Saturday, October 3, 2009
Contemporary equal protection doctrine, however, renders any racial classification subject to strict scrutiny, with the consequence that a state actor trying to comply with the 1964 Civil Rights Act and prevent racial disparities may be successfully sued for considering race. In his concurring opinion in Ricci v. DeStefano, Justice Scalia wrote
The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how- - - and on what terms - - - to make peace between them.
Another battleground in the affirmative action "war" (to use Scalia's term) is between state ballot initiatives (such as the post-Grutter Proposal 2 in Michigan) and the federal law. A useful intervention in that "war," although probably not on the side that Justice Scalia would favor, is Professor Kimberly West-Faulcon's article, The River Runs Dry: When Title VI Trumps State Anti-Affirmative Action Laws, 157 U. Pa. L. Rev. 1075 (2009). West-Faulcon's focus is the
tension between state anti-affirmative action laws and federal antidiscrimination law. Consequently, with seemingly little regard for Title VI federal civil rights law, public universities have been prone to assume that “affirmative action-less” admissions policies and plunging minority admissions are the inevitable outcome of compliance with state anti-affirmative action laws. At an affirmative action-less university, the river runs dry--the institution virtually stops admitting certain racial groups and presumes that state anti-affirmative action laws dictate such a result. This Article challenges this framing. Its point of departure is to explain how the prominent role of the SAT in selective college admissions, dictated in large measure by its importance in college-ranking and financial bond-rating systems, creates an incentive for universities to adopt “minority-deficiency” over “test-deficiency” explanations for racial differences in SAT scores.
Kimberly West-Faulcon (pictured right) notes that the "persistence of racial differences in SAT scores even when selecting among applicants with very strong academic credentials puts the SAT at the heart of the affirmative action debate" in the higher education context. She contends that "decades of analysis of SAT scores have shown a variety of group disparities when students are separated based on certain categories. Specifically, men score, on average, better than women; whites and some Asian groups score better than Latinos and African Americans; the rich score better than the poor; and city dwellers score better than students from rural communities." (footnotes omitted).
It is affirmative action admissions policies that can "counterbalance" these test outcomes. West-Faulcon's discussion, in footnote 122, provides the equal protection connection:
Interestingly, Justice Thomas, a staunch critic of race-based affirmative action, was the member of the Court in Grutter who most explicitly described the manner in which universities have traditionally used affirmative action as a corrective for the deficiencies in tests like the SAT:[N]o modern law school can claim ignorance of the poor performance of blacks, relatively speaking, on the Law School Admissions Test (LSAT). Nevertheless, law schools continue to use the test and then attempt to “correct” for black underperformance by using racial discrimination in admissions so as to obtain their aesthetic student body.... The [University of Michigan] Law School itself admits that the test is imperfect, as it must, given that it regularly admits students who score at or below 150 (the national median) on the test.
Grutter, 539 U.S. at 369-70 (Thomas, J., dissenting). Justice Thomas refused to condone race-conscious admissions because the University of Michigan Law School's need to use affirmative action was a “self-inflicted wound." Justice Powell, however, reached a very different conclusion in Bakke regarding the legal significance of test deficiency. He suggested that the need to use race as a corrective for deficiencies in a test's predictive ability may constitute a compelling state interest. See Bakke, 438 U.S. at 306 n.43 (suggesting that racial classification could offset “some cultural bias in grading or testing procedures”). Professor Tomiko Brown-Nagin has noted, “But for the University's heavy reliance upon discriminatory admissions criteria as a sorting mechanism, the aspirations for diversity and selectivity would not be in tension.” Tomiko Brown-Nagin, The Transformative Racial Politics of Justice Thomas?: The Grutter v. Bollinger Opinion, 7 U. Pa. J. Const. L. 787, 800 (2005).
West-Faulcon's article provides a useful counter-balance for the often unexamined proposition that standardized tests (whether they be the SAT, LSAT, the firefighters test in Ricci or the police officers test in Washington v. Davis) are truly "standardized" in a multicultural context.
Friday, October 2, 2009
Gene Healy, VP of the Cato Institute, argued earlier this week in the Washington Examiner that the EPA's initiative to regulate greenhouse gases from large facilities under the Clean Air Act reflects an Obama imperial presidency. (I posted on similar arguments back in April, when the EPA was just getting started on this, here.)
Healy confusingly seems to argue that the new rules are both contrary to the law and authorized by a too broad Clean Air Act. Healy:
The Obama team appears to believe it has the authority to implement comprehensive climate change regulation, Congress be damned. . . .
