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.”
Leading up to Justice Kennedy’s fateful 5-4 decision, there was plenty of debate on both sides, and the proponents of same-sex marriage emphasized that they just wanted to be treated the same as heterosexual couples. They even coined the deceptively simple slogan, “Marriage Equality.” That was then.
My last post ended with a glancing reference to Joseph Schumpeter, and a teaser for “further thoughts” regarding how a free people, living in the greatest country in human history, came to relinquish their sovereignty to unelected, black-robed solons.
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).
Ironies abound in the long-running affirmative action case of Fisher v. University of Texas at Austin, which has come before the U.S. Supreme Court (again) following its 2013 remand to the U.S. Court of Appeals for the Fifth Circuit for reconsideration.
Abigail Fisher’s cert petition is scheduled for conference later this month. In Fisher I, the Supreme Court decided by a vote of 7 to 1 (Justice Kagan abstaining) that the Fifth Circuit had failed to apply correctly Grutter v. Bollinger (2003), the inscrutable 5 to 4 decision that upheld the University of Michigan’s use of racial preferences in admissions based on Justice O’Connor’s controversial notion that, if necessary, race could be used as a factor to achieve the mix of minority students necessary to realize the perceived “educational benefits” of diversity.