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.
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.