Can courts advance equality?
For the Constitution in 2020 conference on The Future of Equality.
Can courts advance substantive equality? Michael Paris thinks so. His recent book, Framing Equal Opportunity: Law and the Politics of School Finance Reform, challenges the increasingly prevalent view of judicial impotence as exemplified by Gerald Rosenberg’s The Hollow Hope. Paris’s book describes how courts in two states—New Jersey and Kentucky—achieved significant reform of their states’ unjust school finance systems. He concludes that in both states the courts deserve credit for forcing social change, even if that change was slow in coming. In New Jersey and Kentucky, significant monies were shifted to poor school districts in response to judicial decisions.
This focus on state courts is an important corrective to the current progressive skepticism of the U.S. Supreme Court. Consider Michael Klarman’s view that the Court rarely challenges an existing national political consensus or Mark Tushnet’s advice to “take the Constitution away from the courts.” Progressive scholars have examined the Supreme Court and found it lacking, either because it does little more than rein-in political outliers or, more damningly, because its mostly conservative inclinations are only rarely punctuated by fits of progressivism.
State courts (and constitutions) are strangely absent from this narrative and from our taught constitutionalism. This is so despite Justice Brennan’s urging almost thirty-five years ago that progressives look to state constitutions for the vindication of individual rights. Our constitutional theories are weirdly parochial, obsessed as we are by the national Constitution of 1789 and by our current arguments over how to read it. But there are fifty other constitutions in this country. Those constitutions contain more substantive rights and protections than does the national one, and they have been revised more readily, more often, and more recently. Paris describes only two of the twenty-six successful state school finance reform decisions, many of which have been based on state constitutional rights to education.
How judicially-recognized constitutional rights get “translated” into progressive politics is the topic of Paris’s book. He argues that state supreme courts are central actors in the legal mobilization necessary for an equality-forcing politics. Emily Zackin, whose recent dissertation is about the long tradition of positive rights in state constitutions, also argues that constitutional politics in the states is importantly different from constitutional politics at the national level. She argues, like Paris, that state constitutional politics is an extension of normal politics; the fetishization of “higher law” that sometimes manifests itself as constitutional reverence simply does not exist at the state level. State citizens are perfectly willing to amend, override, and otherwise fight about the content of their constitutions. The result has been a robust local constitutionalism that is more attentive to substance and less preoccupied with methodology than is our anemic national discourse.
Richard C. Schragger is Professor of Law at the University of Virginia School of Law. You can reach him by e-mail at schragger at virginia.edu