Tuesday, October 15, 2013
Today's oral arguments before the United States Supreme Court in Schuette v. Coalition to Defend Affirmative Action, Integration and Immigrant Rights and Fight for Equality By Any Means Necessary (BAMN) raised a raft of interesting hypotheticals, including this question: Is the Michigan's state constitution's equal protection clause, which mirrors the federal one, itself unconstitutional under the Fourteenth Amendment's Equal Protection Clause.
Of course, the issue before the Court involves a different provision of Michigan's Constitution: Prop 2, adopted by voter referendum in 2006, and now Art I §26 of the state constitution.
The referendum occurred subsequent to the Court's upholding of Michigan University School of Law's affirmative action policy in Grutter v. Bollinger, even as the Court held unconstitutional the plan of the large undergraduate university as not sufficiently narrowly tailored.
Recall that the en banc Sixth Circuit majority in Coalition to Defend Affirmative Action v. Regents of the University of Michigan relied upon the so-called "political process" aspect of the Equal Protection Clause which asks whether a majority may vote to amend its constitution to limit the rights of a minority to seek relief, relying on Washington v. Seattle Sch. Dist. No. 1, 458 U.S. 457 (1982) and Hunter v. Erickson, 393 U.S. 385 (1969).
The oral argument reflected a deep suspicion of the political process rationale, with the most serious questioning being directed at what the limits to such a doctrine might be. Justice Alito returned to the issue several times, posing various hypotheticals about faculty admissions plans that might be overruled by a dean or president of the university. Or maybe, he continued,
it's overruled by the regents. Maybe, if State laws allowed, it's -- it's overruled by an executive department of the State. Maybe it's overruled by the legislature through ordinary legislation. Maybe it's overruled through a constitutional amendment. At what point does the political restructuring doctrine kick in?
Later in the rebuttal argument of the Petitioner, Justice Alito suggested an answer to his own question:
Seattle and this case both involve constitutional amendments. So why can't the law -- the law be drawn -- the line be drawn there? If you change the allocation of power in one of these less substantial ways, that's one thing; but when you require a constitutional amendment that's really a big deal.
Indeed, this was exactly the rationale of the en banc Sixth Circuit's majority opinion, as the opening passages to that opinion illustrated.
And Justice Kennedy, seemingly in his role as a "swing vote" - - - although Justice Kagan is recused - - - seemed to share the specific concerns of how to draw a line in the cases.
Justice Scalia certainly did not seem inclined to worry about drawing lines or allocations of power. Indeed, he rejected the notion that Prop 2, now Article I §26 of the Michigan Constitution - - - despite its textual "on its face" use of a race - - - made a racial classification. He chastised Mark Rosenblum, arguing on behalf of some of the respondents, for referring to Prop 2 as including a "facial racial classification":
JUSTICE SCALIA: It's not a racial classification. You should not refer to it that way.
MR. ROSENBAUM: It is a racial -
JUSTICE SCALIA: It's the prohibition of racial classifications.
MR. ROSENBAUM: No, Your Honor.JUSTICE SCALIA: Every prohibition of racial classification is itself a racial classification?
After further discussion, Justice Scalia asked,
In that sense, the 14th Amendment itself is a racial classification, right?
To which Rosenbaum replied that he was using the Fourteenth Amendment itself as measurement. Yet this theme recurred, and had been part of the Petitioner's opening argument, including references to Michigan's equal protection clause.
Scalia also outright dismissed an appeal to originalism. When Shanta Driver (pictured right) on behalf of Coalition to Defend Affirmative Action, Integration, and Immigrant Rights and Fight for Equality by Any Means Necessary (and who is its National Chair), began her argument asking the Court to affirm the Sixth Circuit and "to bring the 14th Amendment back to its original purpose and meaning, which is to protect minority rights against a white majority, which did not occur in this case," Scalia interjected:
JUSTICE SCALIA: My goodness, I thought we've -- we've held that the 14th Amendment protects all races. I mean, that was the argument in the early years, that it protected only -- only the blacks. But I thought we rejected that. You -- you say now that we have to proceed as though its purpose is not to protect whites, only to protect minorities?
And Justice Roberts surfaced the position that affirmative action was actually a detriment to those it sought to benefit, echoing some of the arguments in Thomas's dissent in Fisher, such as the so-called "mismatch theory."
Thus, while the arguments sometimes sought to distance themselves from the affirmative action battles that the Court re-engaged last term in Fisher v. UT, certainly Schuette v. Coalition to Defend Affirmative Action is another such battle, albeit on slightly different doctrinal terrain. It seems unlikely that it will have a different ultimate outcome.
Tuesday, October 8, 2013
But preemption was not the only constitutional attack on SB1070; and these challenges are slowly but surely making their way to the Ninth Circuit. In March, a panel of the Ninth Circuit rendered its opinion in Valle Del Sol v. Whiting and upheld District Judge Susan Bolton's preliminary injunction against enforcement of the day labor regulations of SB 1070 as violative of the First Amendment.
Today, the Ninth Circuit again rendered an opinion upholding Judge Bolton's preliminary injunction; and although the case is again styled Valle Del Sol v. Whiting, the provisions of SB 1070 at issue, codified as Arizona Revised Statutes §13-2929, are the ones that attempted to "criminalize the harboring and transporting of unauthorized aliens" within Arizona.
Authored for the panel by Judge Richard Paez, and joined by John T. Noonan, with a concurring opinion and minimal dissent by Judge Carlos Bea, the opinion devoted about 10 of its 45 pages to the issue of standing, concluding that there was both individual and organizational standing.
On the merits, the panel found a due process violation:
Section 13-2929 states that “[i]t is unlawful for a person who is in violation of a criminal offense” to knowingly or recklessly transport, conceal, harbor, or shield an unauthorized alien. We conclude that the phrase “in violation of a criminal offense” is unintelligible and therefore the statute is void for vagueness.
