HERNÁNDEZ, Antonio M. A veinticinco años de la Reforma Constitucional de 1994, Editorial de la Universidad Nacional de Córdoba, Córdoba, 2019, 165 páginas

AutorPaulina Chiacchiera Castro
to draw a line between lawful and unlawful conduct, but in our ability to equitably
walk the government back from that line without wholly subverting the authority of
our coequal branches. My colleagues take great issue with plaintiffs’ request for a
“plan” to reduce fossil-fuel emissions. I am not so concerned. At this stage, we need
not promise plaintiffs the moon (or, more apropos, the earth in a habitable state).
For purposes of standing, we need hold only that the trial court could fashion
some sort of meaningful relief should plaintiffs prevail on the merits.44
Nor would any such remedial “plan” necessarily require the courts to muck
around in policymaking to an impermissible degree; the scope and number of po-
licies a court would have to reform to provide relief is irrelevant to the second
Baker factor, which asks only if there are judicially discernable standards to guide
that reformation. Indeed, our history is no stranger to widespread, programmatic
changes in government functions ushered in by the judiciary’s commitment to re-
quiring adherence to the Constitution. Upholding the Constitution’s prohibition
on cruel and unusual punishment, for example, the Court ordered the overhaul of
prisons in the Nation’s most populous state. See Brown v. Plata, 563 U.S. 493, 511
(2011) (“Courts may not allow constitutional violations to continue simply becau-
se a remedy would involve intrusion into the realm of prison administration.”)
And in its finest hour, the Court mandated the racial integration of every public
school—state and federal—in the Nation, vindicating the Constitution’s guarantee
of equal protection under the law.45 See Brown v. Bd. of Educ. (Brown I), 347 U.S. 483
(1954); Bolling v. Sharpe, 347 U.S. 497 (1954). In the school desegregation cases, the
Supreme Court was explicitly unconcerned with the fact that crafting relief would
require individualized review of thousands of state and local policies that facili-
tated segregation. Rather, a unanimous Court held that the judiciary could work
to dissemble segregation over time while remaining cognizant of the many public
interests at stake:
To effectuate [the plaintiffs’] interest[s] may call for elimination of a variety of
obstacles in making the transition to school systems operated in accordance
(44) It is possible, of course, that the district court ultimately concludes that it is unable to
provide meaningful redress based on the facts proved at trial, but trial has not yet occurred. Our
present occasion is to decide only whether plaintiffs have raised a genuine dispute as to the judiciary’s
ability to provide meaningful redress under any subset of the facts at issue today. See Maj. Op. at 18
(citing Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)).
(45) In contrast, we are haunted by the days we declined to curtail the government’s approval
of invidious discrimination in public life, see Plessy v. Ferguson, 163 U.S. 537, 559 (1896) (Harlan, J.,
dissenting). (“[T]he judgment this day rendered will, in time, prove to be quite as pernicious as the
decision made by this tribunal in the Dred Scott Case.”), and neglected to free thousands of innocents
prejudicially interned by their own government without cause, see Trump v. Hawaii, 138 S. Ct. 2392,
2423 (2018) (“Korematsu was gravely wrong the day it was decided[.]”).

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