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.”
If a state’s high court doesn’t rely on an interpretation of federal law or the U.S. Constitution, the U.S. Supreme Court cannot overturn the decision, no matter how erroneous it is.
The late Justice William Brennan, architect of many of the landmark Warren Court precedents (and a notorious activist), advocated—indeed, devised–this strategy in a 1976 speech to the New Jersey Bar Association, which was later published in the Harvard Law Review as the widely-cited article “State Constitutions and the Protection of Individual Rights.” (90 Harv. L. Rev 489 (1977)). The Warren Court era was winding down, and Brennan was, in effect, “passing the baton” to state courts to keep the activist tradition alive. Like many of Brennan’s strategies, it was stunningly successful.
I lamented this phenomenon in a 1999 Wall Street Journal column, entitled “State Courts Take Brennan’s Revenge.” Brennan’s biographers, Seth Stern and Stephen Wermiel, cited my column in their 2010 book Justice Brennan: Liberal Champion, with the comment that “Brennan’s article had helped inspire a wave of liberal activism on state courts.” Quoting my column, Stern and Wermiel continued, “Brennan may have lost his activist majority on the Supreme Court, but he gained 50 junior Warren Courts in the process…. Call it Brennan’s revenge.”
Among the most active areas of state court activism was litigation involving school finance. Even though the U.S. Supreme Court decided in 1973 that the U.S. Constitution did not require equal funding for a state’s school districts (San Antonio Independent School District v. Rodriguez, 411 U.S. 1)—i.e., that education is not a “fundamental right” protected by the equal protection clause of the 14th Amendment—many state supreme courts interpreted their state constitutions to require parity of funding. Since most states’ public schools are funded in whole or in part by locally-assessed property taxes, judicially-mandated “parity” unavoidably requires taxes to be increased. The judicial branch is peculiarly ill-suited to levy taxes (or to manage schools).
Much has been written about school finance litigation in states such as California, Kentucky, New York, and New Jersey (most recently, Steven Malanga’s excellent piece in the Spring 2014 issue of City Journal, “Brennan’s Revenge”). The results everywhere are predictably abysmal; per student spending increases dramatically, with no significant improvement in student achievement (and little opportunity for taxpayer resistance). Malanga failed to cover the Texas experience, which I shall briefly summarize in a series of blog posts. It may seem strange that Texas—the nation’s largest and most influential “Red” state—is still in the thrall of state court judicial activism, but that is sadly the case. (People tend to forget that Texas did not become reliably Republican until the early 1990’s; former Governor Rick Perry was a Democrat until 1989.)
In 1989, at a time when the (elected) Texas Supreme Court was controlled by liberal Democrats, it issued a unanimous decision, entitled Edgewood Independent School District v. Kirby, 777 S.W. 2d 391, authored by Justice Oscar Mauzy, a former State Senator (described by one scholar as “one of the most liberal members of that body”). Mauzy, the son of a union organizer, brought his progressive politics to the court, and interpreted a provision in the state constitution calling for “an efficient system of free public schools” (standard verbiage for state charters written in the nineteenth century) to require that school funding throughout the state’s thousand-plus districts be “substantially equal.” [To be continued]