What is the most important part of the 11th Circuit’s recent ruling on The Affordable Care Act? You might think it was the individual mandate being struck down. But it was actually this: Judicial engagement.
For the first time in our nation’s history, a federal court used the term “judicial engagement” in a ruling striking down federal legislation. This is a cause for celebration because–regardless of one’s political leanings–we should all agree on the need for engaged judges. (And regarding the individual mandate, we all know that it will ultimately reach the Supreme Court.)
As the nation’s leading legal advocate for liberty, the Institute for Justice enters courtrooms across America determined to vindicate our most precious rights. And all too often, our opponents argue that judges should ignore facts or even make them up to justify what the government is doing.
Conservatives, liberals and libertarians should all be able to agree that we need judges that are serious about judging and examining the real facts about what our government is doing.
Today it is fashionable to laud judicial decisions that line up with one’s worldview–and condemn those that do not as “judicial activism.” So it comes as no surprise that E.J. Dionne referred to the 11th Circuit ruling on the individual mandate in the Washington Post as “the latest episode of rampant conservative judicial activism.”
But as constitutional expert Robert McNamara points out at The Corner, such responses miss the point. The 11th Circuit ruling was fundamentally about the role of courts and when our courts should step in to limit legislative power.
When should that occur? The 11th Circuit has this to say:
When Congress oversteps those outer limits, the Constitution requires judicial engagement, not judicial abdication.
What does the court mean by judicial engagement? It means that judges should be in the business of judging, and courts should look at the law and the facts of the case and see what is really going on. They shouldn’t simply defer all authority to the legislature. McNamara explains:
This is the real debate: Should courts exercise independent judgment about the facts and assert an independent role for themselves in constitutional questions? Or should they defer to whatever the legislature happens to want on a given day? Focusing on the result — on whether or not you like health-care reform — is a distraction from this core question. And make no mistake about the question’s importance: The answer will have sweeping consequences for everyone from monks who want to support themselves by selling handmade wooden caskets to ordinary Americans who want to put political signs in their yards.
The courts, McNamara continues, “are meant to be a bulwark of liberty in American government. But that’s a responsibility they can only fulfill if they engage, if they assert the authority to independently evaluate the facts and the law — if they, in a word, judge.”
That is why the Institute for Justice has established the Center for Judicial Engagement.
CJE educates the public and persuades judges to fully enforce the limits our Constitution places on the government’s exercise of power over our lives. IJ coined the term “judicial engagement,” and we are delighted to see it used – and applied – by the 11th Circuit.
What do you think about judicial engagement?