Contributors to Law and Liberty have continued the lively debate between conservative proponents of “judicial restraint,” who are concerned about increased “judicial activism,” and libertarians who view the judiciary as a bulwark against majoritarianism. The general theme is a familiar one, even if the labels themselves sometimes impede understanding. The crux of the debate often turns on the standard of review courts should apply when laws are challenged, and which party should bear the burden of proof. Under the so-called “rational basis” test formalized by the U.S. Supreme Court in the 1938 decision in United States v. Carolene Products Co., economic…
At Bloomberg, Ramesh Ponnuru argues that in deciding the pending marriage and race cases, the Supreme Court should adopt a consistent ethic of judicial deference. Both conservatives and liberals, he explains, generally are inconsistent in their application of deference, with liberals favoring deference in the race, but not the marriage cases, and conservatives advocating the opposite.
Instead, Ponnuru urges the Court to defer to the state and federal governments in all these cases. He concludes that the Court should thus uphold the constitutionality of all the challenged policies, whether marital or racial, whether state or federal, but invalidate state racial preferences simply on statutory grounds–as violative of the federal Civil Rights Act of 1964.
While, as noted below, I agree with all but his last conclusions (I think the Court should hold valid all the challenged laws and policies), I believe his consistent ethic of deference is inconsistent with our Constitution. At least two express provisions of our Constitution indicate that the Supreme Court, and indeed all the federal courts, should treat state and federal governments unequally by deferring to the former but not the latter.