September 11, 2018-
Filling a judicial seat these days, particularly on the Supreme Court, precipitates ominous forecasts about the transformation of American life for a generation or more. How is it that a single appointment has become so consequential? One reason is that courts insert themselves into social and political issues that ought to be resolved by the political process. A century ago, Supreme Court Justice Louis Brandeis said that “the most important thing we do is . . . not doing.” Whether or not it had in mind Brandeis’ notion of judicial restraint, a state high court recently took a decidedly hands-off approach to a hotly contested public policy issue.
Noting a “roving, roiling debate over local control of public affairs . . . [f]rom public education to immigration policy to fracking to shopping bags,” the Texas Supreme Court struck down a municipal anti-litter ordinance that would have prohibited merchants from providing “single-use” plastic and paper bags for point-of-sale purchases. As part of its strategic plan to create a trash-free community, to promote city beautification and to reduce the effects of…