Why judicial activism matters
The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.
— James Madison, Federalist 48
But under today's regulatory state, which Madison could hardly have imagined, the legislature is not the principal threat to liberty. Suppose a federal executive department flagrantly abused its regulatory powers for the unmistakable purpose of suppressing truthful speech that annoys the government. If you assume the Supreme Court would rectify this assault on the First Amendment's core protection, you would be mistaken.
The government has done this and the court has declined to do its duty to enforce constitutional limits. Herewith an illustration of why conservatives must abandon their imprecise opposition to “judicial activism” and advocate for more vigorous judicial engagement in protecting liberty from the vortex of the regulatory state.
Spirit, Allegiant and Southwest are low-cost carriers that have thrived since the deregulation of the airline industry, which began in 1978. The government retains a narrow authority to prevent deceptive advertising practices. But as the airlines argued in petitioning the Supreme Court to hear their case, the government is micromanaging their speech merely to prevent the public from understanding the government's tax burdens.
The government's Total Price Rule forbids the airlines from calling attention to the tax component of the price of a ticket by listing the price the airline charges and then the tax component with equal prominence. The rule mandates that any listing of the tax portion of a ticket's price “not be displayed prominently and be presented in significantly smaller type than the listing of the total price.”
These three low-cost carriers compete for the most price-conscious travelers and want to tell those travelers which portion of a ticket's cost the airlines control. The government, far from regulating to prevent customer confusion, is trying to prevent customers from understanding the taxes and fees that compose approximately 20 percent of the average airline ticket.
Timothy Sandefur, of the public-interest, limited-government Pacific Legal Foundation, notes that decades ago the Supreme Court, without justification in the Constitution's text, structure or history, created a binary First Amendment. So today the amendment gives different degrees of protection to two kinds of speech — strong protection to political speech, minimal protection to commercial speech.
The court has never clearly defined the latter but has suggested that commercial speech proposes a commercial transaction between the speaker and the audience. And the court has held that freedom of commercial speech cannot be abridged if the speech is neither false nor deceptive nor related to an illegal activity.
Note two things. The airlines' speech the government is regulating with the Total Price Rule would be protected even if it were just commercial speech. And it actually is political speech: It calls its audience's attention to, and invites disapproval of, government policy.
In permitting the government's regulation of this speech, the U.S. Court of Appeals for the District of Columbia held, 2-1, that the Total Price Rule “does not prohibit airlines from saying anything; it just requires them to disclose the total, final price and to make it the most prominent figure in their advertisements.”
In their brief asking the Supreme Court to reverse the D.C. Circuit's decision, the airlines noted that the government is forbidding them to do what virtually every American industry does — advertise the pre-tax price of their products.
Government is violating one of the natural rights that the Founders said government is “instituted” (the Declaration's word) to protect. This episode confirms conservatism's premise that today's government is guilty of shabby behavior until proven innocent. And conservatives enable such behavior when their unreflective denunciations of judicial “activism” encourage excessive judicial deference toward the modern executive's impetuous vortex.
George F. Will is a columnist for The Washington Post and Newsweek.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Peduto blasts Wolf’s plan to borrow $3B to shore up pensions
- Steelers notebook: LB Dupree sits out backs-on–backers drill
- Starkey: Garoppolo baffles Steelers
- Inside the Steelers: Williams’ quickness out of backfield evident in drills
- McCutchen, Pirates cruise to interleague victory over Twins
- Man arrested in Marshall-Shadeland barbershop killing
- Beaver County widow won’t lose home over $6.30 late fee
- Steelers’ Bell unsure why NFL reduced his suspension
- Extremes in weather hurt crops in Westmoreland
- Tight ends’ role in Steelers passing game continues to lessen but players remain selfless
- 3 taken into custody after shots fired at East Park in Connellsville