But existing law still leaves the executive branch enormous discretionary power--and thus a hammer to hold over Congress's head.
Healy, of course, is talking about the non-delegation doctrine (at least in the second sentence quoted here). But, as Healy acknowledges, the Supreme Court in 2007 in Massachusetts v. EPA ruled on the very provision of the Clean Air Act that authorizes the EPA to so regulate--and held that the EPA had to comply. That provision states that the EPA
shall by regulation prescribe . . . standards applicable to the emission of any air pollutant from any class . . . of new motor vehicles . . . which in [the EPA Administrator's] judgment cause[s], or contribute[s] to, air pollution . . . reasonably . . . anticipated to endanger public health or welfare.
42 U.S.C. Sec. 7521(a). The Supreme Court in Massachusetts v. EPAruled not only that the EPA had authority under the Clean Air Act to regulate greenhouse gases, but also that it had an obligation under the Act to make a judgment whether the gases contributed to global warming--a judgment that it refused to make. As Healy acknowledges, the Court did not rule that congressional delegation under the Clean Air Act was too broad--that the Act delegated lawmaking authority to the EPA in violation of the non-delegation doctrine. That argument was not even seriously in play in the case.
So the Obama administration's decision to commence regulation of greenhouse gases is fully consistent with its authority under the Clean Air Act and Massachusetts v. EPA. Healy acknowledges this.
But then he argues that the administration's move is "imperial" and, as support, throws in everything from Madison on separation-of-powers and liberty to the unitary executive theory. He concludes with this:
Will liberals who decried George W. Bush's unilateralism object to this staggering concentration of executive power? Don't hold your breath.
Healy is flat wrong in aligning the Obama EPA's decision to regulate greenhouse gases with the Bush administration excesses. Most notably, the EPA's decision, as Healy acknowledges, is perfectly consistent with the Clean Air Act. Regulation of greenhouse gases doesn't undermine congressional authorization under the Act; it realizes it. In contrast, so many of the Bush administration actions were contrary to law, relying only upon strained understandings of "inherent" Article II powers.
None of this has anything to do with the unitary executive theory--the original theory, or the much more expansive one promoted by the Bush administration. And the EPA certainly can't be accused of threatening liberty by disrespecting separation-of-powers principles. (If any branch could be so accused, by Healy's own reckoning it'd have to be Congress.)
In short, Healy's problem is not a constitutional one, and certainly not an imperial presidency one. Even if his premise--that the Clean Air Act delegates too much to the executive--were correct, it has nothing to do with his conclusion that "the imperial presidency comes in green, too."
Thursday, October 1, 2009
The Nineteenth Amendment to the United States Constitution, ratified in 1920, provided for women's suffrage:
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.
For those interested in the grammatical structure of the Amendment, should that ever be necessary to interpret it, the following diagram (from "Diagramming Sentences" with thanks to Feminist Law Professors) might be useful:
I was thinking that "Diagramming Sentences" should have included the Fourteenth Amendment rather than the Nineteenth, because, after all, the Nineteenth Amendment is hardly controversial. But then I saw mention (and audio) of an interview with John Derbyshire, author of the new book, We Are Doomed: Reclaiming Conservative Pessimism. Derbyshire apparently made statements in the interview that we'd be a "better country" if women didn't vote and that "we" got along for 140 years without women voting and women lean too hard to the left: “They want someone to nurture, they want someone to help raise their kids, and if men aren’t inclined to do it — and in the present days, they’re not much — then they’d like the state to do it for them.”
The advertising material for We are Doomed has a blurb from Robert Bork, as well as a description of the book as a "scathing, mordantly funny romp," so I suppose one shouldn't take this too seriously. But perhaps I'll keep the grammatical diagram of handy, just in case the issue of the Nineteenth Amendment's interpretation arises.
Wednesday, September 30, 2009
The United States Supreme Court has granted certiorari today on the question of whether the Second Amendment should be incorporated against the states, a question left open by D.C. v. Heller.
