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Freeman Essay #18: “Judges versus Majorities versus Peaceful People”

In this essay – from the March 1998 Freeman – I argue that American conservatives went much too far in their calls for judicial restraint.  The essay is below the fold.

By the time Ronald Reagan was first elected President, conservatives had grown intensely concerned about “judicial activism.” After nearly thirty years of the likes of Earl Warren and William Brennan attempting from the bench to re-engineer society in a leftist image, conservatives were understandably angry. A premier goal for many conservatives became filling the federal bench with judges who would respect the decisions of ordinary people rather than displace these decisions with the preferences of the arrogant elite.

The Right’s insistence that judges respect the decisions of ordinary people came by 1980 to be couched as a demand that judges defer in almost all circumstances to democratic outcomes.

After all, isn’t democracy a means of enabling The People to govern themselves as they deem best? In conservatives’ eyes, people who support a judiciary that regularly strikes down or ignores legislative enactments are elites who (unjustifiably) distrust ordinary people to make wise choices.

Conservatives fittingly decry the arrogance of those who ask courts to override people’s decisions whenever these do not conform to the ideals of insolent busybodies. But conservatives too uncritically equate respect for majoritarian outcomes with respect for the decisions of ordinary people. Judicial restraint is appropriate when the decisions at issue before the courts are private and nonpolitical. The case for judicial restraint, however, is more problematic when the decisions in question are majoritarian electoral outcomes. A decision made in a voting booth differs greatly from a private, non-political decision. The same person who is careful and discerning when making private choices is too often careless and confused when voting. Not all decisions by ordinary folk are alike. Hence, not all decisions deserve the same amount of judicial deference. Consider two different cases.

Case #1: I own a shopping mall and refuse to lease space to video-game arcades. Perhaps I believe that permitting such arcades in my mall will reduce my profits. Perhaps I have aesthetic objections to video arcades. Whatever my reasons, because the lion’s share of the costs and benefits of my decision fall squarely on me, I will make an informed and prudent choice on whether or not to lease space to video arcades.

Arrogant busybodies might allege that I ignore the preferences of people wishing to play video games in my mall. Such an allegation would be incorrect. I account for others’ preferences when I consider the amount of rent that I’d fetch if I leased space to an arcade. I then compare this amount to whatever it would cost me to permit the operation of an arcade in my mall. As long as the maximum rent any arcade owner is willing to pay to me falls short of the cost to me of leasing to such a merchant, I will refuse to lease space to video arcades.

If a judge rules that I must allow arcades in my mall, then this judge arrogantly substitutes his own preferences for that of ordinary citizens. Not only does this judge overrule my judgment, he also overrules the judgment of thousands of other people, including customers and proprietors of other shops, who by their actions in the market inform me that video arcades shouldn’t be in my mall. Conservatives and all decent people should abhor such imperious interference by judges with the lives and properties of others.

Case #2: I own no shopping mall, but I and 51% of my fellow townspeople vote to close the video arcade now open in the mall. This collective decision deserves nowhere near the respect owed to the decision of the private mall owner in case #1. Reasonable decisions are made with good cognizance of the attendant costs and benefits. Because no voter is in as good a position as is the mall’s owner to determine the full costs and benefits of leasing space to a video arcade, our votes on whether or not an arcade belongs in the mall are not as trustworthy as is the decision of the property owner. Whenever electoral majorities strip others of their rights to act peacefully and to engage in voluntary commerce, the behavior of these majorities is as arrogant and unjustified as was the decision by the judge in case #1 to require that mall owners lease space to video arcades.

Unlike in case #1, a judge striking down the ballot approved by voters in case #2 obstructs nothing deserving the name “will of The People.” The majoritarian outcome in case #2 is merely the tallied-up opinions of people almost none of whom has a direct and personal stake in the matter. Also, because not one of these voters expects that his vote will be decisive, no voter invests the effort necessary to cast an informed vote. Each voter merely expresses, free of charge, his opinion on what other people should be allowed to sell and buy.

A more civil means of closing the video arcade is for me and like-minded folks to put our money where our mouths are; namely, pay the mall owner to stop leasing to the arcade. Another civil alternative is for arcade opponents to dissuade others from patronizing arcades. If too few people wish to play video games in arcades, these arcades will disappear peacefully.

Because conservatives sensibly oppose judicial activism as practiced by Earl Warren and Co., they overlook the differences separating private, non-political decisions from collective, political decisions. Each private, non-political decision is typically made by an individual with substantial personal stakes in the outcomes of that choice. Political settings, in contrast, afford strangers a free say in how other people conduct their lives. Political decisions are seldom made only by people who personally bear substantial shares of the costs and benefits of those decisions. Thus, only when judges override private choices are they guilty of the arrogance that conservatives rightly protest.

None of this says that judges should routinely ignore democratic outcomes. Judges, after all, may be just as uninformed and whimsical as are most citizens in voting booths. The question of the proper scope for judicial activism is breathtakingly complex. But conservatives would do better to focus their opposition to judicial activism against that species of activism that substitutes judicial decisions for private, non-political decisions. A judiciary committed chiefly to protecting private people from government interference may, from time to time, unwisely reject democratic outcomes. But such courts—unlike unchecked legislatures—will never threaten people’s most sacred and fundamental freedoms.