Much legal commentary at Slate follows a pat formula: judicial activism is a genuine menace, but not from left or liberal jurists. It's those awful judges on the conservative and libertarian side who engage in the real activism when they strike down laws and government initiatives, or as in the case of ObamaCare, come close to striking them down. To observe the formula at its most mechanical, check out Emily Bazelon's Slate article last Wednesday portraying a judge's striking down of Mayor Bloomberg's ban on big soda sizes as a venture in "conservative judicial activism."
Never mind that none of the readily available biographical information about jurist Milton A. Tingling seems to justify describing him, as Bazelon does, as a "conservative judge." (Elected in Manhattan on the Democratic line, Judge Tingling appears to have fit his judicial career comfortably into the framework of Charles-Rangel-era Harlem politics, as David Bernstein mentions at Volokh Conspiracy. In a couple of earlier notable cases, Judge Tingling did rule against police and public-order interests, but we don't ordinarily regard that sort of civil-libertarian streak as distinctively "conservative.")
Bazelon assails Judge Tingling for supposedly substituting his own judgment for that of Bloomberg's Department of Public Health on the merits of the drinks ban. But everyone agrees the question properly before the court was not whether the judge agreed with the ban. It was instead whether the ban could pass muster under the relevant New York precedent, a 1987 case called Boreali v. Axelrod in which New York's highest court (to quote the case summary) ruled that the state Public Health Council "overstepped the boundaries of its lawfully delegated authority when it promulgated a comprehensive code to govern tobacco smoking in areas that are open to the public." Boreali is a distinctive New York case, and creates a test for impermissible delegation that differs from what courts do when applying federal law.
Prof. Aaron Saiger, a specialist in local government law at Fordham Law School in Manhattan, had this to say the other day at Concurring Opinions about the drinks ruling:
... Judge Tingling is right that New York State’s nondelegation doctrine – the doctrine that administrative law professors who teach only federal cases tell their students is a dead letter – prohibits the rule. The foundational case, Boreali v Axelrod, is nearly on all fours with this case. Health departments, pursuant only to sweeping language giving them authority over public health, cannot in New York State limit trade in legal markets over which the legislature has given them no explicit authority. If the City is to win its promised appeal, it is going to need to argue that Boreali should be overruled or limited.
The problem with that is that Boreali is right. Nondelegation is an important constitutional principle and should not be sidelined out of existence. ... I think it’s not just reasonable, but better politics, better civics, and better constitutional law to require those shoves [i.e., paternalistic "nudges"] to come from a legislative, rather than an executive and bureaucratic, process.
Saiger's commentary is all the more pertinent because he's anything but a fan of the decision's craftsmanship. Unlike Judge Tingling, he doesn't think the ban was arbitrary or capricious; he doesn't believe the city's charter should be read to limit the Health Department's decree powers to those responding to imminent or emergency health threats; and he's not averse in principle, he says, to what the Mayor was trying to do.
So what does Bazelon think about Boreali v. Axelrod? Does she think it should be overruled or can somehow be distinguished from the beverages case? It's hard to tell, because her article never mentions Boreali at all, though Judge Tingling had laid it out at great length as the precedent on which he was basing his decision.
Judges shouldn't -- and Judge Tingling didn't -- breeze right by the relevant case law in the course of reaching a foreordained conclusion. If only all legal commentators were as careful.