Clark Neily of the Institute for Justice believes that the courts are systematically failing to enforce constitutional limits on government power—though not necessarily in the way that conservatives think it happens:
Broadly speaking, judges can make two types of errors in exercising judicial review: incorrectly forbidding that which the Constitution permits, and incorrectly approving that which the Constitution forbids. The debate over judicial engagement versus judicial restraint is largely about which direction courts should err in.
Those who favor restraint often accuse the courts of “judicial activism,” a nebulous epithet that packs a powerful rhetorical punch with very little content. . . .
. . . the Supreme Court very rarely invalidates legislation or agency regulations: about 0.6 percent of all federal laws are struck down; 0.5 percent of federal regulations; and 0.05 percent of all state laws — altogether the Court invalidates about three out of every 5,000 laws passed by Congress and state legislatures every year.
[ . . . ]
Being human and therefore imperfect, legislatures and administrative agencies are going to enact a certain amount of unconstitutional regulation. A properly functioning judiciary should therefore have a strike-down rate greater than zero. It seems reasonable to ask those who make generalized accusations of “judicial activism” to explain why they are so sure that, on balance, courts are striking down more enactments than are actually unconstitutional — or, if that is not their claim, then to say so explicitly and confine their accusations of “judicial activism” to specific cases, which very few of them do.
Consistent with these empirically unsubstantiated claims of widespread activism, there appears to be a growing consensus among constitutional elites on both the left and the right that the proper mindset for judges is one of default restraint, meaning strong reluctance to strike down government action absent a crystal-clear textual basis for doing so. Because constitutions do not — indeed, cannot — speak with perfect clarity on every important subject, that approach will inevitably create what amounts to a one-way ratchet in favor of more government power. I believe this constitutes judicial abdication.
Although I mostly agree with Neily’s conclusion, the methodology his organization uses (the sections I elided over) sets up a false dilemma. The problem of judicial activism (contra Arlen Specter) is not so much quantitative as it is qualitative. The reason that judicial activism catches the attention of those of us outside the legal profession is that it tends to have an inordinately large impact on society. The judiciary could refrain from engaging in activism on 10,000 cases and yet still be overbearingly activist if the 10,001st is a Roe v. Wade.
Also, judicial abdication can itself be a form of activism. For example, a judge may refuse to overturn legislation because it aligns with her political views and advances a “socially correct” (though legally dubious) outcome. How often this occurs—or whether it happens at all—is impossible to know. But it seems plausible that judges who are willing to engage in blatant advocacy wouldn’t be opposed to using more subtle means.
Whether the two types of errors are related or completely separate is of minor concern. Both failings are problematic and worthy of our scrutiny.
Neily deserves credit for helping us to focus on this problem. I especially agree with his point that, statistically speaking, we should see more laws overturned that we do. Whether a law is made by the legislature or a regulatory agency, the courts should not be hesitant to toss it in the trash if it is doesn’t pass constitutional muster. Even established precedent should not be off-limits. As my favorite “Neuhausian conservative” state court justice says, “Stare Decisis is fo’ Suckas.”