Las Vegas Sun

July 16, 2019

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OPINION:

Court refused to accept lies from government

In its closely watched census citizenship case, the Supreme Court issued a surprising decision that really shouldn’t be surprising: The court won’t accept “contrived reasons” the government offers to justify its actions. Late last month, the court ruled that the federal government’s asserted reason for putting a citizenship question on next year’s census form was not actually the reason it did so, preventing the question from going on the form (at least for now).

“We cannot ignore the disconnect between the decision made and the explanation given,” Chief Justice John Roberts bluntly stated in Department of Commerce v. New York. “If judicial review is to be more than an empty ritual, it must demand something better than the explanation offered for the action taken in this case.”

Stirring words. Yet, surprising. In far too many areas of law — especially constitutional law — judicial review actually is “an empty ritual.”

For decades, the Supreme Court has repeatedly ruled that, with few exceptions, when Congress or a state legislature passes a law, courts must turn a blind eye and accept whatever the government says its purpose is. In other words, the court shouldn’t second-guess legislators and examine if the law’s stated justification is genuine or a mere pretext, let alone if there is evidence to support the pretext.

Mistakenly labeled the “rational basis test” (because there is nothing rational about it), the doctrine is the ultimate manifestation of judicial abdication. Judges simply say, “I close my eyes to evidence and accept whatever the government has to say as true.” It is a rejection of the judiciary’s solemn responsibility to determine whether a law is constitutional.

For example, in a case about a transparently protectionist law forbidding opticians from filling eyeglass prescriptions, the Supreme Court turned a blind eye, remarking that “for protection against abuses by legislatures, the people must resort to the polls, not to the courts,” even though it called the law “a needless, wasteful requirement.” More recently, the court dismissed another challenge because the challengers didn’t “negate every conceivable basis” for the law, even if the government didn’t actually rely on it.

Thanks to certain Supreme Court precedent, some federal courts have used the rational basis test to uphold burdensome and protectionist licensing regimes for natural hair braiders, interior designers, florists and plenty of other safe, ordinary occupations that could otherwise put people to work.

This story — of irrational laws preventing people from earning a living — is repeated over and over across the country. And some courts say it’s not their place to second-guess the government.

So that’s why the Supreme Court’s engagement with the issues at hand in the census case was refreshing. In his opinion, Roberts quoted from Judge Henry Friendly, who counseled that courts are “not required to exhibit a naiveté from which ordinary citizens are free.”

If “ordinary citizens” can call something a fraud when they see it, surely the courts can as well. Yet that “naiveté” is exactly what some interpretations of the rational basis test call on courts to do.

The very purpose of an independent judiciary is to check the government when it seeks to violate the law, especially the Constitution. There is nothing magical about judges that renders them unable to look at facts and see what is really behind a law.

The Supreme Court should be commended for recognizing that the government shouldn’t be able to lie and get away with it. It’s now time to apply this self-evident truth to other areas of the law, such as the protection of the right to earn a living. Instead of judicial abdication they should practice judicial engagement.

Anthony Sanders is a senior attorney at the Institute for Justice, and director of its Center for Judicial Engagement. He wrote this for InsideSources.com.