The Confident Court

Jennifer Mason McAward, Notre Dame Law School


Despite longstanding rules regarding judicial deference, the Supreme Court’s decisions in its October 2012 Term show that a majority of the Court is increasingly willing to supplant both the prudential and legal judgments of various institutional actors, including Congress, federal agencies, and state universities. Whatever the motivation for such a shift, this Essay simply suggests that today’s Supreme Court is a confident one. A core group of justices has an increasingly self-assured view of the judiciary’s ability to conduct an independent assessment of both the legal and factual aspects of the cases that come before the Court. This piece discusses several cases from the October 2012 Term that illustrate this shift away from deference: Fisher v. University of Texas, Shelby County v. Holder, Vance v. Ball State University, and University of Texas Southwestern Medical Center. In each case, the Court disregarded calls for judicial deference and instead showed itself poised and willing to actively review federal policy judgments as well as the operational details of state programs. In all, one is left with the impression of a high court that has fully embraced its “ say what the law is.”