Americans are united in professing respect for the Constitution, but they are deeply divided over what it actually means and how it ought to be interpreted. These disagreements have roiled our public life for decades. Everybody who follows politics knows about the clashes between the liberal proponents of judicial activism and the conservative defenders of judicial deference. These arguments go on and on, with neither side succeeding in persuading the other of the superior merits of its theory. Faced with this ongoing deadlock, we wonder if there is any way to achieve unity on the meaning of the Constitution.
We have seen many examples of an “engaged judiciary” at the state court level, and it isn’t always pretty.
Recently, Justice Stevens gave a speech about Justice Scalia. At the end, Stevens relies upon an argument from historian Joseph Ellis that both Stevens and Ellis believe suggests that Thomas Jefferson was not an originalist. But as Ed Whelan points out, this is a misinterpretation. Jefferson writes: Let us [not] weakly believe that one generation is not as capable as another of taking care of itself, and of ordering its own affairs. Let us, as our sister States have done, avail ourselves of our reason and experience, to correct the crude essays of our first and unexperienced, although wise, virtuous, and…
My previous posts on this topic, I & II, reflected on the reasoning and fallout from the judicial mandating of parity in school funding in the Lone Star State. In this final post on the topic of Edgewood, I will elaborate on the unfortunate legacy of that decision, and speculate about the reasons for its continued vitality as a precedent.
Judicial activism is bad in the abstract because it alters the proper balance of power among the branches of government, diminishes democracy, and abuses the rule of law. In the case of Edgewood, the problems are not just abstract, but concrete.
My first post underscored how state courts became the next stronghold of judicial activism after the Warren Court. This has been particularly true with regard to school funding measures. In Texas, the school funding fiasco was unleashed by judicial creativity in order to get an egalitarian result.
Amid all the controversy surrounding the recent SCOTUS decisions, it is easy to forget that federal courts do not have a monopoly on judicial activism. State courts—and in particular state supreme courts—can and do make bad decisions, often cleverly insulating themselves from further appellate review by resting their decisions on “independent state grounds.”
Those of us who believe in the rule of law and limited government are understandably flummoxed by the conclusion of the Supreme Court’s 2014-15 term: in rapid succession, and generally by narrow margins, the Court “fixed” an internal defect in the ObamaCare statute (King v. Burwell); recognized so-called “disparate impact” claims under the Federal Housing Act (Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.); created a constitutional right to same-sex marriage and struck down contrary state laws (Obergefell v. Hodges); and re-wrote the “elections clause” of Article I, section 4 to allow non-legislative redistricting (Arizona State Legislature v. Arizona Independent Redistricting Commission).
Randy Barnett and Ed Whelan have revived the supremacy debate in the wake of the Chief Justice’s opinions in King and Obergefell, with Barnett arguing most recently that judges should be guided by the “constraint” of the text rather than “deference,” both of which he classifies as forms of restraint. Much commends that notion, and the distinction is analytically useful. But in the course of embracing a particular strain of originalism, it finds itself in tension with the original understanding of the judges’ role. Barnett’s standard for judicial nominees is a “proven record of willingness to be constrained by the original…
So this is really interesting: The Court, according to John McGinnis, doesn’t really deliberate about the law when it comes to high-profile cases. It functions instead as a “cognitive elite”— the aristocratic part of a mixed regime. It’s job, I guess, is to supply wisdom and virtue to counter popular and legislative ignorance and expediency. First off: I don’t know about the virtue part; after all, they were trained to be lawyers and not philosopher-kings. And if what they were doing were “cognitive” in the sense of listening to reason, why do they so often divide 5-4 on the high-profile cases? All reasonable men and women should assent to the truth. when they hear it.
To gauge how carefully they have read Federalist 10, I often ask students on what constitutional institutions Madison relies to solve the problem of majority factions. It’s a trick question, the last refuge of the professor. The answer is none. Madison reaches the end of the essay, proclaiming a “republican remedy for the diseases most incident to republican government,” without mentioning the Constitution, a Bill of Rights or, significantly, the courts.
That has not dissuaded advocates of an assertive judiciary from quoting Madison on the “mischiefs of faction” to support their cause. The most recent is Evan Bernick of the Institute for Justice, who, at the Huffington Post, has taken my post on judicial restraint to pointed task. “Professor: Who Needs Judges?” the headline announces. “Let’s Put Our Constitutional Rights to a Vote.”