Recently, news broke that a New York State Court overturned Mayor Michael Bloomberg’s soda ban. Cheers have already been heard from the right, with a few dissenters joining the left and crying foul, charging that the Court’s decision reeks of judicial activism.
Judicial Activism is not usually a charge you hear coming from the left, probably because it represents the height (or depths) of autonomist and relativist thinking that laws can be subject to the whims of anyone who happens to interpret them differently. Regardless, there are several reasons this Court opinion is not activism.
First, Judicial Activism is usually charged to have violated the will of the people. For instance, when a Federal Court overturns a democratically passed referendum, like proposition 8, we may rightly level charges of activism and personal views coming from the bench.
However, in this case, the soda ban was not democratically passed. Mayor Bloomberg proposed the rule verbatim to the city’s Board of Health — a board that incidentally, is made up entirely of appointments by the Mayor. The rule was not passed by the duly elected city council or put to a vote before the people.
The only thing democratic about the measure is that a democratically elected Mayor proposed it. Of course, everyone knows democracy alone is not an effective bulwark against statism. Anyone who doubts that need only remember Hugo Chavez.
A second reason this can hardly be considered judicial activism is that the opinion is quite clearly based on law, and not the whim of the judge. In his opinion, the Justice points out that the Board of Health’s powers are limited, and its mission is to prevent the spread of communicable disease. Under law, the Board is allowed to expand its control only if the city is facing “immanent” danger or an “epidemic.” Curiously enough, the City argued that obesity within the city was an epidemic, with over half of the City’s residents being overweight or obese. The court disregarded the City’s arbitrary definition epidemic, and challenged their statistics, pointing out that studies have found the actual obesity rate to be 23%, and multiple studies showing consumption of sugary drinks declining rapidly.
The Court further noted that arbitrary regulations cannot be upheld. The soda ban applies to, quite obviously, soda. But it neglects to regulate other beverages that have just as much, if not more sugar and sweeteners in them. Furthermore, they are multiple ways to circumvent the ban. While the ban places a cap on the size drink you may purchase, it does not regulate refills. Furthermore, the ban applies only to those in the food servicing industry, meaning restaurants, but it does not apply to convenient stores. So if McDonalds can’t sell you a drink large enough to quench your thirst, you can walk next door to the 7-11 to get one as large as you like.
It isn’t often activists on the left get to cry judicial activism. Unfortunately for them, they won’t get to this time either. Naturally, Mayor Bloomberg announced he will appeal the decision, but for now, it appears his nanny state has suffered a blow rooted firmly in established law.
Brian Miller | George Mason University College of Law | @BrianKenMiller