Interestingly, the footnote to this passage explains:
The plaintiffs did not originally raise this issue. But in order to address the plaintiffs’ preemption claim, we must first interpret the statute’s provisions. In attempting to do so, we are confronted with this incomprehensible element of § 13-2929. Thus, we resolve the vagueness issue because it is both “antecedent to . . . and ultimately dispositive of” the appeal before us.
The court stated that "Arizona makes no claim that 'in violation of a criminal offense' makes any sense as written." The panel rejected Arizona's arguments to "save" the statute's wording, stating that Arizona would have the court "replace a nonsensical statutory element with a different element" rather than engage in the more permissible approach of adopting a limiting construction.
The court then engaged with the preemption challenge, stating that even if it were to accept Arizona's proposed interpretation of the statute, the statute is also preempted by federal law, under the doctrines of field preemption and conflict preemption. It was from this analysis that Judge Bea dissented, saying that because the case is "resolved on other grounds, namely vagueness, I believe the court should not reach the preemption issue."
The mistake - - - carelessness? - - - in the drafting of this provision was a fatal flaw. While the legislature could redraft legislation, as the court notes, perhaps the political will in Arizona for bills such as SB1070 has diminished.
Wednesday, September 25, 2013
Tuesday, September 24, 2013
decision in Adoptive Couple v. Baby Girl, known as the "Baby Veronica" case, has been quite painful for the parties. Recall that the Court's 5-4 decision concluded that the Indian Child Welfare Act, ICWA, would not be violated by the adoption of the child by a white couple. The constitutional issue of "racial classifications" (rather than Indian sovereignty) loomed, but was not directly engaged.
The Oklahoma Supreme Court dissolved the emergency stay of the adoption yesterday in Brown v. DeLapp. The majority's order is accompanied by two dissenting opinions, each of which describe the various proceedings and holdings, including the South Carolina Supreme Court's decision that did not remand for a "best interests of the child" determination, but decided to "remand this case to the Family Court for the prompt entry of an order approving and finalizing Adoptive Couple's adoption of Baby Girl."
Much of the press has been highly sympathetic to the adoptive parents, but also worth a read is an article from Indian Country Today Media Network.
Saturday, September 7, 2013
From an announcement:
19th Annual Mid-Atlantic People of Color
Legal Scholarship Conference 2014
Hosted by the University of Baltimore School of Law
January 23-25, 2014
– Conference Theme & Call for Papers –
President Lyndon B. Johnson’s Great Society and Beyond:
The Historical and Contemporary Implications of Progressive Action and Human Fulfillment
Honoring and Critiquing the 50th Anniversary of Johnson’s Vision
In May 1964, President Lyndon Baines Johnson unveiled his revolutionary plans for the Great Society. As he explained it, Americans “have the opportunity to move not only toward the rich society and the powerful society, but upward to the Great Society. . . . The Great Society rests on abundance and liberty for all. It demands an end to poverty and racial injustice.”
According to Doris Kearns Goodwin, who wrote Lyndon Johnson and the American Dream, Johnson’s Great Society would be based on “progressive action” and the “possibilities for human fulfillment.” This action and fulfillment meant that regaining control of our society required us to end policies that threatened and degraded humanity.
Johnson’s Great Society reforms, included the Voting Rights Act of 1965, Medicare, Medicaid, Equal Opportunity Act, Elementary and Secondary Education Act, Social Security expansion, the Earned Income Tax Credit, the Higher Education Act, Head Start, the Civil Rights Act of 1964, the Housing and Urban Development Act of 1965, and the Open Housing Act of 1968. These laws extended and expanded the Bill of Rights and continued and expanded the programs initiated in Roosevelt’s New Deal of the 1930s and Truman’s Fair Deal in the late 1940s and early 1050s. As a result of LBJ’s programs, America’s official poverty rate declined throughout the 1960s, reaching a low of 11.2 percent in 1974, down from 19 percent in 1964, and most recently settling at 15.1 percent in 2010. According to Dylan Matthews, who wrote Poverty in the 50 Years Since ‘The Other America,’ in Five Charts, Johnson’s Great Society programs, which included the War on Poverty, “made a real and lasting difference.” Moreover, according to Demos, an estimated 40 million Americans avoided official poverty due to such programs as food stamps and Medicaid.
Unfortunately, what is also true is that the Vietnam War, which Johnson escalated and only at the end of his administration moved to end, crippled his domestic economic policies and undermined his goals for true racial equality. Despite the War on Poverty and dramatic changes in Civil Rights, racially concentrated poverty remains with us. Since the Johnson years, America has weathered the recessions of the 1980s and early 1990s, the late ‘90s dot com bubble, our current recession, the national security encroachment on civil liberties, the rise and fall of the Occupy Movement, the waning of the Arab Spring, and two middle east wars since 9-11.
It is clear that Johnson’s Great Society programs have saved millions of Americans from the depth of official poverty. It also true that Johnson’s vision, to which he was truly committed, staggered and failed when the civil rights movement dovetailed with political marginalization, economic inequality, pervasive racial discrimination, and imperialist policies. The Moynihan Report, the Watts Riots and urban unrests, and the emotional and financial suck of Vietnam prevented Johnson from deeply redressing America’s lingering poverty.