The case is McDonald v. Chicago. The Seventh Circuit opinion, authored by Judge Easterbrook, is worth reading in full. It's not widely available and so is reproduced here:
Two municipalities in Illinois ban the possession of most handguns. After the Supreme Court held in District of Columbia v. Heller, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), that the second amendment entitles people to keep handguns at home for self-protection, several suits were filed against Chicago and Oak Park. All were dismissed on the ground that Heller dealt with a law enacted under the authority of the national government, while Chicago and Oak Park are subordinate bodies of a state. The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542, 23 L. Ed. 588 (1876); Presser v. Illinois, 116 U.S. 252, 6 S. Ct. 580, 29 L. Ed. 615 (1886); Miller v. Texas, 153 U.S. 535, 14 S. Ct. 874, 38 L. Ed. 812 (1894). The district judge thought that only the Supreme Court may change course. 617 F. Supp. 2d 752, 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 21 L. Ed. 394 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court's "selective incorporation" approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered. Plaintiffs ask us to follow Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), which concluded that Cruikshank, Presser, and Miller may be bypassed as fossils. (Nordyke applied the second amendment to the states but held that local governments may exclude weapons from public buildings and parks.) Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete. Maloney v. Cuomo, 554 F.3d 56 (2d Cir. 2009). We agree with Maloney, which followed our own decision in Quilici v. Morton Grove, 695 F.2d 261 (7th Cir. 1982).
Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court's holdings even if the reasoning in later opinions has undermined their rationale. "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 104 L. Ed. 2d 526 (1989). Cruikshank, Presser, and Miller have "direct application in [this] case". Plaintiffs say that a decision of the Supreme Court has "direct application" only if the opinion expressly considers the line of argument that has been offered to support a different approach. Yet few opinions address the ground that later opinions deem sufficient to reach a different result. If a court of appeals could disregard a decision of the Supreme Court by identifying, and accepting, one or another contention not expressly addressed by the Justices, the Court's decisions could be circumvented with ease. They would bind only judges too dim-witted to come up with a novel argument.
Anyone who doubts that Cruikshank, Presser, and Miller have "direct application in [this] case" need only read footnote 23 in Heller. It says that Presser and Miller "reaffirmed [Cruikshank's holding] that the Second Amendment applies only to the Federal Government." 128 S. Ct. at 2813 n.23. The Court did not say that Cruikshank, Presser, and Miller rejected a particular argument for applying the second amendment to the states. It said that they hold "that the Second Amendment applies only to the Federal Government." The Court added that "Cruikshank's continuing validity on incorporation" is "a question not presented by this case". Ibid. That does not license the inferior courts to go their own ways; it just notes that Cruikshank is open to reexamination by the Justices themselves when the time comes. If a court of appeals may strike off on its own, this not only undermines the uniformity of national law but also may compel the Justices to grant certiorari before they think the question ripe for decision.
State Oil Co. v. Khan, 522 U.S. 3, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997), illustrates the proper relation between the Supreme Court and a court of appeals. After Albrecht v. Herald Co., 390 U.S. 145, 88 S. Ct. 869, 19 L. Ed. 2d 998 (1968), held that antitrust laws condemn all vertical maximum price fixing, other decisions (such as Continental T.V., Inc. v. GTE Sylvania Inc., 433 U.S. 36, 97 S. Ct. 2549, 53 L. Ed. 2d 568 (1977)) demolished Albrecht's intellectual underpinning. Meanwhile new economic analysis showed that requiring dealers to charge no more than a prescribed maximum price could benefit consumers, a possibility that Albrecht had not considered. Thus by the time Khan arrived on appeal, Albrecht's rationale had been repudiated by the Justices, and new arguments that the Albrecht opinion did not mention strongly supported an outcome other than the one that Albrecht announced. Nonetheless, we concluded that only the Justices could inter Albrecht. See Khan v. State Oil Co., 93 F.3d 1358 (7th Cir. 1996). By plaintiffs' lights, we should have treated Albrecht as defunct and reached what we deemed a better decision. Instead we pointed out Albrecht's shortcomings while enforcing its holding. The Justices, who overruled Albrecht in a unanimous opinion, said that we had done exactly the right thing, "for it is this Court's prerogative alone to overrule one of its precedents." 522 U.S. at 20. See also, e.g., Eberhart v. United States, 546 U.S. 12, 126 S. Ct. 403, 163 L. Ed. 2d 14 (2005).
What's more, the proper outcome of this case is not as straightforward as the outcome of Khan. Although the rationale of Cruikshank, Presser, and Miller is defunct, the Court has not telegraphed any plan to overrule Slaughter-House and apply all of the amendments to the states through the privileges and immunities clause, despite scholarly arguments that it should do this. See Akhil Reed Amar, America's Constitution: A Biography 390-92 (2005) (discussing how the second amendment relates to the privileges and immunities clause). The prevailing approach is one of "selective incorporation." Thus far neither the third nor the seventh amendment has been applied to the states--nor has the grand jury clause of the fifth amendment or the excessive bail clause of the eighth. How the second amendment will fare under the Court's selective (and subjective) approach to incorporation is hard to predict.
