Monday, February 18, 2013

"Lincoln" Errs . . . And Corrects Errors

Prof. Edward Zelinsky (Cardozo) wrote last week in the Hartford Courant about a mistake in the movie "Lincoln."  The error: Lincoln wouldn't have signed the Amendment.  Zelinsky explains:

In a particularly effective scene in a movie with many more of them, President Abraham Lincoln holds aloft a pen for emphasis and forcefully declares his intent to soon sign the 13th Amendment, abolishing slavery.  The problem is that presidents do not sign constitutional amendments.  Abraham Lincoln, the best lawyer to ever serve as the nation's chief executive, undoubtedly knew this.  He would not have declared his intention to sign an amendment that was not his to sign.

But Zelinsky's willing to cut screenplay author Tony Kushner some slack:

Mr. Kushner's liberties with the details of the Constitution served a legitimate artistic mission by graphically portraying Lincoln's personal commitment to the abolition of slavery.  As the movie makes clear, the abolition of slavery via the 13th Amednment was not inevitable.  Lincoln's commitment was decisive.

As Zelinsky points out, the alternative--in which Lincoln might have said "something along the lines of wanting Congress to promptly send the 13th Amednment to the states"--is "not the stuff on which Oscar nominations are made."  Good point.

(Zelinsky also references another error: the movie's portrayal of Connecticut congressman as voting against the Thirteenth Amendment.  In fact, Connecticut's representatives voted for it.) 

But if the film committed errors, it also helped correct them--or at least one of them.  According to The Atlantic Wire, a recent immigrant from India, Dr. Ranjan Batra, after seeing the movie, researched and determined that Mississippi never ratified the Thirteenth Amendment.  Last week it did.

SDS

February 18, 2013 in Fundamental Rights, History, News, Reconstruction Era Amendments, Thirteenth Amendment | Permalink | Comments (3) | TrackBack (0)

Monday, January 21, 2013

Daily Read: Martin Luther King on Meet the Press 1965

In a 1965 "Meet the Press" interview, Martin Luther King speaks about civil disobedience, nonviolent protest, and racial equality, responding to the queries from the interviewers.

 

  

 

Worth a watch on this MLK Day, 2013.

RR
[video via]

January 21, 2013 in History, Race, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Monday, January 7, 2013

Daily Read: Pam Karlan on the 2011 United States Supreme Court Term

Pamela Karlan's "Democracy and Disdain" is the Forward to Harvard Law Review's annual Supreme Court issue for the 2011 Term and is a compelling - - - indeed, necessary and delightful - - - read.  Karlan's central thesis, as the title aptly communicates, is that the Roberts' Court has little but disdain for the democratic process.  By "Roberts' Court," of course, she means the five Justices who usually form the majority, including Roberts, Scalia, Thomas, Alito, and Kennedy.  

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Professor Karlan (pictured) concludes that this disdain will ultimately bring the Court into disrepute, comparing the present state of affairs unfavorably with the Warren Court:

The Roberts Court’s narrow substantive reading of enumerated powers maps fairly closely onto the contemporary conservative political agenda. To the extent that the conservative agenda gains popular acceptance, the Court may garner acclaim as a guardian of constitutional values. But if the public rejects that agenda, or remains sharply divided, the Court risks being perceived as simply another partisan institution. The Court’s current status rests in substantial measure on its having been on the right side of history in Brown v. Board of Education. Only time will tell whether the Court will retain that status given the choices the Roberts Court is making.

Karlan is adept at comparing the present Court to previous ones, not only including the Warren Court.  Spoiler alert: When she quotes Justice Roberts, she might not be quoting the 2012 John Roberts but the 1936 Owen Roberts, a device she uses to especially good effect.  Also to good effect is her usage of other justices, colloquies in oral argument, the occasional poet, and theorist.  The writing is broad and engaging without being precious.  It makes her analysis of the cases even more trenchant, situated in larger themes and trends.

Of course, not all ConLawProfs will agree with Karlan's views of the Court, including one subsection entitled "Protecting Spenders and Suspecting Voters," and another "Suspecting Congress."    And Karlan's argument is hardly unique, as anyone who recalls Rehnquist Court scholarship, including the excellent 2001 article "Dissing Congress," by Ruth Colker and James J. Brudney can attest.  And it is especially noteworthy that  the Court did uphold the constitutionality of the Affordable Care Act in National Federation of Independent Business v. Sebelius, a case that Karlan extensively discusses and more interestingly, situates within the Term's other less notable decisions. 

But this is a must read article before beginning the new semester. 

And after that, read George Wills' Washington Post op-ed, Karlan's response, and responses in the Harvard Law Review Online Forum by Randy Barnett and Stephen Calabresi.

RR
[image of Pamela Karlan via]

January 7, 2013 in Courts and Judging, Due Process (Substantive), Elections and Voting, Fifteenth Amendment, First Amendment, Fourteenth Amendment, History, Interpretation, Race, Recent Cases, Reconstruction Era Amendments, Scholarship, Separation of Powers, Supremacy Clause, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, November 9, 2012

Supreme Court Puts Voting Rights in Crosshairs

The Supreme Court on Friday agreed to hear the Shelby County challenge to the preclearance provision of the Voting Rights Act as reauthorized in 2006.  The preclearance provision, Section 5, is the centerpiece of the VRA; it requires covered jurisdictions--those with a particularly ugly history of discrimination in voting--to obtain preclearance from the U.S. Department of Justice or a three-judge federal court in D.C. before making any changes to their voting laws.  The Court criticized Section 5 just three-and-a-half years ago in Northwest Austin Municipal Utility District v. Holder for not keeping up with improvements in covered jurisdictions and for intruding on the states.  The Court wrote that Section 5 raised "serious constitutional questions," but declined to rule on its constitutionality.  Thus Section 5 survived Northwest Austin--but just barely.

