Bork dabbled with—and rejected—“judicial activism” before founding modern originalism
My previous posts on this topic, I & II, reflected on the reasoning and fallout from the judicial mandating of parity in school funding in the Lone Star State. In this final post on the topic of Edgewood, I will elaborate on the unfortunate legacy of that decision, and speculate about the reasons for its continued vitality as a precedent.
Judicial activism is bad in the abstract because it alters the proper balance of power among the branches of government, diminishes democracy, and abuses the rule of law. In the case of Edgewood, the problems are not just abstract, but concrete. Due to the court’s arrogation of a political role, fiscal priorities have been distorted; more money is spent on K-12 education, at the expense of competing demands for taxpayer funds—public safety, transportation, health care, etc. Because Texas has neither a state income tax nor a state property tax, the Legislature—in order to meet the court’s mandate for increased education spending —was forced to enact unpopular taxes such as the much-maligned business franchise (or “margin”) tax, and to surreptitiously redistribute property tax revenue from “rich” school districts to “poor” ones (under the aptly nicknamed “Robin Hood” law). Public school spending has gone up, but not with a commensurate improvement in academic achievement.
The worst feature of Edgewood is that it has created a powerful new opportunity for rent seeking (urban and rural school districts can now pursue additional funding through the state budget and by litigation), even as it has blurred political responsibility for spending on education—which is now one of the biggest items in the state’s budget. Courts can order spending without the power to levy taxes, and legislators can feign helplessness when the court “makes them” spend more. In effect, the Texas Supreme Court and the Legislature can each point the finger at each other to avoid blame for unpopular outcomes. This is not good government.
So why, in America’s most conservative state, does this continue? There are several explanations. First, Nathan Hecht, now the Chief Justice of the Texas Supreme Court and the longest serving justice on the court (having been elected in 1988), joined in the original Edgewood decision and for unknown reasons has become its combative defender. Other justices may be reluctant to antagonize the Chief by voting to overturn it. Second, unlike some other states, the Texas Supreme Court is somewhat of a revolving door; justices often resign to return to private practice, or (as with Senator John Cornyn and Governor Greg Abbott) to run for other offices, or to assume other government posts (such as former U.S. Attorney General and White House counsel Alberto Gonzales). Some of the dissenters during the Edgewood saga (such as Scott Brister and Craig Enoch) resigned from the court before they could convert a majority of the itinerant justices to their point of view.
Third, as mentioned earlier, justices on the Texas Supreme Court are subject to partisan elections. Texas is a large state (sprawling over 268,820 square miles) with a significant (if declining) rural population. In the rural parts of the state, local school superintendents are influential figures, and public school districts are often the largest employers. Under Edgewood, these rural districts have become the beneficiaries of the parity-in-funding requirement. Accordingly, even Republican justices may be mindful of the potential political fallout of terminating this judge-made entitlement. Fourth, and finally, the unhealthy synergy between judicial and legislative branches (noted above), while not salutary to the taxpayers, may have created a political status quo—similar to the Prisoner’s Dilemma in game theory—that neither branch wants to take responsibility for ending, even if is the right thing to do.
In West Orange-Cove II (2005), then-Attorney General (now Governor) Greg Abbott, aided by a bright young lawyer named Rafael Edward Cruz (now Senator Ted Cruz), argued that Edgewood should be overturned because “[e]ach new case … threatens to drag the courts inescapably into a morass of policymaking where they do not belong and from which they will not be able to extricate themselves, endlessly second-guessing the detailed structures of public education.” They were right. It is time to overrule Edgewood. A quarter century of folly—government by lawsuit—is enough.