Nordyke asked whether the right to keep and bear arms is "deeply rooted in this nation's history and tradition." Washington v. Glucksberg, 521 U.S. 702, 720-21, 117 S. Ct. 2258, 117 S. Ct. 2302, 138 L. Ed. 2d 772 (1997). It gave an affirmative answer. Suppose the same question were asked about civil jury trials. That institution also has deep roots, yet the Supreme Court has not held that the states are bound by the seventh amendment. Meanwhile the Court's holding that double-jeopardy doctrine is not "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Palko v. Connecticut, 302 U.S. 319, 325, 58 S. Ct. 149, 82 L. Ed. 288 (1937) (concluding that it is enough for the state to use res judicata to block relitigation of acquittals), was overruled in an opinion that paid little heed to history. Benton v. Maryland, 395 U.S. 784, 89 S. Ct. 2056, 23 L. Ed. 2d 707 (1969). "Selective incorporation" thus cannot be reduced to a formula.
Plaintiffs' reliance on William Blackstone, 1 Commentaries on the Laws of England 123-24, for the proposition that the right to keep and bear arms is "deeply rooted" not only slights the fact that Blackstone was discussing the law of another nation but also overlooks the reality that Blackstone discussed arms-bearing as a political rather than a constitutional right. The United Kingdom does not have a constitution that prevents Parliament and the Queen from matching laws to current social and economic circumstances, as the people and their representatives understand them. It is dangerous to rely on Blackstone (or for that matter modern European laws banning handguns) to show the meaning of a constitutional amendment that this nation adopted in 1868. See Nicholas Quinn Rosenkranz, Condorcet and the Constitution, 59 Stan. L. Rev. 1281 (2007). Blackstone also thought determinate criminal sentences (e.g., 25 years, neither more nor less, for robbing a post office) a vital guarantee of liberty. 4 Commentaries 371-72. That's not a plausible description of American constitutional law.
One function of the second amendment is to prevent the national government from interfering with state militias. It does this by creating individual rights, Heller holds, but those rights may take a different shape when asserted against a state than against the national government. Suppose Wisconsin were to decide that private ownership of long guns, but not handguns, would best serve the public interest in an effective militia; it is not clear that such a decision would be antithetical to a decision made in 1868. (The fourteenth amendment was ratified in 1868, making that rather than 1793 the important year for determining what rules must be applied to the states.) Suppose a state were to decide that people cornered in their homes must surrender rather than fight back--in other words, that burglars should be deterred by the criminal law rather than self help. That decision would imply that no one is entitled to keep a handgun at home for self-defense, because self-defense would itself be a crime, and Heller concluded that the second amendment protects only the interests of law-abiding citizens. See United States v. Jackson, 555 F.3d 635 (7th Cir. 2009) (no constitutional right to have guns ready to hand when distributing illegal drugs).
Our hypothetical is not as farfetched as it sounds. Self-defense is a common-law gloss on criminal statutes, a defense that many states have modified by requiring people to retreat when possible, and to use non-lethal force when retreat is not possible. Wayne R. LaFave, 2 Substantive Criminal Law 10.4 (2d ed. 2003). An obligation to avoid lethal force in self-defense might imply an obligation to use pepper spray rather than handguns. A modification of the self-defense defense may or may not be in the best interest of public safety--whether guns deter or facilitate crime is a an empirical question, compare John R. Lott, Jr., More Guns, Less Crime (2d ed. 2000), with Paul H. Rubin & Hashem Dzehbakhsh, The effect of concealed handgun laws on crime, 23 International Rev. L. & Econ. 199 (2003), and Mark Duggan, More Guns, More Crime, 109 J. Pol. Econ. 1086 (2001)--but it is difficult to argue that legislative evaluation of which weapons are appropriate for use in self-defense has been out of the people's hands since 1868. The way to evaluate the relation between guns and crime is in scholarly journals and the political process, rather than invocation of ambiguous texts that long precede the contemporary debate. See Clark v. Arizona, 548 U.S. 735, 126 S. Ct. 2709, 165 L. Ed. 2d 842 (2006) (state may reformulate, and effectively abolish, insanity defense); Martin v. Ohio, 480 U.S. 228, 107 S. Ct. 1098, 94 L. Ed. 2d 267 (1987) (state may assign to defendant the burden of raising, and proving, self-defense).
