Friday, July 19, 2013
Justice John Paul Stevens in the New York Review of Books writes a thoughtful "dissent" in the Court's ruling in Shelby County around his review of Gary May's outstanding book Bending Toward Justice: The Voting Rights Act and the Transformation of American Democracy (Basic). Justice Stevens's piece is mostly an indictment of Chief Justice Roberts's majority opinion in Shelby County, based on some of May's study of voting discrimination; but he also has quite kind things to say (and justifiably so) about May's excellent history. (Our posts on Shelby County itself are collected here.)
Justice Stevens writes that May takes a longer, more detailed view of the history of voting than Chief Justice Roberts did in Shelby County--a view that Justice Ginsburg also took in her dissent in that case. He notes that Chief Justice Roberts didn't even mention anything before 1890 in his opinion, and glossed over significant details since.
And Justice Stevens takes on Chief Justice Roberts's new-found doctrine of "equal state sovereignty"--a doctrine that drove a good part of the result. Justice Stevens says that unequal treatment of states is woven right in to the fabric of the Constitution itself. In particular, the three-fifths clause gave southern states a "slave bonus" in political power, giving those states disproportionate representation and even leading to the election of Thomas Jefferson over John Adams in 1800. If the original text of the Constitution itself can treat states so dramatically differently, why this new doctrine of equal state sovereignty? (We posted on this new doctrine here.) (It can be no answer that the Reconstruction Amendments abolished the three-fifths counting system, for the Reconstruction Amendments themselves were specifically designed to give Congress power over the states, and led to dramatically different treatment of the states. It similarly can be no answer that the Tenth and Eleventh Amendments protect state sovereignty (even if they do), because the Reconstruction Amendments came after them. As last-in-time, they at least inform the meaning of the earlier amendments, even if they don't do away with them entirely.)
July 19, 2013 in Cases and Case Materials, Congressional Authority, Courts and Judging, Elections and Voting, Federalism, Fifteenth Amendment, History, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
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 ruled in Shelby County v. Holder that the coverage formula for the preclearance provision of the Voting Rights Act exceeded congressional authority under the Fifteenth Amendment. The ruling means that the preclearance provision of the VRA remains on the books, but sits dormant, as there is no formula specifying its coverage. Congress can re-write the formula, but it seems unlikely that this Congress can do that in a way that would satisfy this Supreme Court. The ruling did not touch Section 2 of the VRA, the section banning race discrimination and allowing individual case-by-case litigation against offending practices.
We posted several times this morning on the ruling; here is our coverage so far:
- Court Strikes Voting Rights Act Preclearance Coverage Formula
- Chief Justice Roberts's Paean to Equal State Sovereignty
- The Core Problem With Preclearance Coverage Under the Voting Rights Act
- What's Next for Voting Rights?
- Justice Thomas's Concurrence on Voting Rights
- Justice Ginsburg's Dissent in Shelby County
June 25, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, News, Opinion Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
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.
Thursday, March 28, 2013
In the oral argument for United States v. Windsor challenging the constitutionality of the Defense of Marriage Act, DOMA, Chief Justice Roberts expressed skepticism that gays and lesbians were politically powerless, announcing to Roberta Kaplan, representing Edith Windsor, "As far as I can tell, political figures are falling over themselves to endorse your side of the case."
ConLawProf Darren Hutchinson (pictured) provides an indepth examination, context, and prescient critique of Roberts' remark in his new article, Not Without Political Power': Gays and Lesbians, Equal Protection, and the Suspect Class Doctrine, available in draft on ssrn. Hutchinson argues that the political powerlessness factor used to evaluate claims for heightened scrutiny under equal protection doctrine is "especially undertheorized and contradictory."
Hutchinson's article is a tour de force of precedent deploying rhetoric of political powerlessness. Of course, Hutchinson highlights Justice Scalia's well-known dissent in Romer v. Evans, the Colorado Amendment 2 case, noting that not only is it based on stereotypes but it "sounds exactly like a political document against gay and lesbian rights." But Hutchinson does suggest that there is indeed a role for politics, however at a much more sophisticated level. Rather than jettison any inquiry into political powerlessness as some scholars have argued, Hutchinson contends that a much more robust understanding of politics is necessary.
Ultimately, Hutchinson concludes that the present scholarly and judicial discourse
fails adequately to discuss the multiple factors that cause political vulnerability among gays and lesbians. While some gays and lesbians possess power, most of them do not. Poverty, gender, race, geography, and disability influence the ability of gays and lesbians to exercise political power.
Instead, he suggests that political science scholarship inform legal scholarship and judicial opinions, and that antisubordination legal scholarship inform wider discussions of equal protection. Certainly, Hutchinson's article should inform anyone considering political powerlessness in the context of same-sex marriage and equal protection.
