Anchor Rising: All in the Judiciary's Hands

July 4, 2011

All in the Judiciary's Hands

Justin Katz

The precedent that this ruling out of Michigan, related to a constitutionally created ban on affirmative action, sets is astonishing:

The 2-1 decision upends a sweeping law that forced the University of Michigan and other public schools to change admission policies. The 6th U.S. Circuit Court of Appeals said the law, approved by voters in 2006, violates the 14th Amendment's Equal Protection Clause.
The court mostly was concerned about how the affirmative action ban was created. Because it was passed as an amendment to the state constitution, it can only be changed with another statewide vote. This places a big burden on minorities who object to it, judges R. Guy Cole Jr. and Martha Craig Daughtrey said.

It sounds as if "equal protection" is being expanded to mean that minorities must have as much chance of changing a law as majorities. That remains the case, of course, inasmuch as minorities need only convince a majority to side with them, but this is something more targeted — like an affirmative action for democracy.

And if the ruling stands, think of the role that the judiciary will then play in our system. If the people's representatives pass a law that a judicial elite doesn't like, judges will strike it down as unconstitutional. If the people write it into the constitution, judges will strike it down as too difficult to change by democratic or judicial means.

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"Because it was passed as an amendment to the state constitution, it can only be changed with another statewide vote. This places a big burden on minorities who object to it, judges R. Guy Cole Jr. and Martha Craig Daughtrey said."

What??? Since when is ease of modification a factor in the legitimacy of a law?

"If the people's representatives pass a law that a judicial elite doesn't like, judges will strike it down as unconstitutional. If the people write it into the constitution, judges will strike it down as too difficult to change by democratic or judicial means."

Yes! Ridiculous.

Posted by: Monique at July 4, 2011 7:34 AM

I almost always give judges the benefit of the doubt, but this is the very definition of progressive judicial activism. How can a law banning consideration of race be unduly burdensome to minorities? It makes no logical sense. The law is directly in the spirit of the 14th Amendment - treating people according to who they are instead of the backwards progressive focus on what they are. The decision is really just a broadside attack on the amendment initiative process itself. Progressives want as little voter control as possible so that the elite can dictate to them what is best without interference.

Posted by: Dan at July 4, 2011 9:44 AM

What happened to the judiciary simply ruling by the laws they're given?

After this, I have no idea how anyone, short of the federal government, can really create their own legislation, if the judiciary can just kill anything it wants.

Posted by: Patrick at July 4, 2011 10:26 AM

"War is peace. Freedom is slavery. Ignorance is strength."

--George Orwell

Posted by: brassband at July 4, 2011 1:12 PM