Relevant and even prescient commentary on news, politics and the economy.

The Kosher Butcher Who Was Not a Person Until He Incorporated Himself*

Religious liberty, [Tenth Circuit Court of Appeals] Judge Tymkovich wrote, cannot turn on whether money changes hands. “Would an incorporated kosher butcher really have no claim to challenge a regulation mandating non-kosher butchering practices?” he asked.

Court Confronts Religious Rights of Corporations, Adam Liptak, New York Times, today

Why, yes, Judge Tymkovich, of course an incorporated kosher butcher really would have a claim to challenge a regulation mandating non-kosher butchering practices.  But that’s because the kosher butcher also is an actual human and was one even before he incorporated himself, er, his butcher shop.

The butcher would have a claim as, um, the butcher–Ira Greenberg, human being, exercising his religious right to use kosher-butchering practices to kill his own food, and his religious right to obtain kosher meat in order to limit his meat eating to kosher.  He also would have a due process right to practice his trade and make a living, unencumbered by an utterly arbitrary and irrational prohibition (or, to use legal formality, a prohibition that has no legitimate governmental interest). And Ira Greenberg Kosher Meats, Inc., would have a similar due process claim, a constitutional claim that, unlike campaign-contribution claims or free-exercise-of-religion claims, could be invoked legitimately by a corporation, because it, unlike political contributions and religious practice, actually would concern the right to operate as the sort of business that it is.

Tags: , , , , , , , , , , , Comments (6) | |

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.

Tags: , , , , , Comments (1) | |

The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race. (Except, that is, when the discrimination favors whites over racial minorities.)

 

The Way to Stop Discrimination on the Basis of Race Is To Stop Discriminating on the Basis of Race.

— Chief Justice John Roberts, Jun. 28, 2007, writing for a four-justice plurality in Parents Involved in Community Schools v. Seattle School District No. 1.

Given that statement of his own belief, and his concomitant pronouncement that discrimination by a state or local government on the basis of race necessarily violates the Fourteenth Amendment’s equal protection clause and that therefore the federal judicial branch is entitled to strike down as unconstitutional any law or policy that discriminates on the basis of race, I expect that the chief justice will vote to affirm a lower federal appellate court’s ruling in the high-profile affirmative action case that the Court will hear argument on tomorrow.

Let me explain.  Or, better, let me borrow part of the nicely succinct explanation in an editorial in today’s New York Times, which begins:

Can a state’s citizens amend the state constitution to ban affirmative action programs in public universities, even if the Supreme Court has approved those programs? That is the question the court is facing this week in the case of Schuette v. Coalition to Defend Affirmative Action.

Some background is in order.  In 2003 the Supreme Court upheld as constitutional the race-conscious admissions policy at the University of Michigan law school.  But at the same time, in a companion case, the court struck down a slightly different affirmative action policy for admissions to the University of Michigan’s first-year undergraduate class, as weighting racial minority status too heavily in order to attain more racial diversity.

In resolving these cases, the court applied its longstanding “strict scrutiny” test to evaluate the equal-protection constitutionality of these affirmative action programs, a test that originated in the 1940s as a constitutional protection under the equal protection clause for members of “suspect,” or “invidious” classifications.  Which did not include whites as a racial group, because, well, the purpose of the “strict,” or “heightened,” scrutiny under the equal protection clause was to protect politically powerless, stigmatized, possibly stereotyped, and historically discriminated-against groups.  Ordinary, everyday whites were the racial majority, not a minority, and clearly the most politically powerful racial group.

The strict-scrutiny standard, which is the highest level of what is now, at least formally, a three-tiered scrutiny hierarchy, requires that courts strike down laws or government policies that targeted suspect groups for negative consequences because of the invidious and immutable classification, initially concerning a fundamental constitutional right–the right to vote, for example–and then for any law or governmental policy, unless the law or policy serves a “compelling governmental interest”.  In which event the means chosen to accomplish the compelling governmental interest must be narrowly tailored so as to have no impact beyond what is minimally necessary.

Originally, the only other level of court scrutiny under the equal protection clause was “rational basis” scrutiny: as long as the government could state some conceivably rational, or legitimate, governmental purpose for the law or policy, the law or policy was fine.  “Rational basis” scrutiny, in other words, is another phrase for anything goes. Later, a middle tier was added–intermediate scrutiny–which applies to gender-based discrimination.

