Deference is Activism

Judicial Deference is a Brand of Judicial Activism

Evan Bernick at the Institute for Justice has spent considerable effort dispelling the “Dogma of Deference.” Deference is the idea that on questions of constitutional law the Supreme Court should give deference to the legislator (state or federal) or even executive branch when there is not clear evidence of Constitutional authority, or when the Constitution does not appear to speak to an issue directly. However, this deference is largely constructed out of whole-cloth; if not in doctrine then certainly in practice. Further it is a doctrine without constitutional support and is in itself judicial activism. The doctrine of deference requires that the judiciary look beyond the text of the Constitution to determine what role the judiciary has in determining what the Constitution says; and without textual support, or other Constitutional authority (except it’s own), the judiciary declares that the judicial branch must defer to the other branches (or even states).  It actively accepts a role for the judiciary never intended or ratified by the people or states upon signing of the Constitution.

There is a case that deference to legislators should exist on some topics, however that deference still requires questions to be answered by the judiciary. To state a simple example, the Supreme Court would likely have to engage in some analysis in a Tenth Amendment case, so even if the Court does not have authority to rule on the subject matter, it may have to rule on who can make the decision. All of this requires judicial engagement with the text of the constitution at the least and a doctrine of deference may not approach appropriate engagement with the requirements of the Constitution. What distinguishes this type of deference is that the judicial branch would not adopt a presumption of deference but would arrives at deference as a conclusion, after completing a judicial analysis of the competing interests and Constitutional requirements.

The rational basis test is another example of this activist approach. It takes a default approach- unless you can prove higher scrutiny is merited- that a law must only be rationally related to a legitimate government interest to be constitutional. This is clearly activist, it subverts textual analysis (gives deference to political or state positions) in the face of the textual demands of the Constitution, but more importantly is a presumption about the role of the Supreme Court beyond the text of the Constitution. Nowhere in the duties and powers delegated to the judiciary in Article III will there be the words “rational basis.” On a practical level this subverts judicial fact finding since the purpose of the law must only be rationally related to be valid (any reason a judge can think to justify the law may be a justification for the law).  Such an understanding of the role of the judiciary would likely be a foreign concept to those who drafted and ratified the Constitution.

This mentality of deference extends well beyond the rational basis test and has subverted the text in other unconstitutional ways. The rise of the administrative state is a prime example, allowing entities to exist outside of any constitutionally mandated branch. Despite the clear text of the Constitution stating “[a]ll legislative power” reside in Congress, or “the executive Power shall be vested in” the President, or even the delegation of Article III powers, there is no express authorization of these agencies that often cross into unassigned and unconstitutional territory. Nowhere in the text is found the authority to delegate any of this power, but due to deference, a body of law has arisen that defers to actions of either branch even if those actions are textually contrary to the Constitution.

Justice Thomas recently wrote on the error of the administrative doctrine in his opinion in the recent Amtrak case. This engagement with the Constitution is exactly the sort of analysis the Constitution requires of the judicial branch. Neither deference nor activism is supported by the context of the writing of the Constitution, nor with the text. But constitutional analysis by the Supreme Court requires that the judiciary look beyond the text of the Constitution when and where the Constitution requires it. Words such as “all,” “abridge,” “any” or “retain” mandate such engagement (just to name a few amongst a plethora of examples) and require the Court to determine the extent those words permit action by any government body.

Deference creates a peek-behind-the-curtain mentality, where the text of the Constitution should be blind to the parties, deference gives preference to the party yielding power, governments. Then the Constitution stops being a text creating a limited government with enumerated and limited powers but a document of preference for decisions made by the political bodies, with very few potential limits.

Judicial deference is actively engaged in neutering the text of the Constitution without authority or support. The integrity of the text of the Constitution has eroded under the doctrine of deference (and even stare decisis, deference to previous courts is not always wise or constitutional). Giving priority to the other branches’ decisions and prior courts over the demands of the Constitution.

Though I am adverse to slippery slope arguments generally, the evidence in the case of deference supports such a statement. Deference leads to activism up until the re-writing of text. As was the case with the hair splitting pandering to deference on demonstration in NFIB v. Sebelius, the court stated, “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax.” (Not to mention the direct tax deference in the opinion). To what extent is deference limited?

King v. Burwell may be the next watershed moment for those advocating engagement over deference. Now does the Court defer to an agency’s decision and the possible intent that the law didn’t mean what it said it meant or does it engage with the text and reaffirm Separation of Powers? Though this is a case of statutory interpretation (did the words of the law actually mean what they said they mean), when an agency’s actions are on trial, there is always some element of Separation of Powers (was the agency authorized to use legislative, judicial or executive power as it did or not). Ironically in an effort to not legislate from the bench (write laws) it appears the judiciary has done just that in an effort to defer to the other branches. If the law were to strike down subsidies for the federal exchanges it seems likely that some in favor of ACA will cry out against judicial activism, without any concern for executive activism.

A doctrine of deference is activism, just a different brand then anticipated. Many may feel this is problematic because an engaged judiciary will at time be at odds with democratic outcomes. However if that is not the intent of the Bill of Rights, to protect a minority against democracy, it is a document without any power or effect. But is more than a “dead” document, it is a null document at least in part. Judicial engagement IS a subversion of democracy, the kind of subversion that says “separate but equal” is a sham, the kind of subversion the requires equal protection of the laws independent of personal background, the kind of subversion that limits what a government can do to you (though eroded this may be) when accusing you, trying you, and even sentencing you.

Judicial engagement is a bulwark against mob rule, but deference lessens that stronghold and presumes that particular words have a lesser meaning. As Evan Bernick details, deference (or worse the entire elimination of judicial review) would “allow government-enforced racial segregation. It would allow states to prohibit the use of contraceptives and make it illegal for a grandmother to live in the same home with her grandchildren. It would allow cities to single out and suppress unpopular religious practices. It would allow police officers to coerce confessions, schoolchildren to be forbidden from learning about evolution, peaceful political expression to be outlawed, and private sexual intimacy between homosexuals to be criminalized.”

And he doesn’t end there, deference has “allow[ed] the state of Louisiana to exclude Homer Plessy from a “whites only” railroad car; allowing the Roosevelt Administration to detain Fred Korematsu in a concentration camp during World War II because he was of Japanese ancestry; allowing the state of Virginia to sterilize Carrie Buck for eugenic purposes because she was “promiscuous” and “enfeebled” (she was neither); and allowing the New London Development Corporation, exercising the government’s power of eminent domain, to bulldoze an entire working-class neighborhood for so-called “economic development.'” (Original links maintained, use them!)

All this from the attitude of the bench in adopting deference to the political bodies. Not legislating from the bench per se (unless it is a healthcare case), but certainly not adjudicating either. Actively adopting a doctrine that has no Constitutional footing, textual or otherwise.

In summary I feel the proper role of the judiciary is analogous to Aristotle’s doctrine of the mean, that virtue lies in the balance between two extremes. Judicial engagement is the mean between deference and activism, we should then advocate engagement as the more “virtuous” judicial doctrine. On the extremes lies two different brands of activism one adds to the text of the Constitution and one depletes.

James C. Devereaux is an attorney and freedom fanatic. Questions, complaints and hysterics can be sent to

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