The cert. grant in the Shelby County case asks whether Section 5 is unconstitutional in light of Congress's reauthorization of it using pre-existing Section 4(b) coverage.  Section 4(b) sets a formula for which states and counties are covered jurisdictions and therefore must obtain preclearance before changing their voting laws.  The two sections go hand-in-hand, and a ruling overturning Section 5 would render Section 4(b) null.  But a ruling overturning only Section 4(b) could leave Section 5 in place.  Such a ruling would require Congress to go back and determine the covered jurisdictions more carefully--something some say it failed to do when it reauthorized the VRA in 2006 (and hasn't done since).

The way the Court poses the question presented leaves this possibility open--and it's the more restrained option for a Court inclined to overturn something in the 2006 reauthorization.  But it seems highly unlikely.  Section 5 is almost certainly the real target, whatever the coverage formula in Section 4(b).  Here's the QP:

Whether Congress' decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article IV of the United States Constitution.

The QP's references to the Tenth Amendment and Article IV ensure that the case will center on federalism concerns.  Northwest Austin said as much, with its language suggesting that Section 5 unduly intrudes on the states.

The Court took no action on another Section 5 challenge, Nix.  Petitioners in that case filed their cert. petition at the same time that the Shelby County petitioners filed, in late July.

SDS

November 9, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 9, 2012

Fisher v. University of Texas: Oral Argument Preview

The oral argument in Fisher v. UT - - - this term's "affirmative action" case - - - is scheduled for tomorrow and has been receiving much attention as SCOTUSBlog notes. One of the more interesting pieces is Adam Liptak's personalized NYT article that includes quotes from Abigal Fisher, who believes she "probably would have gotten a better job offer" if she had "gone to U.T.," as well as quotes from students.  There is noteworthy scholarly attention.  And as usual Lyle Denniston over at SCOTUSBlog does an excellent job parsing the issues as well as the possible line-ups of the Justices, asking provocatively "is affirmative action about to end?" Moreover, still one of the best templates of the issues is the "dissental" from en banc review in the Fifth Circuit by controversial Judge Edith Jones.

To the extent constitutional and legal arguments matter - - - and for some, that is a debatable question - - - there are several problematic twists that Fisher v. UT presents.

6a00d8341bfae553ef016762bb6a55970b-500wi
First, there is the standing of Abigal Fisher and relatedly, her claim for injury.  This is not a case in which she was disabled from competing from any specific seat, unlike Bakke, and this is also a case in which she did attend university, unlike Barbara Grutter who did not attend law school.  Adam Chandler has a terrific explanation of this aspect of the case, that he expanded here. 

Second, there are factual discrepancies, and a problematic concession by Fisher regarding UT's government interest in seeking diversity. 

If the Justices seem focused on the facts of the case during oral argument, this might be an indication that the Court would not render a decision on the merits because of these sorts of problems.

Third, there is a doctrinal issue in the case that bears notice.  As one of its three sub-arguments that the UT plan fails strict scrutiny, Fisher argues that "UT cannot establish a strong basis in evidence that its use of race is necessary to further a compelling interest in student-body diversity."  Sandwiched between the usual first prong of the "compelling interest" requirement and the second prong of the "narrowly tailored" requirement, this argument seeks to introduce a new prong.  Fisher's argument in the main brief is telling:

UT also must demonstrate that its use of race in admissions is “necessary to further” an unmet compelling government interest. Adarand, 515 U.S. at 237. This demonstration of necessity requires a “strong basis in evidence.” Wygant, 476 U.S. at 277; Croson, 488 U.S. at 500; Grutter, 539 U.S. at 387-88 (Kennedy, J., dissenting) (“Our precedents provide a basis for the Court’s acceptance of a university’s considered judgment that racial diversity among students can further its educational task, when supported by empirical evidence.”) (emphasis added).

Recall that Adarand, Wygant, and Croson each involved "remedying past discrimination" as the compelling government interest (not diversity) and note that the citation from the 2003 Grutter v. Bollinger is from Justice Kennedy's dissent.  Kennedy is widely considered the swing vote in Fisher, and much of UT's brief seems addressed to Kennedy.

Nevertheless, this "strong basis in evidence" standard is, of course, directly opposed to the "good faith" standard that Justice O'Connor articulated in Grutter. T he Court could easily "gloss" rather than explicitly overrule Grutter by reading in a high - - - and nearly impossible to meet - - - evidentiary standard.

Thus, at the heart of the matter may be just how much deference the Justices may be willing to pay to a state, including a state university, or how much the "unelected federal judiciary" may substitute its own judgments.

RR
UPDATE: discussion of oral argument here.

October 9, 2012 in Affirmative Action, Current Affairs, Equal Protection, Fourteenth Amendment, Oral Argument Analysis, Race, Reconstruction Era Amendments, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)

Friday, September 21, 2012

Daily Read: Reconsidering State Action and Reconstruction

PbrandweinPolitical Science Prof Alec Ewald reviews Pamela Brandwein's book, Rethinking the Judicial Settlement of Reconstruction in Law & Politics Book Review here. 

Brandwein (pictured), a political science professor, has written a "bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history," according to Ewald.

It's Brandwein's focus on the state action doctrine that will most interest conlawprofs.   Here is Ewald's ultimate assessment:

The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal government. Brandwein shows it wasn’t so.

