Scalia Changes His Mind … About the Purpose of the Equal Protection Clause.

Wow.  It looks, from SCOTUSblog’s Lyle Denniston’s report on the argument this afternoon in Schuette v. Coalition to Defend Affirmative Action, that I was, um … right in saying yesterday and again earlier today that this case is not, at heart, an affirmative action case.  The case is really about when a voter referendum can amend the state constitution to remove a particular issue from the normal political process.

This issue has a name–or, rather, the legal theory that challenges the constitutionality of such state constitutional amendments does.  It’s called the “political process theory,” which was developed in two old Supreme Court cases concerning voter-referendum amendments to a state’s constitution.  (I should have used the name in my earlier two posts, just so that I could now use it as shorthand in this post, but I didn’t.)

In Schuette, the voter referendum amended the state constitution to remove from the normal political process–lobbying legislators, local government officials university regents–the policy issue of race-conscious affirmative action in public university admissions processes.  So the case is about whether a voter initiative–in this case, one heavily funded by an out-of-state rightwing group–can amend the state constitution to remove access to the normal political process by people with a particular viewpoint on a particular issue.  This is the “political process theory” issue.  And according to Lyle Denniston’s report, it’s the issue on which Justice Kennedy–clearly the swing vote in this case–focused almost all of his very extensive questioning at the argument today.

But here’s something else in Denniston’s report that caught my interest:

[A.C.L.U. lawyer Mark] Rosenbaum’s time in argument was difficult enough, especially in the exchanges with Justices Alito and Scalia, but it turned out to be less challenging than the barrage that confronted the other lawyer opposing ”Proposal 2,” Detroit attorney Shanta Driver (who was a last-minute substitute for another lawyer scheduled to be in the argument).

Driver’s opening comments got her immediately into trouble.  She asked the Court to return the Fourteenth Amendment’s guarantee of legal equality “back to its original purpose,” which was to protect minorities.  Justice Scalia took strong offense to that, saying he thought the aim of the Amendment was to guarantee equality to all people.

The lawyer tried to hold her ground, but Scalia kept testing her thesis.   Had the Supreme Court ever issued an opinion saying that the Amendment was only to protect minorities? he asked. Driver conceded that there was no such case.

Okay.  As I mentioned in my post yesterday about Schuette, Scalia, in the argument last spring on the constitutionality of the Defense of Marriage Act, said the purpose of the equal protection clause was to protect the rights of former slaves and their descendents, and therefore does not grant equal protection of the laws to non-African Americans.  He has made that statement elsewhere, I believe, in speeches or interviews.  And he has said that because the purpose of the clause was to confer rights upon former slaves and their descendents, the clause does not apply to prohibit gender discrimination. The clause’s use of the word “people” to state whom its protections covered, notwithstanding.

But that view of his in the past, I see. At least until the next gay marriage case comes to the court.

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