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Brown dismantled state-enforced segregation with the expectation that doing so would lead to integrated schools. The whole thrust of Brown was that segregation was actually harmful to students, not that the use of race itself was always and everywhere to be rejected. In addition, the idea that legislatures would take voluntary efforts to integrate schools would have seemed far-fetched at the time of Brown.

The related idea that the justices who voted in Brown, or the lawyers who argued against segregation, would have had objections to voluntary efforts to integrate seems equally implausible. Just how implausible is demonstrated in Swann v. Charlotte-Mecklenburg , the second precedent rejected by Roberts and Scalia. In that case, the court approved the use of busing to desegregate schools under court order. Writing for a unanimous court, Chief Justice Warren Burger explained that the case involved the limits of judicial authority, and he sought to distinguish the scope of judicial authority from the authority of school officials.

2. The specific features of constitutional interpretation

In a telling passage, he wrote:. School authorities are traditionally charged with broad power to formulate and implement educational policy, and might well conclude, for example, that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.

Roberts did not have a convincing explanation as to why the court would have made this plain statement in a unanimous opinion if it were not obvious to the court in that this was the proper understanding of Brown. It remains a puzzle why Scalia was willing to abandon originalism in some cases but not in others, even when, as in the flag-burning case, the originalist approach led to outcomes that he almost certainly disfavored personally. At the very least, these three politically charged education cases complicate the picture of a jurist best known for a methodology—originalism—that was strikingly absent in these contexts.

Peterson and Michael W. McConnell, Palgrave Macmillan, Shep Melnick. User Agreement Privacy Policy. Education Next Education Next is a journal of opinion and research about education policy. Choosing Judicial Activism Over Originalism. Print PDF. Voluntary Integration One sees a similar approach in Parents Involved, which presented the question of whether K—12 schools could take voluntary steps toward integration, that is, whether and when schools could consider race in student assignments. In a telling passage, he wrote: School authorities are traditionally charged with broad power to formulate and implement educational policy, and might well conclude, for example, that, in order to prepare students to live in a pluralistic society, each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole.

Sponsored Results. Sponsored by. I also want to receive the Education Next daily email alert. Website: Use All Five. The opinion was a stroke of judicial activism that, through its infamous footnote 4, created an artificial dichotomy of rights under the Constitution.

Some rights, notably free speech, were elevated to a preferred tier and now rightly receive vigorous constitutional protection. Rights demoted to the second tier—specifically economic liberty and property rights—wrongly receive far less constitutional protection. While property rights have received a somewhat greater degree of protection from the Supreme Court during the past 20 years, they remain under siege from government through eminent domain, zoning and environmental regulations.

When the legislative or executive branch exceeds its legitimate enumerated powers, the courts have the authority, indeed the duty, to declare that exercise of power unconstitutional. Liberals, however, tend to reject the notion that the courts have any role in seriously protecting economic liberty or property rights.

This is remarkable in light of the fact that many liberals strongly advocate court protection for various rights—such as welfare—whose constitutional pedigree is far more questionable than rights to private property and economic liberty. During recent decades, liberal judges, often urged on by public interest groups, have issued many opinions expanding the realm of economic and property regulation, thereby strengthening the welfare state.

Having achieved this judicially sanctioned welfare state, liberals are strong supporters of letting the political process operate unimpeded by court oversight. Conservatives, who can be supportive of property rights and economic liberty on policy grounds, are nevertheless reluctant to have courts rein in legislatures. Reacting to the perceived excesses of the Warren Court, Roe v. Wade, and the ability of liberal public interest groups to advance their agendas through the courts, many conservatives have come to view the judiciary with suspicion, at times bordering on outright animosity.

Increasingly, their touchstone is judicial restraint requiring deference to legislatures. This deference, coupled with an allegiance to precedent, means that conservatives are rarely willing to overrule precedent, leaving entrenched the very foundations of the welfare state they rail against. Both liberals and conservatives take comfort in their belief that legislatures will respond to the will of the public and make informed policy decisions that can be changed as public sentiment dictates. Though appealing in principle, this trust in the democratic process ignores the realities of governmental institutions.

Through gerrymandering and other means, elected representatives are increasingly insulated from their constituents. Meanwhile, many policies are set and enforced by unelected, unaccountable agencies, boards and commissions. The modern demand that widespread understandings and practices be explained by and rationalized into abstract principles is, then, in direct conflict with some of Burke's views about the sources and nature of political wisdom. To the question that in recent times seems so unanswerable — why should a justice be restrained in the face of personal conviction?