A good review can tell us whether or not the book is worth our time.  Ewald demonstrates that Brandwein's book is a necessary one for anyone teaching or writing on state action.

RR

September 21, 2012 in Books, Equal Protection, Fourteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, State Action Doctrine | Permalink | Comments (0) | TrackBack (0)

Monday, September 3, 2012

Labor Day Scholarship Pick: "Labor and Racial Solidarity"

494px-Martin_Luther_King_Jr_NYWTSIn their draft "So Closely Intertwined: Labor and Racial Solidarity," available on ssrn, Professors Nancy Leong (Denver) and Charlotte Garden (Seattle) seek to bring alive the words of Martin Luther King from which their title is derived:  "As I have said many times, and believe with all my heart, the coalition that can have the greatest impact in the struggle for human dignity here in America is that of the blacks and forces of labor, because their fortunes are so closely intertwined.”

ConLawProfs Leong and Garden deploy a variety of theories and doctrines, anchoring their article in "an interdisciplinary literature that includes insights from legal, economic, psychological and sociological scholarly research."  They view their narrative as a counter-narrative to the conventional wisdom that the relationship between unions and people of color is one of rivalry.  Their first section takes on four pieces of conventional wisdom: 

  • Interests of White and Non-White Workers Are Fundamentally Opposed
  • Unions Benefit Only White Workers
  • Unions Lack Racial Empathy
  • Unions Don’t Care About Communities of Color

These myths are worth debunking, although Leong and Garden also discuss their genesis in scholarship and doctrine. One of the joys of the paper as a piece of co-authored scholarship is the authors' frank portrayal of their own attempts at understanding and their disagreements.  In considering the difficulty in discerning how to interpret the "Black History Month event" organized by the SEIU, Service Employees International Union, the professors agree that there was "overt exoticism," but differed as to how broadly problematic the entire event should be judged.

The constitutional theory is mostly implicit, but this is an important piece bridging racial equality and employment equality for this Labor Day.

RR
[image: Martin Luther King, 1964, via]

September 3, 2012 in Affirmative Action, Current Affairs, Equal Protection, Race, Reconstruction Era Amendments, Scholarship, Theory | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 28, 2012

Federal Court Declines to Preclear Texas Electoral Districts Under Voting Rights Act

In the latest chapter of the Texas redistricting saga, a three-judge panel of the D.C. District ruled in Texas v. United States that Texas's redistricting maps failed to merit preclearance under Section 5 of the Voting Rights Act.

The ruling means that the Texas legislature's original redistricting maps fail.  But the ruling doesn't touch the interim maps most recently drawn by the Western District of Texas in the companion Section 2 suit.  Those maps have not been challenged.

The ruling also doesn't say anything about the constitutionality of Section 5.  That's the topic of a cert. petition now before the Supreme Court.

Recall that the case arose when Texas sought preclearance for its redrawn State House, State Senate, and Congressional districts from the three-judge panel in the D.C. District (and not the DOJ).  (Texas redrew its districts to account for its ballooning population and to meet the one-person-one-vote standard.  But Texas, as a covered jurisdiction under Section 4 of the VRA, had to receive preclearance under Section 5 before it could finalize and implement the new maps.)  Soon after Texas filed its Section 5 preclearance case, opponents of the maps filed a claim under Section 2 of the VRA in the Western District of Texas.  While the Section 5 case was pending in the D.C. District, the Western District drew its own maps that, it said, complied with the VRA so that Texas could move ahead with its scheduled primary elections.

The Western District maps went to the Supreme Court in Perry v. Perez, where the Court invalidated them.  After Perry, the Western District redrew the maps, and they haven't been challenged.

Meanwhile, the Section 5 case in the D.C. District moved forward, and that court ruled today that the state's original maps--the ones for which it originally sought preclearance--did not merit preclearance.  As a result, the only maps out there seem to be the Western District's redrawn maps.

Today's case says nothing about the constitutionality of Section 5.  The D.C. Circuit recently ruled on that question, and said that Section 5 is constitutional.  The cert. petition in that case, Shelby County v. Holder (and a related, companion case), is now before the Supreme Court.

The Texas redistricting case is something of a side-show, now that the more central issue in Shelby County is on cert.--with the Supreme Court almost surely to grant review.  But even if the Court overturns Section 5, as seems likely, any maps still have to pass muster under Section 2--the original cause of action in the Western District case.  Shelby County doesn't challenge Section 2.

SDS

August 28, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Fifteenth Amendment, Fourteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (2) | TrackBack (0)

Wednesday, August 22, 2012

Alaska Challenges Preclearance Under the Voting Rights Act

Alaska became the latest state to lodge a constitutional challenge against Section 5 of the Voting Rights Act when it sued AG Eric Holder yesterday for declaratory and injunctive relief in the United States District Court for the District of Columbia.  It's not clear that the case will even make it out of the starting gate, though.  As we wrote here, the Shelby County case, also challenging Section 5 under the exact same theories, is almost surely going to the Supreme Court this Term.

The suit, State of Alaska v. Holder, takes on Section 5 both on its face and as applied to Alaska.  The allegations are simple and familiar: Congress exceeded its authority under the Fourteenth and Fifteenth Amendments in reauthorizing Sections 4 and 5 of the VRA; and the VRA violates the principle of "equal sovereignty" and the Tenth Amendment.

