The rule of law is in decline and the Supreme Court is to blame. So argued Justice Clarence Thomas in a powerful dissent in Whole Woman's Health v. Hellerstedt, generally regarded as the Court's most important decision concerning abortion rights in decades. In an opinion written by Justice Steven Breyer, a 5-3 majority of the Court carefully scrutinized and ultimately struck down Texas legislation that required physicians who provided abortions to have active admitting privileges at a hospital within 30 miles of the location where the abortions were provided and required that any facility at which abortions were provided satisfy the state's standards for "ambulatory surgical centers." In his dissent, Justice Thomas not only criticized the majority's analysis of the legislation but launched a broadside against the Court's jurisprudence more generally. He denounced as constitutionally illegitimate the framework for constitutional decision-making that is associated with an enormously influential footnote in the 1938 case of U.S. v. Carolene Products and which has become central to constitutional review. That framework requires judges to perform rigorous, searching ("heightened") scrutiny of the constitutionality of the government's actions in cases involving certain "fundamental" constitutional rights while using the government-favoring "rational-basis test" to evaluate governmental burdens on all other rights. "The Constitution," wrote Justice Thomas, "renounces the notion that some constitutional rights are more equal than others." Justice Thomas further argued that the Court's application of these "tiers of scrutiny" is so inconsistent that it "deliver[s] neither predictability nor the promise of a judiciary bound by the rule of law." He concluded: "[T]he entire Nation has lost something essential."
Although I do not agree with all of it, there is a great deal of force to Justice Thomas' critique, which is summarized by Ralph Rossum in an excellent article at the Library of Law and Liberty. But Justice Thomas is missing something essential. Yes, the rule of law that the Constitution is designed to establish is in decline. Yes, the Supreme Court bears a substantial amount of responsibility for that decline. But more threatening to the rule of law than the Court's elevation of certain rights above others and its corresponding use of more rigorous adjudication in certain contexts is the fact that the kind of adjudication to which we are constitutionally entitled when we challenge assertions of government power does not take place at all in most constitutional settings -- assertions of government power are upheld after receiving the equivalent of a judicial rubber stamp. Until Justice Thomas and his colleagues acknowledge that constitutional review under the modern rational-basis test is tantamount to no review at all and make plain that judges must apply a different approach, the Constitution's promises of lawful rule and individual freedom will remain unfulfilled.
Why is the current state of the rational-basis test so important? The rational-basis test is the default standard of review in constitutional cases. Judges use the rational-basis test to evaluate all government burdens on our peaceful pursuits that do not implicate one of a handful of rights that the Supreme Court has deemed "fundamental," some of which are expressly listed in the Constitution (like the right to speak freely and the right to keep and bear arms) and some of which are not (like the right to associate with whom one chooses for lawful purposes, the right to choose whether to have children and the right to guide the upbringing of one's children). That means that the rational-basis test is used to evaluate governmental burdens on the vast majority of activities that we engage in on a daily basis, including activities which are of fundamental -- that is, central -- importance to our lives, such as our pursuit of our livelihoods and our use and enjoyment of our property. The rational-basis test has even been used to evaluate governmental burdens on terminally-ill patients' efforts to procure potentially life-saving medicines. Thus, it is critical that the rational-basis test have bite. It must serve as a meaningful safeguard against arbitrary government actions, that is, government actions that are not justified by any constitutionally proper, public-oriented reason but rest upon the mere will of the politically powerful.
The rational-basis test applied in Carolene Products was deferential to the government but not toothless. The Carolene Products Court expressly stated that evidence mattered; that constitutional challengers could demonstrate that a statute held to be rational at time A could be invalidated as irrational at time B if circumstances changed; that "a statute would deny due process which precluded the disproof in judicial proceedings of all facts which would show or tend to show that a statute depriving the suitor of life, liberty or property had a rational basis." It afforded the government's actions a rebuttable presumption of constitutionality.