So the trick if you are challenging the equal-protection constitutionality of a law or government policy is to squeeze your discriminated-against class into the suspect-classification category. Which is hard to do when your discriminated-against class is the majority, and most politically potent, race.  But not so hard that it cannot be done, if you are 1980s-90s era Legal Movement conservatives at a time when 1980s-era Movement conservatives dominate the federal bench overall or at least hold a majority on the Supreme Court.  Madison Avenue-ishly marketed as reverse-racial-discrimination programs, race-based affirmative action programs were (and remain) on the Reagan-era-conservatives’ Legal Movement hit list.

So done, it was, initially in a 1986 case called Wygand v. Jackson, in which the court struck down as violating the equal protection clause a school board’s consideration of race in determining financially-necessitated teacher layoffs, holding that racial and national-origin diversity in the makeup of the teaching staff was not a compelling enough governmental interest to survive under the strict-scrutiny test, nor, the Powell opinion says, does the level of scrutiny “change merely because the challenged classification operates against a group that historically has not been subject to governmental discrimination.”

Nor, the court’s majority held in 1995, in a case called Adarand Constructors v. Pena, does the extent of the political power of the discriminated-against group change the level of scrutiny.  The white owners of Adarand Constructors, Inc., challenged an affirmative action program for federal contractors as violative of the Fifth Amendment, which has a due process clause that applies to the federal government, but the Supreme Court has interpreted that due process clause to implicitly require equal protection, in the same way as the Fourteenth Amendment’s explicit and separate equal protection clause applies to (and only to) the states.  White-owned companies vying for federal (or state or local) government contracts, the court held, cannot be disadvantaged in the competitive application process for government contracts by an affirmative-action program seeking to increase the very low number of racial-minority-owned government contractors.

The Koch Brothers could win a reverse-discrimination lawsuit, should they ever apply for any government contract or other special treatment for their businesses through a competitive application process.  Or should their lobbyists ever fall short, and the Kochs learn that racial minorities get more business subsidies than the oil and gas industries.

Or should hell freeze over. But I’m speaking in jurisprudential theory here., not in political theory.

So the suspect category for qualification for strict scrutiny, regarding race, is simply race.  Nothing else. Whites get to piggyback on the strict-scrutiny discrimination standard, instituted specifically and narrowly to protect racial and ethnic minorities, by simple virtue of the fact that white is a race.

Oddly enough, last spring there was a moment when it looked like the lack-of-political-power criterion was about to be restored as a prerequisite to strict-scrutiny classification.  Not the historically-discriminated-against criterion; just the lack-of-political-power criterion.  But it was notable because it was at least one Conservative Movement justice–Antonin Scalia, I believe, and one other, Roberts, I think–who invoked it.  During oral argument in at least one of the two same-sex-marriage cases (I can’t remember whether it was in both or only in one), Scalia and, I think, another justice noted that homosexuals are no longer without political power, as evidenced by their success in enacting same-sex marriage statutes in a sew states and obtaining favorable court rulings in a couple of other states. This, the justice (or justices) suggested, maybe should defeat the claim that anti-gay laws should be analyzed for muster under equal protection jurisprudence using the strict-scrutiny standard.

After all, Scalia said, strict scrutiny under equal protection jurisprudence requires a lack of political power to try to get the law changed; Adarand Constructors, be damned! For the moment, anyway. (Or it requires a violation of a “fundamental” constitutional right–a constitutional right expressly proclaimed by the court to be a fundamental one, and only certain select ones are–which is the only type of claim of denial of equal protection, other than one based upon membership in a particular group, that prompts strict-scrutiny analysis.)  And anyway, Scalia pointed out, the sole purpose of the Fourteenth Amendment, back when it was drafted and then ratified, was to protect people who had been slaves, or who were descended from slaves, or who were, or whose ancestors would have been, slaves had they lived in a state south of the Mason-Dixon line.

