Apr 23, 2014

Gen. William K. Suter: Obama Administration “Antagonistic to Fundamental Rights “

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General Suter, the longtime clerk of the Supreme Court, has opened up–with both barrels against the Obama Administration. He wrote a piece for Hoover titled “Executive Power on Steroids.” He is not happy with the Administration’s positions before the Court.

Much has been made recently about the Obama administration’s aggressive and excessive use of executive power. Examples include making recess appointments when the Senate was not in recess and repeatedly changing significant parts of the Patient Protection and Affordable Care Act (Obamacare) without express legislative authority. Similar excessive executive authority has been used in executing laws pertaining to entitlements and immigration.

The administration also exerts its strong-arm on a more local level, as evidenced by several recent U. S. Supreme Court cases. In those cases, which have received very little attention, the Obama administration took a crabbed view of an individual’s fundamental rights. It is one thing to be a liberal or a progressive administration; it is quite another to be hostile to fundamental individual rights. The cases described in this essay reflect an administration that is antagonistic to fundamental rights guaranteed in the Constitution. 

Suter proceeds to discuss the Administration’s positions in Hosanna-Tabor, United States v. Jones, Sackett v. EPA, Arkansas Game & Fish Commission. He closes with this:

What do these cases have in common? First, the government lost all four in unanimous decisions. Second, each case dealt with a government infringement on a fundamental right—freedom of religion, the right to be free from unreasonable searches, the right to enjoy private property and due process, and the right to compensation when the government takes your property.

It is rare for the executive branch to lose four cases dealing with fundamental rights in unanimous decisions in one term. Those who believe in the Constitution and the rule of law should feel uneasy about the administration’s positions in these cases. The positions taken by the government suggest bullying and strong-arm tactics. 

Wow! Very strong words.

I’m glad that General Suter, unlike Justice Stevens, actually retired from federal service before making comments about the Court. As a private citizen, I welcome his insights about the Court, the Constitution, and the rule of law.

I had the privilege of spending some time with General Suter, when he gave the commencement address at South Texas last year. I gave him an autographed copy of Unprecedented, where he is prominently featured:

Inside the Court, it was back to business as usual.

The chief justice gave his customary end-of-term thanks to the staff, including the Court’s venerable retired Major General William K. Suter, who had just completed fifty years of government service. Roberts hoped that Suter would return the next term. He would, though he eventually retired from the Court in August 2013.

And with that, the chief justice declared that the Court would be in recess until the first Monday in October 2012.

This term, at long last, was over. With it, the constitutional chal- lenge to the ACA finally drew to a close. But the political clash over this law was far from finished.

H/T Adam White

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Apr 23, 2014

Constitutional Faces: Eisenstadt v. Baird, and ad for Emko Vaginal Foam

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This is William Baird, who went to jail eight times in five different states for giving contraception to unmarried people.


Baird1 baird2

baird3

baird-nrl

This is “Emko Vaginal Foam,” the product Baird distributed that got him arrested.

This ad says “Emko… used by more woman than any other non-prescription birth control product.” Note the model is wearing a wedding ring.

emko-foam

This ad shows a father with a (much younger) mother, and a young baby, with the headline “3 reasons for spacing your children.” Below, it says “When the family is spaced with the help of Emko foam, mother has time to regain her vim and vigor, baby gets the abundant love he can thrive on . . .  and dad gets a break. Expenses are stretched out to where he can handle them with a smile.”

emko2

emko3

 

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Apr 23, 2014

ConLaw Class 26 – The First Amendment Speech II

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The lecture notes are here. The live chat is here.

The First Amendment Speech II

  • Brown v. EMA (887-900).
  • United States v. O’Brien (900-907).
  • Texas v. Johnson (907-917).
  • Time, Place, and Manner Regulations (917-918).
  • Renton v. Playtime Theaters (918-924). Incitement (924). Clear and Present Danger (927-931 note 3).
  • Brandenburg v. Ohio (935-937).
  • Note on Central Hudson (979-980).

 

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Apr 22, 2014

Editing Infographics at One First Street

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In her Schuette dissent, Justice Sotomayor “reproduced” several infographics from a New York Times article showing the decline in the number of black and hispanic students at the University of Michigan. But it seems the infographic was modified, slightly. Here is the original from the Times.

