Not that North Carolinians would know anything about state-level judicial activism

While we certainly know of no cases of harmful judicial activism in this state … I’ll pause while you snicker … it might be helpful to consider Steven Malanga‘s City Journal article on the costs associated with activist judges at the state level in other locales.

Writing in the Harvard Law Review in 1977, Supreme Court Justice William Brennan, Jr., exhorted state judges to embrace activist interpretations of the law. The high court had taken a frustratingly conservative turn, Brennan noted, stepping back from the crucial role it had played as an agent of social change under previous chief justice Earl Warren. Among the most important Warren Court decisions, Brennan argued, were those that expanded individual liberties under Section I of the Fourteenth Amendment, which guarantees citizens equal protection under the law and prohibits state governments from depriving “any person of life, liberty, or property, without due process.” Brennan believed that state judges could find in state constitutions and laws “counterparts” of these decisions that would guarantee citizens “even more protections” than those provided by the U.S. Constitution. …

… Brennan’s 1977 essay helped inspire a “positive rights” revolution in state courts. Over the 36 years since Brennan’s appeal, a number of state high courts have aggressively used vague state constitutional language—referring, say, to the general welfare—to force legislators to spend billions of dollars on new entitlements. And more recently, state courts have extended their imaginative jurisprudence to the fiscal battle over government pensions, securing extraordinary retirement protections for state employees at taxpayers’ expense. Liberal legal scholars, meanwhile, want state judges to go still further, and mandate everything from universal health care to a guaranteed annual income for every citizen. …

… State judicial activism has been especially aggressive in compelling taxpayers to spend lots more money on public schools. The U.S. Constitution says nothing about public education, as the Supreme Court recognized in its 1973 Rodriguez v. San Antonio decision, which ruled that education funding was a state, not a federal, matter. The decision seemed to foreclose efforts to use federal courts to strong-arm states to spend more on education, or to modify their formulas for dispensing education dollars to school districts. So litigants began to look to state constitutions, 48 of which mention education in some way, to push their agenda. …

… But the very generality of the constitutional language on education allowed activist judges to anoint themselves as the final arbiters on education adequacy in 17 states where these suits proved successful—at a cost to the public of tens of billions of dollars.