Chicago and Oak Park are poorly placed to make these arguments. After all, Illinois has not abolished self-defense and has not expressed a preference for long guns over handguns. But the municipalities can, and do, stress another of the themes in the debate over incorporation of the Bill of Rights: That the Constitution establishes a federal republic where local differences are to be cherished as elements of liberty rather than extirpated in order to produce a single, nationally applicable rule. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311, 52 S. Ct. 371, 76 L. Ed. 747 (1932) (Brandeis, J., dissenting) ("It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country."); Crist v. Bretz, 437 U.S. 28, 40-53, 98 S. Ct. 2156, 57 L. Ed. 2d 24 (1978) (Powell, J., dissenting) (arguing that only "fundamental" liberties should be incorporated, and that even for incorporated amendments the state and federal rules may differ); Robert Nozick, Anarchy, State, and Utopia (1974). Federalism is an older and more deeply rooted tradition than is a right to carry any particular kind of weapon. How arguments of this kind will affect proposals to "incorporate" the second amendment are for the Justices rather than a court of appeals.
Monday, September 28, 2009
The California Assembly earlier this month passed a bill, AB 590, to direct court fees and fines to services designed to promote and enhance access to the judiciary and to a pilot project to appoint legal counsel to low-income parties in "civil matters involving critical issues affecting basic human needs . . . ." Under the pilot project, "proposals to provide counsel in child custody cases should be considered among the highest priorities for funding, particularly when one side is represented and the other is not." The LA Times on Friday encouraged the governor to sign the bill.
In passing the bill, the legislature made several key constitutional findings, including these:
The doctrine of equal justice under the law is based on two principles. One is that the substantive protections and obligations of the law shall be applied equally to everyone, no matter how high or low their station in life. The second principle involves access to the legal system. Even if we have fair laws and an unbiased judiciary to apply them, true equality before the law will be thwarted if people cannot invoke the laws for their protection. For persons without access, our system provides no justice at all, a situation that may be far worse than one in which the laws expressly favor some and disfavor others.
Many judicial leaders acknowledge that the disparity in outcomes is so great that indigent parties who lack representation regularly lose cases that they would win if they had counsel. A growing body of empirical research confirms the widespread perception that parties who attempt to represent themselves are likely to lose, regardless of the merits of their case, particularly when the opposing party has a lawyer, while parties represented by counsel are far more likely to prevail. . . .
Equal access to justice without regard to income is a fundamental right in a democratic society.
The U.S. Supreme Court has never gone so far. The Supreme Court has treated claims for civil counsel under the procedural due process test in Mathews v. Eldridge. The Court in Mathews determined the constitutionally mandated process by balancing the litigant's interest, the government's interest, and the risk that the process used would lead to an erroneous deprivation.
The leading case on the civil right to counsel is Lassiter v. Department of Social Services. In Lassiter, the Court rejected a poor litigant's claim for appointed counsel in a termination-of-parental-rights case. The Court ruled that poor litigants have a right to appointed counsel in civil cases only when the Mathews factors weigh so heavily in favor of appointment as to overcome a presumption that there is a right to appointed counsel only when personal freedom is at stake. (The Lassiter Court created this presumption; it nowhere existed as such in the Court's cases.)
Federal constitutional claims for civil right to counsel have always run up against Lassiter and its presumption. But litigants have successfully won a state constitutional right to counsel in several states under state due process and equal protection principles.
California, through its majoritarian processes and not its courts, now is poised to add itself to the growing list of states that recognize a constitutional civil right to counsel.
For more on the civil right to counsel movement, check out the National Coalition for a Civil Right to Counsel web-site.
Sunday, September 27, 2009
Today, Brandeis is seen by liberals as their patron saint because of his views on speech, privacy, liberty and social welfare, yet conservatives claim him as well, because of his commitment to judicial restraint. In many ways he defies labeling. He demonstrated through his judicial decisions that a living constitution, responsive to changing needs, is not incompatible with a modest view of the role of judges. He rejected judicial activism in favor of allowing legislatures — the voice of the people — to expand rights and extend protections to the most vulnerable. He said of the Supreme Court that “the most important thing we do is not doing.”
This was, of course, easier to say in his day, when legislatures, for the most part, were more progressive than courts.
At more than 950 pages, the biography promises to be comprehensive. In the excerpt, Urofsky notes that Brandeis was not an introspective man, making the biographer's efforts at portraying Brandeis' inner life rather difficult. But given Brandeis' active and multiple careers, there is certainly much to interest readers.