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.”
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.
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.
Proponents of “living constitutionalism” or other non-originalist theories of constitutional law sometimes argue that our now 230-year-old Constitution wasn’t designed for current social conditions. Prevailing attitudes on a variety of subjects have changed dramatically since 1787, critics of originalism say. Judges must be allowed to augment or update the Constitution to keep it “relevant.”
During the Gilded Age, so-called “captains of industry” such as Andrew Carnegie, John D. Rockefeller, and J.P. Morgan led an industrial revolution that transformed the nation with technological innovation, creating for Americans unparalleled improvements in the average standard of living and amassing great personal fortunes in the process. The spectacular success—and enormous power—of these newly minted tycoons earned them the sobriquet “Robber Baron,” even as their ruthless business tactics, such as Rockefeller’s cartelization of the oil industry through trusts, fostered new laws to regulate anti-competitive business practices, notably the 1890 Sherman Act. These measures are called “antitrust” laws, an often-forgotten tribute to the dynastic Standard Oil Trust, which at its peak controlled the refining of 90 to 95 percent of all oil produced in the United States.
What prompts a man to change his mind on a serious matter after 35 years, and should the reversal be met with pride (for eventually getting it right), or chagrin (for taking so long)? For reasons of vanity, I’m going to take a positive tack and choose the former.
Looking back at the Americans with Disabilities Act, passed by Congress in 1990, one has to be struck by the extent to which the ADA’s lofty sentiments have been overwhelmed by its adverse results. If it’s true that the road to hell is paved with good intentions, then the ADA is a veritable Autobahn of wishful thinking gone awry. Yet no one seems inclined to reroute the ill-fated traffic; some states are even widening the highway with additional lanes.