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Thro on Rose v. Council for Better Education

By Lawrence Solum

William E. Thro (Christopher Newport University) has posted Judicial Humility: The Enduring Legacy of Rose v. Council for Better Education (Kentucky Law Journal, Vol. 98, No. 761, 2010) on SSRN. Here is the abstract:

Rose v. Council for Better Education transformed Kentucky education, but its significance extends far beyond the borders of the Commonwealth. First, Rose, together with the decisions from Montana and Texas, launched the third wave of school finance litigation. Second, Rose and the other 1989 decisions validated the adequacy theory of school finance litigation. For the first time, courts invalidated educational finance systems not because the expenditures were unequal (the equity theory), but because some schools lacked the money to meet minimum standards of quality (the adequacy theory). Third, by invalidating the entire educational system, Rose recognized that educational equality depends not on money or racial desegregation, but involves the complex interaction of multiple factors. Both the courts in other States and the academy generally ignore this aspect of Rose, but it represents a profound truth.

While launching the third wave, validating the adequacy theory, and recognizing that educational equality involves more than financial factors are certainly significant, the most significant aspect of Rose is the Court?s embrace of judicial humility. To be sure, this sounds counterintuitive. A case that invalidates an entire educational system is not narrow, but breathtakingly broad. A decision that fundamentally changes an entire area of law does not seem humble, but arrogant. An opinion that prompts the legislature to undertake a comprehensive reform of education and to enact a massive tax hike appears not restrained, but activist. Yet, contrary to conventional wisdom, judicial humility does not mean upholding laws, refusing to embrace new legal theories, or maintaining the status quo.

In addressing constitutional questions, courts must resolve the tension between judicial duty and judicial deference. On the one hand, ?judicial power includes the duty ?to say what the law is.?? On the other hand, judges must not ?frustrate the expressed will of Congress or that of the state legislatures.? Some courts become activist and frustrate the will of the state legislatures, while other courts abdicate their duty to say what the law is. Judicial humility remains faithful to constitutional text, recognizes the limits of judicial competence, and respects other constitutional values. Put another way, judicial humility combines Justice Scalia?s originalism, Chief Justice Robert?s minimalism, and Justice Kennedy?s structuralism.

Except for its embrace of an aspirational rather than substantive quality standard ? a deviation that has no practical significance ? Rose is a judicially humble opinion. The decision remains faithful to the constitutional text, implicitly acknowledges the limits of judicial competence, and respects other constitutional values. Indeed, for those who believe that judges are umpires rather than players in the political process, Rose illustrates the proper balance between judicial activism and judicial abdication.

Full post as published by Legal Theory Blog on August 11, 2010 (boomark / email).