Scalia is an originalist, after all.  And he apparently when he said that, he had forgotten that Abigail Fisher, the unsuccessful white University of Texas/Austin applicant who challenged the constitutionality of Texas’s mild affirmative action freshman-admissions system for its state universities, and whose case had been argued to the court last October and was still pending last spring, was white and a resident of an upscale Houston suburb. In his dissent in Grutter, Scalia had written, “The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception”.  He reiterated that sentence in a one-paragraph concurrence when Fisher was decided in late June, the same week as the same-sex-marriage cases were decided. Fisher went as far as it could to kill affirmative-action programs at state colleges and universities without overruling Grutter.  The petitioner, Abigail Fisher, Anthony Kennedy and Scalia both noted, had not actually asked the court to overrule Grutter, but instead had argued that Texas’s program went beyond what Grutter allowed.  And, since Fisher was not a campaign-finance-law case, the court decided not to go beyond what the petitioner to the court had asked it to rule.

And anyway, there was that pesky problem of arguing the narrowness of the application of the strict-scrutiny equal protection standard in Fisher and then, for Scalia, Roberts, Clarence Thomas and SamuelAlito, blithely reversing course two days later in dissents in one of the same-sex-marriage cases, United States v. Windsor, which struck down the federal Defense of Marriage Act.  Section 1 of the Fourteenth Amendment, the section that contains the equal protection clause, does not specifically state that it applies to gays.  But neither does it say that its protections are limited to African Americans, or, for that matter, to racial discrimination. It says it pertains to all persons. Gays are persons.

But even if Scalia’s originalist view is accepted and the court suddenly reverts back to before the era of modern equal protection jurisdiction began in the early 1940s, and a majority of justices state that the equal protection clause prohibits only discrimination on the basis of race because that was how the amendment was understood when it was drafted and ratified–and that whites are decendants of American slaves, in the South and in Michigan–this would require them to uphold the Sixth Circuit Court of Appeals’ ruling in Coalition to Defend Affirmative Action v. Schuette that the Michigan voter initiative that passed in 2006 amending the state constitution to ban affirmative action programs in the state’s public universities itself violates the equal protection clause.

Here again I’ll borrow from the New York Times editorial:

Advocates of affirmative action sued the state on grounds that the amendment violates the United States Constitution’s guarantee of equal protection. They argued that it impermissibly altered the political process that determines admissions policies in a way that places special burdens on racial minorities.

For instance, an applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But an applicant who wants the university to consider race as a factor has only one path available: to work to pass a new amendment that repeals the anti-affirmative-action amendment — which a federal appeals court called “a lengthy, expensive and arduous process.”

Michigan, in response, argues that the amendment does not violate equal protection because it treats all races the same. But the Sixth Circuit opinion said the denial of equal protection is not in treating races differently in the university admissions process but instead in treating racial-minority interest groups differently from other non-racial-minority minority interest groups, in effectively changing the very nature of the political system itself only for those racial-minority groups.  Every other minority interest group can try to change a law or a government policy through the normal political process of lobbying or trying to defeat or elect certain candidates, including for the state’s universities’ publicly elected boards of regents or trustees. It certainly seems to me that this is pretty much what Section 1 of the Fourteenth Amendment prohibits, in its equal protection clause as well as its (admittedly moribund) privileges and immunities clause.

Last year, the United States Court of Appeals for the Sixth Circuit rejected that claim, striking down the amendment because it especially harms racial minorities — the primary beneficiaries of affirmative-action programs — by prohibiting them from asking a public university to consider their race.

The Times editorial also notes the Sixth Circuit’s recitation of an appalling problem with this particular voter initiative–a problem to which I was witness. The editorial says:

This case is another reminder of the threat to minority rights posed by ballot initiatives, which can be prone to abuse. That was surely true in Michigan, where the process of gathering signatures to put the amendment on the ballot “was rife with fraud and deception,” according to the federal appeals court. In some cases, voters were tricked into believing that the measure actually supported affirmative action. The methods used by the amendment’s backers, the appeals court found, “undermine the integrity and fairness of our democratic processes.”

Yes. Make that, Yes! As it happened, in the ten weeks or so leading up to the November 2006 election, I was spending quite a bit of time on the University of Michigan campus in Ann Arbor, and also was reading the student newspaper, the Michigan Daily, almost daily.  And I remember the utter dismay, on campus and in Ann Arbor and elsewhere among many in the surrounding area, at the widespread campaign to mislead about the very nature of the proposed amendment.

So for me, in some sense, tomorrow’s argument at the court will be personal.