 

scotus-graphic

You can see that the text to the right of the graphic was cut out, likely because it did not fit in the small margins. Instead, someone at One First Street added their own labels to the data-points. “of state’s college-aged residents are black” was shortened to “College-aged- MI residents.”  And “% of freshmen are black” was shortened to “Freshman.” I wonder if the Supreme Court has a Photoshop expert.

 

infographic

 

I will drop my usual gripe that Courts should not be citing facts not in the record, though the final 11 pages of Sotomayor’s dissent read like a policy white paper, so whatever. Judges should also not be modifying pictures, though here it is innocuous.

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Apr 22, 2014

My “Prescient” Comment About Schuette

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In The New Republic, Jeff Rosen graciously linked to a piece I wrote about Schuette shortly after it was argued. I focused on the decline of the political process theory, and the fact that Kennedy did not even cite it in Romer. I predicted that Kennedy would not rely on it in Schuette. I was, apparently, right.

These “political process” cases became constitutionally controversial in the 1990s, among liberals as well as conservatives, because they seemed to call into question the constitutionality of the entire referendum process itself. For example, when opponents of a Colorado anti-gay rights amendment challenged it in 1993, their lawyers refused to rely heavily on the “political process doctrine,” even though a lower court judge had invoked it. And, as Josh Blackman presciently noted months ago, when Anthony Kennedy struck down the anti-gay rights Amendment in the landmark Romer v. Evans case in 1996, he pointedly declined to rely on the political process doctrine.

I’ll have a lot more about Romer, Schuette, and (really) Windsor tomorrow when I get more time.

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Apr 22, 2014

Where was Justice Thomas in Schuette?

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Having now read the entire opinion, I can’t get past one question. Where the hell was Justice Thomas? How did he not write separately? By my count, Justice Thomas has written separately in every single case involving racial preferences since he joined the Court. There are parts of Justice Sotomayor’s dissent that must have made him furious. In particular Part IV.B (pp 43- 46) where Sotomayor explains why “race matters.”

As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.

This must make his blood boil. You can’t read his collected opinions on affirmative action, and My Grandfather’s Son, without recognizing that he sees things very differently. Recall his dissent in Grutter, where he cites Frederick Douglas’s admonition for the white man–”Let him alone!”

I had this crazy, fleeting thought that Justice Thomas wrote something really, really harsh in response, but withdrew it. But maybe I’m totally wrong.

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Apr 22, 2014

Sotomayor Cites Breyer’s “Making Our Democracy Work” Twice

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This citation jumped out in Schuette!

The Court remained true to its command in Brown. In Arkansas, for example, it enforced a desegregation order against the Little Rock school board. Cooper v. Aaron, 358 U. S. 1, 5 (1958). On the very day the Court announced that ruling, the Arkansas Legislature responded by chang- ing the rules. It enacted a law permitting the Governor to close any public school in the State, and stripping local school districts of their decisionmaking authority so long as the Governor determined that local officials could not maintain “‘a general, suitable, and efficient educational system.’ ” Aaron v. Cooper, 261 F. 2d 97, 99 (CA8 1958) (per curiam) (quoting Arkansas statute). The then- Governor immediately closed all of Little Rock’s high schools. Id., at 99–100; see also S. Breyer, Making Our Democracy Work 49–67 (2010) (discussing the events in Little Rock).

Has a Justice ever cited a book authored by another Justice in an opinion? Particularly when the cited author joined the majority, and the citing Justice is in dissent?

Update: You ask, twitter shall give. Adam White with the answer:

Update 2: On page 100 out of 108, she cites Breyer again.

It also claims that “the statistics in California across the 17 campuses in the University of California system show that today the un- derrepresented minority percentage is better on 16 out of those 17 campuses”—all except Berkeley—than before California’s equivalent initiative took effect. Id., at 16. As it turns out, these statistics weren’t “‘even good enough to be wrong.’ ” Reference Manual on Scientific Evidence 4 (2d ed. 2000) (Introduction by Stephen G. Breyer (quoting Wolfgang Pauli)).

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Apr 22, 2014

Brown v. Board of Education was a “Political Restructuring Case”?

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Has anyone else heard of this account of Brown v. Board of Education, as noted in Justice Sotomayor’s Schuette dissent.