At MAPOC 2014, we intend to explore the furthest implications of President Johnson’s domestic and foreign policies, especially the impact of these policies on progressive action and human fulfillment, as we collectively explore and analyze the contemporary implications of Johnson’s Great Society. From these implications, the conference planning committee is seeking papers and panel proposals on the following substantive but not exhaustive subjects:
-- A Hand Up: The Meaningful Tension Between Formal Equality and Substantive Outcomes under the Civil Rights Act of 1964
-- Beyond Legislative Bogs and Dangerous Political Animals: President Obama’s Legislative Agenda and the Limits of Second-Term Progressivism
-- Endangered Citizens?: Rights and Remedies after State v. Zimmerman
-- Equality, Choice, and Happiness: the Rise and Fall of DOMA
-- Guns or Butter: Social Welfare Programs, Modern Problems of Central Banks, Debt Slavery, and Foreign Policies
-- Medicare, Healthcare, and Welfare: the Poor, the Elderly, and the Needy
-- Moynihan and the Contemporary (In)Stability of the Black Family
-- Racial (Dis)Harmony Then and Today
-- Voting Rights: Shelby County v. Holder and the Promise of One Citizen, One Vote
Paper submissions must include a working title, bios, abstract, and contact information.
Panel proposals must also include the foregoing information for each of the panel’s participants, and the organizer’s contact information, all of which must be submitted together only by the organizer.
Submit Papers and Panel Proposals by September 30, 2013 to: Reginald Leamon Robinson, Howard University, Conference Chair and Founder, MAPOC 2014: firstname.lastname@example.org.
[image: LBJ, National Portrait Gallery, via]
September 7, 2013 in Conferences, Elections and Voting, Equal Protection, Family, Federalism, Fundamental Rights, Gender, Race, Recent Cases, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)
Thursday, September 5, 2013
Daily Read: Interview with the Authors of Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America
Enemies Within: Inside the NYPD's Secret Spying Unit and bin Laden's Final Plot Against America is the just released book that lots of people who have an interest in surveillance and its constitutionality are talking about.
The authors, Matt Apuzzo and Adam Goldman, two AP reporters who won a Pulitzer Prize for their reporting on the New York City Police Department's surveillance of Muslims, gave an interview to "The Gothamist" and it's definitely worth a read. For example, the authors say that some police officials essentially said "Hey look we have to think differently about activities that would be protected by the First and Fourth Amendments because they could actually be precursors to terrorism." As one author responds: "That's just an incredible thing, when you think about the fact that a municipal police department is taking it upon itself [to decide] that constitutionally-protected speech is a warning sign for terrorism."
The authors state that their book is well-sourced, and indeed, the book has a companion website with maps and documents.
The authors will be appearing with Don Borelli, Former FBI Assistant Special Agent in Charge of the New York Joint Terrorism Task Force, at the Brennan Center for Justice in NYC on September 16, 2013. Info and rsvp here.
Wednesday, August 28, 2013
An ABA Journal article by Mark Walsh tells us that last Term, 2012-2013, was "another big one" for amicus curiae briefs at the United States Supreme Court: "Seventy of the 73 cases, or nearly 96 percent, that received full plenary review attracted at least one amicus brief at the merits stage."
The top amicus-attractors?
Shelby County v. Holder, the Voting Rights Act case, attracted 49 amicus briefs, including one from ConLawProf Patricia Broussard (second from right) and her students at FAMU College of Law, as pictured below.
Worth a look, especially for ConLawProfs writing, signing, or assigning amicus briefs.
August 28, 2013 in Affirmative Action, Cases and Case Materials, Current Affairs, Fifteenth Amendment, Fourteenth Amendment, Profiles in Con Law Teaching, Race, Recent Cases, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Tuesday, August 27, 2013
Several media and legal outlets are running impressive commentaries on this fiftieth anniversary of the March on Washington for Jobs and Freedom led by Martin Luther King, Jr.
Over at ACS blog, Law Prof Atiba Ellis writes on "The Moral Hazard of American Gradualism: A Lesson from the March on Washington." Ellis states, "the question we must confront in 2013 is whether we have been tranquilized into the lethargy of gradualism concerning the work that needs to be done." Ellis highlights the Court's decisions last term in Shelby and in Fisher as examples of "the new American gradualism – retrogressive action under the cover of apathy, spurred by the myth of post-racialism and the supposed fear of constitutional overreach."
And on NPR's Morning Edition, journalist Michele Norris profiles Clarence B. Jones as an attorney and "guiding hand" behind the "I Have a Dream" speech, including the famous "promissory note" metaphor. However, Norris also highlights Jones' memoir Behind The Dream, which had "some unlikely source material." Indeed, Jones' memoir may be more accurate than most, since his memory was augmented by transcripts of every single phone conversation he had with King, courtesy of the FBI, in a wiretap authorized by Robert Kennedy as Attorney General. The NPR story has a link to the FBI archive on King.
August 27, 2013 in Affirmative Action, Books, Current Affairs, Executive Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Race, Recent Cases, Scholarship, Theory, Thirteenth Amendment | Permalink | Comments (0) | TrackBack (0)
Monday, August 12, 2013
Federal District Judge Shira Scheindlin Finds NYCPD's Stop and Frisk Policies Violate Equal Protection
In a 198 page opinion today, accompanied by a 39 page order and opinion as to remedies, United States District Judge Shira Scheindlin has found the New York City Police Department's stop and frisk policies unconstitutional. (Recall Judge Scheindlin enjoined the NYPD's stop and frisk practices in the Bronx earlier this year).
In the closely watched case of Floyd v. City of New York, Judge Scheidlin's opinion is an exhaustively thorough discussion of the trial and at times reads more like a persuasive article than an opinion: it begins with epigraphs, has a table of contents, and has 783 footnotes. It also - - - helpfully - - - has an "Executive Summary" of about 10 pages. Here is an excerpt:
Plaintiffs assert that the City, and its agent the NYPD, violated both the Fourth Amendment and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. In order to hold a municipality liable for the violation of a constitutional right, plaintiffs “must prove that ‘action pursuant to official municipal policy’ caused the alleged constitutional injury.” “Official municipal policy includes the decisions of a government’s lawmakers, the acts of its policymaking officials, and practices so persistent and widespread as to practically have the force of law.”
