The concept of written legal rules—of the law itself—assumes that their content is fixed and ascertainable. The rule of law likewise depends on citizens having advance notice of what they can and cannot do, pursuant to clear, knowable directives. Legal scholars expend enormous energy pontificating about the appropriate techniques judges should apply in the course of constitutional interpretation: textualism, originalism, and so forth. Libertarian theorists argue strenuously that judges must be given greater authority—through “judicial engagement”—over the political branches. Each day, lawyers across the country trot off to court, briefs in hand, hoping to convince a black-robed judge–enthroned behind a raised, magisterial bench—that the relevant legal rules, properly construed, compel a ruling in favor of their client.
Eight months after Hurricane Harvey made landfall, many Texas families still face a long road home. Only 33 percent of home insurance claims have been paid and a staggering 51 percent have been closed with no payment.
In mid-April, a 4-year-old boy was summoned to jury duty in Pennsylvania but was unable to go because “he has preschool that day.” The situation was a light-hearted reminder that 1) errors do happen and 2) some potential jurors do have legitimate reasons they can’t serve. On the whole, however, jury service is a critical component of our justice system and depends on everyday citizens—those us well beyond our preschool years—showing up and to do our duty.
A Supreme Court decision on immigration that was not expected to be controversial instead attracted wide attention upon its release last week. The reason: Justice Neil Gorsuch, the much-heralded successor to the legendary Antonin Scalia, joined with the High Court’s four liberals to overturn an immigration statute on the grounds that it was “void for vagueness,” over the strenuous dissent of the court’s conservative bloc: Justices Clarence Thomas, Samuel Alito, and Anthony Kennedy, and Chief Justice John Roberts.
A Triumph of Textual Analysis: The Texas Supreme Court Tackles the Issue of “Same-Sex” Sexual Harassment
Texas’s employment discrimination statute (the Texas Commission on Human Rights Act, codified in the Texas Labor Code at section 21.001 et seq.), like its federal counterpart (Title VII of the Civil Rights Act of 1964, 42 U.S.C. section 2000e et seq.), prohibits discrimination on the basis of enumerated characteristics, including “sex.” Accordingly, an employer is forbidden to treat an applicant or employee differently because of that person’s sex. Without a sex-based nexus, the employer’s conduct may be rude, unfair, obnoxious, boorish, or insensitive, but will not constitute illegal sex discrimination.
The principle of subsidiarity—the belief that decision-making should occur at the lowest level appropriate to its purpose—is a staple of conservative thought. In fact, it is sometimes asserted that subsidiarity “is a bulwark of limited government and personal freedom.” In general, local control is usually preferable to a decision-making process based on larger political units, in which the responsible officials are far-removed from the affected population. Local government officials are typically more responsive to individual citizens than are federal officials; local decision-making enables regional preferences and variations in lieu of stultifying uniformity; and voters can more easily replace an unresponsive local elected official than his state or federal counterparts.
Rarely do challengers of landmark legislation get a second bite at the apple in constitutional litigation. Thanks to some enterprising state attorneys general, however, champions of limited government may have another chance to overturn the signature overreach of the Obama Administration. Six years after Obamacare was initially upheld, opponents of the law (technically “The Patient Protection and Affordable Care Act,” or “ACA”) are preparing a second test case, based—ironically enough—on the implausible rationale of the initial ruling.
My law school years (1977-80) at the University of Texas were, in hindsight, close to idyllic. I loved my first-year professors, tuition at UT was dirt cheap, Austin was a wonderful place to live, and I reveled in the “college town” ambience, which was new to me. (Prior to arriving at UT, I had never attended a college football game. During my first year—when the Longhorns went undefeated in the regular season and Earl Campbell won the Heisman Trophy–I had season tickets on the 50-yard line at UT’s gigantic Memorial Stadium, for a pittance that even a broke law student could afford.) The post-game victory spectacle—honking horns on the Drag and the Tower lit up in orange—formed indelible memories.
When I received the March-April issue of Alcalde in the mail recently, I had to scratch my head and wonder how Texas Exes felt that it was serving the interests of its members. I have two complaints. First, the article “Lives on Hold,” by associate editor Danielle Lopez, is a sympathetic profile of three illegal aliens (or “Longhorn Dreamers,” in SJW parlance) who fill coveted seats at UT—displacing Texas residents who are U.S. citizens—and, due to the generosity of Texas taxpayers, pay heavily-subsidized in-state tuition. Despite these benefits, along with perks such as spending a semester studying in Washington, D.C., internships, cushy part-time jobs at city hall, and participation in the UTeach program, the subjects of the profile exhibit little gratitude, but instead display a raging sense of entitlement: engaging in noisy protests, agitating through slick, well-funded activist groups (Jolt, ULI), and stridently demanding amnesty and citizenship.
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.
February 13th was the 2nd anniversary of Justice Antonin Scalia’s death. Few can doubt the lasting impact the judge had on the judiciary and the country. His death left a choice for the American electorate they seldom have—the choice of a justice nominated by the departing President Barack Obama with the promise of candidate Donald Trump to nominate justices like Scalia. In perhaps their greatest tribute to the judge, the country chose as President the man who promised judges like Scalia who recognize “…the need for a democratic society not to expect the Constitution to make all its important decisions.”
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.”