Strengthening Constitutional Self-Government

No Left Turns

Still More Judicial Activism

Stuart Taylor, who is an astute and reasonably fair constitutional analyst, accuses the Court of judicial activism in the recent Louisville/Seatte decision. The reigning precedents, he contends, were oversimplified to push the Court closer to the doctrine of a colorblind Constitution than it had ever been before, and the Court has never decided a public school integration case the way it decided this one. But the fair guy also shows how unprincipled Kennedy’s allegedly moderate alternative opinion is, and so how useless it would be as a guide for deciding future cases. And he gives plenty of evidence of just how bad--needlessly complicated and intrusive, blatantly racist, and basically ineffective by any measure--the sturck-down policies were. It’s true enough that the Court has approved and even imposed racial balancing plans in the past. But the most recent decisions have made it clear that any use of race in the law must be shown to have been "narrowly tailored" to pursue some "compelling state interest," and clearly this was not done in this case. Contrary to Stuart’s suggestion, that doctrine, although it had not yet been applied to primary and secondary public education, was clearly the relevant one--the controlling precedent--for deciding this case. It would have been "judicial activism" not to have applied it, or to have reached back to decisions made before that doctrine was developed. So the fair guy might have a point about some dicta here and there, but the actual decision by the Court was not activism in the pernicious sense he means. It’s true enough that the Court has become less permissive on racially based remedies over the last couple of decades, and that evolution has been controversial and somewhat inconsistent. So the Court has failed to avoid the appearance of activism in some cases, as well as the appearance of distorting the facts in abdication of its responsibility (GRUTTER) in others. The only exit strategy the Court might seem to have from such acrimonious 5-4 (or 4-1-4) results is to go the colorblind Constitution route. But someone might say it would be judicial activism to hamstring legislatures so completely with a doctrine that has only been affirmed in dissents up until now. A 5-4 colorblind Constitution ruling would not have a settling effect on our country. On the other hand, nobody has really suggested a doctrine that would allow the use of race in some cases--certainly Stuart doesn’t--that would have the settling effect of being a stable foundation of predictable decisions that would make sense to most of the country.

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