This Court’s landmark ruling in Brown v. Board of Education, 347 U. S. 483 (1954), triggered a new era of political restructuring, this time in the context of educa- tion. In Virginia, the General Assembly transferred con- trol of student assignment from local school districts to a State Pupil Placement Board. See B. Muse, Virginia’s Massive Resistance 34, 74 (1961). And when the legisla- ture learned that the Arlington County school board had prepared a desegregation plan, the General Assembly “swiftly retaliated” by stripping the county of its right to elect its school board by popular vote and instead making the board an appointed body. Id., at 24; see also B. Smith, They Closed Their Schools 142–143 (1965).

This is certainly a different account of Brown. Were these facts present in Topeka, KS, or Washington, D.C., or any of the other cases consolidated? The only sources cited are from a few years after Brown. I can’t recall anything in the Brown opinion that even alludes to these facts. But good for Arlington!

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Apr 22, 2014

Breyer On The Delegation of Power From Elected Officials To Unelected Administrators

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Justice Breyer’s Schuette concurring opinion had a very, very strong administrative law flavor to it. He accurately characterized what Prop 2 actually did. In the past, elected members of university boards would delegate decisions about admission policies to unelected faculties and administrators, without any guidance. With Prop 2, the people took that power away from the faculty and administrators, and put it into the Constitution. In a bizarre way, Breyer’s opinion is effectively a version of the non-delegation doctrine. He likes the fact that now the people can decide for themselves.

This case, in contrast, does not involve a reordering of the political process; it does not in fact involve the move- ment of decisionmaking from one political level to another. Rather, here, Michigan law delegated broad policymaking authority to elected university boards, see Mich. Const., Art. VIII, §5, but those boards delegated admissions- related decisionmaking authority to unelected university faculty members and administrators, see, e.g., Bylaws of Univ. of Mich. Bd. of Regents §8.01; Mich. State Univ. Bylaws of Bd. of Trustees, Preamble; Mich. State Univ. Bylaws for Academic Governance §4.4.3; Wayne State Univ. Stat. §§2–34–09, 2–34–12. Although the boards unquestionably retained the power to set policy regarding race-conscious admissions, see post, at 25–29 (SOTOMAYOR, J., dissenting), in fact faculty members and administrators set the race-conscious admissions policies in question. (It is often true that elected bodies— including, for example, school boards, city councils, and state legislatures—have the power to enact policies, but in fact delegate that power to administrators.) Although at limited times the university boards were advised of the content of their race-conscious admissions policies, see 701 F. 3d 466, 481–482 (CA6 2012), to my knowledge no board voted to accept or reject any of those policies. Thus, un- elected faculty members and administrators, not voters or their elected representatives, adopted the race-conscious admissions programs affected by Michigan’s constitutional amendment. The amendment took decisionmaking au- thority away from these unelected actors and placed it in the hands of the voters. 

In fact, Breyer specifically cites his PCAOB dissent for the proposition that the political process theory cannot be applied to administrative law.

For another thing, to extend the holding of Hunter and Seattle to reach situations in which decisionmaking au- thority is moved from an administrative body to a political one would pose significant difficulties. The administrative process encompasses vast numbers of decisionmakers answering numerous policy questions in hosts of different fields. See Free Enterprise Fund v. Public Company Ac- counting Oversight Bd., 561 U. S. 477, ___ (2010) (BREYER, J., dissenting). Administrative bodies modify programs in detail, and decisionmaking authority within the adminis- trative process frequently moves around—due to amendments to statutes, new administrative rules, and evolving agency practice. It is thus particularly difficult in this context for judges to determine when a change in the locus of decisionmaking authority places a comparative struc- tural burden on a racial minority. And to apply Hunter and Seattle to the administrative process would, by tend- ing to hinder change, risk discouraging experimentation, interfering with efforts to see when and how race- conscious policies work. 

Leave Admin Alone!

I know I give Justice Breyer a hard time, but he is dedicated and committed to the viewing the Constitution as a Democratic document. And it shows here.

Finally, the principle that underlies Hunter and Seattle runs up against a competing principle, discussed above. This competing principle favors decisionmaking though the democratic process. Just as this principle strongly supports the right of the people, or their elected repre- sentatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.

Really his entire opinion is based on admin law.