The court has delineated the parameters of permissible public-university admissions affirmative action programs under its current equal protection jurisprudence, which, for what in my opinion is not a legitimate reason, privileges the rights of whites over, say, the rights of high school seniors who don’t have a parent who is an alum of the school. As the Times editorial says, and applicant who wants alumni connections to be considered in admissions could ask the admissions committee to adopt that policy, or she could lobby the university administration or its popularly elected governing board. But at most universities, including public ones, they don’t have to lobby; alumni connections are considered in admissions. And though those who oppose that policy can lobby, and have lobbied, the university administration or its popularly elected governing board, at the University of Michigan and, probably at the University of Texas, it has been to no avail.  Not because those with alumni connections are a majority of the public, but because they have political and financial clout.

The Michigan state constitutional amendment is undeniably race-based discrimination in access to the normal political process.

The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.  And the Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception.

We have these statements right from two horses’ mouths.  Or keyboards.

Tags: , , , , , , Comments (8) | |

About That “Poking Into Every Nook and Cranny of Daily Life” Thing, Chief Justice Roberts …

If there is no mystery about the nature of the chief justice’s views, I remain baffled by their origin. Clearly, he doesn’t trust Congress; in describing conservative judges, that’s like observing that the sun rises in the east. But oddly for someone who earned his early stripes in the Justice Department and White House Counsel’s Office, he doesn’t like the executive branch any better.

He made this clear in an opinion dissenting from a 6-to-3 decision this term in an administrative law case, City of Arlington v. Federal Communications Commission. The question was whether, when the underlying statute is ambiguous, courts should defer to an administrative agency’s interpretation of its own jurisdiction. The answer was clearly yes, according to Justice Scalia’s majority opinion that built on decades of precedent on judicial deference to agencies. The chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”

Congress can’t be trusted. The executive branch is out of control. What’s left?

The Supreme Court. There’s a comforting thought as we await Year 9 of the Roberts court.

— Linda Greenhouse, The Real John Roberts Emerges, New York Times, today

Yes, the chief justice’s dissenting opinion was a discordant screed that bemoaned the modern administrative state with its “hundreds of federal agencies poking into every nook and cranny of daily life.”  That is, I guess, as opposed to, say, state laws (and in the case of DOMA, a federal statute) that poke into what should be very private nooks and crannies of daily life, in which case their poking into nooks and crannies of daily life are fine with Roberts.

But more important, but, as I said earlier today and also last week, almost completely ignored by the mainstream media in its coverage of the Supreme Court—and therefore completely unknown to almost everyone—is the current Supreme Court’s bizarre claim that state courts are entitled to unbridled sovereign dignity to poke into every nook and cranny of daily lives.  Or to delegate breathtaking effectively-judicial powers to private persons to control every nook and cranny of the daily lives of, say, those unlucky enough to suddenly be subject to, say, family-law court, or probate court, or criminal courts.  State courts that routinely ignore even their own state’s legislative dictates intended to ensure compliance with procedural and substantive federal constitutional mandates whose unequivocal purpose is to place individual dignity above what these fair-weather “federalism” jurists claim is the constitutional right to sovereign dignity that state courts have and that grants them the constitutional right to violate individual dignity in even the most profound and basic respects.

As I said in a post here last week, maybe one day Justice Kennedy—who, unlike Roberts, does recognize federal constitutional limits to state legislative– and executive-branch powers even concerning matters that aren’t Republican rallying cries—will deign to explain why he and his cohorts believe that the Constitution, which since the late 1860s has included the Fourteenth and Fifteenth amendments and which still includes both the habeas corpus clause and Supremacy clause, renders state courts sovereigns and therefore untouchable by “collateral” declaratory federal-court order.

And maybe that distinguishes Kennedy from Roberts.  Maybe Kennedy one day will give some thought to it.  Roberts by contrast will merrily continue his personal legislative agenda, for which no thought is necessary or evident.