But the Supreme Court would in subsequent cases articulate and apply the rational-basis test in a manner that afforded the government's actions an effectively irrebuttable presumption of constitutionality (really, not a true presumption at all). Instead of allowing constitutional challengers to prevail by adducing evidence that the government's actions did not serve any public-oriented end that the government claimed to be pursuing, the Court would uphold legislation by hypothesizing justifications for the government's actions that had no basis in the record. In FCC v. Beach Communications, the Court stated that judges applying rational-basis review must uphold legislation "if there is any conceivable state of facts that could provide a rational basis" for them and that constitutional challengers must "negative every conceivable basis which might support [the government's actions]." A requirement that constitutional challengers perform the logically impossible feat of disproving a potentially infinite number of claims for which there is no evidentiary support in order to prevail under our default standard of constitutional review would be laughable, were the consequences for our freedom not so grave.
The author of the Court's opinion in Beach Communications? Justice Clarence Thomas.
The Carolene Products Court was on solid ground in affirming that a statute that deprived constitutional challengers of the ability to demonstrate the unconstitutionality of an assertion of government power over them would itself violate the Constitution. A rule governing the process of constitutional decision-making that has the same effect should be regarded similarly, for reasons articulated by none other than Justice Thomas in several cases involving federal administrative power. Justice Thomas has repeatedly and stridently called for the Court to reconsider "Auer deference" -- an Court-fashioned doctrine that commands sweeping judicial deference to federal agencies' interpretations of regulations that the agencies themselves issue. Drawing upon the scholarship of Professor Philip Hamburger, Justice Thomas has explained that judges who draw their power from Article III have a duty of independent judgment -- a duty that requires them to "decide cases in accordance with the law of the land, not in accordance with pressures placed upon them through either internal or external sources." "External sources" include "the political branches, the public, or other interested parties." Rather than independently seeking to determine "the best meaning of a regulation," judges applying Auer deference must generally accord "controlling weight" to agency's interpretations of their regulations. Thus, Justice Thomas has argued that Auer deference requires judges to violate Article III because it requires them to abdicate their duty of independent judgment and defer to the political branches' will. To the extent that judges applying the modern rational-basis test assist government officials in imposing their will by conceiving of justifications for their actions have no evidentiary support, they abdicate their duty of independent judgment. They also deprive constitutional challengers of due process of law, which guarantees impartial adjudication. Giving a particular party in a case -- the party asserting power over the other -- the benefit of an irrebuttable presumption in favor of its legal position is the antithesis of impartial adjudication.
There is no threat to the rule of law that the Constitution is designed to establish that is more grave than that posed by the absence of the adjudication required by Article III and the Constitution's guarantees of due process of law. The unavailability of a "known and indifferent judge" was identified by John Locke as one of the chief deficiencies of the state of nature absent government. The Framers established an independent judiciary in order to ensure that judges insulated from the will of executive and legislative branch officials, as well as from popular majorities, would stand ready to serve as "guardians of [our] rights" against the mere will of the powerful. The rule of law cannot be maintained and our rights cannot be secured if judges reflexively defer to the government in most constitutional settings.
Fortunately, there is a framework for judicial review that can ensure genuine adjudication in all cases "arising under this Constitution." Judicial engagement -- genuinely impartial, evidence-based judicial inquiry into the constitutionality of the government's true ends and means, without deference to government officials' beliefs, desires or unsupported factual assertions -- can equip judges to discharge their duty of independent judgment, ensure that constitutional challengers receive due process of law and protect all of our rights. Consistent engagement is possible -- we commonly see the hallmarks of engagement in cases involving heightened scrutiny, and we occasionally see it in some cases in which the Court has purported to be applying the rational-basis test--and it is necessary to effective constitutional enforcement.
The call for judicial engagement is ultimately a call to judicial duty -- a call for judges to do what the Constitution empowers them to do and obliges them to do. It is striking that Justice Thomas, so cognizant of judicial duty and so strident in his criticism of doctrines of judicial deference that require judges to abdicate their duty in evaluating assertions of administrative power, has not yet recognized that the modern rational-basis test is incompatible with that duty. But if the Court is to maintain the rule of law to which he is devoted and for which he fears, he must -- and so must his colleagues. Until judges cease to routinely decide constitutional cases in a manner that effectively allows the political branches to act as judges of the limits of their own powers, Americans will for the most part enjoy only so much of their liberty as government officials are inclined to tolerate. They will be left at the mercy of the very kind of power that the Constitution was designed to eliminate. And all of us will be denied something essential.
For more constitutional commentary, tune into the Institute for Justice's Short Circuit podcast, presented by IJ's Center for Judicial Engagement