By Timothy Sandefur

When you go to court, about the last thing you expect is that the judge will be participating in the case as a partisan for the other side. It’s supposed to be the judge’s job to act as an impartial arbiter, presiding over the case and issuing a ruling after considering the evidence. That’s probably the very definition of “due process of law.”

Unfortunately, the reality is very different when the case involves entrepreneurs or property owners seeking to defend their rights against unjust restrictions. While courts are more protective in cases involving free speech or freedom of religion or other so-called “fundamental” rights, courts considering economic liberty or private property rights use the lenient “rational basis” test to decide whether a law is constitutional. Under that test, the burden of proof isn’t on the government that took away the person’s freedom, but on the person whose freedom was taken away. That person must then “negative every conceivable basis which might support” the challenged law. (The Court has moderated this extreme language in more recent cases, but some judges still embrace it.)

Now, the justices are being asked to consider the question of whether the rational basis test really allows judges to simply make things up. That’s not a flippant way of putting it—it’s literally what’s at stake. If the rational basis test asks whether it’s “conceivable” that a challenged law is constitutional, then judges can invent their own rationalizations to uphold a law when a plaintiff argues that it violates her rights. This why the Cato Institute’s Clark Neily calls the rational basis test the “rationalize-a-basis” test.

In fact, if courts can come up with their own reasons for ruling against plaintiffs in such cases, people whose freedom has been taken away will be required to prove a negative—that there’s no imaginable way that taking away their freedom could ever be justified. Strictly speaking, that’s logically impossible, as demonstrated by this exchange, which actually took place in a federal court of appeals about 10 years ago:

Judge: Can I get at your definition of “conceivable?” To take an outer-boundary sort of example….

Justice Department Attorney: Sure.

Judge: … not related to this case. Is it conceivable that space aliens are visiting this planet in invisible and undetectable craft?

Attorney: Is it conceivable?

Judge: That’s my question.

Attorney: Yes, it’s conceivable.

Judge: And that would be a basis for sustaining Congressional legislation, if … the person sponsoring the bill said, “Space aliens are visiting us in invisible and undetectable craft, and that’s the basis for my legislation,” we can’t touch it?

Attorney: If Congress made a finding of that sort?

Judge: That’s my question.

Attorney: Your Honor, I think if Congress made a finding of that sort, I think, Your Honor, it would not be appropriate for this Court to second guess that.

Judge: Okay, in other words, “conceivable” is “any piece of nonsense is enough.”

Attorney: Your Honor, I don’t think….  It is largely unbounded. It is not completely unbounded. There are the outlying—

Judge: How can you say it’s not completely unbounded when you agreed with my absolutely preposterous example of what’s conceivable?

You’ve heard of uphill battles, but that’s positively Sisyphean.

It gets worse, if you can believe it. Some precedents say courts can manufacture a rationalization for a challenged law, not after you introduce your evidence, but before—at the motion-to-dismiss stage, when the question is whether you should be allowed your day in court at all. Some courts have said that if the judge can manufacture her own (purely hypothetical) justification for the challenged law, the case can be thrown out before you’re even allowed to gather evidence to find out whether that justification has any foundation in reality. In a 2012 case called Hettinga, for instance, an Arizona dairy farmer argued that Congress passed a law restricting milk sales specifically to punish him (which, in fact, was the case). But the court threw out his lawsuit without letting him introduce evidence, because government lawyers “articulated a rational basis for the law.”

In other words, the government said its law was constitutional—and that was the end of the matter.

In 1934—the year the Supreme Court invented the rational basis test—the justices explained that it “is a presumption of fact…. As such it is a rebuttable presumption. It is not a conclusive presumption, or a rule of law which makes legislative action invulnerable to constitutional assault. Nor is such an immunity achieved by treating any fanciful conjecture as enough to repel attack.” But over the years, that’s what it’s become—at least in these rationalize-a-basis cases.

We’ve filed a brief urging the U.S. Supreme Court to take up this question in a case involving a Missouri law making it illegal to braid hair for a living without government permission—and requiring extensive training and education before people can get that permission. You can learn more about the case here and here. As we point out in the brief, today’s rationalize-a-basis law isn’t just unfair and confusing, it also violates the basic principle of due process of law: that in a lawsuit, the actual facts matter, and the judge should base her decision on what’s really going on—not on an imaginary justification concocted afterwards in an effort to find a way to rule against a person whose rights have been violated.

You can learn more about this issue here.

Timothy Sandefur is the vice president for litigation at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.