To one degree or another, judges in constitutional rights cases may exploit their available range of discretion in a narrowly political, ideologically rigid, or partisan way. But there are also important contexts in which a court’s ample discretion under tiered scrutiny and related tests can be turned toward some more nearly consensual or reasonably well-established basic public good. These opportunities to judicially promote the public good remain available even in our age of political polarization, hostility, fragmentation, and distrust.
Where such important opportunities exist, and where it is otherwise constitutionally permissible and generally prudent to do so, courts should feel free to exploit the inevitable discretion they have in selecting among, and then in applying, levels of constitutional scrutiny and related tests. As contentious as constitutional rights adjudication may often be, there is ample low-hanging fruit to be judicially harvested in the form of protecting constitutional interests along with promoting basic common goods. Constitutional rights adjudication in such cases should thus be open to what may be called legitimately opportunistic judicial scrutiny.
This article illustrates and develops these themes. For simplicity and clarity, the focus is on the crucial context of the constitutional and other costs imposed upon often powerless persons who wish to safely and responsibly pursue an ordinary trade or occupation, but are burdened by some protectionist licensing or related legislative barrier. This merely illustrative focus, however, should not detract from the broader applicability of legitimate judicial opportunism in a variety of individual constitutional rights contexts.
R. George Wright,
The Proper Role of Judicial Opportunism in Constitutional Rights Scrutiny,
Rich. Pub. Int. L. Rev.
Available at: https://scholarship.richmond.edu/pilr/vol26/iss2/5