Alaska, a covered jurisdiction under Section 4 of the VRA, says that preclearance is a hassle and potentially interferes with its ability to run its elections.  The state cites DOJ's denial of preclearance earlier this year for a proposed new distribution scheme for the state's Spanish/Tagalog translation of its voter information pamphlet.  It also cites an eleventh-hour preclearance of a redistricting plan, arguing that any later decision by DOJ (either way) might have interfered with the state's primaries.

While this case is disconnected to those events, it probably doesn't matter for standing.  Judge Bates ruled in Shelby County that the County had standing based on its need, as a covered jurisdiction without the possibility of bailout, to prepare for preclearance--the time, expense, etc.  So too here.

But even so, the case is unlikely to move forward, given the near certainty that the Supreme Court will pick up Shelby County this Term.

SDS

August 22, 2012 in Cases and Case Materials, Congressional Authority, Equal Protection, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Tuesday, August 21, 2012

Seventh Circuit: No Qualified Immunity Against Age Discrimination Claim Under Equal Protection

A three-judge panel of the Seventh Circuit ruled last week in Levin v. Madigan that individual defendants were not entitled to qualified immunity against a plaintiff's equal protection claim.

As part of the ruling, the panel also held that the Age Discrimination in Employment Act, or ADEA, did not preclude the plaintiff's Section 1983 claim based on the Equal Protection Clause.  This holding puts the Seventh Circuit at odds with every other circuit that's ruled on the question, creating a split.  (District courts outside those circuits are themselves split.)  Because of this, the panel circulated the opinion to all the judges on the Circuit; none voted for a rehearing en banc.  This case looks like a good candidate for Supreme Court review.

Unless and until the case goes up, the Seventh Circuit's ruling means that the plaintiff's Section 1983 case against the individual defendants can move forward.  The ruling says nothing about the merits.

The case arose out of a former assistant attorney general's suit against the Illinois attorney general, in both her official and individual capacities, and the state for firing him and replacing him with a younger attorney.  The plaintiff sued for age discrimination under the ADEA and Section 1983 (under the Equal Protection Clause).  The AG appealed the district court's denial of qualified immunity in her individual capacity.

The Seventh Circuit ruled that the ADEA did not displace the plaintiff's Section 1983 claim for violation of the Equal Protection Clause because (1) the ADEA's text and legislative history didn't expressly preclude a Section 1983 claim based on a constitutional violation and (2) the ADEA's rights and protections didn't line up with the rights and protections under Section 1983.

This portion of the opinion is at odds with every other circuit court to rule on the question.

The court went on to deny qualified immunity, because it was clearly established that age discrimination in employment violated the Equal Protection Clause, so long as the discrimination wasn't rationally related to a legitimate government interest.

SDS

August 21, 2012 in Cases and Case Materials, Courts and Judging, Equal Protection, News, Opinion Analysis, Recent Cases, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Friday, August 17, 2012

Federal DC Judge Enjoins Small Business Affirmative Action Program as Applied to Military Simulators

In an extensive opinion in DynaLantic Corp. v. United States Department of Defense, Judge Emmet G. Sullivan has enjoined the Small Business Administration and the Department of Defense from awarding procurements for military simulators under the Section 8(a) program without first articulating a strong basis in evidence for doing so.

Huey_HelicopterIn a nutshell, the judge found that the constitutionality infirmity resided in the agencies' failure to specifically determine "that it is necessary or appropriate to set aside contracts in the military simulation and training industry."  Relying upon City of Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (plurality opinion), Judge Sullivan stated that " Croson made clear that the government must provide evidence demonstrating there were eligible minorities in the relevant market - in that case, the Richmond construction industry - that were denied entry or access notwithstanding their eligibility," and thus the agencies' lack of specific studies relating to the military simulation industry was fatal.

Yet Judge Sullivan rejected the facial challenge to Section 8(a) of the Small Business Act which permits the federal government to limit the issuance of certain contracts to socially and economically disadvantaged businesses.  The corporation argued that the Section 8(a) program - - - a program that evolved from Executive Orders issued by Presidents Lyndon B. Johnson and Richard M. Nixon in response to the Kerner Commission - - - violated the Equal Protection component of the Fifth Amendment. Applying the rigorous standard of United States v. Salerno, 481 U.S. 739, 745 (1987). requiring that the "challenger must establish that no set of circumstances exists under which the Act would be valid,” Judge Sullivan carefully considered reams of studies, data, and information, as well as the corporation's arguments attacking the provision for being both overinclusive and underinclusive.

This litigation began in 1995 when the Navy determined it would award its contract for a flight simulator for the Huey helicopter (pictured above) through the Section 8 (a) program.  DynaLantic's lawsuit was dismissed for standing, the D.C. Circuit reversed, and then protracted litigation continued as Congress reauthorized the program and a plethora of studies, evidence, and arguments accumulated.

As the educational affirmative action case of Fisher goes to the United States Supreme Court,  DynaLantic is a reminder of the continued legacy of Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995), as well as Croson in the government procurement context. 

RR
[image via]

August 17, 2012 in Affirmative Action, Due Process (Substantive), Equal Protection, Fifth Amendment, Race, Reconstruction Era Amendments | Permalink | Comments (1) | TrackBack (0)

Monday, August 13, 2012

Fisher v. UT - Amicus from Constitutional Accountability Center

Joined by ConLawProfs Bruce Ackerman, Vikram Amar, Jack Balkin, Burt Nueborne, James Ryan, and Adam Winkler, the Constitutional Accountability Center has filed an amicus brief in Fisher v. University of Texas, the "reverse discimination" case set for oral argument in the United States Supreme Court on October 10.  