The Fourth Amendment protects all individuals against unreasonable searches or seizures. . . .
The Equal Protection Clause of the Fourteenth Amendment guarantees to every person the equal protection of the laws. It prohibits intentional discrimination based on race. Intentional discrimination can be proved in several ways, two of which are relevant here. A plaintiff can show: (1) that a facially neutral law or policy has been applied in an intentionally discriminatory manner; or (2) that a law or policy expressly classifies persons on the basis of race, and that the classification does not survive strict scrutiny. Because there is rarely direct proof of discriminatory intent, circumstantial evidence of such intent is permitted. “The impact of the official action — whether it bears more heavily on one race than another — may provide an important starting point.”
The following facts, discussed in greater detail below, are uncontested:
Between January 2004 and June 2012, the NYPD conducted over 4.4 million Terry stops.
The number of stops per year rose sharply from 314,000 in 2004 to a high of 686,000 in 2011.
52% of all stops were followed by a protective frisk for weapons. A weapon was found after 1.5% of these frisks. In other words, in 98.5% of the 2.3 million frisks, no weapon was found.
8% of all stops led to a search into the stopped person’s clothing, ostensibly based on the officer feeling an object during the frisk that he suspected to be a weapon, or immediately perceived to be contraband other than a weapon. In 9% of these searches, the felt object was in fact a weapon. 91% of the time, it was not. In 14% of these searches, the felt object was in fact contraband. 86% of the time it was not.
6% of all stops resulted in an arrest, and 6% resulted in a summons. The remaining 88% of the 4.4 million stops resulted in no further law enforcement action.
In 52% of the 4.4 million stops, the person stopped was black, in 31% the person was Hispanic, and in 10% the person was white.
In 2010, New York City’s resident population was roughly 23% black, 29% Hispanic, and 33% white.
In 23% of the stops of blacks, and 24% of the stops of Hispanics, the officer recorded using force. The number for whites was 17%.
Near the end of the opinion, Judge Scheindlin astutely expresses the problem that has complicated relations between Fourth Amendment and Equal Protection arguments, as we recently discussed about racial profiling in Arizona. She solves the problem firmly on the side of Equal Protection:
The City and the NYPD’s highest officials also continue to endorse the unsupportable position that racial profiling cannot exist provided that a stop is based on reasonable suspicion. This position is fundamentally inconsistent with the law of equal protection and represents a particularly disconcerting manifestation of indifference. As I have emphasized throughout this section, the Constitution “prohibits selective enforcement of the law based on considerations such as race.” Thus, plaintiffs’ racial discrimination claim does not depend on proof that stops of blacks and Hispanics are suspicionless. A police department that has a practice of targeting blacks and Hispanics for pedestrian stops cannot defend itself by showing that all the stopped pedestrians were displaying suspicious behavior. Indeed, the targeting of certain races within the universe of suspicious individuals is especially insidious, because it will increase the likelihood of further enforcement actions against members of those races as compared to other races, which will then increase their representation in crime statistics. Given the NYPD’s policy of basing stops on crime data, these races may then be subjected to even more stops and enforcement, resulting in a self-perpetuating cycle.
The Equal Protection Clause’s prohibition on selective enforcement means that suspicious blacks and Hispanics may not be treated differently by the police than equally suspicious whites. Individuals of all races engage in suspicious behavior and break the law. Equal protection guarantees that similarly situated individuals of these races will be held to account equally.
This important, scholarly, and thorough opinion is sure to set a standard of judicial craft. It is also sure to be appealed by the City of New York.
August 12, 2013 in Cases and Case Materials, Criminal Procedure, Current Affairs, Equal Protection, Fourteenth Amendment, Fourth Amendment, Opinion Analysis, Race | Permalink | Comments (0) | TrackBack (0)
Monday, July 8, 2013
A Fourth Circuit panel issued its opinion in Sons of Confederate Veterans, Virginia Division v. City of Lexington, Virginia holding that Lexington's "flag pole" ordinance limiting flags to that of the nation, state, and city was constitutional under the First Amendment. The Sons of Confederate Veterans argued on appeal that the City was motivated in enacting the ordinance by its desire to bar the Confederate flag from its flagpoles. For the court, even if that were true, it was of no constitutional moment. The flag poles had been a "designated public forum," but the
Ordinance has the effect of closing a designated public forum — the perpetual availability of which was never guaranteed — to all private speakers. The City was entitled to listen to the public and to enact ordinances that are constitutional in text and in operation, and that are supported by the electorate.
The court quickly added, however, that
the Ordinance specifies that it does not “prohibit or curtail individuals from carrying flags in public and/or displaying them on private property.” Lexington City Code § 420-205(C) (2011). As a result, all private groups and individuals remain free to express their flag-bound messages in other ways.
The limitation of the flag poles - - - or flag standards - - - may or may not be operative in a reported plan by a Louisiana legislator to ban the rainbow flag (aka LGBT pride flag) from government property. The prompting incident was reportedly a rainbow flag that was "hoisted" on a government flag pole to less than universal acclaim.
If the Louisiana legislators need some advice about drafting a constitutional ordinance, they might have a look at Sons of Confederate Veterans. A ban on all nongovernmental flags, including the rainbow flag, on government property? Violative of the First Amendment. A ban on all nongovernmental flags on Government-owned flag poles? Likely to survive a First Amendment challenge. And - - - just to be clear - - - a ban on rainbow flags while allowing Confederate flags? Not constitutional.
And a government ban specifically on the "rainbow Confederate flag" ???