As I have said, my discussion here is limited to circum- stances in which decisionmaking is moved from an un- elected administrative body to a politically responsive one, and in which the targeted race-conscious admissions programs consider race solely in order to obtain the educa- tional benefits of a diverse student body.

I wonder how he would have viewed the constitutionality of Prop 209, which didn’t have the same administrative wrinkles.

Update: Justice Sotomayor disagrees, strongly with Breyer’s valiant admin-law approach to equal protection.

JUSTICE BREYER concludes that Hunter and Seattle do not apply. Section 26, he reasons, did not move the rele- vant decisionmaking authority from one political level to another; rather, it removed that authority from “unelected actors and placed it in the hands of the voters.” Ante, at 5 (opinion concurring in judgment). He bases this conclu- sion on the premise that Michigan’s elected boards “dele- gated admissions-related decisionmaking authority to unelected university faculty members and administra- tors.” Ibid. But this premise is simply incorrect.

 

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Apr 22, 2014

Justice Scalia Has Little Faith in the Sixth Circuit

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Wise move Justice Scalia.

The District Court noted that, under “conventional equal protection” doctrine, the suit was “doom[ed].” 539 F. Supp. 2d 924, 951 (ED Mich. 2008). Though the Court of Appeals did not opine on this question, I would not leave it for them on remand.

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Apr 22, 2014

Sutton and O’Scannlain GEt Shout-Outs in Schuette by Scalia

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Judge Sutton:

By contrast, voting in a favorable board (each of which has eight members) at the three major public universities requires electing by majority vote at least 15 different candidates, several of whom would be running during different election cycles. See BAMN v. Regents of Univ. of Mich., 701 F. 3d 466, 508 (CA6 2012) (Sutton, J., dissenting).

And Judge O’Scannlain:

“[A] law that prohibits the State from classifying individuals by race . . . a fortiori does not classify individuals by race.” Coalition for Economic Equity v. Wilson, 122 F. 3d 692, 702 (CA9 1997) (O’Scannlain, J.).

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Apr 22, 2014

SCOTUS Word of the Day: Bedecked

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With some beautiful alliteration, I learned a new word in Schuette from Justice Scalia: “bedecked.” It means decorated.

 But this is just the political-process theory bedecked in different doctrinal dress.

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Apr 22, 2014

Prop 2 Violates Hunter-Seattle Because It Violates Hunter-Seattle (Scalia J., Concurring, Dripping with Sarcasm)

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Here is one of Scalia’s toughest tongue-lashings of Justice Sotomayor in Schuette

Perhaps the spirit of Seattle is especially disquieted by enactments of constitutional amendments. That appears to be the dissent’s position. The problem with §26, it suggests, is that amending Michigan’s Constitution is simply not a part of that State’s “existing” political pro- cess. E.g., post, at 4, 41. What a peculiar notion: that a revision of a State’s fundamental law, made in precisely the manner that law prescribes, by the very people who are the source of that law’s authority, is not part of the “political process” which, but for those people and that law, would not exist. This will surely come as news to the people of Michigan, who, since 1914, have amended their Constitution 20 times. Brief for Gary Segura et al. as Amici Curiae 12.

Sotomayor replies in a footnote:

I do not take the position, as JUSTICE SCALIA asserts, that the pro- cess of amending the Michigan Constitution is not a part of Michigan’s existing political process. See ante, at 13–14 (opinion concurring in judgment). It clearly is. The problem with §26 is not that “amending Michigan’s Constitution is simply not a part of that State’s ‘existing political process.’ ” Ante, at 14. It is that §26 reconfigured the political process in Michigan such that it is now more difficult for racial minori- ties, and racial minorities alone, to achieve legislation in their interest. Section 26 elevated the issue of race-sensitive admissions policies, and not any other kinds of admissions policies, to a higher plane of the existing political process in Michigan: that of a constitutional amendment.

Scalia shoots right back that Sotomayor’s opinion is circular.

The dissent thinks I do not understand its argument. Only when amending Michigan’s Constitution violates Hunter-Seattle, it says, is that constitutionally prescribed activity necessarily not part of the State’s existing political process. Post, at 21, n. 7. I understand the argument quite well; and see quite well that it begs the question. Why is Michigan’s action here unconstitutional? Because it violates Hunter- Seattle. And why does it violate Hunter-Seattle? Because it is not part of the State’s existing political process. And why is it not part of the State’s existing political process? Because it violates Hunter-Seattle.