Dissenting from the denial of en banc review in the Fifth Circuit, Judge Edith Jones highlighted the panel decision's deviations from Grutter v. Bollinger.  The Constitutional Accountability Center brief argues that UT's policy is constitutional under Grutter, but also makes the wider claim that the "text and history" of the Fourteenth Amendment allows governments to "enact race-conscious measures to ensure equality of opportunity."  

ConLawProfs finalizing their syllabi for the semester might consider integrating the amicus brief, other briefs, or one of the scholarly discussions from Vanderbilt Law Review En Banc for the Equal Protection discussion.

RR

August 13, 2012 in Equal Protection, Federalism, Fourteenth Amendment, Race, Reconstruction Era Amendments, Teaching Tips | Permalink | Comments (0) | TrackBack (0)

Wednesday, July 25, 2012

Scholarly Discussion on Fisher v. University of Texas

The United States Supreme Court is set to hear oral arguments in the affirmative action case of Fisher v. University of Texas on October 10, having granted certiorari from the Fifth Circuit's decision upholding the UT plan and perhaps informed by Judge Edith Jones' stinging dissent from the denial of en banc review, as we discussed.

The Vanderbilt Law Review En Banc Roundtable has just published a series of relatively brief articles on the case: 

Girardeau A. Spann, Fisher v. Grutter

James F. Blumstein, Grutter and Fisher: A Reassessment and a Preview

Vikram David Amar, Is Honesty the Best (Judicial) Policy in Affirmative Action Cases? Fisher v. University of Texas Gives the Court (Yet) Another Chance to Say Yes

Gerald Torres, Fisher v. University of Texas: Living in the Dwindling Shadow of LBJ’s America

Tomiko Brown-Nagin, The Diversity Paradox: Judicial Review in an Age of Demographic and Educational Change

Lawreview-2011

Each of these articles is worth a read and the law review editors promise further exchange among the authors. 

RR

July 25, 2012 in Affirmative Action, Equal Protection, Federalism, Fourteenth Amendment, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Monday, July 23, 2012

Shelby County, Nix Take Voting Rights Act Challenge to Supreme Court

Petitioners Shelby County and John Nix filed two separate cert. petitions late last week seeking Supreme Court review of a D.C. Circuit decision upholding the preclearance provisions of the Voting Rights Act.  Shelby County's petition is here; Nix's petition is here.  More on the differences below.

The petitions put the preclearance provisions of the Voting Rights Act squarely before a Supreme Court that seems chomping at the bit to take them on--and to overturn them.

The move was expected.  With the Supreme Court's statement three years ago in Northwest Austin Municipal Utility District v. Holder that the preclearance provisions "raise serious constitutional questions," the Court's reiteration more recently in Perry v. Perez, and the spate of challenges now percolating in the lower courts, Shelby County v. Holder was the first circuit ruling dealing squarely with the 2006 reauthorization of the VRA.  A split three-judge panel upheld the provisions and ruled that another, related case (Nix's case) was moot.  The ruling teed the challenge up for Supreme Court review.

At issue: Section 5 of the VRA, which requires covered jurisdictions to obtain "preclearance" from the Department of Justice or a three-judge panel of the United States District Court for the District of Columbia before making changes to their voting standards, practices, or requirements; and Section 4(b), which provides the formula for determining which jurisdictions are covered.

Recall that the D.C. Circuit in Shelby County upheld Section 5 and Section 4(b) of the VRA.  But that court also ruled that Nix's case--challenging the new reauthorization standards that Congress put into place in the 2006 reauthorization--was moot, because the DOJ reversed course and cleared the voting change at issue.

The two cert. petitions cover two distinct issues.  Shelby County's cert. petition argues that the D.C. Circuit erred in upholding Sections 5 and 4(b).  In short, Shelby argues that the preclearance requirement in Section 5 exceeds congressional authority to enforce the provisions the Fourteenth and Fifteenth Amendments--that it's not "proportional and congruent" to the "evil" that it seeks to remedy--and that Congress neglected to change the coverage formula in Section 4(b) in response to changed conditions.

Nix's cert. petition argues that the substantive changes to the preclearance standard that Congress enacted in 2006 exceed congressional authority.  Nix says that Congress, in reauthorizing Section 5 in 2006, changed the preclearance standard in response to two Supreme Court decisions that narrowed that standard, thus exceeding its authority.  Nix claims that before 2006, preclearance could be denied only if the jurisdiction failed to prove that its voting change did not have the "purpose" or "effect" of causing "a retrogression" in minorities' "effective exercise of the electoral franchise," as determined by "all the relevant circumstances."  (Citing and quoting Georgia v. Ashcroft and Reno v. Bossier Parish School Board.)  But Nix argues that Congress changed this standard in the 2006 reauthorization by eliminating the "all relevant circumstances" flexibility and by requiring covered jurisdictions to "prove that even a change that does not make minorities worse off lacks the 'discriminatory purpose' of not making them better off."  These changes, say Nix, exceed congressional authority.

Because the D.C. Circuit ruled Nix's case moot, Nix has the additional burden of arguing that his case isn't really moot.  He does this by claiming that the DOJ cleared the jurisdiction only to avoid judicial review of his arguments.

With two strong statements from the Court about the questionable constitutionality of VRA preclearance, look for the Court to grant these petitions--and likely overturn these key provisions of the VRA.

