Sen. Ted Cruz (R-TX) used the issue of school choice Wednesday to school Democrats on the constitutional role of the U.S. Supreme Court.
During the Senate Judiciary Committee hearing for Judge Amy Coney Barrett, Cruz observed some Americans watching the proceedings might be tempted to conclude that both Republican and Democrat politicians want judges who will implement their pet policies.
Nevertheless, Cruz asserted, “As easy as that is to assume, I don’t believe that is accurate.”
The senator proceeded to point out what he looks for in a judge, using the example of school choice:
An issue that I am deeply passionate about is school choice. I think school choice is the civil rights issue of the next century. But I also think the right arena to fight for school choice is right here in the United States Senate. The right arena to fight for school choice is in the state legislatures. It is in the politically accountable elected legislatures.
Using the example of school choice, Cruz noted how much easier it would be for a lawmaker to simply use the Supreme Court, and willing activist justices, to set policy:
So, do I want to see a federal court issue an order mandating school choice across the country? It might be simpler if I could just convince five justices to order every jurisdiction in America, you must have school choice. It would be a lot easier than trying to convince 51 or 60 senators, trying to convince the House. We’ve gotten school choice legislation passed through this body that I’ve introduced, but it’s been hard fought. It’d be much easier if five philosopher kings could just mandate it. But, that would not be an appropriate judicial role. And I’m certainly not asking Judge Barrett to issue a ruling. Although I believe that policy is the right policy. It’s not a judge’s role to mandate it.
Cruz continued, however, his Democrat colleagues often have the opposite view:
You look at a case called Zelman v. Simmons-Harris. That was a case that was a challenge to an Ohio school choice program. Ohio school choice program gave scholarships to thousands of low-income children, mostly African American and Hispanic children trapped in failing schools. It gave them hope, it gave them a chance at a decent education, a chance to escape violence, a chance to have a shot at the American dream.
The case, however, the senator said, was “immediately challenged,” and ended up at the Supreme Court, where a five-to-four majority upheld the Ohio school choice program. Cruz remarked on the critical effects of that decision:
Four justices were prepared to strike down that program as unconstitutional. And with it, every other school choice program in America. To rule that the Constitution doesn’t let the elected legislatures decide to give scholarships to kids if they choose to go to a religious institution. As far as I’m concerned, that’s a radical and activist position. Four justices were ready to shut down school choice programs all across the country.
Cruz asserted the case serves as an example “of how one side wants the court to mandate their policy outcomes. The other side does not.”
“I don’t want school choice mandated,” he stated. “I want it to be left to the political process.”