In the matter of a few days, the Court refused to defer to Congress (Voting Rights Case), refused to defer to the states (Texas Affirmative Action Case) and refused to defer to an administrative agency (Title VII Case).   These decisions are neither conservative nor federalist.  They are merely judicially active.

And each case was sneaky in the way it avoided deference.

In the Voting Rights case, the Court could not conclude that Congress did not have the authority to respond to racial injustice in voting. The Fifteenth Amendment’s language precluded that option.  Section 2 of the Fifteenth Amendment expressly gives Congress to the power to “enforce” the rule that the vote “shall not be denied or abridged … on account of race.”  The conservative majority could only second-guess how Congress implemented that power, not whether it had it at all.

In the Texas affirmative action case, the Court chose not to overrule recent precedent that racial diversity is a compelling state interest in higher education.  Yes, it could have overruled that recent ruling (from Grutter) but that would have caused Justice Kennedy to make a mockery of his prior decisions upholding the importance of stare decisis –a bedrock constitutional principle. So, instead, the Court questioned how Texas implemented that compelling state interest, creating a seemingly impossible test in which it has to prove a negative – that no race-neutral mechanism could achieve racial diversity.

In the Title VII case, we are talking about enforcement of a statute, not the Constitution.  Congress delegated authority to the EEOC to create the rules about how to attain equal opportunity at the workplace.  The Court could not question the EEOC’s delegated authority. So, instead, the Court chose to micro-manage its substantive rule by replacing its understanding of what it means to be a supervisor with that of the EEOC.

There is only one word that explains this Trifecta – Activism.

Congress, states, and administrative agencies no longer have any presumptive authority.  Rather than hide behind words like the Court “reluctantly” overturns these decisions, the Court should be more clear.

This Court welcomes the use of its power to replace democratically created policies with those of its own.  Let’s just not pretend otherwise.

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