Courts have ab­di­cated re­spon­si­bil­i­ties as they tout ‘ju­di­cial re­straint’

Courts used to give mean­ing­ful scru­tiny to re­stric­tions on our right to earn an hon­est liv­ing.

Austin American-Statesman - - VIEWPOINTS - Panju is an at­tor­ney at the In­sti­tute for­jus­tice — Texas Chap­ter (


Nov. 6, Tex­ans elected judges largely based on the po­lit­i­cal party ap­pear­ing next to their name. That has con­se­quences. Judges are re­spon­si­ble for en­forc­ing con­sti­tu­tional lim­its on government power, and our fail­ure to prop­erly eval­u­ate the judges we elect — re­ly­ing in­stead on party pol­i­tics — has played no small part in al­low­ing the unchecked growth of our state government here in Texas.

Many judges on the bal­lot in 2012 re­cy­cled the stan­dard cam­paign-sea­son buzz­words in this elec­tion, promis­ing not to en­gage in “ju­di­cial ac­tivism” and pledg­ing “def­er­ence” to the Leg­is­la­ture. All too of­ten, how­ever, “def­er­ence” is code for rub­ber stamp­ing what­ever comes out of the Leg­is­la­ture, re­gard­less of whether it is con­sti­tu­tional. This is not real judg­ing, and dis­claim­ing ju­di­cial ac­tivism — some­thing both par­ties ac­cuse each other of do­ing — tells vot­ers noth­ing. In­stead, we should be hear­ing more about ju­di­cial en­gage­ment.

Ju­di­cial en­gage­ment means noth­ing more than real judg­ing in all con­sti­tu­tional cases. That means en­gag­ing the facts of ev­ery case and re­quir­ing the government to jus­tify its ac­tions with real rea­sons backed by real ev­i­dence. Un­for­tu­nately, how­ever, judges of­ten ab­di­cate their re­spon­si­bil­ity to en­sure pub­lic of­fi­cials re­spect the lim­its placed on them by the U.S. and Texas con­sti­tu­tions.

Con­sider a case the Texas Supreme Court is cur­rently be­ing asked to re­view: Pa­tel vs. Texas De­part­ment of Li­cens­ing and Reg­u­la­tion. This case in­volves the con­sti­tu­tional right to earn an hon­est liv­ing be­ing as­serted by eye­brow thread­ers — the peo­ple you may have seen in the mall who shape eye­brows us­ing a strand of cot­ton thread. Un­for­tu­nately, eye­brow thread­ers in Texas have been bul­lied out of their oc­cu­pa­tion by the Texas De­part­ment of Li­cens­ing and Reg­u­la­tion which claims they must have a full-blown cos­me­tol­ogy li­cense just to use a piece of string to pluck un­wanted fa­cial hair. The state li­cens­ing agency claims, with­out any real ev­i­dence, that un­trained thread­ers are dan­ger­ous. More­over, of the 1,600 hours of train­ing re­quired for a cos­me­tol­ogy li­cense — more hours than it takes to get a law de­gree — there is no re­quire­ment that even a sin­gle minute cover eye­brow thread­ing.

The case has reached the Texas Supreme Court, which is be­ing asked a sim­ple but pro­found con­sti­tu­tional ques­tion: Should the government be re­quired to sup­port its reg­u­la­tion of peo­ple’s liveli­hoods with real facts or may it do so purely on the ba­sis of spec­u­la­tion and con­jec­ture?

That may seem like a strange ques­tion, but it arises be­cause of a le­gal stan­dard called the “ra­tio­nal ba­sis test” that was in­vented by courts to avoid sub­ject­ing government reg­u­la­tion to any mean­ing­ful level of re­view. Courts ap­ply­ing the so-called ra­tio­nal ba­sis test are not just per­mit­ted but re­quired to turn a blind eye to ev­i­dence of im­proper government pur­pose, ig­nore facts and, if nec­es­sary, help the government win by in­vent­ing jus­ti­fi­ca­tions for its con­duct.

But that’s not real judg­ing, and it leaves the other branches with vir­tu­ally unchecked power. An In­sti­tute for Jus­tice study ti­tled “Government Unchecked: The False Prob­lem of ‘Ju­di­cial Ac­tivism’ and the Need for Ju­di­cial En­gage­ment,” found that the U.S. Supreme Court strikes down just two-thirds of 1 per­cent of fed­eral laws and one-twen­ti­eth of 1 per­cent of state laws.

It wasn’t al­ways this way. There was a time when courts gave mean­ing­ful scru­tiny to re­stric­tions on our right to earn an hon­est liv­ing, re­quir­ing the government to sup­port its reg­u­la­tions with real ev­i­dence and show that it was not merely seek­ing to ad­vance the an­ti­com­pet­i­tive in­ter­ests of some spe­cial in­ter­est group, as is so of­ten the case. But over the years courts have ab­di­cated that re­spon­si­bil­ity in the name of “ju­di­cial re­straint” and left our eco­nomic rights to the self-re­straint of leg­is­la­tors and bu­reau­crats, which his­tory has proved to be no re­straint at all. There is a stark dif­fer­ence be­tween ju­di­cial ab­di­ca­tion and ju­di­cial en­gage­ment, even in cases as hum­ble as the eye­brow thread­ers’ quest for eco­nomic lib­erty in Pa­tel vs. Texas De­part­ment of Li­cens­ing and Reg­u­la­tion.

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