A Libertarian on the Bench

In January 2016 Arizona Gov. Doug Ducey (R) appointed the veteran libertarian lawyer and legal theorist Clint Bolick to a seat on the Arizona Supreme Court. A few days before Bolick was officially sworn in, I asked him how he planned to approach his new job. “The role of a justice is to give effect to every single word in the Constitution,” he told me. “I believe that the written Constitution reflects the social contract that people have made with each other and with their government. And just as with any contract, a judge’s role is to enforce that contract vigorously.”

In the recent case of Arizona v. Maestas, Justice Bolick had the opportunity to practice the judicial vigor that he preached.

At issue was the 2014 arrest of an Arizona State University student named Andre Lee Juwaun Maestas. Under the terms of the Arizona Medical Marijuana Act (AMMA), a voter initiative passed in 2010, Maestas was a valid medical marijuana cardholder. That meant that he was legally allowed to possess 2.5 ounces of “usable marijuana.” Yet Maestas was arrested after university police found 0.014 ounces of marijuana in his dorm room.

Why did the police arrest a valid AMMA cardholder for this seeming non-offense? They arrested him because in 2012 the state legislature amended the AMMA to forbid all medical marijuana use and possession on state college and university campuses.

Now here is where the judiciary comes in. Per the Arizona Constitution, the state legislature may only amend a voter initiative if “the amending legislation furthers the purposes of such measure.” The question before the Arizona Supreme Court in the Maestas case was whether the 2012 criminalization law was at odds with that provision from the state Constitution.

The Arizona Supreme Court held that it was. “Criminalizing AMMA-compliant marijuana possession or use on public college or university campuses plainly does not further the AMMA’s primary purpose,” the Arizona Supreme Court ruled in Arizona v. Maestas. “We hold [the 2012 law] unconstitutional as applied to the student/cardholder in this case.”

Justice Bolick joined that opinion in full. He also wrote separately in concurrence in order to address a larger legal issue raised by the dispute: Namely, just how much deference does the judiciary owe to the legislature in a case like this?

According to the state of Arizona, the judiciary owed total deference to the lawmakers here. In the state’s view, the legislature alone enjoys the power to establish and maintain “a general and uniform public school system.” Criminalizing marijuana use on public campuses, the state insisted, should be immune from judicial review because it is a non-justiciable “political question.”

Also known as the “political question doctrine,” this particular argument for judicial abstinence has its origins in U.S. Supreme Court caselaw. In Baker v. Carr (1962), for example, SCOTUS said that the courts should generally stay out of those cases that involve “a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it.”

In his Maestas concurrence, Justice Bolick basically delivered a massive judicial benchslap against the political question doctrine. To avoid hearing or deciding a case because of “a lack of judicially discoverable and manageable standards for resolving it,” Bolick declared, “implies that the matter is not constitutionally entrusted to another branch, but that for prudential reasons we should not decide it anyway, leading to the inevitable consequence that another branch of government will decide the constitutional limits of its own power.”

In Bolick’s view, the courts should have no part of any doctrine that commands that sort of result. “When the judiciary fails to interpret and enforce constitutional rights and limits,” he wrote, “it shrinks from its central duty and drains the Constitution of its intended meaning.” In an appropriate future case, Bolick concluded, “I would reexamine the prudential requirement of our political question doctrine to determine whether it comports with our constitutional design.”

It’s the same thing that Bolick told me two years ago. The proper role of a judge does not involve dodging so-called political questions—it involves vigorously enforcing constitutional limits when the political branches step out of line.