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An Apology for Judicial Activism

Thursday, April 26, 2007

In a new book, libertarian activist Clint Bolick offers a surprising argument.

David’s HammerDavid’s Hammer: The Case for an Activist Judiciary, by Clint Bolick (Cato Institute, April 2007)

If you want to get a rise out of liberals or conservatives these days, mention “judicial activism.” To conservatives, the phrase conjures up an imperious Supreme Court finding the right to abortion lurking somewhere, unseen, in the Constitution’s penumbras. To liberals, it evokes an equally imperious lower court striking down Washington D.C.’s popular handgun ban. Few on either side defend judicial activism per se.

Bolick, director of the Goldwater Institute’s Center for Constitutional Litigation in Phoenix, Arizona, is up to the task. He has made litigation a tool of social change throughout his career. He co-founded the Institute for Justice, has tried numerous school choice cases through the Alliance for School Choice, and won the recent Granholm v. Heald Supreme Court case, which overturned state laws forbidding the interstate shipping of wine to consumers. In David’s Hammer: The Case for an Activist Judiciary, Bolick attempts to sew together a cohesive judicial philosophy for the issues he takes on.

It comes down to this: Courts should be in the business of protecting individual rights – both ones liberals favor (consensual sexual practices) and those conservatives and libertarians favor (say, the right to make a living). When laws and regulations violate those rights, courts should step in to overturn them. Yes, the Constitution is murky, and yes, judges may be substituting their own opinions for those of legislatures. “Creating the power of judicial review, as the Framers of our Constitution saw fit to do, creates danger,” he writes. “But that danger is not as great as its opposite: legislative and executive powers unchecked by judicial review.”

Some of Bolick’s cases tell against his argument, because they show that a high-profile lawsuit can have a helpful impact even without the intervention of an activist judiciary.

Bolick, ever the lawyer, makes a persuasive case. The characters in David’s Hammer rip holes in the liberal belief that governments generally protect the little guy. Juanita Swedenburg, Bolick’s wine shipping heroine, comes across as a stiff-upper-lip farmer who only wanted to sell chardonnay. She was thwarted by bureaucrats who were in bed with the big liquor distributors. Bolick also represented Taalib-din-Uqdah, owner of a Washington D.C. African hair-braiding salon that ran afoul of city laws because it lacked a cosmetology license. The 1600 hours of training required for such a license covered a lot of white hair techniques, but didn’t cover hair-braiding at all. Sensing an injustice, Bolick filed suit. Likewise, Leroy Jones of Denver, an African immigrant, wanted to start a cab company to service neglected minority neighborhoods. He was blocked by a local law establishing a three-company cab cartel. In all these cases, entrepreneurial Davids were able to take on bureaucratic Goliaths thanks to the power of judicial review (the hammer, one fast learns, is a gavel).

Bolick doesn’t just take on liberals, though. He also takes issue with the conservative complaint that judicial review amounts to elitist, ivory tower judges substituting their whims for those of democratically elected representatives. Much of what passes for law in this country, he notes, has no relation to democracy. In the past few decades, Congress has delegated countless legislative functions to the unelected federal agencies—something the Supreme Court, in 1984’s Chevron v. Natural Resources Defense Council, tacitly allowed. In 1960, the Code of Federal Regulations had 22,102 pages. Today it has 146,172. “By any conceivable measure, the increase in the number of judicial decisions striking down federal laws or regulations over those same years pales in comparison with the growth of national government power,” he writes.

Unfortunately, persuasive as he is, Bolick’s attempts to stitch together a seamless judicial philosophy run into the same knots that have snagged every great legal mind from Robert Bork to Stephen Breyer. If Brown v. Board of Education is good (and Bolick is sure it is), why not cases that try to guarantee equal funding across districts? Bolick dislikes desegregation cases in which courts, imposing busing remedies, have usurped legislative functions—but his Alliance for School Choice filed suit in New Jersey this past summer asking the state’s Supreme Court to force Newark to adopt a school choice program as a way of fighting inequity. It’s not always easy to say where Bolick’s principles end and his normative principles begin.

Indeed, some of Bolick’s cases tell against his argument, because they show that a high-profile lawsuit can have a helpful impact even without the intervention of an activist judiciary. Uqdah’s plight spurred D.C. officials to loosen restrictions on African hair-braiders. Publicity shamed Colorado officials into deregulating entry into the taxi business, and soon Leroy Jones got a charter to start a company he called Freedom Cabs.

But even if Bolick fails to form an airtight theory of judicial review, he does make a passionate case for individual liberty. He loves his work, and that joy comes across in this thought-provoking read. If more Americans took their freedoms as seriously as Bolick and his clients do, this country would be a much more spirited – and just – place to live.

Laura Vanderkam is the author of "Grindhopping: Build a Rewarding Career without Paying Your Dues" (McGraw-Hill). She writes about energy in the forthcoming May/June issue of The American.

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