Bench Memos

Law & the Courts

Judicial Winning: Eric Murphy

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Eric Murphy’s distinguished record of serving the people of Ohio made President Trump’s decision to nominate him for the Sixth Circuit a no-brainer. From 2013 until 2019, Murphy served as Ohio’s Solicitor General, representing the state before the U.S. Supreme Court, the Sixth Circuit, and the Ohio Supreme Court. During his tenure, he fought against government overreach in numerous cases, including a challenge to the Affordable Care Act. Under Murphy’s leadership, the Ohio Solicitor General’s office was awarded multiple “Best Brief” awards from the National Association of Attorneys General.

Since ascending to the federal bench, Judge Murphy has remained committed to preserving the separation of powers and preventing judicial overreach. In Gary B. v. Whitmer, for example, a group of students from Detroit’s worst-performing public schools sued Governor Gretchen Whitmer in federal court. A Sixth Circuit panel found in April that the Constitution guarantees these students a “fundamental right to a basic minimum education, meaning one that can provide them with a foundational level of literacy.” According to the majority, in other words, a federal court has the power to determine the adequacy of classroom conditions, books, materials, curricula, and teachers provided to students by a state government.

Judge Murphy dissented. As he explained, he was deeply concerned about the alleged school conditions, which “would significantly impair any child’s ability to learn.” And if he “sat in the state legislature or on the local school board,” he would “work diligently to investigate and remedy the serious problems” the students identified. But of course, judges are not legislators, and the Constitution does not give them unfettered power to redress every wrong in society.  Instead, that power resides with the people and is expressed through the people’s elected representatives.

Judge Murphy went on to explain that the Supreme Court has repeatedly held that education is “not a fundamental right” and that the majority’s decision would violate important separation of powers principles. Courts cannot “compel states to raise their taxes to generate the needed funds” to improve schools or mandate the “minimum amount of training” teachers must receive.  Nor can the federal government impose a “one-size-fits-all duty on all 50 states to devote an unspecified level of taxpayer dollars to an unspecified level of education.”

All three judges in Gary B. v. Whitmer agreed that Detroit’s students had raised deeply troubling allegations about the schools their government officials compel them to attend. But Judge Murphy’s dissent shows principled restraint and all too rare judicial humility. No matter how concerning the students’ claims, he explained, “the ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them.” This dissent received some measure of vindication when the Sixth Circuit granted en banc review, which automatically vacated the majority’s decision, before the parties settled, causing the dismissal of the case as moot.

In this era of nationwide injunctions and rampant abuses of the limited Article III power by unelected judges, Judge Murphy’s restraint is a welcome reminder of the constitutional design our Founding Fathers intended.


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