Tags: , , , , Comments (0) | |

The DOMA Opinion

Now the shoe is on the other foot, and it is time for the court to strike down a federal statute in order to advance a liberal policy goal rather than a conservative policy goal. Justice Scalia’s paean to the democratic process* in his dissent sounds a little hollow, coming in the wake of his votes to strike down affirmative action programs and Section 4 of the Voting Rights Act—both of them the result of the democratic process, as much as DOMA was. Meanwhile, none of the liberals pipe in to explain how to reconcile the outcome of this case with the concerns about democracy that they expressed in dissenting opinions in the other cases. (Ginsburg, in Shelby County: “That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”)

But this is a trite point, and never mind. The problem faced by opponents of DOMA is that there was no clear constitutional hook for striking it down. The Equal Protection Clause does not seem to apply because gay people (unlike, say, African-Americans) have not been regarded as politically weak enough to be a “suspect class,” justifying heightened review. That means that only a rational basis is necessary to uphold DOMA and a rational basis is easy to find (uniformity, efficiency, blah, blah, blah). The Due Process Clause does not seem to apply because that clause protects only rights that are rooted in history and tradition, and the right of same-sex marriage, however compelling a moral issue it may seem today, is not such a right. Federalism says that (under ill-defined conditions) the U.S. government cannot trump state law, especially in an area like family law, but in fact there are plenty of federal laws that regulate marriage, at least along the margins.

— Eric Posner, There was no clear constitutional reason to strike down DOMA, but the court did it anyway. Slate, today

I don’t understand why Posner thinks there is a conflict between the liberals’ position in Shelby County (yesterday’s 5-4 opinion gutting the Voting Rights Act) and their position in joining Kennedy in Windsor without reconciling the two.  Why does he think Ginsburg’s statement in Shelby County—“That determination of the body empowered to enforce the Civil War Amendments ‘by appropriate legislation’ merits this Court’s utmost respect.”—conflicts with Kennedy’s use of equal protection in Windsor?  DOMA surely was not intended to provide equal protection to same-sex couples.  And the liberals surely did not say in their dissent in Shelby County that democratically enacted laws are fine even if they violate constitutional equal protection guarantees.

And I’m not sure why Posner and many other commentators today complain that Kennedy’s opinion doesn’t identify the specific level of equal protection scrutiny that gay people are entitled to.  He establishes a separate, new class of people, including but not limited to gays, who are entitled to heightened equal protection: people targeted by laws or policies whose very intent and whose effect is to disadvantage them. “Discriminations of an unusual character especially require careful consideration” of the motive and effect–in other words, heightened equal protection scrutiny by the courts–he says.   That’s new, and not all that specific, but it’s certainly a level of scrutiny that’s different, and higher, than the rational-basis level of scrutiny. Kennedy clearly was saying that under this new type of scrutiny, there very much is a constitutional reason to strike down DOMA.

And I think it will play a role in next term’s affirmation action case challenging the constitutionality of 2006 successful Michigan ballot initiative that amended the state constitution to prohibit state-sponsored race-based affirmative action in employment and college admissions.  The Sixth Circuit Court of Appeals struck it down on the basis that, for equal protection purposes, constitutional amendments were different than ordinary legislation because the targeted groups can’t simply lobby the legislature to change the law; they must instead go through the lengthy, difficult and expensive ballot-initiative process.  The Supreme Court agreed to hear the case.  The case is Schuette v. Coalition to Defend Affirmative Action.  Linda Greenhouse had some interesting comments about it in the NYT a couple weeks ag0.

—-

*Scalia’s paean comes at the opening of his dissent.  He says, stupifyingly:

We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court’s errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.

Tags: , , , , Comments (6) | |

Justice Kennedy Reads Angry Bear! Yup. There’s No Other Plausible Explanation for His Affirmative Action Opinion Today.

A longer-than-planned post on today’s Supreme Court opinion on state-college-admissions affirmative action programs.  (I’m up in Michigan’s Thumb region, sans cable and regular web service, and using my phone as a Wi Fi hotspot via the PdaNet app. I can attest that PdaNet is awesome.)  Here it is:

The headline on Politico reads, “SCOTUS passes on big affirmative action decision.”  That headline does not really sum up the opinion,* but I’m not surprised at the ruling—either its result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.  It’s a (very) safe bet that neither the result nor the delay in deciding the case was the result that the Fab Five had planned on when they agreed to hear the case and when the case was argued there.

But, well, stuff happens.  And, first things first.  And first—and foremost—for these folks, I believe, is the gutting of two key, interdependent sections, Sections 4 and 5**, of the Voting Rights Act (VRA), because that is the way to help Republicans in national elections.  And the stuff that happened in this instance was the oral argument at the Court back in March (I think) in Shelby County, Alabama v. Holder, the case that the 5-4 crowd has planned to use as its “vehicle”—a military tank—to gut that section of the VRA.

