At the University of Texas School of Law, on March 6, 2018 the student chapter of the Federalist Society sponsored a debate on the impact of race-based affirmative action on Asian-Americans. The speakers were noted UT law professor Sanford Levinson (defending racial and ethnic preferences) and Houston attorney Cory Liu, a volunteer with the organization Students for Fair Admissions, speaking in opposition. The speakers eloquently exchanged their views, before an attentive audience of over 100 persons, for nearly an hour, and then opened the discussion up to questions.
Mark Pulliam News
The Americans With Disabilities Act may be the most widely-abused law in our history, spawning frivolous litigation against employers, retail businesses, and—most recently—spurious claims against websites that allegedly aren’t sufficiently compliant with the ADA. Nationwide, a cottage industry has developed among a bottom-feeding element of the plaintiffs’ bar that specializes in bringing a high volume of cookie-cutter lawsuits against small businesses for technical violations of the ADA, and extorting quick settlements of several thousand dollars each.
The Supreme Court will hear oral argument today [February 26] in one of the term’s most important—and highly publicized—cases, Janus v. American Federation of State, County, and Municipal Employees, Council 31. As many readers are aware, the case involves the constitutionality of “agency shop” arrangements in public sector collective bargaining agreements, which compel non-member employees to make payments in lieu of union dues as a condition of their employment. Agency shop clauses are commonly used in public-sector labor contracts, enabling powerful unions representing teachers and other government employees to collect large sums of money from workers who never consented to such exactions (and who, for that matter, never voted in favor of union representation).
As someone who writes frequently on the topic of judicial activism, I am often asked, “What is the solution?” This is a vital question. Put another way—as I did in a previous essay at American Greatness—“Can Activist Judges Be Controlled?” The short answer is: With great difficulty, yes. But if it’s a quick and easy answer you want, forget it. The current crisis took decades to develop. It won’t be resolved with a sweeping gesture.
This is the second of two posts regarding an ongoing federal court lawsuit against the state of Texas’ foster care system, M.D. v. Abbott, now pending before the Fifth Circuit. State-run foster care systems are frequent targets of “institutional reform litigation.” Most states have been sued in federal court by activist groups alleging deficiencies. The reasons are obvious: foster care is a messy business, fraught with tragic situations and involving the most vulnerable members of society—children. Let us stipulate that child abuse and parental neglect are serious problems, deserving our compassion and attention. Let us also recognize that the problem is complex and defies easy solutions. The disintegration of the family unit is a catastrophe. No matter how much money is spent attempting to repair the damage of broken and dysfunctional families, the results will be imperfect. Critics will always be able to identify flaws, especially in hindsight.
In recent years my law school alma mater has hosted an annual “celebration of diversity” event, which I recently attended out of curiosity. I thought that my law school class of long ago was quite diverse, with students from all over Texas, who had attended a variety of colleges and universities located throughout the country, representing a wide range of backgrounds—socio-economic, age, marital status, political orientation, and otherwise.
This is the first installment of a two-part post on the long-running lawsuit involving Texas’ foster care system, styled M.D. v. Abbott. I begin with an overview of the numerous problems for democratic governance that are created by “institutional reform litigation.”
Mark Pulliam analyzes the baseless and politically-motivated prosecution of Texas Attorney General Ken Paxton, exploring the disturbing collusion between the news media and the special prosecutors.
On November 4, 2014, when the 51-year-old Ken Paxton was triumphantly elected Attorney General of Texas, defeating his Democrat opponent, the euphoniously named Sam Houston, by over 20 percentage points, the conservative movement in the Lone Star State had a new rising star. Paxton’s enemies were worried; the Tea Party favorite, an impressive University of Virginia law school graduate, seemed bound for the Governor’s mansion, a prospect that made the state’s centrist GOP Establishment aghast. Paxton’s political career had been nothing short of meteoric. First elected to public office in 2002 with the support of grass-roots activists and evangelicals, Paxton represented his suburban Dallas district in the Texas House of Representatives for a decade before winning a coveted promotion to the exclusive 31-member Texas Senate in 2012.
