt deal with.

His second example is hardly better.

In another example, America has become a patchwork quilt of laws serving special interests because courts refuse to protect economic liberty. In 1950, only one in 20 trades required a license. Now it is more than one in four (according to recent research of Morris Kleiner published by the National Bureau of Economic Research), and the clamor by industry groups for more licensing grows unabated.

Special interests love licensing because it restricts competition and thus drives up the prices they can charge. None of this would be possible if judges simply struck down licensing laws as an insult to the constitutional right to earn an honest living secured by the due process clause of the Fifth Amendment and the "privileges or immunities" clause of the 14th Amendment.

a big reason we have licensing is not to prevent people from engaging in jobs they arent qualified for. Its a quality control measure. Licensed personnel are supposed to be a signal that the people you are hiring are competent and abide by predictable standards. Does it drive up costs? probably. By allowing quality to distinguish itself it allows quality to charge more. Without proper signaling the quality wouldnt be able to compete because it takes greater effort and investment to be quality. Investment that goes unrewarded when anybody can claim to be as good and nobody can tell the difference initially.

Mr. Rowes piece also focuses on the Libertarian concerns of property and the economy without mention of civil rights. This is an area i myself believe that the Court should assert a bigger role. Mr. Rowes may agree with me. I think the distinction between acting in a counter majoritarian fashion to protect civil rights and liberties presents a better base for argument than property and the economy. Thats a full post in itself. While we may agree that the Court should be more assertive in pushing back against congress and the president, i think i have shown that the places Mr. Rowes advocates, at least in his Op-Ed, are not the ones we really need to see it.