Nanny Mayor, Meet the Nanny Judge

How conservative judicial activism took down Bloomberg’s big-soda ban.

A 64-ounce drink is displayed alongside other soft drink cup sizes at a news conference at City Hall in New York, May 31, 2012.

A 64-ounce drink is displayed alongside other soft drink cup sizes at a news conference at City Hall in New York, May 31, 2012.

Photo by Andrew Burton/Reuters

Pick your imperial poison: New York City Mayor Michael Bloomberg‘s order limiting the sale of jumbo-sized, sugar-filled drinks, or New York State Judge Milton A. Tingling’s order allowing sales to continue as usual. The choice is between a meddling executive pushing New Yorkers toward better eating habits, and a cranky judge smacking him down. Reading Tingling’s unconvincing ruling, I think I’ll take the mayor.

There’s a larger lesson here about the perils of conservative judicial activism, activism that we’ll undoubtedly hear a lot more about before the end of this Supreme Court term.

Bloomberg’s rationale for limiting the size of super-sweet drinks is his fight against obesity. When the city’s Department of Health unanimously voted for the measure (8-0, with one abstention), it cited evidence that consuming a lot of high-calorie, sugar-laden drinks was linked to weight gain, diabetes, and heart disease. The order didn’t ban people from buying two smaller drinks to equal the size of one larger one. It was nanny-state nudge rather than a huge kick. And it was incomplete: The Department of Health didn’t have the authority to ban sale of the jumbo drinks in every store, only in “food service establishments,” which don’t include bodegas, convenience stores, and markets. (Those venues come under the purview of the Department of Agriculture and Markets, a state agency not under Bloomberg’s control, and presumably under a lot more pressure from the soda lobby.)

The challengers to the drink ban included typical beverage associations, but also a Korean grocers group and the New York Statewide Coalition of Hispanic Chambers of Commerce, for reasons that surely connect to Nicholas Confessore’s great examination of the donations companies like Coke and Pepsi have made sure to give minority organizations. These groups argued both that the ban went too far, by limiting consumer control over portion size, and not far enough, by leaving out the markets and convenience stores. Judge Tingling bought this. The part of his ruling that has gotten most of the attention so far is where he called the Department of Health order “arbitrary and capricious.” To rule that, the judge had to find the order had no reasonable basis. He wrote exactly three sentences to explain why: The rule would be unevenly enforced, it excluded some drinks with more sugar than the ones it covered (the excluded drinks have a lot of milk, which the city treated as having health benefits), and it has loopholes for refills. Why exactly does that mean the law has no reasonable basis whatsoever? Judge Tingling paid lip service to the principle that courts must defer to elected bodies, which include executive agencies, but really, he is just substituting his judgment for theirs. As Jonathan H. Adler wrote on the Volokh Conspiracy, “Yes, the measure is probably too timid to do much good (as its critics who favor more regulation complain)—but are agencies really bound to do everything about a problem or nothing at all?” The answer is no.

Most of Tingling’s ruling actually addresses a different, though related issue: the scope of the authority of the Department of Health. He goes into much detail about the 200-plus-year history of the city’s charter. The upshot of many pages is this: Early on, the Commissioners of the Health Office, as they were then called, were tasked with preventing “infectious and pestilential diseases.” But their duties expanded over the centuries, and in 1989, the charter gave the Board of Health, as it was renamed, the power “to regulate all health matters in New York City and perform all functions and operations that relate to the health of the city.” The 2012 charter maintains that broad grant of authority. Judge Tingling lays all this out but then weirdly claims that the intent of the legislature, in amending the charter, was to provide “regulations that prevent and protect against communicable, infectious, and pestilent diseases.”

How does that match with the far more expansive language in the charter from 1989 and onward? Judge Tingling says only that major amendments to the charter took place during times of increased disease. And then he ends on this confusing note. “The Board of Health may supervise and regulate the food supply of the City when it affects public health, but the Charter’s history clearly illustrates when such steps may be taken, i.e. when the City is facing eminent [presumably Tingling meant “imminent” here] danger due to disease. That has not been demonstrated herein.” Huh. This looks like a reading of history that leaves out the last three decades, and one that’s at odds with the broad grant of authority as it’s actually written into the charter.

What’s strange about all of this is the role the court is playing here. Conservative judges used to rail against liberal activists for striking down laws passed by the duly elected branches of government. The argument was that judges shouldn’t substitute their own values for the ones expressed by the legislature and the executive. Not without a very good reason, anyway, such as protecting the rights of a disempowered minority. When it comes to other sorts of laws like this one, which need only be justified by some reasonable basis, courts are generally supposed to let the democratic process play out. If the voters don’t like Bloomberg’s limit on sugar-drink sales, they can replace him with a mayor who will repeal it. (And in fact, Christine Quinn, Bloomberg’s own choice for his successor, opposes the order.) It’s true that the sugar-drinks partial ban would have thicker democratic roots if Bloomberg had gone to the city council for passage. But it doesn’t look like the city’s charter required him to do that—again, a matter for the voters to repair, if they don’t like the outcome.

Judge Tingling walked on by all of that in striking down the Department of Health order. And of course he’s not the first conservative judge to find that activism from the bench is awfully appealing when it allows you to sweep away laws you don’t like. Exhibit A is the four-judge dissent in the Supreme Court’s ruling on Obamacare last June. And Exhibit B may turn out to be a majority opinion this term striking down Section 5 of the Voting Rights Act.

That’s another law recently passed by duly elected officials—Congress—by a huge majority. And it’s also another law that may be flawed and incomplete, but hardly looks like it has no reasonable support at all. If you don’t like the Bloomberg approach to regulating high-calorie drinks, or obesity prevention in general, you may not care that it was a judge rather than an elected body of government who stopped the mayor. But remember that next time a judge invalidates a law you do support.