Holmes, Sven Erik

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Introduction: The October 1994 Supreme Court Term

University of Tulsa College of Law

Tulsa Law Review Volume 31 Issue 3 Practitioner's Guide to the October 1994 Supreme Court Term Spring 1996 Introduction: The October 1994 Supreme Court Term Sven Erik Holmes Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr  Part of the Law Commons Recommended Citation Sven E. Holmes, Introduction: The October 1994 Supreme Court Term, 31 Tulsa L. J. 421 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol31/iss3/1 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact megan-donald@utulsa.edu. TULSA LAW JOURNALVolume 31 Spring 1996 Number 3INTRODUCTION: TH1E OCTOBER 1994SUPREME COURT TERM*The Honorable Sven Erik HolmestI would like to welcome you here this morning and congratulatethe University of Tulsa on this symposium. I am very excited aboutthe program today, which is a continuation of the important work be-ing done by the University of Tulsa Law School in the area of constitu-tional law.I would like to offer for your consideration a few brief introduc-tory comments about the 1994-1995 term of the United StatesSupreme Court. In my judgment, this was a very important term ofCourt. As this symposium will make clear, this term was remarkablebecause of the significance of the various cases decided. The morenarrow focus of my comments, however, will be on those cases dealingwith federalism and race, which will be addressed in greater detaillater in the conference.In the area of federalism, the Supreme Court has now embarkedon what promises to be a prolonged struggle to define the authorityand role of the national government. The Court decided two signifi-cant cases in this area this term: United States v. Lopez,' which heldthat Congress had limited power under the Commerce Clause to banpossession of firearms near schools, and U.S. Term Limits, Inc. v.Thornton,2 which held that a state acting by initiative petition could* Based on remarks delivered at the Conference, Practitioner's Guide to the October 1994Supreme Court Term, at The University of Tulsa College of Law, November 17, 1995.t United States District Judge for the Northern District of Oklahoma.1. 115 S. Ct. 1624 (1995).2. 115 S. Ct. 1842 (1995).1Holmes: Introduction: The October 1994 Supreme Court TermPublished by TU Law Digital Commons, 1995TULSA LAW JOURNALnot add qualifications to serve in the United States Congress to thoseexpressly set forth in the Constitution. These two opinions, taken to-gether, reflect enormous uncertainty as to the authority of govern-ment and the extent to which that authority is limited by theConstitution.Moreover, the Lopez decision marks the end of an era which be-gan in 1937 with NLRB v. Jones & Laughlin Steel Corp.,3 in which theSupreme Court effectively granted the Congress almost unlimited au-thority under the Commerce Clause. The legacy of Lopez undoubt-edly will be a virtual flood of federal court claims that Congress hasoverstepped its power under the Commerce Clause by enacting cer-tain statutes. In this regard, I would note that I recently received myfirst claim under Lopez in the form of a challenge to the Child Sup-port Recovery Act of 1992,4 which imposes criminal liability for thefailure to pay child support by a non-custodial parent residing in an-other state.In the area of race, I would direct your attention to three casesdecided this term: Adarand Constructors, Inc. v. Pena,5 which sub-jected federal affirmative action programs that draw racial classifica-tions to strict scrutiny; Miller v. Johnson,6 which held that the EqualProtection Clause is violated when race constitutes the dominate rea-son for drawing a legislative district; and Missouri v. Jenkins,7 whichheld that a federal court's school desegregation remedy may not re-quire that a school district create a "magnet school" to attract whitestudents from outside the district, since such an inter-district remedy isinappropriate for an intra-district Constitutional violation.In my judgment, race is the most difficult social issue facingAmerica today. Nevertheless, the Supreme Court appears to be mov-ing toward a judicial declaration that the government lacks the au-thority under the Constitution to deal with race-related problems. InAdarand, Miller, and Jenkins, the Court in effect stated that race-re-lated remedies, imposed by the United States Congress in Adarand,8by a state legislature in Miller,9 and by a federal district court in Jen-kins,"° were all inappropriate.3. 301 U.S. 1 (1937).4. 18 U.S.C. § 228 (Supp. V 1993).5. 115 S. Ct. 2097 (1995).6. 115 S. Ct. 2475 (1995).7. 115 S. Ct. 2038 (1995).8. 115 S. Ct. at 2102-03.9. 115 S. Ct. at 2483-84.10. 115 S. Ct. at 2042-45.[Vol. 31:4212Tulsa Law Review, Vol. 31 [1995], Iss. 3, Art. 1https://digitalcommons.law.utulsa.edu/tlr/vol31/iss3/1INTRODUCTION: THE OCTOBER 1994 TERMThis limitation on the role of government is directly related, inmy view, to the federalism decisions of the Court in Term Limits andLopez. Indeed, the Court arguably may be moving toward the viewthat government is not a legitimate vehicle at all for solving a numberof social and political problems.With this in mind, I ask you to consider two issues during thecourse of today's program: governmental authority under the Consti-tution and judicial restraint.Analytically, the issue of governmental authority involves threequestions: (i) does any governmental entity have the power to imposea solution to the problem at hand, whether the problem is affirmativeaction, legislative districts, school desegregation, or school safety; (ii)if so, which governmental entity has such power; and (iii) what is thescope of that power. These questions permeate both the federalismand race cases. As you consider these questions, I ask you to considera more fundamental question: if government, acting by and throughits elected officials, cannot undertake to solve certain problems, howindeed are such problems to be solved in a democratic society?The issue of judicial restraint is closely linked to the issue of gov-ernmental authority. Since footnote four of United States v. CaroleneProducts Co." in 1938, a principal responsibility of the courts hasbeen to protect "discrete and insular minorities" from the actions ofthe majority.' 2 These actions generally manifested themselvesthrough legislative enactments. Since that time, judicial restraint typi-cally has been defined as permitting the legislature to enact laws with-out interference from the courts - and judicial activism has beendefined as identifying individual rights in the Constitution which oper-ate as a shield against certain legislative action.That formulation is now being turned on its head. In the twofederalism cases and the three race cases, the Supreme Court deter-mined that, in fact, the governmental entities involved did not havethe authority to act. This clearly presents the question - is this an-other form of judicial activism? This form of judicial activism, how-ever, identifies constitutional limits on the government, which has theeffect of prohibiting certain legislative action, rather than identifyingindividual rights, which has the same effect of prohibiting legislativeaction.11. 304 U.S. 144 (1938).12. Id. at 152 n.4.1996]3Holmes: Introduction: The October 1994 Supreme Court TermPublished by TU Law Digital Commons, 1995TULSA LAW JOURNALIn my judgment, our system was founded on the principle that thecourts are responsible for interpreting the law and not making the law.Judicial restraint requires that the courts show great deference to theacts of the legislative branch. Courts which fail to exercise judicialrestraint in effect are substituting the views of the appointed judiciaryfor the views of elected officials.I ask you to consider the proposition that judicial activism is judi-cial activism - whether practiced by conservatives in the name of lim-iting the power of government or practiced by liberals in the name ofexpanding individual rights. In either case, the principles of judicialrestraint are clearly compromised, and to the extent one believes, as Ido, that judicial restraint should be practiced by liberals and conserva-tives alike, this is an unsettling trend in the recent term of theSupreme Court.In conclusion, this is an excellent program today; I want to thankyou again for being here and to congratulate the University of ThlsaLaw School for this important event.[Vol. 31:4214Tulsa Law Review, Vol. 31 [1995], Iss. 3, Art. 1https://digitalcommons.law.utulsa.edu/tlr/vol31/iss3/1

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