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Apr 22, 2014

Scalia Has Mastered The Compare Parenthetical

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Love this from Schuette.

Moving from the appalling to the absurd, I turn now to the second part of the Hunter-Seattle analysis—which is apparently no more administrable than the first, compare post, at 4–6 (BREYER, J., concurring in judgment) (“This case . . . does not involve a reordering of the political process”), with post, at 25–29 (SOTOMAYOR, J., dissenting) (yes, it does).

 

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Apr 22, 2014

Schuette Plurality Cites Same Breyer’s Parents Involved Dissent That It Previously Criticized

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Justices Roberts and Alito got some explaining to do. This is a bit confusing, so follow along.

In Parents Involved, Justice Breyer dissented. He claimed that in Seattle, there was a history of de jure segregation:

   1. Segregation, 1945 to 1956. During and just after World War II, significant numbers of black Americans began to make Seattle their home. Few black residents lived outside the central section of the city. Most worked at unskilled jobs. Although black students made up about 3% of the total Seattle population in the mid-1950’s, nearly all black children attended schools where a majority of the population was minority. Elementary schools in central Seattle were between 60% and 80% black; Garfield, the central district high school, was more than 50% minority; schools outside the central and southeastern sections of Seattle were virtually all white.

The plurality by Chief Justice Roberts (joined by Justice Alito), criticized this assertion of facts:

The dissent elides this distinction between de jure and de facto segregation, casually intimates that Seattle’s school attendance patterns reflect illegal segregation, post, at 5, 18, 23,15 and fails to credit the judicial determination—under the most rigorous standard—that Jefferson County had eliminated the vestiges of prior segregation. The dissent thus alters in fundamental ways not only the facts presented here but the established law.

15 Justice Breyer makes much of the fact that in 1978 Seattle “settled” an NAACP complaint alleging illegal segregation with the federal Office for Civil Rights (OCR). See post, at 5, 8–9, 18, 23. The memorandum of agreement between Seattle and OCR, of course, contains no admission by Seattle that such segregation ever existed or was ongoing at the time of the agreement, and simply reflects a “desire to avoid the incovenience [sic] and expense of a formal OCR investigation,” which OCR was obligated under law to initiate upon the filing of such a complaint. 

So, one would think that the Chief and Justice Alito do not find this part of the dissent accurate.

Then, we come to Schuette. The plurality, joined by the Chief and Alito, favorably cites the very portion of the Breyer dissent they criticized 7 years earlier!

Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies that “permitted white students to transfer out of black schools while restricting the transfer of black students into white schools.” Parents Involved in Community Schools v. Seat- tle School Dist. No. 1, 551 U. S. 701, 807–808 (2007) (BREYER, J., dissenting).

Scalia calls bullshit.

That conclusion is derived not from the opinion but from recently discovered evidence that the city of Seattle had been a cause of its schools’ racial imbalance all along: “Although there had been no judicial finding of de jure segregation with respect to Seattle’s school district, it appears as though school segregation in the district in the 1940’s and 1950’s may have been the partial result of school board policies.” Ante, at 9.2

2 The plurality cites evidence from JUSTICE BREYER’s dissent in Par­ ents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701 (2007), to suggest that the city had been a “partial” cause of its segregation problem. Ante, at 9. The plurality in Parents Involved criticized that dissent for relying on irrelevant evidence, for “elid[ing the] distinction between de jure and de facto segregation,” and for “casually intimat[ing] that Seattle’s school attendance patterns re- flect[ed] illegal segregation.” 551 U. S., at 736–737, and n. 15. Today’s plurality sides with the dissent and repeats its errors.

As does Sotomayor:

9 The plurality relies on JUSTICE BREYER’s dissent in Parents Involved to conclude that “one permissible reading of the record was that the school board had maintained policies to perpetuate racial segregation in the schools.” Ante, at 9–10. Remarkably, some Members of today’s plurality criticized JUSTICE BREYER’s reading of the record in Parents Involved itself. See 551 U. S., at 736.

The entire premise on which the Court managed to distinguish the political process cases was based on a reading of the Seattle case they disagreed with 7 years ago. This is wrong. The cases should have just been overruled. Not redefined in this surreal way.

