In a recent New York Times opinion piece, distinguished federal judge J. Harvie Wilkinson III argued that courts undermine their legitimacy when they interfere with the democratic process, especially by striking down laws involving culture-war issues like gay rights and guns. But Judge Wilkinson's belief that courts best preserve their legitimacy largely by sitting on the sidelines is at odds with the judiciary's constitutional role as a co-equal branch of government, and ignores the more serious threat from too little judging.
Concerns about overzealous courts cannot be squared with the reality of omnipresent government. At all levels, government is multiplying, laws and regulations are proliferating and debt is spiraling out of control. The Institute for Justice's September 2011 study, Government Unchecked: The False Problem of "Judicial Activism" and the Need for Judicial Engagement, found that the U.S. Supreme Court strikes down just two-thirds of one percent of federal laws and one-twentieth of one percent of state laws. That is not a picture of judges run amok.
It is also hard to square Judge Wilkinson's perception of democratic lawmaking in the public interest with the reality of the legislative and regulatory process. An enormous amount of economic and property regulation is passed at the behest of special interests trying to use government power to gain an advantage over competitors and consumers. But Americans did not form state and federal governments to have their freedom, especially their economic liberty and property rights, slowly peeled away by Big Government.
Consider the lawsuit just filed by the Institute for Justice against the IRS challenging new regulations requiring tax preparers nationwide to obtain a license from the IRS. Unsurprisingly, the big tax preparation firms lobbied for these barriers to entry, and CPA firms and law firms successfully obtained exemptions for most of their preparers. The new regulations target independent tax preparers, many of whom will be put out of business, which is exactly the point.
Big Government is so easily able to exploit ordinary citizens because the Supreme Court, following Judge Wilkinson's ideal of deference to legislatures, issues opinion after opinion that are road maps for the abuse of power. In New London, Conn., for example, the city government conspired with business interests to seize working-class homes and hand them over to a private developer. The Supreme Court ruled in the infamous Kelo v. New London decision that, as long as the government claims to be acting in the public interest, and as long as there is some sort of written plan, the courts should ignore explicit constitutional protections for property and allow people to lose their homes for things like shopping malls. Naturally, the poor, the elderly and minorities are the most likely to lose their hard-earned property to eminent domain for private economic development.
But the whole point of a constitution, indeed the whole point of America, is that individuals have rights that the majority cannot take away. The judiciary is the guardian of these rights and, contrary to Judge Wilkinson's perspective, we need greater judicial engagement, not less. The vision of the framers, which is the vision of American liberty, depends on eternal judicial vigilance.
The author is a senior attorney with the Arlington, Va.-based Institute for Justice.