A victory for judicial restraint

William Murchison's picture

That Americans, after all these years of tearing their hair out and trying everything in the wide world else, still can’t iron out their racial predicaments tells us numerous things we need to understand.

Here’s one: that the federal courts (not for want of gratuitous application to the job) seem no nearer now than 30 years ago to resolving these tricky and complex questions.

Or haven’t we noted the U.S. Supreme Court’s role in ginning up these discussions this summer? Or the divisions a divided court stirred up in limiting race as a factor in student placement?

The court last week commanded Seattle and metropolitan Louisville to stop promoting racial “diversity” in the classroom by assigning students on the basis of race. Five justices said programs directed at racial balance were unconstitutional; four justices said (in essence) baloney, all Seattle and Louisville have sought to do is promote integration and stand in the way of “retrogression.”

The learned justices made known how agitated they were with each other. “This is a decision that the court and the nation will come to regret,” said Justice Stephen Breyer. Replied Justice Clarence Thomas: “Justice Breyer’s good intentions, which I do not doubt, have the shelf life of Justice Breyer’s tenure.”

From outside the marble temple where our judicial demi-gods tax their brains and test their tempers arises a feeble squeak of a question: Do we really need to go on this way? Do the courts — in other words — have to dot every social “i,” cross every cultural “t,” from school enrollment to abortion policy to the propriety of Nativity scenes?

Of course they don’t. They just do it. That’s the galling, not to mention the self-defeating, part. Modern federal judges tend to believe they sit at the right hand of God the Father Almighty. No wonder they rarely get it right.

Clarification: The times they get it right tend to be the times they modestly acknowledge, by howsoever slim a margin, their own unsuitability as universal, all-purpose arbiters, instructing the elected branches of government what to do.

Of course they don’t put it that way. We get the point anyhow. The justices are cutting the voters, and their elected representatives, a little slack, following the lead of the Founding Fathers, who thought they were setting up three separate, equal and coordinate branches of government.

The Wall Street Journal credits Chief Justice John Roberts during the court’s late term with loosening the saddle on the court’s high horse, persuading just enough colleagues that this question or that one “didn’t (in the Journals’ words) belong before a judge at all.”

A pre-eminent instance of such forbearance is last week’s school assignment decision. Fifty-three years after Brown v. Board of Education broke up officially prescribed school segregation, the court can’t free itself entirely from the notion it has to break up purely coincidental segregation.

In the ‘70s the high court commanded forced busing for racial balance. Their imperial highnesses hadn’t considered that students with a way out of such a mess would take it. Private schools, the suburbs, home schooling — white students headed for the door, toward the better schooling they were sure they would find in schools not run by the courts. School segregation today is more widespread than before Brown. Yet judges keep trying.

Judicial restraint is the name of the doctrine that says they shouldn’t keep trying — that they should avoid undertaking more than they are called on to do as members of a government widely believed to function by checks and balances, and a sense of restraint.

Restraint isn’t, to say the least, a very 21st century notion — have you taken in YouTube lately? Nor does it go down well with unelected, semi-immunized officials like judges: such judges as can’t get over believing they know better than the rest of us put together.

Which they don’t. How educational, how just plain nice, to see them get taken down a peg — by their own kind.


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