SDS

 

July 23, 2012 in Cases and Case Materials, Congressional Authority, Elections and Voting, Equal Protection, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Sunday, June 10, 2012

Federal District Judge Declares Arkansas School Choice Law Unconstitutional

Federal District Judge Robert Dawson declared the Arkansas Public School Choice Act of 1989 unconstitutional on Friday in his opinion in Teague v Arkansas Board of Education.  Judge Dawson concluded that the statute's use of race violated the Fourteenth Amendment's Equal Protection Clause,  largely relying on the Supreme Court's 2007 opinion in Parents Involved in Community Schools v. Seattle School District No. 1, because while there might be a compelling government interest, the statute was not sufficiently narrowly tailored to serve that interest and therefore survive strict scrutiny.

The statutory scheme is a complex one.  Generally, students who attend public school must do so in the school district in which they reside.  This general rule has some exceptions, including the Public School Choice Act.  However, the choice created is generally subject to a race-based limitation: "No student may transfer to a non-resident district where the percentage of enrollment for the student’s race exceeds that percentage in the student’s resident district."  However, even this exception had exceptions.  Additionally, the 2011 Legislature amended the School Choice Act to specifically state that the race or ethnicity of a student shall not be used to deny a student the ability to attend a school in the student’s school district of choice if the transfer is "to a school that has been designated by the State as a school performing higher than that in which the student is currently enrolled or to which the student has been assigned."  Moreover,  the statute provided that if conflicts with the provisions of a federal desegregation court order applicable to a school district, the provisions of the federal desegregation court order shall govern.

Interestingly, Judge Dawson used both the 2011 amendment and the escape clause of federal court desegregation orders to support his conclusion that the statutory scheme was not narrowly tailored.  He reasoned that the 2011 amendment was evidence that "some of the state’s lawmakers themselves have determined that the limitation" in the statute "may not pass the strict scrutiny test."  He also stressed that the judicial desegregation order exception undermined narrowly tailored because the statutory scheme "applies state-wide without regard to whether a resident or non-resident school district has a history of de jure or de facto segregation."  Obviously, however, any limitation to school districts under judicial supervision vitiates the need for the statute.

Not surprisingly then, Judge Dawson declared the statutory provision unconstitutional.  More surprisingly, he declared the entre statute unconstitutional, finding that severability is a matter of state law.  Looking at legislative intent, he concluded that severing the provision would undermine the legislative interest, including the legislature’s express statement that inter-district transfer is permissible “provided that the transfer by this student would not adversely affect the desegregation of either district."

 

Little_Rock_Students
1958 photo of "the teenagers who integrated Central High School, Little Rock, Arkansas" with NYC Mayor Robert Wagner, by Walter Albertin. Pictured, front row, left to right: Minnijean Brown, Elizabeth Eckford, Carlotta Walls, Mayor Wagner, Thelma Mothershed, Gloria Ray; back row, left to right: Terrance Roberts, Ernest Green, Melba Pattilo, Jefferson Thomas.

Judge Dawson was attentive to the history of school segregation in Arkansas, although he sought to expand the portrait beyond the well-known events in Little Rock that resulted in Cooper v. Aaron:

Arkansas has a complicated history with regard to race relations in general, and equal opportunity education in particular. From resistance in the 1950s to minimum compliance in the 1960s, some parts of the state have fought integration even since the Brown v. Board of Education of Topeka decision. . . . Arkansas is home to both the first public school in the former Confederate States of America to implement racial desegregation (Charleston) and the high  school which drew the nation’s attention in 1957 when the state National Guard was utilized to keep black students from entering Central High School in Little Rock . . .

 The final line of Dawson's 32 page opinion illustrates the continuing legacy of this history: "The Court fully expects this case to be appealed in view of the important issues presented in this case."

RR
[image via]

June 10, 2012 in Equal Protection, Opinion Analysis, Race, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Thursday, May 31, 2012

Florida Federal Judge Grants Preliminary Injunction Against Law Regulating Voter Registration

In his opinion today in League of Women Voters of Florida v. Browning, Northern District of Florida Judge Robert Hinkle held that the plaintiffs had a likelihood of prevailing on the merits of their claim that Florida Statutes § 97.0575, as amended in 2011, and its  implementing rule, Florida Administrative Code Rule 1S-2.042, violate the First Amendment. 

Map of FloridaJudge Hinkle found that the "statute and rule impose a harsh and impractical 48-hour deadline for an organization to deliver applications to a voter- registration office and effectively prohibit an organization from mailing applications in. And the statute and rule impose burdensome record-keeping and reporting requirements that serve little if any purpose, thus rendering them unconstitutional."

The judge applied a relatively low standard, finding that "an election-code provision of this kind must serve a legitimate purpose that is sufficient to warrant the burden it imposes on the right to vote."  And perhaps a well-crafted law could survive such judicial review.  But Judge Hinkle stated:

This statute and this rule are not well crafted. To the contrary, they are virtually unintelligible, close to the point, if not past the point, at which a statute—especially one that regulates First Amendment rights and is accompanied by substantial penalties— becomes void for vagueness.

Rejecting Florida's argument that certain issues in the statute's application "will need to be worked out,"  Judge Hinkle was dismissive.  Not only would a voter-registration organization be "ill advised to risk significant fines—and the attendant damage to the organization’s reputation—that would result from failing to comply with provisions this difficult to parse,"  but it is also " not too much to ask the state to work out the issues in advance," when "rights of this magnitude are at stake."  

Judge Hinkle's opinion provided several different practical scenarios.  For example,

Another substantial flaw in the statute and rule—and a clearer violation of controlling law—is their disregard of a voter-registration organization’s interest in mailing in completed voter-registration applications rather than hand delivering them. The statute makes no provision for mailing at all. If the statute means what it says—that an application must be received in the voter-registration office within 48 hours after the applicant signs it—a prudent voter-registration organization can never mail in an application. This is so because even if the organization delivers the application to the Postal Service immediately after the applicant signs it—and this in itself would be virtually impossible—the organization cannot be assured that the Postal Service will deliver it within 48 hours.