Tuesday, July 2, 2013
Last Term's opinions - - - especially its opinions regarding the constitutionality of the VRA in Shelby, of DOMA and Prop 8 in Windsor and Perry, and of UT's affirmative action plan in Fisher - - - continue to spark debate and commentary. As well they should. But much of our discussions focus on individual Justices: Is Justice Kennedy the "first gay Justice?" Is Justice Alito really rude? Is Chief Justice Roberts playing a "long game?" And what about the tumblr "Notorious R.B.G.? Or @SCOTUS_Scalia, a twitter account?
In their 2010 law review article, Judicial Duty and the Supreme Court’s Cult of Celebrity, available on ssrn, Craig Lerner and Nelson Lund observed that there was a huge dissonance between the personality portrayed in confirmation hearings and the outsized personality on the bench and suggested four Congressional reforms. Their first proposal:
Congress should require that all Supreme Court opinions, including concurrences and dissents, be issued anonymously. This should lead to fewer self-indulgent separate opinions, more coherent and judicious majority opinions, and more reason for future Justices to treat the resulting precedents respectfully.
They contend, "[t]ruly unpretentious judicial servants should have no need to put their personal stamp on the law, and the practice of doing so has contributed to unnecessary and unhealthy flamboyance in the Court’s work."
Their article contains an excellent discussion of the problem of "celebrity," but little discussion of the constitutionality of a Congressional mandate for anonymity or for their other proposals. Certainly, should the anonymity proposal be enacted, there would be a constitutional separation of powers challenge. Although who would have standing? And what about recusal?
[image DonkeyHotey via]
July 2, 2013 in Affirmative Action, Cases and Case Materials, Congressional Authority, Courts and Judging, Current Affairs, Elections and Voting, Equal Protection, Gender, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Standing, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Tuesday, June 25, 2013
The Supreme Court today in Shelby County v. Holder ruled that Section 4 of the Voting Rights Act is unconstitutional. Section 4 provides the coverage formula for Section 5, the preclearance provision. The ruling does not stirke preclearance (in Section 5); it only strikes the coverage formula (in Section 4). Moreover, the ruling says that the coverage formula was rational in 1966, just not today. The case leaves in place Section 2, the ban on racial discrimination in voting.
Chief Justice Roberts wrote the majority opinion, joined by Justices Scalia, Kennedy, Thomas, and Alito; Justice Ginsburg wrote the dissent, joined by Justices Breyer, Sotomayor, and Kagan.
The Court said that Congress can re-write Section 4. If Congress cannot do that, though, or if it can only do it in a way that this Court would strike, Section 5 preclearance will have no practical effect (even if it remains on the books). That is: with no valid coverage formula for preclearance, preclearance doesn't happen.
If so, the ruling effectively strikes the preclearance requirement. And if so, the VRA remedy for racial discrimination in voting is Section 2--the ban on racial discrimination in voting, enforced by case-by-case litigation against offending jurisdictions. (Preclearance, on the other hand, required historically offending jurisdictions to justify in advance any changes to their voting laws.) The failure of case-by-case litigation to keep up with so-called "second generation" voting discrimination is one key reason why Congress reauthorized Sections 4 and 5.
So, the long-and-short of it is this: If Congress can't re-write the coverage formula in Section 4 (which seems likely, given the politics in Congress), then Section 5 preclearance is of no effect. If so, the VRA has lost a significant, singular tool in fighting race discrimination in voting. We will continue to see case-by-case litigation against offending jurisdictions under Section 2, but if history is any guide, that litigation will never catch up with the many and clever ways that jurisdictions use to discriminate in voting.
This is a big loss for voting rights, even as it frees up covered jurisdictions from a burdensome preclearance requirement.
Monday, June 24, 2013
In a 7-1 decision (recall Justice Kagan is recused) and after an extended wait from last October's oral argument, the Court reversed the Fifth Circuit's opinion in Fisher v. University of Texas rejecting an equal protection challenge to the university's affirmative action program.
Kennedy's opinion for the Court leaves affirmative action under Grutter v. Bollinger in tact, but holds that the Fifth Circuit did not apply strict scrutiny in a sufficiently rigorous manner. Recall that in Fisher, University of Texas argued that race was only a "factor within a factor." But for Kennedy, this was not sufficient. In some ways, Kennedy's opinion validates the "dissental" from en banc review of the controversial Judge Edith Jones.
The sticking point for the Court was the narrowly tailored prong:
Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. . . . True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”
Indeed, Kennedy stated that "The higher education dynamic does not change the narrow tailoring analysis of strict scrutiny applicable in other contexts."
Kennedy's opinion upends O'Connor's adage from Adarand that that "strict scrutiny must not be “ ‘strict in theory, but fatal in fact,’” by adding:
But the opposite is also true. Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that “encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.”
Justice Thomas, concurring, would reverse Grutter v. Bollinger and Justice Scalia, in a paragraph concurrence, stated that Fisher did not ask Grutter to be overruled.
Only Justice Ginsburg, in a relatively brief dissent, holds that the lower federal courts should not revisit their findings:
I would not return this case for a second look. As the thorough opinions below show, the University’s admissions policy flexibly considers race only as a “factor of a factor of a factor of a factor” in the calculus, followed a yearlong review through which the University reached the reasonable, good-faith judgment that supposedly race-neutral initiatives were insufficient to achieve, in appropriate measure, the educational benefits of student- body diversity, and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University’s educational objectives.
In sum, Fisher glosses but does not essentially change affirmative action doctrine. It makes the narrowly tailored prong more difficult to meet, and may approach "fatal in fact," but it does leave leeway for a fact-intesive showing by a university regarding its use of race.
And it does not end the affirmative action issue. Recall that the Court granted a petition for certiorari in Schuette v. Coalition to Defend Affirmative Action in which a majority of the en banc Sixth Circuit held Michigan's anti-affirmative action constitutional amendment, passed in 2006 as a ballot initiative Proposal 2, unconstitutional.
