Time for a Level Playing Field at the Supreme Court

During Supreme Court Justice Elena Kagan's confirmation hearing in 2010, she described the courts as "level playing fields" where citizens receive "equal justice." That ideal is engraved in marble on the front of the Supreme Court building: "Equal Justice Under Law."

But today, that ideal has no basis in reality. In the vast majority of constitutional cases, the playing field is tilted decisively in favor of one side: The government. This term, the Court should begin bridging the gap between its assigned role as a strictly neutral arbiter and the persistently government-favoring approach it takes to deciding actual cases.

The main reason for the unlevel playing field is the so-called "rational basis test." Invented out of whole cloth by the Supreme Court, the rational basis test applies in all constitutional cases that do not implicate "fundamental" rights, like speech, religion, voting and privacy. The Court has held that, under the rational basis test, the government need not offer any evidence or articulate any reason for its actions to be deemed lawful.

Courts applying the rational basis test routinely accept ridiculous claims by the government and even help the government make its case. The result is not "equal justice" but a bizarre charade.

Take a recent case involving a Louisiana law that requires tour guides in New Orleans to pass a background check, a history exam and a drug screening -- or risk being fined or jailed. The law has nothing to do with protecting consumers, as the city claims, and is simply a means of protecting established tour guides from competition. And yet the Fifth Circuit Court of Appeals rubber-stamped the law as a means of "promot[ing] and protect[ing] visitors."

Or take a case from state court two weeks ago concerning an Alabama law that criminalizes teeth-whitening services offered by non-dentists. Non-dentists can be punished with up to $5,000 in fines or a year in jail per customer for providing a clean, comfortable place to apply harmless, over-the-counter products. The law is an obvious piece of special-interest legislation designed to create a lucrative, minty-fresh monopoly for dentists. But a state trial court judge upheld the law anyway.

Fortunately, there is an alternative to this kind of government-favoring, make-believe judging. It is called "judicial engagement." Judicial engagement is simply a genuine search for the truth concerning the constitutionality of the government's actions, by a neutral judge, on the basis of real evidence.

The U.S. Supreme Court showcased engaged judging last term in Riley v. California, a case involving warrantless smartphone searches. The government argued that it did not need a warrant to perform these searches at the time of an arrest, citing officer safety and the need to preserve evidence. But the Court correctly rejected these self-serving excuses for side-stepping the Fourth Amendment, explaining that there was no evidence that the government's concerns were "based on actual experience."

There is no reason why the Court cannot level the playing field in every case this term. Two cases offer particularly good opportunities for judicial engagement.

On October 14, the Court heard arguments in North Carolina Board of Dental Examiners v. FTC. At issue is whether an occupational licensing board composed mostly of practicing dentists is entitled to immunity from federal antitrust laws when it prohibits teeth-whitening by non-dentists -- not to promote public health, but simply to ensure that practicing dentists dominate the teeth-whitening trade.

And in Rodriguez v. United States, the Court will answer the question whether, after the conclusion of a routine traffic stop, a police officer can hold someone without any lawful justification while the officer fetches a drug dog.

Both cases will require that the Court figure out what the government is really up to, focus on the facts and remain neutral rather than making calls for the home team.

Justice Kagan's vision of the courts as level playing fields is deeply rooted in our nation's history and traditions. It speaks to a basic American expectation of what should happen when we seek to have our constitutional rights vindicated. It is time that the highest court in the nation provides us with judging that matches its rhetoric.