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Apr 22, 2014

Scalia Ipsa Loquitur

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Nino’s opening in Schuette may be one of my favorites–with a nice reference to Justice Jackson’s “Zone of Twilight.”

It has come to this. Called upon to explore the jurisprudential twilight zone between two errant lines of precedent, we confront a frighteningly bizarre question: Does the Equal Protection Clause of the Fourteenth Amend- ment forbid what its text plainly requires? Needless to say (except that this case obliges us to say it), the question answers itself. “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.” Grutter v. Bollinger, 539 U. S. 306, 349 (2003) (SCALIA, J., concurring in part and dis- senting in part). It is precisely this understanding—the correct understanding—of the federal Equal Protection Clause that the people of the State of Michigan have adopted for their own fundamental law. By adopting it, they did not simultaneously offend it.

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Apr 22, 2014

Sotomayor, Roberts, and Scalia on Animus in Schuette and Windsor

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Must opposition to policies that (may) help certain minorities be born out of animus, whether intentional or not? This was a central theme in Schuette, in the dueling opinions between Justices Sotomayor, Scalia, and the Chief. It harkened back to Windsor, where Justice Kennedy, also in the majority, stressed that it was only out of animus that the government could enact a law banning same-sex marriage. In United States v. Windsor, Chief Justice Roberts wrote separately to stress that opposing same-sex marriage does not make one a bigot.

That the Federal Government treated this fundamental question differently than it treated variations over consanguinity or minimum age is hardly surprising— and hardly enough to support a conclusion that the “principal purpose,” ante, at 22, of the 342 Representatives and 85 Senators who voted for it, and the President who signed it, was a bare desire to harm. Nor do the snip- pets of legislative history and the banal title of the Act to which the majority points suffice to make such a show- ing. At least without some more convincing evidence that the Act’s principal purpose was to codify malice, and that it furthered no legitimate government interests, I would not tar the political branches with the brush of bigotry. 

In Schuette, the Chief offered a similar concurring opinion, in response to Justice Sotomayor’s insinuation that the passage of Prop 2 by millions of Michigander was was another “chapter of discrimination.” After listing a long train of civil rights abuses, from denying blacks the right to vote, to literacy tests, to poll taxes, to gerrymandering (hello Shelby County), to bussing, we come to Prop 2.

Justice Sotomayor wrote:

Yet to know the history of our Nation is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process. At first, the majority acted with an open, invidious purpose. Notwithstanding the command of the Fifteenth Amendment, certain States shut racial minorities out of the political process altogether by withholding the right to vote. This Court intervened to preserve that right. The majority tried again, replacing outright bans on voting with literacy tests, good character requirements, poll taxes, and gerrymandering. The Court was not fooled; it invalidated those measures, too. The majority persisted. This time, although it allowed the minority access to the political process, the majority changed the ground rules of the process so as to make it more difficult for the minority, and the minority alone, to obtain policies designed to foster racial integration. Although these political restruc- turings may not have been discriminatory in purpose, the Court reaffirmed the right of minority members of our society to participate meaningfully and equally in the political process.

This case involves this last chapter of discrimination: A majority of the Michigan electorate changed the basic rules of the political process in that State in a manner that uniquely disadvantaged racial minorities. 

Roberts replies, much like he did in Windsor, that opposing affirmative action is part of a rigorous debate, and does not make one intolerant.

The dissent states that “[t]he way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race.” Post, at 46. And it urges that “[r]ace matters because of the slights, the snickers, the silent judgments that reinforce that most crippling of thoughts: ‘I do not belong here.’” Ibid. But it is not “out of touch with reality” to conclude that racial preferences may themselves have the debilitating effect of reinforcing precisely that doubt, and—if so—that the preferences do more harm than good. Post, at 45. To disagree with the dissent’s views on the costs and benefits of racial prefer- ences is not to “wish away, rather than confront” racial inequality. Post, at 46. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.

Justice Scalia, as he often does, unloads both barrels at Justice Sotomayor.

As Justice Harlan observed over a century ago, “[o]ur Constitution is color-blind, and neither knows nor toler- ates classes among citizens.” Plessy v. Ferguson, 163 U. S. 537, 559 (1896) (dissenting opinion). The people of Michi- gan wish the same for their governing charter. It would be shameful for us to stand in their way.11

11 And doubly shameful to equate “the majority” behind §26 with “the majority” responsible for Jim Crow. Post, at 1–2 (SOTOMAYOR, J., dissenting).