Wednesday, June 5, 2013
Long controversial, Judge (and former Chief Judge) Edith Jones of the Fifth Circuit Court of Appeals is now the subject of an ethics complaint filed by a constorium of persons under the Judicial Conduct and Disability Act. The complaint asks that the matter be transferred out of the Fifth Circuit.
The main allegations arise from a speech by Judge Jones at a Federalist Society event at University of Pennsylvania in February on the death penalty. Jones is alleged to have made points such as these:
*The United States system of justice provides a positive service to capital-case defendants by imposing a death sentence, because the defendants are likely to make peace with God only in the moment before imminent execution;
*Certain “racial groups like African Americans and Hispanics are predisposed to crime,” are “‘prone’ to commit acts of violence,” and get involved in more violent and “heinous” crimes than people of other ethnicities;
*Claims of racism, innocence, arbitrariness, and international standards are simply “red herrings” used by opponents of capital punishment;
*Capital defendants who raise claims of “mental retardation” abuse the system;
*The United States Supreme Court’s decision in Atkins v. Virginia prohibiting execution of persons who are “mentally retarded” was ill-advised and created a “slippery slope”;
*Mexican Nationals would prefer to be on death row in the United States rather than in prison in Mexico;
Friday, May 31, 2013
While for many Conlawprofs Loving v. Virginia is the "face" of love and marriage across racial divides, looking both backward and forward from the 1967 case can add depth to teaching and scholarship about the issue. (And if it seems not to be an issue any longer, a quick look at the "controversy" caused by a cereal advertisement featuring an interracial couple and their child is worth considering).
Professor Angela Onwuachi-Willig's new book, According to Our Hearts: Rhinelander v. Rhinelander and the Law of the Multiracial Family, just published by Yale University Press, provides that depth.
Her exploration focuses on Rhinelander v. Rhinelander, a case that did not involve a constitutional issue, except to the extent that racial categorizations always implicate issues of constitutionalism and equality. As Onwuachi-Willig describes in a piece in the UC Davis Law Review,
Alice Beatrice Jones was a working-class woman, who met Leonard Kip Rhinelander, a wealthy white male descendant of the Huguenots and heir to millions of dollars, in the fall of 1921. . . . [They married in a private ceremony and] Just two weeks later, on November 26, 1924, Leonard filed for annulment of his marriage to Alice. He argued that Alice had lied to him about her race. Leonard claimed that Alice had committed fraud that made their marriage void by telling him that she was white and by failing to inform him that she was of “colored blood.”
Rather than litigate her whiteness as many expected, she argued that he knew her racial status.
The trial of the Rhinelanders proved to be shocking on many fronts. It involved racy love letters, tales of pre-marital lust and sex, and the exhibition of Alice’s breasts, legs, and arms in the courtroom to prove that Leonard, who had seen her naked before marriage, would have known that she was colored at the time of their nuptials. What was most scandalous about the Rhinelander case, however, was the trial’s end. The jury returned a verdict for Alice, determining that Leonard knew her racial background before marriage yet married her anyway.
Onwuachi-Willig's book also provides contemporary arguments that current law fails to protect interracial couples, especially given the privileges that continue to be accorded on the basis of marriage.
As we wait for both Fisher v. UT and the same-sex marriage cases of Perry and Windsor, or as we contemplate their meanings once the opinions are rendered, Onwuachi-Willig's book is an important and pleasurable read.
Saturday, May 25, 2013
In a 142 page opinion and order in Melendres v. Arpaio, United States District Judge G. Murray Snow found that the Maricopa County Sheriff's Office [MCSO] led by Sheriff Arpaio unconstitutionally relied upon "Mexican ancestry" in stopping and detaining persons in its jurisdiction.
Recall that Sheriff Arpaio is a controversial figure who has styled himself as America's "toughest sheriff" and whose policies such as shackling pregnant inmates giving birth and forcing male inmates to "wear pink" have been subject to constitutional challenge.
In the Melendres class action lawsuit, the district judge listed the issues as:
- whether, and to what extent, the Fourth Amendment permits the MCSO to question, investigate, and/or detain Latino occupants of motor vehicles it suspects of being in the country without authorization when it has no basis to bring state charges against such persons;
- whether the MCSO uses race as a factor, and, if so, to what extent it is permissible under the Fourth Amendment to use race as a factor in forming either reasonable suspicion or probable cause to detain a person for being present without authorization;
- whether the MCSO uses race as a factor, and if so, to what extent it is permissible under the equal protection clause of the Fourteenth Amendment to use race as a factor in making law enforcement decisions that affect Latino occupants of motor vehicles in Maricopa County;
- whether the MCSO prolongs traffic stops to investigate the status of vehicle occupants beyond the time permitted by the Fourth Amendment; and
- whether being in this country without authorization provides sufficient reasonable suspicion or probable cause under the Fourth Amendment that a person is violating or conspiring to violate Arizona law related to immigration status.
The judge's extensive discussion of the trial and his findings of fact provide a detailed portrait of the MCSO's attempts to enforce immigration laws, including its "LEAR" policy (Law Enforcement Agency Response in conjunction with federal immigration authorities), "saturation patrols," and mixed messages about the permissibility of the consideration of race or "Mexican ancestry." The opinion details the often rocky relationship between MCSO and federal ICE regarding immigration enforcement.
Ultimately, Judge Snow concluded that that the MCSO's stated prohibition of "racial profiling" was limited to an exclusive reliance on race but allowed race to be a factor and did not strive to be race-neutral. In keeping with this policy, the MCSO routinely relied upon race as a factor according to Judge Snow. Such policies and practices violate both the Fourth Amendment and the Equal protection Clause of the Fourteenth Amendment.
