In his second post, Lawler cites to another definition of judicial activism, this one used by Stuart Taylor. This time around, judicial activism seems to be defined in terms of failing to adhere to precedents (it should be noted that this is clearly seen as a negative, contrary to Lawler’s previous amoral description). Obviously, a judge may be activist if they are ignoring precedents simply to apply their own policy preferences (the case of Ninth Circuit Judge Pregerson, who refused to enforce California’s three-strikes law even after it was upheld by his superiors at the United States Supreme Court because it offends his notions of justice, comes to mind). But every act of failing to adhere to precedent, particularly non-binding precedent, is not activism. Even the most stringent adherents of stare decisis recognize that the Supreme Court has a decreased interest in adhering to erroneous precedent where that precedent involves constitutional interpretation. While courts apply a more rigid form of stare decisis in the statutory context, that is because Congress can remedy any error in interpretation with comparative ease by passing a new statute. By contrast, amending the Constitution to correct a Supreme Court err is exceedingly difficult. (NB: Obviously, Congress or the Executive could challenge an erroneous constitutional interpretation through coordinate branch construction, but given that these branches have functionally acquiesced to the Supreme Court’s assertion that they are the final arbiter on constitutional meaning, I limited my commentary to those options which are most practicable.) While Lawler focuses on the stability of the rule, stability and expectation interests must eventually yield even under stare decisis review if the rule is sufficiently incorrect.
Applying this to the Seattle and Louisville cases, I don’t think it is clear that Supreme Court precedents support non-remedial uses of race in the elementary school context. As Justice Thomas argues persuasively in his concurrence in the Louisville/Seattle case, the Supreme Court has historically permitted race-based decision-making by school officials for extremely limited purposes, the most prominent being remedying the present effects of past de jure discrimination. And so, given that these programs were implemented for racial balancing and not to address past discrimination, the precedent does not support the use of race-based decision-making here. But even if the precedent did suggest that race can be used for balancing alone, it would not be activism for the court to correct this error. Restraint does not require courts to perpetuate sins against the Constitution, particularly where, as here, localities are forming their policy judgments based upon their somewhat erroneous understanding of how courts have ruled in the past.