The federal judiciary has allowed government at all levels to devour the Constitution for so long that we are essentially stuck with leftovers. But this year, federal courts of appeal vigilantly guarded those remaining morsels in four important cases. And for this, we at the Institute for Justice's Center for Judicial Engagement are grateful, even as we continue to push for judges to enforce all of the Constitution's limits on government in every case.
1.) Edwards v. District of Columbia
In a well-reasoned and highly readable opinion by Judge Janice Rogers Brown, the D.C. Court of Appeals held that a tour guide licensing scheme that essentially made it illegal to talk for a living without paying the government money and passing a history exam violated the First Amendment. The case, litigated by IJ Senior Attorney Robert McNamara, involved Bill Main and Tonia Edwards, a husband-and-wife team who operate Segs in the City. The company takes tourists on Segway rides, during which tourists listen to information about D.C.'s monuments, embassies and more through radio earpieces. Finding the record "wholly devoid of evidence" that imposing the district's licensing scheme on hard-working entrepreneurs like Bill and Tonia actually furthered the district's asserted interest in preventing harm to consumers -- or that such harm even existed -- Judge Brown concluded that the regulations were unconstitutional.
2.) King v. New Jersey
In King, the 3rd Circuit carefully considered a New Jersey law that prohibits licensed counselors from engaging in "sexual orientation change efforts" with clients under the age of 18, ultimately upholding the ban against a First Amendment challenge. Judge D. Brooks Smith began by determining that speech delivered in the course of rendering professional services is, well, speech, and that restrictions upon such speech must be subjected to heightened scrutiny. But Judge Smith went on to find that the government's prohibition of sexual orientation change efforts directly advanced the important government interest of preventing harm to minors -- harm supported by empirical evidence provided by reputable independent organizations.
3.) Berry v. Leslie
The judicially-invented doctrine of qualified immunity protects government officials from liability for constitutional injuries unless their conduct violates "clearly established" statutory or constitutional rights. While courts tend to be extremely forgiving of police officers, the 11th Circuit held in Berry that it was not reasonable for police to expect that they could descend on a barbershop with vests and masks and guns drawn to check barbers' licenses without violating the (duly licensed) barbers' Fourth Amendment rights to be free from unreasonable searches and seizures. Judge Robin Rosenbaum concluded that the unconstitutionality of such actions was "clearly established" because the 11th Circuit had held not once but twice that conducting criminal raids under the pretext of performing an administrative inspection is constitutionally unreasonable -- and a previous case even involved the same sheriffs' office!
4.) Gericke v. Begin
In Gericke, the 1st Circuit held that the right to record police during traffic stops is guaranteed by the First Amendment. Carla Gericke attempted to film an officer as he was conducting a nighttime traffic stop. She was charged with violating a wiretapping statute for her recording activities. (The charges were later dropped). She subsequently sued, alleging that the wiretapping charge constituted retaliatory prosecution for exercising her First Amendment right to record police officers in public. In response to the officer's argument that the unique hazards of traffic stops made the case distinguishable from a previous case affirming the right to film "police carrying out their duties in public" -- in that case, officers arresting a man in Boston Common -- the court pointed out that a traffic stop is "inescapably a police duty carried out in public" and, looking to the facts, found no reason to think that Gericke's filming interfered with the officer. As in Berry, the court denied qualified immunity.
All four of these decisions saw judges making a genuine effort to assess the constitutionality of the government's actions and requiring the government to justify its restrictions on peoples' freedom with real evidence. Unfortunately, judicial engagement remains the exception, rather than the rule. All of the above cases involved so-called "fundamental" rights that are specifically enumerated in the Bill of Rights. "Fundamental" rights, like most of those listed in the Bill of Rights, plus a handful of other rights that the Supreme Court has recognized on an essentially ad hoc basis, receive various forms of "heightened" scrutiny that share the common hallmarks of judicial engagement, namely, (1) a genuine search for the truth regarding the government's ends and means (2) by a neutral adjudicator (3) on the basis of real evidence.
In cases involving supposedly non-fundamental constitutional rights like our rights to earn an honest living, own and enjoy property, or engage in any number of activities in the peaceful pursuit of our happiness, the Supreme Court and lower courts apply a much weaker form of scrutiny called the "rational basis test." Under this "test," laws are presumed to be constitutional and courts will uphold the government's actions if there is any "conceivable set of facts" that could justify them. Because it is both logically and factually impossible to negate every conceivable justification that the government's lawyers might come up with, this presumption is effectively irrebuttable.
These decisions show how judicial engagement can ensure that the government stays within constitutional bounds. If judges can engage in tough cases requiring fact-sensitive analysis, they can do it in all cases -- and they must, if the courts are to perform their constitutional function and keep the political branches in check. Our rights will remain insecure so long as judicial truth-seeking remains the exception, rather than the rule.