The recent Supreme Court decision on Michigan’s 2006 Civil Rights Initiative, a ballot measure that enshrined in the state’s constitution a “ban public institutions from discriminating against or giving preferential treatment to groups or individuals based on their race, gender, color, ethnicity, or national origin in public education, public employment, or public contracting,” indicates the direction the Supreme Court is going. Combined with other recent rulings this is an enlightening change from past courts.
The Supreme Court ruled that Michigan’s 2006 ban on Affirmative Action was perfectly legal and reasonable. The majority six Justices (including liberal Stephen Breyer) found it perfectly acceptable for voters to set policy through the initiative process just as administrators do through rules. The two dissenters, Justices Sotomayer and Kagan, argued forcefully the courts had a right and a duty to ensure the rights of the minority are protected. Newsflash, this is what liberals call judicial activism. Unless it is, like here, on an issue they agree with.
This ruling combined with others, such as on the Affordable Care Act, campaign finance and the TX abortion law, show the court is less activist than its predecessors. Consider that the court refused to strike down Obamacare. Indeed, some would argue it went to extraordinary measures to uphold it. On campaign finance, the court overturned prior rulings. But the court did so under the rationale that the federal government cannot minimize political groups speech by limiting contributions. Lastly, on abortion, the court allowed TX’s law to move forward instead of banning it outright. These decisions taken together indicate a court that is far less activist than in the past.
Need some context? Under the Warren Court, Roe vs. Wade was written in 1973. This ruling set in stone when an abortion is okay nationwide and for almost 40 years delayed progress on the issue. Instead of debates being waged on the rightness of the issue, opponents and proponents have had to argue a legal minefield for or against. Likewise, in 2004 in Grutter the court allowed Michigan universities to use Affirmative Action if there was a compelling interest. Hence Michigan’s 2006 vote. Unlike Roe vs. Wade this was allowing a state to pursue its own course on the issue. In the same mold, this court’s decision stays true with the prior ruling.
Judicial activism is often defined by ideological and partisan interests. Conservatives argue the court should have overturned Obamacare but liberals would call that judicial activism. On Michigan’s CRI and TX’s abortion law, liberals argue the court should have overturned both. Yet, conservatives would likely see this as activism. Despite the conservative tint to the court it is showing something refreshing and distinctly non-ideological; restraint.
The court is hesitant to overturn state laws but it is not hesitant to overturn outdated federal laws. In much the same way Roe vs. Wade delayed policy progression on a key issue the Voting Rights Act did the same. The court limited the law’s power based on its outdated Section IV and V coverage standard and has kicked the ball into the court of the states. In this sense the court could be considered a very strong states rights court.
Note the four liberal justices are not on board with this direction. Sotomayer and Kagan in their dissent were particularly vehement about how they “felt” about Michigan banning race based policies. Their feelings trumped states rights but it also showed-cased the strain of thought from prior courts still holds sway among members on the current court; the court has the right and “duty” to set the course of public policy when necessary.
I doubt Roberts and others would disagree that it may be necessary for the court to set policy in certain circumstances. But I bet they would disagree over those circumstances. In Roberts mind the court should be limited. Even MCRI’s ruling was very particular and did not rule on the merits of race based policies as a whole. I struggle to think of a case where Roberts would utilize the court to create policy. I have no such problem seeing the liberal justices doing so.
The Supreme Court’s return to what I believe is its proper role if refreshing. The public through their elected officials and other electoral and non-electoral means should set policy. Courts should not. I am glad the current Supreme Court recognizes it.