The Judge entered a permanent injunction prohibiting MCSO from:
- detaining, holding or arresting Latino occupants of vehicles in Maricopa County based on a reasonable belief, without more, that such persons are in the country without authorization,
- following or enforcing its LEAR policy against any Latino occupant of a vehicle in Maricopa County;
- using race or Latino ancestry as a factor in determining to stop any vehicle in Maricopa County with a Latino occupant;
- using race or Latino ancestry as a factor in making law enforcement decisions with respect to whether any Latino occupant of a vehicle in Maricopa County may be in the country without authorization;
- detaining Latino occupants of vehicles stopped for traffic violations for a period longer than reasonably necessary to resolve the traffic violation in the absence of reasonable suspicion that any of them have committed or are committing a violation of federal or state criminal law;
- detaining, holding or arresting Latino occupants of a vehicle in Maricopa County for violations of the Arizona Human Smuggling Act without a reasonable basis for believing that, under all the circumstances, the necessary elements of the crime are present;
- detaining, arresting or holding persons based on a reasonable suspicion that they are conspiring with their employer to violate the Arizona Employer Sanctions Act.
Judge Snow encouraged the parties to engage in further negotiations toward a settlement for implementing the injunction and included references to other settlements. However, Sheriff Arpaio has reportedly already proclaimed his intention to appeal.
Thursday, April 18, 2013
Integral to the same-sex marriage cases of Perry and Windsor argued before the Court last month is the 2003 case of Lawrence v. Texas. Although the Court's opinion specifically excluded marriage in its caveat paragraph, the declaration that sodomy laws were unconstitutional under the Due Process Clause is generally considered a linchpin of recognizing any constitutional right to same-sex marriage under the Equal Protection Clause.
Professor Marc Spindelman (pictured) reviews Professor Dale Carpenter's book Flagrant Conduct: The Story of Lawrence v. Texas in a trenchant essay entitled Tyrone Gardner's Lawrence v. Texas appearing in Michigan Law Review. Spindelman acknowledges the contribution of the book even as he uses it as a springboard to reach different conclusions about the potential of the case to achieve equality or civil rights. Spindelman focuses on Tyrone Gardner, who along with John Geddes Lawrence was arrested for sodomy, as a lens for exploring the reach of Lawrence v. Texas.
Refering to Gardner, Spindeleman asks, "How could Lawrence v. Texas, this great victory for lesbian and gay civil rights, have done and meant so very little to the life of one of the two men most central to it?" Spindelman's answers explore the status-quo bias and moral conservatism of Lawrence, connecting the case to affirmative action decisions as well as to the "Obamacare" case, Nat’l Fed’n of Indep. Bus. v. Sebelius.
Every ConLawProf teaching Lawrence v. Texas would do well to read Spindelman's essay.
April 18, 2013 in Books, Due Process (Substantive), Equal Protection, Gender, History, Race, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Teaching Tips, Theory | Permalink | Comments (0) | TrackBack (0)
Wednesday, April 17, 2013
What do our visual images of justice tell us? Judith Resnik with her co-author Dennis E. Curtis, provide ample, exciting and complex answers to that question in their marvelous book, Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, published in 2011.
Resnik's 2013 essay, Equality’s Frontiers: Courts Opening and Closing, adapted from remarks at an event celebrating Justice Ginsburg’s gender-equality jurisprudence and drawing on the book, is a brief but evocative look at how justice and equality are - - - and were - - - portrayed. Two images Resnik includes and analyzes from WPA murals in courthouses are particularly salient.
First, there is an image of Justice as Protector and Avenger in a South Carolina courtroom.
Second, there is an image in a Idaho courthouse:
Should this be removed as offensive? Or displayed as an accurate part of the history of justice and equality? Resnik shares the decisions of state officials, ultimately made in consultation with Native tribes.
Resnik contends that such images, including these from courthouses in South Carolina and Idaho,
make a first point—that courts were one of equality’s frontiers. The conflicts about what could or could not be shown on courthouse walls mirrored conflicts about what rights people had in court.
A terrific read - - - and look - - - as well as a reminder of the richness of the Representing Justice book.
Tuesday, April 16, 2013
Today's oral arguments in Adoptive Couple v. Baby Girl, which we previewed yesterday, were indeed a mix of statutory interpretation and application of the Indian Child Welfare Act (ICWA) and constitutional issues, with a dose of family law.
Arguing for the adoptive couple, Lisa Blatt described the biological father as equivalent to "a sperm donor," causing Justice Scalia to counter with an assertion of fatherhood ("He's the father. He's the father.") to which Blatt replied, "And so is a sperm donor under your definition. He's a biological father and nothing else in the eyes of State law." By this description, Blatt not only argued that the biological father was not a parent under ICWA, but also tended to erode any constitutional rights that the father might have. Blatt also took on the constitutional argument more directly, arguing that ICWA would "raise grave constitutional concerns" if "Congress presumptively presumed that a non-Indian parent was unfit to raise any child with any amount of Indian blood."
The "amount of Indian blood" was an issue that attracted the attention of Chief Justice Roberts, who has been attentive racial identities in the affirmative action cases, including Fisher argued earlier this Term. During Charles Rothfeld's argument on behalf of the biological father, Roberts posed a "hypothetical" about an Indian tribe that had a "zero percent blood requirement" and enrolled members who "think culturally they're a Cherokee." Justice Ginsburg objected that this was not the ICWA definition and Justice Scalia agreed that Roberts' hypothetical would be a "null set," but Roberts posed the query again. Rothfeld replied that such "wild hypotheticals" would "present political questions to be addressed by Congress or addressed by the executive branch."
Arguing between Blatt and Rothfeld, Paul Clement, on behalf of the child's law guardian - - - asserting the child's best interests as assumed by the guardian - - - also contended that ICWA was constitutionally suspect. The "Indian child" is a racial classification:
And as a result of that her whole world changes and this whole inquiry changes. It goes from an inquiry focused on her best interests and it changes to a focus on the birth father and whether or not beyond a reasonable doubt there is a clear and present danger.
