Greg offers a thoughtful response to the tension between judicial deference and constitutional principle. Let me begin with our agreement. I think Greg is altogether correct that protecting liberties is not the task of the judiciary alone. It is, as he puts it, the important work of “civic cultivation” that cannot simply be handed off to the judiciary. And insofar as representatives, citizens, and associations in civil society leave this to the judiciary alone, our liberties are likely to be less secure. As Judge Learned Hand, famous for situating himself in the tradition of judicial deference with James Bradley Thayer, put it in “The Spirit of Liberty”: “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it.”
I suppose my qualification is that given imperfect human beings and imperfect legislatures, imperfect courts can still help. But in doing so, should they attempt to tease out possibly illicit motives from the legislature? Does the legislature even have motives? I’m hesitant here—partly for the reasons Greg suggests. Yet I’m also skeptical of Thayer’s clear mistake rule if it is understood to simply accept the purported legislative purpose. Legislatures always offer plausible reasons. Or almost always. Without digging into motives, I think it’s legitimate for courts to apply a higher level of judicial scrutiny to legislative acts—to make sure that the legislation is, in Chief Justice John Marshall words, “plainly adapted” to a legitimate constitutional end. (This may be just what Greg has in mind when he says courts can look to the operation of laws.) Admittedly, this opens the door to courts attempting to discern potentially elusive legislative motives. I think the best response to this, however, is not judicial deference that might border on judicial abdication, but a more spirited constitutional engagement from the other branches of government. Properly situated, courts are not the final arbiters of constitutional meaning.
On this, I’m in agreement with Greg that I’d like to see courts retreat from their too ready insistence that they are the unique defenders of the Constitution. Even more, I’d like to see Congress insist on its constitutional role. In our day, legislative deference to the courts is a much larger problem than judicial deference to the legislature.