March 28, 2013 in Current Affairs, Equal Protection, Family, Fifth Amendment, Fourteenth Amendment, Gender, Interpretation, Profiles in Con Law Teaching, Reconstruction Era Amendments, Scholarship, Sexual Orientation, Sexuality, Supreme Court (US), Theory | Permalink | Comments (0) | TrackBack (0)
Friday, March 15, 2013
"Equality of the states" reared its head recently in oral arguments in Shelby County v. Holder, the case testing congressional authority to reauthorize the preclearance provision of the Voting Rights Act. The traditionally conservative Justices all (save Justice Thomas) expressed different concerns related to the provision's different treatment of the states--or, how preclearance violates the principle of "equality of the states." (Preclearance under Section 5 of the VRA applies only to covered jurisdictions under Section 4(b) of the VRA. Only covered jurisdictions, not all states, are required to preclear their election law changes with DOJ or the D.C. District court.)
But where does this idea of equality of the states come from?
David Gans over at the Constitutional Accountability Center draws on a recent piece by Adam Liptak and argues that Congress violates a principle of equality of the states all the time--most notably by providing dramatically different levels of funding, per capita, to different states. Nobody makes a constitutional case out of this.
Moreover, Gans argues that "[t]he Supreme Court has never interpreted the Constitution to require equality among the states outside the very narrow context of the admission of new states. It is now black letter law that 'the doctrine of equality of states . . . applies only to the terms upon which the states are admitted to the Union, and not to the remedies for local evils which have subsequently appeared.'"
For more on that point, and how the Court mangled the "equality of the states" quote in Northwest Austin Municipal Utility District v. Holder, check out Zachary Price's contribution to the SCOTUblog symposium on Shelby County, and Federalism and the Voting Rights Act at the ACS blog.
March 15, 2013 in Cases and Case Materials, Congressional Authority, Federalism, Fifteenth Amendment, Fourteenth Amendment, News, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
Thursday, March 7, 2013
Linda Greenhouse's NYT "Opinionator" column is almost always worth a read.
But yesterday's column entitled "A Big New Power" is a must-read for anyone considering the Court's pending opinion in Shelby County v. Holder and the controversy surrounding Scalia's remarks during the oral argument.
Years from now, when the Supreme Court has come to its senses, justices then sitting will look back on the spring of 2013 in bewilderment. On what basis, they will wonder, did five conservative justices, professed believers in judicial restraint, reach out to grab the authority that the framers of the post-Civil War 14th and 15th Amendments had vested in Congress nearly a century and a half earlier “to enforce, by appropriate legislation” the right to equal protection and the right to vote.
Greenhouse admits she is forecasting the outcome, but her column makes that outcome seem less palatable.
Wednesday, February 27, 2013
The Supreme Court today heard oral arguments in Shelby County v. Holder, the case testing the constitutionality of the preclearance provision and related coverage formula of the Voting Rights Act. If the questions at arguments are any indication of the Court's leaning--and it's always dicey to predict based on arguments, but here perhaps less so than in a more ordinary case--it looks like preclearance or the coverage formula or both will go down by a close vote.
Section 5 of the VRA, the preclearance provision, provides that "covered jurisdictions" (defined under Section 4(b)), have to get permission from the Justice Department or a federal court in the District of Columbia before making changes to their election laws. This means that jurisdictions need to show that proposed changes to their election laws aren't motivated by race and won't result in disenfranchising voters or dilluting votes by race. This extraordinary remedy is justified in part because the more usual way of enforcing voting rights--individual suits against offending jurisdictions--is not an effective way to address voting discrimination. (Individual suits, by a voter or by the Department of Justice, are authorized by Section 2 of the VRA. Section 2 is not at issue in this case.)
Shelby County, which sits within fully covered Alabama, brought the facial challenge against Section 5, the preclearance provision, and Section 4(b), the coverage formula, as reauthorized by Congress in 2006, arguing that Congress exceeded its authority under the Fourteenth and Fifteenth Amendments. In particular, Shelby County claimed that Congress didn't have sufficient evidence in its 2006 reauthorization to require the covered jurisdictions to seek permission (or preclearance) from the Justice Department or the District Court in the District of Columbia before making any change to its election laws. Shelby County also said that preclearance for the covered jurisdictions violated principles of federalism and equal sovereignty among the states.
The arguments were lively, to say the least. The justices seemed to be arguing with each other more than questioning the attorneys, who often seemed more like bystanders in a debate among the nine. And they all seemed to have their minds made up, more or less. If there are swing votes, look to Chief Justice Roberts or Justice Kennedy. Although they seemed set in their positions, they seemed perhaps the least set.