Judge Hinkle found the constitutional arguments more pertinent that those under the National Voting Rights Act, and did sustain a few of the Florida provisions.  But this is certainly a substantial set back for the controversial Florida statute and administrative rule that severely curtailed voter registration activities.

RR

May 31, 2012 in Elections and Voting, First Amendment, Fourteenth Amendment, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Wednesday, May 23, 2012

CFP: AALS ConLaw Section

Section on Constitutional Law
Call for Papers for January 2013 AALS Annual Meeting Program:
“Forty Years after Rodriguez, 35 Years after Bakke:
Education, Equality and Fundamental Rights”
 
UnderwoodKeyboardThe Section on Constitutional Law and the Section on Education Law will be holding a joint program at the January 2013 AALS annual meeting. The program topic is “Forty Years after Rodriguez, 35 Years after Bakke: Education, Equality and Fundamental Rights.” The program will be held on Friday, January 4, from 2:00-5:00pm.

The panel organized by the Education Law Section will emphasize school financing, forty years after the Supreme Court held in Rodriguez that there is no fundamental right to education under the U.S. Constitution and that public school funding disparities are not subject to close scrutiny.
 
The Section on Constitutional Law panel will deal primarily with the constitutionality of racial affirmative action in higher education admissions. Among other matters, it will consider the implications of the Court’s grant of review in Fisher v. University of Texas, involving an undergraduate affirmative-action admissions program.

The Section on Constitutional Law invites submission of abstracts (of no more than five pages) for purposes of choosing one speaker for this panel. The speaker who is chosen will be expected to produce a paper that can be posted on the AALS web site prior to the annual meeting and that will be published in the Loyola Law Review.
 
Deadline Date for Submission: August 1, 2012
 
For more information and submission of abstracts, contact Professor Mark S. Scarberry, Pepperdine University School of Law, mark.scarberry AT pepperdine.edu.

RR 

May 23, 2012 in Affirmative Action, Conferences, Race, Recent Cases, Reconstruction Era Amendments, Scholarship | Permalink | Comments (1) | TrackBack (0)

Friday, May 18, 2012

D.C. Circuit Upholds Key Provisions in Voting Rights Act

A divided three-judge panel of the D.C. Circuit today affirmed a lower court decision and upheld key provisions in the Voting Rights Act.  The majority in Shelby County v. Holder held that Section 5, the so-called pre-clearance provision, and Section 4(b), the section that designates covered jurisdictions under Section 5, fell within congressional authority under the Fifteenth Amendment and thus were constitutional.  We covered the case in the lower court here and here; those posts contain more thorough background.

The ruling tees up the case for Supreme Court review.  The high Court has strongly suggested that it was just waiting for a good case to take on the constitutionality of these key provisions of the VRA.  It dodged the constitutional question three years ago in Northwest Austin Municipal Utility District v. Holder.  This case gives it a second crack, with the constitutional question unavoidably front-and-center.

When the case goes to the Supreme Court--and it's all but certain a "when," not "if"--it'll turn on how the Court treats and scrutinizes congressional findings (as it did in the D.C. Circuit).  In particular: Do congressional findings adequately support Sections 5 and 4(b)?  If we want a preview of those arguments, we can simply look to the arguments over methodology and congressional conclusions in this case--most or all of which are thoroughly vetted in the 100-page opinions.  

But there's another question to watch for: By what measure will the Court scrutinize congressional findings?  In other words: How much leeway will the Court give to Congress, if congressional findings don't exactly line up with Section 5 and 4(b).  This Court has suggested that it won't give much.

Congress had a thorough record when it reauthorized the VRA in 2006.  The question is whether it was thorough and precise enough for this Court.  Based on what we've seen from this Supreme Court, the answer is probably no; and we should brace ourselves for a sharply divided ruling that the VRA exceeds congressional authority.

In the D.C. Circuit, Judge Tatel started the majority opinion with a hat-tip to Northwest Austin and the Court's statement there that there were serious constitutional questions with the VRA--showing the court's full recognition of the importance of this case.  The ruling then uses the framework in Northwest Austin to analyze the constitutionality of Section 5:

First, emphasizing that section 5 "authorizes federal intrusion into sensitive areas of state and local policymaking that imposes substantial federalism costs," the Court made clear that "[p]ast success alone . . . is not adequate justification to retain the preclearance requirements." . . .  Second, the Act, through section 4(b)'s coverage formula, "differentiates between the States, despite our historic tradition that all the States enjoy equal sovereignty."

Op. at 14.

In a ruling that claimed deference to congressional judgments--but nevertheless included scores of pages of scrutiny of those judgments--the court held that Congress had satisfied both questions in reauthorizing the VRA in 2006.  (Along the way,the court held that the Fourteenth Amendment's "proportional and congruent" test is also the appropriate one for the Fifteenth Amendment.)

Judge Williams dissented, writing that Section 4(b), the section setting criteria for designation as a covered jurisdiction, was too rough a cut to meet the demands of the Fifteenth Amendment.  This illustration summarizes the point:

Why should voter ID laws from South Carolina and Texas be judged by different criteria (at a minimum, a different burden of persuasion, which is often critical in cases involving competing predictions of effect) from those governing Indiana?  A glimpse at the charts shows that Indiana ranks "worse" than South Carolina and Texas in registration and voting areas, as well as in black elected officials . . . .  As to federal observers, Indiana appears clearly "better"--it received none . . . .  As to successful Section 2 suits South Carolina and Texas are "worse" than Indiana, but all three are below the top ten offenders, which include five uncovered states . . . .  This distinction in evaluating the different states' policies is rational?

