Grounds for Concern?

We have seen many examples of an “engaged judiciary” at the state court level, and it isn’t always pretty.

Advocates of resuscitated constitutional protection for economic liberties—which were demoted to second-class status during the New Deal with the abandonment of the “substantive due process” doctrine in West Coast Hotel Co. v. Parrish (1937)—often argue in favor of a more rigorous standard of judicial review, across the board, when laws are challenged. This heightened judicial role is sometimes referred to as “judicial engagement.” Some conservatives have expressed concern (for example, here and here) that giving judges such broad discretion will lead to judicial usurpation of lawmaking, which is a legislative function, and may legitimize past and future instances of liberal judicial activism, such as Roe v. Wade (1973).

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