Linda Greenhouse on the NYT Opinionator blog catches a new use of the phrase “judicial engagement.” While some of us involved with access to justice have used it, or rather something like it, to describe the process by which a judge asks questions to ensure that facts are properly before the court (e.g” engaged neutrality“), now it is being used by advocates of heightened scrutiny by the Supreme Court of Congressional enactments. Ms Greenhouse writes:
In this new topsy-turvy world, judicial restraint, which used to be a good thing, is now bad. There is a “false dichotomy,” the center[for Judicial Engagement’s] declaration informs us, “between improper judicial activism and supposedly laudable judicial restraint.” Restraint means abdication by judges who fail to do their duty. “Striking down unconstitutional laws and blocking illegitimate government actions is not activism; rather it is judicial engagement – enforcing limits on government power consistent with the text and purpose of the Constitution.”
If you have not yet seen the phrase judicial engagement used in a sentence – as I had not, until I came across it the other day in a series of posts on the Volokh Conspiracy legal blog – it’s likely that you soon will. The Institute for Justice was ecstatic back in August when the judges of the United States Court of Appeals for the 11th Circuit, in declaring unconstitutional the individual insurance mandate of the Affordable Care Act, used the phrase on page 104 of the majority opinion, evidently for the first time in any judicial opinion. When Congress oversteps its limits, the appeals court said, “the Constitution requires judicial engagement, not judicial abdication.”
I very much hope that the word “engagement” will not be politicized and that it can continue to be coupled with the word neutrality (“engaged neutrality”) to stand for a process in which getting involved is fully consistent with an appropriate judicial role.