So what respect does “the constitutional guarantee of liberty deserve[]”?

April 19th, 2012

Adam White and Ed Whelan query what level of scrutiny Judge Brown would have applied to consider regulation of economic liberty. Paul Sherman takes a stab and deeper reply here. He cites an opinion by my boss as an example of good review of economic liberty:

The remarkable power of this single, modest step is nicely illustrated by two cases:Craigmiles v. Giles and Powers v. Harris. Both cases concerned transparently protectionist state laws that granted licensed funeral directors a lucrative monopoly on the sale of caskets. In Craigmiles, the Sixth U.S. Circuit Court of Appeals struck down the monopoly. In Powers, the Tenth Circuit upheld it. In both cases, the government made identical arguments to justify its monopoly. The only difference was that, in Craigmiles, the court made a genuine inquiry into whether there were facts to support those arguments and, concluding that there were none, recognized that the only purpose served by the law was the illegitimate purpose of intrastate protectionism. Although that is not the only form that “meaningful” review might take, it certainly shows how even small increases in scrutiny would better promote the protection of unenumerated rights.

Whelan still isn’t persuaded.

Dahlia Lithwick ascribes “Tea Party rhetoric” to Brown’s position:

The question is why she feels comfortable injecting this language into a judicial opinion—as opposed to a speech or legal article—in a call to the court to radically reverse course and dramatically curb the power of elected officials. And while it’s not possible to know whether this incendiary concurrence was penned before or after Supreme Court’s oral arguments over the Affordable Care Act last month, it’s also very possible that some of the Tea Party rhetoric that bled into the doctrinal discussions of the health care law has opened the door to more of the “blending” of judicial and political roles. It’s hard to believe that Judge Brown wasn’t at least a little bit emboldened by the ideological tone of those arguments when she opted to embrace the same tone in herHettinga concurrence.

And this may help her onto the SCOTUS short list!

Erwin Chemerinsky, dean of the law school at the University of California—Irvine, has been a longtime critic of what he sees as the unpleasant tone of Supreme Court opinion writing in general, and Justice Antonin Scalia’s caustic tone in particular. In a seminal law review article on the subject, he criticized Scalia’s tart rhetorical tone for sending “exactly the wrong message to law students and attorneys about what type of discourse is appropriate in a formal legal setting and how it is acceptable to speak to one another.” Judge Brown, of course, isn’t insulting or belittling anyone with her recent opinion. But she is embracing a starkly political and ideological tone most judges try to avoid. And it’s not unreasonable to believe that it’s a tone she saw on display—gleefully and without restraint—only a few weeks ago at the high court.

Update: Randy Barnett responds to David’s post:

So where does modern “anything goes” rational basis scrutiny come from?  As Justice Kennedy correctly noted in Comstock, it comes not from the New Deal Court, but from the 1955 Warren Court case of Williamson v. Lee Optical in which Justice Douglas replaces the realistic actualrational basis scrutiny that was employed by the lower court with a formalist hypothetical rational basis that is satisfied so long as a judge can imagine any possible rational basis for a statute.

In an essay forthcoming soon in the George Mason Law Review (and even sooner on SSRN), I shall have more to say about Lee Optical.  But the most important point is this:  strict scrutiny is not our only option when it comes to judicially protecting economic liberty.  Economic liberties can also be protected from rent-seeking legislation benefiting some economic actors at the expense of others by a realistic inquiry into the actual rational basis of legislation.   In my essay, I explain how the lower court in Lee Optical actually did this quite effectively after dutifully invoking the presumption of constitutionality.   And the judicial authority for this inquiry is the much-revered opinion in Carolene Products.

When discussing economic liberty, Professor Schraub also repeats Justice Holme’s canard about the Fourteenth Amendment not enacting Mr. Herbert Spencer’s Social Statics.   As I have explained elsewhere, slavery was an economic system and the Thirteenth and Fourteenth Amendment were designed to protect the economic liberties of the freedman and others, as evidenced by the economic liberties Congress protected in the Civil Rights Act of 1866.  Unless those Amendments are confined by some variant of “original intent” to be limited only to the freedman, they protect — and were designed to protect — the economic and nonenonomic liberties of all Americans.  Indeed the modern distinction between economic and noneconomic liberty is anachronistic when read back into the Thirteenth and Fourteenth Amendment.  But it is enough merely to correct the record about Carolene Products and the origin and nature of modern “rational basis” scrutiny.

Update: And David replies to Randy!

Second and more importantly, the main point of my post was that whatever she thinks the remedy should by (rational basis plus, strict scrutiny, a yea or nay vote by Richard Epstein [JB: My initial comment after I saw Brown’s opinion was that Richard Epstein somehow hacked into the D.C. Circuit], whatever), Judge Brown’s indictment is not limited to economic regulations but applies equally to any law Congress passes. This is the focus of her attack onCarolene and its echoes of Ackerman’s — that public choice theory denies that “discrete and insular minorities” should be at a democratic disadvantage, hence, Carolene’s decision to provide heightened protections for laws targeting them and them alone is utterly wrongheaded. Small special interests are actually quite powerful, and political ignorance prevents adequate checks at the ballot box, so even diffuse majorities are vulnerable to political exploitation.

But this line of attack is not limited to economic regulation — it is general indictment of our democratic structure and its operation as pluralistic interest-group bargaining. Every law is vulnerable to this process defect, every law ought be suspect. Whether that means every law deserves strict scrutiny, like Brown effectively implies, or some heightened form of rational basis, as Barnett does, the point is that there is no reason to treat economic regulations specifically as any more likely to be the product of this general shortcoming in the system.