Substantively, there were few surprises. Remember, we've heard these arguments before--in the NAMUDNO case, which the Court ultimately resolved by allowing the jurisdiction to bail out (and thus avoided the constitutional question, although the parties briefed it and it got attention at oral argument). So these points that came up today are familiar:
- Whether Congress had sufficient evidence to warrant preclearance for selected covered jurisdictions;
- Whether the Section 4(b) coverage formula, which dates back 40 years or so, is sufficiently tailored to the realities of voting discrimination in 2013--that is, whether some covered jurisdictions under this formula really ought not to be covered, and whether others should be covered, given contemporary disparities in registration and offices held and other indicia of voting discrimination;
- Whether Congress violated principles of equal state sovereignty by designating only selected jurisdictions as covered (rather than designating the whole country);
- Whether Section 2 individual suits are a sufficient way to enforce non-discrimination in voting (and therefore whether Section 5 is really necessary); and
- Whether with a string of reauthorizations preclearance will ever not be necessary.
On this last point, it was clear that for some justices the government was in a tough spot. On the one hand, the government argued that Section 5 deters voting discrimination: Sure, things have gotten a little better since 1965, it said, but Section 5 is still justified because it deters against a back-slide. But on the other hand, some on the Court wondered whether under this theory Section 5 would ever not be necessary. (By this reckoning, the government would be justifying Section 5 even when there's no evidence of continued discrimination.)
All this is to say that a majority seemed unpersuaded that this preclearance requirement and this coverage formula were sufficiently tailored--proportionate and congruent, the Court's test--to meet the constitutional evil of voting discrimination that Congress identified.
This doesn't mean, necessarily, that the whole scheme will go down. There is an intermediate position: The Court could uphold Section 5 preclearance in theory, but reject the coverage formula in Section 4(b). But this result would likely doom the whole scheme, in fact. That's because it seems unlikely that Congress could pass a different coverage formula or that Congress would extend preclearance to the whole country. Without specifying coverage in a new Section 4(b), Section 5 would be meaningless.
There was a low point. Justice Scalia went on a tear toward the end of SG Verrilli's argument, opining on why Congress passed each reathorization with increased majorities:
Now, I don't think that's attributable to the fact that it is so much clearer now that we need this. I think it is attributable, very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.
It's not exactly clear what's the "racial entitlement" in Section 5. Section 5 is simply not an entitlement provision. But if we have to identify an entitlement: Maybe the right to vote, without being discriminated against by race? If so, we can only hope that it's "very difficult to get out of [it] through the normal political processes." As much as anything else in the arguments today, this comment may tell us exactly why we continue to need preclearance, sadly, even in 2013.
February 27, 2013 in Cases and Case Materials, Congressional Authority, Elections and Voting, Federalism, Fifteenth Amendment, Fourteenth Amendment, Fundamental Rights, News, Oral Argument Analysis, Reconstruction Era Amendments | Permalink | Comments (0) | TrackBack (0)
As the Court - - - and the country - - - consider the Voting Rights Act (VRA) and the constitutionality of the preclearance provision at issue in Shelby County v. Holder ConLawProfs might find useful the insights of Andrew Cohen, Atiba Ellis, Adam Sewer (on CJ Roberts), Adam Winkler or numerous others. But the observations of William Faulkner (pictured), Nobel Prize in Literature recipient who placed Yoknapatawpha County, Mississippi on our (fictional) maps are also pertinent according to Joel Heller's excellent article, Faulkner’s Voting Rights Act: The Sound and Fury of Section Five, 40 Hofstra Law Review 929 (2012), and available on ssrn.
Joel Heller argues that pronouncements that 'The South has changed' fail to take into account the "ongoing burden of memory that Faulkner portrays so powerfully." Heller contends that the VRA's section 5 preclearance provision "does not punish the sons for the sins of the father, but keeps in check the uncertain consequences of a current ongoing consciousness of those sins." Heller uses Faulkner to effectively discuss various attitudes short of intentional discrimination that might nevertheless have racially discriminatory results. These include lawmakers shame and denial of the past accompanied by a devotion to the "things have changed" mantra that would prevent perceptions of racially problematic actions. Additionally, "local control" possesses a nostalgic power, even as the era being evoked was one of white supremacy.
While Faulkner did not live to see the VRA Act become law, Joel Heller's engaging article is definitely worth a read as the Court considers Congressional power to remedy discrimination in the Old/New South.
[image of William Faulkner via]
February 27, 2013 in Books, Congressional Authority, Elections and Voting, Fifteenth Amendment, History, Race, Reconstruction Era Amendments, Scholarship, Supreme Court (US) | Permalink | Comments (0) | TrackBack (0)
Monday, February 18, 2013
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.
Monday, January 21, 2013
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.
Monday, January 7, 2013
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.
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.
[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
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.
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
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.
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.
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
Political 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.
Monday, September 3, 2012
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.
[image: Martin Luther King, 1964, via]
Tuesday, August 28, 2012
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.
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.
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 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.
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
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.
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.
In 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.