As I wrote in AB back then, comments that Kennedy made during the argument would, if adopted by him (he will be the author of the opinion in Shelby County; bet on it, quickly, tonight, before the opinion is released tomorrow!) would inescapably conflict, in two respects, with the ruling that Kennedy planned to write in Fisher.  And, yes, although absolutely everyone but me said Roberts would write the opinion in Fisher, Kennedy was the author of the Fisher opinion.  (Okay, one of his law clerks was, but without attribution, of course.)

During the argument in Shelby County, Kennedy made two things clear: First, that states are people, too (just like corporations!), and therefore are protected by the Fourteenth Amendment’s equal protection clause.  Funny, but who knew that the Fourteenth Amendment, whose express and sole historic purpose was to protect individuals (i.e., people) from denial of due process of law and the equal protection of the law by states.  Violation of constitutional rights by states, not by the federal government against states, which heretofore had no constitutional due process or equal protection rights.  Originalism and textualism only matter sometimes.

Second—and this is, I think, as I said in my post last spring, the real key to the conflict between what these five wanted to do in Fisher and what they want to, and almost certainly will, do in Shelby County—is that Kennedy and Scalia think that now that African Americans have real political power, they aren’t entitled to special protections.  Hey, Obama won, didn’t he?!  They can just use their political power to ensure that there are no improper barriers to voting and to having their vote not be improperly and deliberately diluted into meaninglessness in federal, state and local legislative elections.  Hey, Obama won, didn’t he?!

Which, as I said in my earlier post, raises the obvious question in Fisher of why the white UT applicants can’t just use their political power to have the legislature change the college-admissions statute.  Unless, of course, the parents of white upper-middle-class high school students (which is what plaintiff Abigail Fisher was) have less political power in Texas than African Americans do.

Kennedy suggested during the Shelby County argument that states and localities could honor the fact of their history of racial discrimination by, say, erecting a statue of a pre-civil-rights-era black citizen who was known to have been improperly denied access to the polls.  I suggested in my AB post that that could work as the solution in Fisher, too: a statue of Abigail Fisher, along with an explanatory metal placard, in the UT’s quad.

I said at the time that I thought it was poetic justice that Fisher and Shelby County were being decided in the same Court term.  The poetry, if not the justice, will become apparent, I’m pretty darn sure, when the opinion in Shelby County is released.  Probably tomorrow, probably along with the two same-sex-marriage opinions, probably to be drowned in news coverage by the tsunami of reportage and commentary on the latter cases.

Will I be humbly eating some of these words tomorrow?  We’ll see.  I mean, you never know.  Maybe Kennedy doesn’t read Angry Bear, after all.

UPDATE: SCOTUSblog’s Lyle Denniston just posted an indepth summary and analysis of Fisher, here.

*Originally, this sentence read, “That about sums it up, and I’m not surprised, either at the result or that it took an unusually long time for the issuance of the opinion; the case was argued in the first week of the Court’s term in early October.”  I have not yet read the opinion (and probably won’t do so today), and was relying on the very early reports about it.  But I’ve amended that sentence in light of Lyle Denniston’s detailed article.  The bottom line, I think, is that the likely substance of the  impending 5-4 opinion in Shelby County saved affirmative action, for now, to the extent that Fisher did save affirmative action.

SECOND UPDATE: Here’s NYT Supreme Court correspondent Adam Liptak’s take on Fisher. He points out that the opinion is brief.  Just think of all that time these folks wasted in writing the original, pre-Shelby-County-argument, drafts of the opinion, the concurrences and dissents.  Time that the justices could have used instead to give a few more speeches at law schools and nonprofit organizations during their many, many, many fall, winter and spring breaks, some of them several weeks’ duration.  Their part-time job is exhausting, I realize, and they could have used the additional diversion (and speaking fees and junkets).  Oh, well.  Maybe next year, when there’s another affirmative action case on the Court’s docket.

