The travel ban case is headed to the Supreme Court by way of the once redoubtable Fourth and always activist Ninth Circuits, leaving revisionists to wonder how it might have unfolded had it made its way upward through Judge William H. Pryor’s Eleventh. Pryor’s view of the judicial role exhibits appropriate assertiveness within its sphere and a fitting humility beyond it.
The signaling model of education is pretty well known these days. Starting with Nobel-prize winning economist Michael Spence’s article on “Job Market Signaling” in the early 1970s, the extreme version of the model articulates a reason schooling would exist even if it did not increase human capital in the least. The canonical story goes something like this: There are two types of workers, high quality and low quality. Employers want to hire high-quality workers, and would be willing to pay them more. But they can’t tell high-quality workers apart from low-quality workers. If a potential employer were to ask applicants…
Judicial activism always undermines the rule of law. Rarely, however, does it also endanger national security. Yet the federal judges who have blocked President Trump’s executive orders on immigration have done just that.
The lawlessness of the courts in question has been exposed by a group of five dissenting judges on the Ninth Circuit Court of Appeals. As these judges so ably observe, the federal district courts that ruled against the President’s policy simply ignored binding precedents—of both the Ninth Circuit and the Supreme Court—recognizing the legal authority of the President to act as he did. Moreover, these judges achieved their aim by deploying an utterly novel application of the First Amendment, holding that an executive order that does not even mention religion somehow violates the Establishment Clause.
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.
Texas Supreme Court
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).