This is the second in a series of articles dissecting the prosecution of Texas Attorney General Ken Paxton.
I have been silent about Masterpiece Cakeshop v. Colorado Civil Rights Commission, not because I lack interest in the case, but because it has already generated extensive commentary here and throughout the commentariat. Court watchers, like fortune tellers reading tea leaves, speculate how the justices will line up, with Justice Anthony Kennedy likely casting the swing vote in favor or against the Colorado baker, Jack Phillips, who declined for religious reasons to create a gay wedding cake.
As an alumnus of the University of Texas Law School and the father of a recent UT graduate, I pay close attention to what is going on at my alma mater. Sadly, I have witnessed at UT many of the ailments afflicting higher education generally: rising tuition, declining academic performance, bloated administrative bureaucracy, curricula infected with identity politics, officious “diversity” enforcers who abuse their authority, and a climate of political correctness that overreacts to every passing fad.
Walk around any college campus, and you will see the names of distinguished faculty and generous donors adorning most of the buildings. Likewise, many campuses feature statues, memorials, or plaques dedicated to individuals or events of historical significance to that particular school, or the school’s home state. Such monuments typically seek to connect us with the past by preserving the memory of someone or something of consequence—institutional history.
I have been thinking about Robert Bork recently, prompted in part by the 30th anniversary of his rejection by the Senate on November 23, 1987. Next month will mark the fifth anniversary of his passing on December 19, 2012. Bork was profoundly influential in conservative legal circles when I graduated from law school in 1980 and started paying closer attention to constitutional theory. I was impressed with both Bork’s scholarly writings and his more polemical articles in publications such as National Review. A 1982 essay he wrote in NR, entitled “The Struggle Over the Role of the Court,” reprinted in his 2008 anthology A Time to Speak, remains timely—even prescient. Ramesh Ponnuru has called Bork’s 1990 book, The Tempting of America, written in the wake of his confirmation defeat, “the most important popular statement of judicial conservatism yet produced.”
I recently attended a panel discussion at my alma mater, the University of Texas in Austin. The topic was “Free Speech on College Campuses: Where to Draw the Line?” The event, held during Free Speech Week, was co-sponsored by UT’s Division of Diversity and Community Engagement (DDCE), the Institute for Urban Policy Research and Analysis (IUPRA), and The Opportunity Forum, all funded in whole or in part by the state of Texas. IUPRA’s mission “is to use applied policy research to advocate for the equality of access, opportunity, and choice for African Americans and other populations of color.”
Readers of Law and Liberty may have noticed that I am a fan of Justice Antonin Scalia (for example, here and here). I am also an admirer of Robert H. Bork, whom my colleague John McGinnis has described as “the most important legal scholar on the right in the last 50 years.” Bork was a pioneer in both the field of antitrust law (with his influential 1978 book The Antitrust Paradox) and constitutional law, as the father of what we now call “originalism.” In his seminal 1971 article in the Indiana Law Journal, entitled “Neutral Principles and Some First Amendment Problems,” and in his later best-selling books, The Tempting of America (1990) and Slouching Towards Gomorrah (1996), Bork eviscerated the “noninterpretive” theories of constitutional law that dominated the legal academy in the 1960s and 1970s.
Justice Antonin Scalia definitely had a way with words. Law students pore over his opinions not just for Scalia’s keen analysis but to delight in the verve of his prose—pungent, clear, combative, and always colorful. Scalia aficionados also savor his books and essays, which showcase his forceful rhetoric and deft pen. Alas, the body of Scalia’s judicial decisions and scholarship, although considerable, is finite. Fortunately, Scalia fans now have a treasure trove of new material to savor, in the form of a recently-released compilation of the late Justice’s speeches, entitled Scalia Speaks: Reflections on Law, Faith, and Life Well Lived.
Originalism is a two-way street. Judges wishing to interpret the Constitution in accordance with its original public meaning must not import into their decisions policy proscriptions not actually derived from the text and structure of that document. Just as important is that textualism and originalism require judges to give force to all provisions of the Constitution, and not pick and choose which clauses to enforce.