When Governor Sisolak targeted bars and taverns with a shutdown order in July, while exempting similarly situated businesses, it seemed obvious such an arbitrary and discriminatory action ungrounded in science would be declared unconstitutional.
After all, the U.S. Constitution protects the rights of individuals to earn a living, so governments who deny citizens that freedom must have an extremely compelling reason, right?
Not according to the modern American judiciary, unfortunately.
Through a series of rulings in the 1930s, the Supreme Court decided that, for the most part, it would no longer perform its core function of restraining the executive and legislative branches from engaging in unconstitutional conduct. The Court, in plain violation of the Constitution and precedent, decided it would only protect a handful of rights it deemed “fundamental.” All other rights, according to the Court’s rewriting of the Constitution, were no longer deserving of protection.
As a result, real judging has been replaced with judicial abdication, with judges now acting as advocates for the government, rather than independent arbiters seeking to determine the constitutional legitimacy of its actions.
The recent ruling upholding Governor Sisolak’s shutdown order provides an excellent example of judicial abdication in practice.
Most would agree that there was no scientific basis justifying the disparate treatment of bars, which have higher rates of compliance with safety protocols than many industries that were exempted from the order. Even Sisolak himself later admitted that his shutdown order targeting all bars — rather than individual bad actors — was, “in hindsight, not the fairest way to do it.”
Regardless, because courts are now required to play the role of government advocate rather than protector of constitutional rights, neither the arbitrary and discriminatory nature of the order, nor Sisolak’s own admission that it was a mistake, would be enough to convince the court to overturn his misguided policy targeting bars and taverns.
As Clark County District Court Judge Kerry Earley explained in her decision, the Supreme Court has determined that economic and property rights “are not recognized as fundamental constitutional rights.” As such, they are subject to the so-called “rational basis test,” which requires judges to presume the constitutionality of any statute and actively assist the government in coming up with any rational basis that could justify it.
According to this judge-made doctrine, even “speculation unsupported by evidence or empirical data” is sufficient for courts to declare a statute or regulation constitutional, Judge Earley noted.
Under that framework, of course Governor Sisolak’s shutdown order must prevail. After all, the administration and other proponents of lockdowns certainly cannot be criticized for failing to provide “speculation unsupported by evidence” to justify their actions. In fact, such evidence-free speculation has been behind the most arbitrary and unjust shutdown orders to date — which is precisely why bar and tavern owners demanded judicial review in the first place.
But just because the federal judiciary has abdicated its role doesn’t mean the Nevada judiciary has to follow suit. After all, the Nevada Constitution also guarantees the rights retained by the people, and expressly rejects the practice of disparaging certain rights in favor of others:
Rights retained by people. This enumeration of rights shall not be construed to impair or deny others retained by the people. (Article 1, Section 20 of the Nevada Constitution.)
Sadly, the strength of any constitution, no matter how well designed, is limited by the degree to which judges are willing to abide by it.
Nevadans who believe in the importance of protecting individual rights from government overreach should therefore seek to elect judges, particularly for the state Supreme Court, that will enforce the Constitution as written — as opposed to those who believe the judiciary should be a cheerleader for government’s arbitrary and discriminatory use of power.