Justice Sotomayor feigns distance from this assertion in a footnote.

I of course do not mean to suggest that Michigan’s voters acted with anything like the invidious intent, see n. 8, infra, of those who histori- cally stymied the rights of racial minorities. Contra, ante, at 18, n. 11 (SCALIA, J., concurring in judgment). But like earlier chapters of political restructuring, the Michigan amendment at issue in this case changed the rules of the political process to the disadvantage of minority members of our society.

But this seems like a subtle head fake. In other words, I’m not saying they’re discriminating, but I’ll let the evidence supporting that conclusion (which my opinion is full of) speak for itself. That sentiment is palpable from her opinion.As Scalia noted in his opinion, the juxtaposition between “the majority” who denied Blacks the right to vote with “the majority” who enacted Prop 2 is telling.  She calls the majority “out of touch with reality.”

This view (and that of Justice Ginsburg, but apparently not Justice Breyer) places her at strong odds with the narrow reed on which affirmative action rested in Grutter–only academic diversity, and not racial justice. To impute the imprimatur of Jim Crow onto millions of Michigander who voted for Prop 2, when the Supreme Court had just said this practice is *barely* constitutional does, in the words of the Chief, frustrate any meaningful debate on the topic.

Affirmative action embodies a vigorous debate that will last, by Justice O’Connor’s count, another 14 years or so. It is very, very counterproductive to assert that anyone who opposes some policy does so out of intolerance, bigotry, or ignorance. This very well may be the case for some, but painting with a “brush of bigotry” serves no positive purpose.

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Apr 22, 2014

Schuette on the First Amendment and Elections

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In Schuette, Justice Kennedy drew a strong connection between the right of the people to change their laws, and the First Amendment.

The respondents in this case insist that a difficult question of public policy must be taken from the reach of the voters, and thus removed from the realm of public discus- sion, dialogue, and debate in an election campaign. Quite in addition to the serious First Amendment implications of that position with respect to any particular election, it is inconsistent with the underlying premises of a responsi- ble, functioning democracy. One of those premises is that a democracy has the capacity—and the duty—to learn from its past mistakes; to discover and confront persisting biases; and by respectful, rationale deliberation to rise above those flaws and injustices. That process is impeded, not advanced, by court decrees based on the proposition that the public cannot have the requisite repose to discuss certain issues.

 This line of reasoning may inform Justice Kennedy’s voting rights jurisprudence. Laws limiting the amount of money that can be spent on elections may “impede” the ability of the people “to have the requisite repose to discuss certain issues.”

Kennedy adds:

It is demeaning to the democratic process to presume that the voters are not capable of deciding an issue of this sensitivity on decent and rational grounds. The process of public discourse and political debate should not be foreclosed even if there is a risk that during a pub- lic campaign there will be those, on both sides, who seek to use racial division and discord to their own political ad- vantage. An informed public can, and must, rise above this. The idea of democracy is that it can, and must, mature. Freedom embraces the right, indeed the duty, to engage in a rational, civic discourse in order to determine how best to form a consensus to shape the destiny of the Nation and its people. These First Amendment dynamics would be disserved if this Court were to say that the ques- tion here at issue is beyond the capacity of the voters to debate and then to determine.

Rancorous political debates does not empower the Courts to abrogate this First Amendment right.

Deliberative debate on sensitive issues such as racial preferences all too often may shade into rancor. But that does not justify removing certain court-determined issues from the voters’ reach. Democracy does not presume that some subjects are either too divisive or too profound for public debate.

Perhaps, it is only corruption itself, that would warrant this judicial intrusion.

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Apr 22, 2014

Justice Kennedy Discovers A New Dimension of Liberty in Federalism

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Newsflash from Schuette. We have yet another “dimension” of liberty. A liberty to be free of “governmental power.” And note–there is no reference to due process. This liberty comes from the Constitution itself!

The freedom secured by the Constitution consists, in one of its essential dimensions, of the right of the individual not to be injured by the unlawful exercise of governmental power. The mandate for segregated schools, Brown v. Board of Education, 347 U. S. 483 (1954); a wrongful invasion of the home, Silverman v. United States, 365 U. S. 505 (1961); or punishing a protester whose views offend others, Texas v. Johnson, 491 U. S. 397 (1989); and scores of other examples teach that individual liberty has constitutional protection, and that liberty’s full extent and meaning may remain yet to be discovered and affirmed.

