School Finance Farce (Part One)

Amid all the controversy surrounding the recent SCOTUS decisions, it is easy to forget that federal courts do not have a monopoly on judicial activism.  State courts—and in particular state supreme courts—can and do make bad decisions, often cleverly insulating themselves from further appellate review by resting their decisions on “independent state grounds.”

If a state’s high court doesn’t rely on an interpretation of federal law or the U.S. Constitution, the U.S. Supreme Court cannot overturn the decision, no matter how erroneous it is.

The late Justice William Brennan, architect of many of the landmark Warren Court precedents (and a notorious activist), advocated—indeed, devised–this strategy in a 1976 speech to the New Jersey Bar Association, which was later published in the Harvard Law Review as the widely-cited article “State Constitutions and the Protection of Individual Rights.” (90 Harv. L. Rev 489 (1977)).   The Warren Court era was winding down, and Brennan was, in effect, “passing the baton” to state courts to keep the activist tradition alive.  Like many of Brennan’s strategies, it was stunningly successful.

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