Dissent, at 32.

SDS

May 18, 2012 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)

Monday, January 16, 2012

MLK Day 2012

MLK Jan 2012 1President Obama's Presidential Proclamation on Martin Luther King Day, 2012, includes these words:

At a time when our Nation was sharply divided, Dr. King called on a generation of Americans to be "voices of reason, sanity, and understanding amid the voices of violence, hatred, and emotion."  His example stirred men and women of all backgrounds to become foot soldiers for justice, and his leadership gave them the courage to refuse the limitations of the day and fight for the prospect of tomorrow.  Because these individuals showed the resilience to stand firm in the face of the fiercest resistance, we are the benefactors of an extraordinary legacy of progress.

Today, Dr. King is memorialized on the National Mall where he once spoke, a symbol of how far our Nation has come and a testament to the quiet heroes whose names may never appear in history books, but whose selflessness brought about change few thought possible.  Dr. King's memorial reminds us that while the work of realizing his remarkable dream is unending, with persistence, progress is within our reach.

On the MLK memorial itself, the "drum major" quote has been the subject of controversy and is being "corrected."  The government sponsored MLK Day of Service continues to include the Drum Major for Service Award, as well as the correct/full "drum major" quote:   "Yes, if you want to say that I was a drum major, say that I was a drum major for justice; say that I was a drum major for peace; I was a drum major for righteousness… We all have the drum major instinct.”  Excerpt from The Reverend Dr. Martin Luther King, Jr.'s "Drum Major Instinct" sermon, given on February 4, 1968.

For ConLaw scholars, it might also be a good day to (re)read Randall Kennedy's "Martin Luther King's Constitution: A Legal History of the Montgomery Bus Boycott," 98 Yale Law Journal 999 (1989) (available on JSTOR) or Camille Nelson's " The Radical King: Perspectives of One Born in the Shadow of a King," 32 New York University Review of Law & Social Change, 485(2008) (available on ssrn), or view MLK's last speech.

RR
[image: personal collection]

January 16, 2012 in Current Affairs, Equal Protection, History, Race, Reconstruction Era Amendments, Scholarship | Permalink | Comments (0) | TrackBack (0)

Thursday, December 15, 2011

Bill of Rights Day 2011

Today is Bill of Rights Day, marking the 220th anniversary of the adoption of the United States Constitution's Bill of Rights.

In his Presidential Proclamation last week, Obama stated:

On December 15, 1791, the United States adopted the Bill of Rights, enshrining in our Constitution the protection of our inalienable freedoms, from the right to speak our minds and worship as we please to the guarantee of equal justice under the law. For 220 years, these fundamental liberties have shaped our national character and stirred the souls of all who dream of a freer, more just world. As we mark this milestone, we renew our commitment to preserving our universal rights and perfecting our Union.

Introduced in the First Congress in 1789, the Bill of Rights was born out of compromise. The promise of enumerated rights enabled the ratification of the Constitution without fear that a more centralized government would encroach on American freedoms. In adopting the first ten Amendments, our Founders put forth an ideal that continues to define our Nation -- that we can have both liberty and security, that we need not sacrifice the rights of man for the rule of law.

Throughout our country's history, generations have risen to uphold the principles outlined in our Bill of Rights and advance equality for all Americans. The liberties we enjoy today are possible only because of these brave patriots, from the service members who have defended our freedom to the citizens who have braved billy clubs and fire hoses in the hope of extending America's promise across lines of color and creed. On Bill of Rights Day, we celebrate this proud legacy and resolve to pass to our children an America worthy of our Founders' vision.

Some would argue, however, that the Bill of Rights does not enshrine "the guarantee of equal justice under the law" in the Constitution, given that the concept of individual equality does not appear in the Constitution until the Fourteenth Amendment passed after the Civil War. The Fourteenth Amendment also introduced the word "male" into the Constitution, in section 2 regarding voting, although section 1 uses the word "persons."

The "Bill of Rights" as ratified does primarily focus on "rights," but the original Resolution of Congress consisting of twelve amendments did not concern rights.  Instead, they concerned Congress itself:

Article the first . . . After the first enumeration required by the first Article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which, the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred, after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.

Article the second . . . No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of Representatives shall have intervened.

The latter became the 27th Amendment, ratified more than two centuries later in 1992.

Bill_of_Rights_Pg1of1_ACStill, it's a good day to reflect on the "Bll of Rights":

  • Amendment 1. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
  • Amendment 2. A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
  • Amendment 3. No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
  • Amendment 4.  The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
  • Amendment 5.  No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
  • Amendment 6. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
  • Amendment 7. In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.
  • Amendment 8. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.
  • Amendment 9. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
  • Amendment 10. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

 

RR
[image from National Archives via] 

December 15, 2011 in Due Process (Substantive), Equal Protection, Establishment Clause, Fifth Amendment, First Amendment, Fourth Amendment, Free Exercise Clause, Fundamental Rights, Gender, History, Interpretation, Privileges or Immunities: Fourteenth Amendment , Race, Reconstruction Era Amendments, Religion, Second Amendment, Seventh Amendment, Sixth Amendment, Speech, Tenth Amendment | Permalink | Comments (0) | TrackBack (0)