And what an odd collection of cases. Brown, Silverman, and Texas v. Johnson. And what are these extents of liberty waiting to be discovered? Where are they?

Interestingly, this notion of liberty is consistent with my previous observations that Kennedy views federalism as a substantive guarantee of liberty. When states confer on gay people the right to same-sex marriage, that should inform the federal constitution. Like here, where states decide to strive for racial equality (defined as the absence of affirmative action), that should be protected. The goal is to “make freedom even greater and more secure.” This the one-way freedom ratchet that federalism promotes. You see that analysis, subtly here:

Yet freedom does not stop with individual rights.

Just like Miley Cyrus, freedom can’t stop.

Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.

The people, in the states, can vote for more freedom. And, this act of federalism promotes–wait for it–”dignity.”

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a diffi- cult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity.

I’ve written before that Kennedy views dignity as a type of liberty interest that can be conferred on people, in many respects, through the political process and federalism. And in such cases, Justice Kennedy will not allow the courts to intervene.

Here Michigan voters acted in concert and statewide to seek consensus and adopt a policy on a diffi- cult subject against a historical background of race in America that has been a source of tragedy and persisting injustice. That history demands that we continue to learn, to listen, and to remain open to new approaches if we are to aspire always to a constitutional order in which all persons are treated with fairness and equal dignity. Were the Court to rule that the question addressed by Michigan voters is too sensitive or complex to be within the grasp of the electorate; or that the policies at issue remain too delicate to be resolved save by university officials or facul- ties, acting at some remove from immediate public scru- tiny and control; or that these matters are so arcane that the electorate’s power must be limited because the people cannot prudently exercise that power even after a full debate, that holding would be an unprecedented re- striction on the exercise of a fundamental right held not just by one person but by all in common. It is the right to speak and debate and learn and then, as a matter of polit- ical will, to act through a lawful electoral process.

Let the people discuss and debate–so long as it promotes liberty–and the courts will stand on the sideline.

Voting to allow gay marriage, and voting to ban affirmative action, to Justice Kennedy, are both progressing along the same arc towards justice. This is substantive federalism.

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Apr 22, 2014

Schuette and Fisher and Constitutionality of Affirmative Action

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After Schuette was argued, I queried how, if at all, Fisher v. University of Texas, Austin would be cited. The answer? Not much.

Before the Court addresses the question presented, it is

important to note what this case is not about. It is not about the constitutionality, or the merits, of race-conscious admissions policies in higher education. The considera- tion of race in admissions presents complex questions, in part addressed last Term in Fisher v. University of Texas at Austin, 570 U. S. ––– (2013). In Fisher, the Court did not disturb the principle that the consideration of race in admissions is permissible, provided that certain conditions are met. In this case, as in Fisher, that principle is not challenged. The question here concerns not the permissi- bility of race-conscious admissions policies under the Constitution but whether, and in what manner, voters in the States may choose to prohibit the consideration of racial preferences in governmental decisions, in particular with respect to school admissions.

Read the bold sentence again. That seems to say that Fisher did not challenge the principle that “consideration of race in admissions is permissible, provided that certain conditions are met.” I suppose that is true in a narrow sense, but Fisher greatly limited the number of conditions that could justify the use of race.

Update: Justice Sotomayor cites Fisher much more broadly in her dissent:

hese statistics may not influence the views of some of my colleagues, as they question the wisdom of adopting race-sensitive admissions policies and would prefer if our Nation’s colleges and universities were to discard those policies altogether. See ante, at 2 (ROBERTS, C. J., concur- ring) (suggesting that race-sensitive admissions policies might “do more harm than good”); ante, at 9, n. 6 (SCALIA, J., concurring in judgment); Grutter, 539 U. S., at 371–373 (THOMAS, J., concurring in part and dissenting in part); id., at 347–348 (SCALIA, J., concurring in part and dissent- ing in part). That view is at odds with our recognition in Grutter, and more recently in Fisher v. University of Texas at Austin, 570 U. S. ___ (2013), that race-sensitive admis- sions policies are necessary to achieve a diverse student body when race-neutral alternatives have failed. More fundamentally, it ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.

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