Principled Judicial Restraint

There are, however, other aspects to Burke's thought. Much in his life and writings acknowledges that intellect, if exercised respectfully, can improve social practices. While he objected to the inflexible application of principle in politics, he knew that the "confused jumble" of particulars must be organized into principles. Moreover, as is well known, his political life as a Whig provides a long record of reformist proposals that he no doubt thought were based on principles that made sense of existing British traditions.

Clearly, for Burke reform contrived by intellect could be valuable, at least if it begins with an accurate and respectful consideration of the past. The question of how often and how far existing practices should be changed is, given Burke's understanding of the nature of wisdom in politics, a question of context and degree.

Even ruptures from very widespread and prolonged traditional understandings, such as those about the nature of marriage, are not necessarily ruled out.

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They are not ruled out, that is, as conservative reforms initiated by inventive, respectful minds somewhere in a political system. They might, nevertheless, be ruled out as reforms initiated by a court rather than by, say, a parliament or a religious institution. But aspects of Burke's thought at least indirectly suggest that judicially imposed reforms are compatible with his political philosophy. In fact, some of Burke's ideas about government structure have resonance with arguments made by progressive apologists for the role of the modern Supreme Court. Legal theorists have long argued that the Court's expansive definition of individual rights is a necessary protection against majoritarian excesses.

Education Next is a journal of opinion and research about education policy.

The American system, it is often observed, is not a pure majoritarian system, and the Court acts to check abuses against minority interests and rights. The excesses that arise from popular pressures within state and local governments are seen as especially dangerous because they often constitute a defiant and centrifugal force. The authority of the Court when enforcing the fundamental law represents the highest authority of the nation and must be asserted to prevent chaotic unraveling.

Important legal scholars have described the justices as intellectual aristocrats who have the training and opportunity to inject a higher level of erudition and judgment into the public arena. All of these arguments track aspects of Burke's thought — his distrust of democracy, his support for royal authority, his concern about excessive decentralization, his belief in checks and balances, and the special role he saw for a natural aristocracy.


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Aspects of Burke's thinking, then, suggest that the American constitutional scheme, rather than a product of ubiquitous Enlightenment rationalism, is a deeply conservative system. And what has been decried as judicial activism by many conservatives would also have to be regarded as an implementation of conservative political philosophy. This surprising and somewhat perverse conclusion, however, omits the aspect of the British political heritage that relates most directly to the issue of judicial power. Part of the political heritage Burke cherished was the common law. What does that legal tradition tell us about the modern judicial practice of imposing reform by way of reasoned judgment about tradition and practice?

One view of the common law is that it was a rigid and obscure intellectual system that at bottom rested on an irrational attachment to political traditions and the past. Thus, the prominent legal scholar David Strauss asserts, "Historically, the common law tradition has been burdened with a degree of mysticism and also, at times, with excessive conservatism. Strauss acknowledges the force in Burke's argument that consulting the experiences and judgments implicit in traditions is a valuable way to expand understanding.

He concludes reassuringly, however, that "rational traditionalism" is possible. This enlightened version of traditionalism respects the past "but also specifies the circumstances in which traditions must be rejected because they are unjust or obsolete.

No, Chief Justice Roberts' Judicial Restraint Isn't Admirable

This conundrum may be more of a difficulty for the contemporary mind than it was for Burke. There is serious reason to doubt that the British common law conceived of the judicial role as imposing progressive change. It is true that common-law judges believed they had a role to play in revising past mistakes, but the mistakes at issue were mainly errors in prior cases.

In fact, as Blackstone makes clear, the rationale for revising precedent was that the prior ruling had not been an accurate reflection of "the established custom of the realm. In Burke's time, when courts misread custom or if they were true to custom but custom needed to evolve, judicial rulings could be changed by Parliament.

That institution was a focal point for the many intersecting opinions and pressures arising from the complex social interactions that Burke thought enriched and checked one another. As already indicated, there are several important aspects to Burke's thinking, aside from his willingness to see custom reformed, that support the conclusion that he could not or should not have been committed to a common-law model that involves, to use Strauss's words, "excessive conservatism.

That explanation emerged later in the thought of another British conservative, Michael Oakeshott. Oakeshott claimed that the extraction of a general principle from the specifics of a customary practice is not a reasoned or enlightened way to understand that practice.

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Oakeshott saw that such principles are necessarily abridgements and simplifications. A custom is a "pattern of behavior" and the "coherence" of the custom lies in the pattern itself. Justice Scalia later made much the same point, if less elegantly, when he insisted that implied rights in constitutional law should be defined according to the most specific account of the underlying tradition.