THIRD UPDATE: **Originally, that sentence said that one key section, Section 5, of the VRA was at issue, and did not mention Section 4.  The Court issued its 5-4 opinion, written by Roberts, a few minutes ago, and SCOTUSblog says the opinion strikes down Section 4 but says the court makes no ruling on Section 5, and that Ginsburg says in her dissent that the striking down of Section 4 renders Section 5 dormant.  Section 5 is the section that requires certain states, counties and localities to first “pre-clearance” from a federal court or from the Justice Dept. before altering voting districts or other access-to-the-polls and weight-of-a-vote matters.  Section 4 is the section that creates the formula for determining which states, counties and localities are subject to the Section 5 pre-clearance requirement.

The effect of striking down Section 4 is to nullify Section 5 until Congress enacts a new formula to replace the now-void Section 4 one. Or until hell freezes over.  Whichever comes first.

Tags: , , , , , , , , Comments (2) | |

Sooo … Akhil Reed Amar and Neal Katyal confuse the IRS and TSA with the FBI. I mean … really, profs??

Update: Link at Scotus blog http://www.scotusblog.com/2013/06/wednesday-round-up-187/.

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.

Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.

Why the Court Was Right to Allow Cheek Swabs, Akhil Reed Amar and Neal K. Katyal, New York Times,* today

Oh, dear.  Looks like we should all take the Fifth instead of filing income tax returns.  Now that we can no longer take the Fourth.

The referenced ruling, whose implications prosecutors, police agencies and civil libertarians are considering, is yesterday’s 5-4 Supreme Court opinion in a case called Maryland v. King.  Lyle Denniston of SCOTUSblog explains:

Treating the solution of unsolved crimes as a legitimate part of routine police station “booking” procedures, a divided Supreme Court on Monday upheld the power of government at all levels to take DNA samples from every person legally arrested for a “serious” new crime.  What a suspect may have done in the past, the Court majority ruled, is a part of the profile that police may constitutionally begin to assemble at the time of arrest for a separate offense.

Justice Anthony M. Kennedy, writing for a five-four majority, insisted that the ruling in the case of Maryland v. King (docket 12-207) involved little more than what happens when police take a suspect’s fingerprints or mug shot.  But Justice Antonin Scalia, writing for the dissenters, said the Court had validated the use of scientific evidence taken without a warrant not to make an identification but to gather evidence to solve cold cases — something he said the Court has never allowed before.

Whether or not Scalia got his history right, at least he, unlike these these two eminent law professors, recognizes that, as a matter of both fact and the Fourth Amendment, solving an already-committed crime is not the same as requiring the filing of tax returns or thwarting an attempt to carry out a crime.  Or, well, at least until yesterday there was a difference as a matter of both fact and the Fourth Amendment.  Now I guess there’s only a factual difference, not a legal one.

But these two writers think there’s no factual difference. Or maybe they just think Scalia thinks there’s no factual difference.  Or maybe they just didn’t notice the words “for evidence of a crime” in that sentence they quote from Scalia’s dissent: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.”

Hard to tell.  And rather than clear up that mystery, they just go on to enhance their weird conflation of past and present, and of crime and regulatory compliance:

Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results.

The government, for example, permits searches at the border to prevent contaminated livestock and plants from entering the country — is such authority permitted only because these searches are not seeking “evidence of crime?” If so, if what happens if the government at some point criminalizes the intentional introduction of diseased animals and vegetables? Why should these searches magically now become unconstitutional?

The title of Denniston’s piece is “Opinion recap: Solving ‘cold cases’ made easier.”  Maybe that refers to handling of refrigerated containers of meat and produce by the Border Patrol and the Agriculture Department.

What exactly is the ultraprecise rule that Scalia claims is the central meaning of the Fourth Amendment?  That livestock and plants trying to enter the country should be forced to submit to a DNA swab in case they plan to violate the tax code when they file their tax returns with the IRS? That certainly is ultraprecise.  Not to mention deeply flawed and historically inaccurate. As is the claim that a statement that the Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence has anything to do with mandatory filing of tax returns, or airport security, or livestock and plants crossing the border.

My own reaction to the opinion was more along the lines of revulsion than relief that the country’s food supply will continue to be relatively safe from foreign contamination; that I won’t be planting poison tomato seeds imported from Timbuktu; and that Mitt Romney and the Koch brothers won’t have new Fourth Amendment grounds for tax avoidance.  And judging from similar sentiment expressed overwhelmingly in comments threads I’ve read about it, I think this opinion will prove to be the Fourth-Amendment/criminal-law Citizens United–a watershed moment of awareness of the chasm between the Supreme Court justices who think it’s forever the days of the Reagan presidency and the substantial majority of the public who think it’s 2013.