Clement's characterization of ICWA's standard was somewhat hyperbolic, although the statute does require the high standard and does have a "substantial and immediate danger or threat of such danger" exemption. This resonated with Blatt's rebuttal, expressing the dangers of a Court affirmance of the South Carolina Supreme Court's opinion in favor of the biological father:
And you're basically relegating the child, the child to a piece of property with a sign that says, "Indian, keep off. Do not disturb." This case is going to affect any interracial adoption of children.It is highly unlikely that the Court will address the lurking equal protection racial classification issue, however its importance was revealed in Paul Clement's colloquy with Justice Kennedy about "constitutional avoidance." Justice Breyer essentially asked Clement how to remedy the situation and Clement responded that because ICWA provides "extraordinary" protections that "it only makes sense to prove something more than bare paternity."
It is more likely that the Court's usual conservative/liberal dichotomy will not be apparent in the ultimate opinions.
Monday, April 15, 2013
The oral arguments in Adoptive Couple v. Baby Girl, on certiorari to the South Carolina Supreme Court will be held on April 16. The case, also known as “Baby Veronica,” is an emotional struggle over custody of a small child.On one view, the Court’s task is a relatively simple one of statutory interpretation, including the definition of “parent” in the Indian Child Welfare Act, ICWA. The petitioners, the adoptive couple, articulate the questions presented as:
(1) Whether a non-custodial parent can invoke the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63, to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law.
(2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
The questions presented by the respondent birth father, a registered member of the Cherokee Nation, and by the respondent Cherokee Nation, and by the United States as amicus curiae supporting the respondent, all likewise focus on ICWA, albeit with a different persuasive cadence. These articulations stress the positive acts of the biological father. For example, as the biological father phrases the parenting definition question:
Whether an Indian child’s biological father who has expressly acknowledged that he is the child’s father and has established that he is the father through DNA testing is the child’s “parent” within the meaning [of ICWA].
The Brief of the United States as amicus curiae, supporting the respondent father and tribe has a similar issue statement, asking whether the state courts properly applied ICWA
to award custody of an Indian child to her biological father over an adoptive couple, where the father acknowledged and established his paternity and no remedial measures had been taken to avoid termination of his parental rights.
However, the case is not merely one of statutory interpretation, but raises important, if not always obvious, constitutional issues.
First, Congressional intervention in child welfare must rely on a particularly enumerated power of Congress, the usual one being the Spending Clause. For Native Americans, however, Congressional power is often labeled “plenary,” although it is grounded most specifically in the Indian Commerce Clause, Art. I §3 cl. 8. ICWA was intended to prevent the removal of Native children from their parents - - - as well as their tribes - - - a history that many of the amicus briefs discuss in depth.
Second, and relatedly, this Congressional power over Native children raises federalism issues, especially given that child custody and adoption are generally within the state’s police powers. In the case of Baby Veronica, the South Carolina Supreme Court affirmed the trial judge’s application of ICWA to deny the adoption and award custody to the Native father. Yet the very existence of ICWA arguably intrudes upon state police powers.
Third, and most stealthily, the case may present issues of due process and equal protection. In the brief on behalf of Baby Veronica through her Guardian ad Litem authored by Paul Clement, the arguably “erroneous interpretation” of ICWA “raises serious constitutional issues.” In this argument, the best interests of the child standard - - - the usual touchstone in child adoption and custody - - - aspires to a constitutional right of the child. Moreover, the state court’s decision violated the baby’s equal protection and due process rights.
For example, the brief analogizes to the equal protection case of Palmore v. Sidoti:
In Palmore, this Court struck down the use of racial classifications to remove a child from an appropriate custody placement. This case is no different. Baby Girl’s Indian blood quantum was the sole reason the lower court ordered her removed from the loving, stable home she had lived in since birth and placed with a biological father whose failure to timely care for her extinguished any parental rights he might otherwise have had under state law or the Constitution.
Less successfully, the brief attempts to articulate a liberty interest of the child:
And “to the extent parents and families have fundamental liberty interests in preserving such intimate relationships, so, too, do children have these interests, and so, too, must their interests be balanced in the equation.” Troxel v. Granville, 530 U.S. 57, 88 (2000) (Stevens, J., dissenting).
Yet ultimately, the brief argues that there is an (unconstitutional) racial classification if ICWA is applied too broadly. Clement argues that ICWA should be interpreted to limit "its application to adoption and custody proceedings involving children who are either domiciled on a reservation or have some other tribal connection beyond biology."
These limitations are crucial to preserving the Act’s constitutionality, ensuring that the Act’s differential treatment of Indians operates only to promote tribal sovereignty and the unique interests of Indians as tribal citizens, and not as invidious racial discrimination that arbitrarily trumps Baby Girl’s liberty interests. [ICWA's] definition of parent, properly interpreted, avoids these difficulties by declining to give an unwed Indian father rights based on biology alone that no non-Indian unwed father enjoys.
Moreover, ICWA's constitutional interpretation rests upon limiting its "application to children in the pre-existing custody of an Indian parent or other circumstances in which there is a distinct connection to tribal interests."
Clement - - who so recently represented BLAG supporting the constitutionality of DOMA in United States v. Windsor - - - here has quite a different view of equality and federal power.
While it is unlikely that these constitutional arguments assume center stage, they may infuse the statutory interpretation of ICWA so squarely before the Court.
[image circa 1890 via]
April 15, 2013 in Congressional Authority, Current Affairs, Due Process (Substantive), Equal Protection, Family, Federalism, Fundamental Rights, History, Interpretation, Race, Sexuality, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)