Heightened Scrutiny of John Roberts: He Says He Will Vote to Uphold the University of Texas Affirmative Action Admissions Policy Because White Applicants Have Political Power. Seriously.

WASHINGTON — As the justices of the Supreme Court struggled with the question of same-sex marriage this week, politicians in Congress kept handing down their own verdict. One after another, a series of lawmakers in recent days endorsed allowing gay men and lesbians to wed.

But momentum in the political world for gay rights could actually limit momentum in the legal world. While the court may throw out a federal law defining marriage as the union of a man and a woman, the justices signaled over two days of arguments that they might not feel compelled to intervene further, since the democratic process seems to be playing out on its own, state by state, elected official by elected official.

The prospect that gay rights advocates may become a victim of their own political success was underscored during arguments on Wednesday over the constitutionality of the Defense of Marriage Act. Opponents of the law were left to make the paradoxical argument that the nation has come to accept that gay men and lesbians deserve the same right to marriage as heterosexuals while maintaining that they are a politically oppressed class deserving the protection of the courts.

Chief Justice John G. Roberts Jr. pressed that point with the lawyer for the plaintiff, a New York woman suing to recover federal estate taxes she would not have had to pay had her spouse been a man.

“You don’t doubt that the lobby supporting the enactment of same-sex marriage laws in different states is politically powerful, do you?” he asked the lawyer.

For purposes of the law, said the lawyer, Roberta Kaplan, “I would, your honor.”

“Really?” the chief justice asked skeptically. “As far as I can tell, political figures are falling over themselves to endorse your side of the case.”

Success on Political Front Can Be Setback in Gay Rights, Peter Baker, New York Times, yesterday

The movement-conservative legal crowd that began to gain a stranglehold on the federal court system the early 1980s, and that is now represented by four, and in deeply important respects five, Supreme Court justices, has thoroughly transformed the law and court system.  It has done so mostly under the public’s radar screen and so has had a nearly unfettered free ride.  But now, little by little–albeit by too little–the free ride is becoming slightly less unfettered, as the Supreme Court, if not the lower federal courts, is garnering meaningful and detailed attention in some important respects.  

Call it heightened scrutiny.  Or maybe even strict scrutiny.  In any event, at least with respect to culture-wars cases at the Supreme Court, it no longer is rational-basis scrutiny.  All of these are terms that, although unfamiliar to non-lawyers, are quite familiar to John Roberts. And they explain, as I will below, the purpose of that above-quoted colloquy.  

There is now some cost in public opinion, not only to the overt jaw-dropping statements made by Antonin Scalia but also to the slightly more subtle (yet equally stunning to those who know the code) declarations by our Supreme Court’s chief justice during oral arguments.  Statements jolting enough to garner publicity and therefore to provide public insight into the true, hell-bent goals of this movement.  

Scalia and Roberts are the Paul Ryan of the federal judicial branch.  They and their compadres have a roadmap, and Roberts has now joined Scalia in openly revealing its intended final destination.  Except that this duo is remarkably careless in presuming that they can control that final destination.  They can’t.

Here’s what Roberts was getting at: Under the Supreme Court’s longstanding equal protection jurisprudence, there are three levels of equal-protection “scrutiny” that courts must accord laws, government policies or government officials’ actions that discriminate against particular groups or individuals, or that favor one or another group.  The highest level of scrutiny is–or, more accurately, originally was–reserved for “invidious” groups, such as racial, ethnic, or religious minorities, that suffered broad societal discrimination. Laws or government policies or actions that discriminated against these groups would be subject to “strict” constitutional scrutiny, which means that they would pass constitutional muster only if there was a “compelling governmental interest” that the law or policy furthered.  That standard is almost impossible to meet, so most such laws or policies were stricken as unconstitutionally discriminatory.  

Strict scrutiny also is the level of constitutional scrutiny applied to laws that infringe upon what are considered “fundamental” rights–rights that are stated expressly and specifically in the Constitution, and rights that the Supreme Court has recognized under a doctrine derived from the Fifth and Fourteenth amendments, called “substantive due process.”

An intermediate level of scrutiny–”heightened” scrutiny–applies to government discrimination (denials of equal protection of the laws) for less invidious groups that nonetheless do suffer societal discrimination.  Age discrimination, for example.  And gender discrimination.

Government discrimination that does not fall into one of those two categories is accorded, and permitted, very little scrutiny.  Specifically, any stated “rational basis” for the law or policy will suffice as sufficiently constitutional.  

An early justification by the Supreme Court for categorizing a group as protected from discriminatory laws or government policies or actions under strict, or even heightened, constitutional scrutiny was that –you guessed it–the group lacked political power and therefore could not fend off discriminatory legislation or policies through the political system.  Thus, the Roberts comments above.

But, mainly thanks to the efforts of the movement-conservative legal crowd of which John Roberts has always been a charter member, the importance of a group’s political power–or lack thereof–is most certainly no longer a consideration in applying strict or heightened scrutiny to discriminatory government actions.  Unless, of course, white high school seniors or white government-contractor applicants have no political power because, well, they’re white.  Or unless Christian evangelicals and Catholics have no political power because they are Christian evangelical or Catholic.  Or because they are religious.

And, yes, a favorite genre of the current movement-conservative law folks during the last three decades has been the novel use of equal protection law as a means to circumvent the First Amendment’s Establishment clause–the clause in the Constitution that bars the government from favoring one religion over others, or from favoring religion in general.  The First Amendment’s Free Exercise clause wasn’t sufficient, because, well, there really isn’t a First Amendment right to commandeer the government in the service of your own practice of religion.  But if the government is going to allow non-religious groups to do something in particular, it must allow religious groups to do the same, as long as doing the same doesn’t force others to participate in, or be present at, your religious exercise, courtesy of the government.  Even if the government has a rational basis for not allowing it.  

So John Roberts wants to reinstate the lack-of-political-clout requirement for any level of equal protection scrutiny other than the rubber-stamp rational-basis level of equal protection scrutiny.  But only for the purpose of denying same-sex couples federal spousal benefits such as estate tax exemptions and Social Security survivors’ benefits.  And for the purpose of allowing states to prohibit same-sex marriage.  But rest assured that Abigail Fisher, the unsuccessful University of Texas applicant who is white and hails from an upscale Houston suburb, and who probably was not asked to show a birth certificate when she registered to vote at the age of 18, will not lose her case because political figures are falling over themselves to endorse her side of the case, and have been, for decades longer than political figures have been falling over themselves to endorse the same-sex-marriage plaintiffs’ side of their case.  That is, for decades before, say, a month or two ago.

It’s John Roberts’ bad luck that the affirmative action case will be decided within weeks, or perhaps just days, of the same-sex-marriage cases.  I do think there’s another name, though, for Roberts’ luck, if not for Roberts himself: poetic justice.

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