Yes, the Fourth Amendment’s text merely requires that all searches and seizures be not “unreasonable.” Which itself is a distinction between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.  Or so I and others, including Scalia, Ginsburg, Sotomayor and Kagan, had thought.

Then again, Amar and Katyal must know what they’re talking about.  They’re eminent law profs, after all, who by virtue of their eminence get anything they submit published anywhere they submit it.

Anything they submit. Even this.

 ===

*“Akhil Reed Amar is a professor of law and political science at Yale. Neal K. Katyal is a former acting solicitor general of the United States, a professor of national security law at Georgetown and a partner at the law firm Hogan Lovells.

 

Tags: , , , , , , , , , Comments (7) | |

SCOTUSblog’s Tom Goldstein says a same-sex-marriage victory in DOMA almost precludes a same-sex-marriage victory in the Prop 8 case. I disagree.

Students of Windsor and Hollingsworth have always recognized a basic tension between the theories of gay-rights advocates in the cases.  The challenge to DOMA is undergirded by a sense that marriage is a matter for state rather than federal regulation.  The challenge to Proposition 8 is a direct challenge to just such a decision by a state.

Yesterday and today, the irresolvable depth of that tension in this Court became obvious. The arguments would be easier for the public to understand if they had occurred in reverse.

The arguments would be easier for the public to understand if they had occurred in reverse? Maybe.  But I think I understand them well enough to disagree the depth of that tension in this Court is irresolvable.  I say that, even recognizing that the operate words in Goldstein’s statement are “in this Court.”  By which he means, this Court with it’s membership.

Goldstein explains:

A majority of the Court seems poised in Windsor to invalidate DOMA Section 3 on the theory that the federal government has no interest in adopting a definition of marriage applicable to 1100 statutory provisions that as a practical matter alters the very nature of what it is to be “married.”  That role, the Court will rule, is historically reserved to the states.  So DOMA is a federalism [i.e., states’-rights] case. …

But if DOMA is going to be decided as a federalism case, Hollingsworth [the California Prop. 8 case] becomes a much harder case for the plaintiffs [who are challenging Prop. 8 as violative of individual rights].  That ruling in Windsor implies that California should have a parallel right to decide the definition of marriage for itself – i.e., that Proposition 8 should be upheld.

Except that that ruling in Windsor would imply that California should have a parallel right to decide the definition of marriage for itself under the Tenth Amendment, which is the main states’ rights provision of the Constitution.  Such a ruling in Windsor would say nothing at all about the Fourteenth Amendment, which is the main individual-rights provision of the Constitution vis-a-vis the states.

The Tenth Amendment does not trump or negate the Fourteenth Amendment–although I acknowledge that Kennedy and other uber-states’-rights proponents do claim sometimes that it does.  Kennedy does this, regularly, in state-prosecution criminal cases and in other lawsuits in state court when he effectively says that the Supremacy Clause exempts state judicial branches from its mandate.  But he (unlike, say, Clarence Thomas) does recognize the application of the Supremacy Clause to state legislative and executive branches.  And, presumably, to state voter referendums.  Such as Prop. 8.

I think Goldstein improperly conflates the Tenth Amendment and the Fourteenth Amendment in these cases.  The DOMA case is a Tenth Amendment case.  The Prop. 8 case is a Fourteenth Amendment case.  Just as with state criminal laws, a state law may violate the Fourteenth Amendment’s due process or equal protection guarantees to individuals, even if under the Tenth Amendment the state is entitled to enact laws within a generic genre–criminal law, family law, marriage law, for example.  The Fourteenth Amendment prohibits states from enacting laws that, although they are within those generic genres, nonetheless violate individuals’ rights conferred by the Fourteenth Amendment or some other part of the Constitution that establishes individuals’ rights.  

Kennedy does understand that. It was the basis for his opinion in Lawrence v. Texas, the state-criminal-sodomy-statute case in 2003.

Tags: , , , , , , Comments (2) | |

Turns Out I Was Wrong. Nate Silver HAS Been Asked to Analyze John Roberts’ Voting-Statistics Usage. But By The New York Times, Not By John Roberts. Oh, Well.

In this post last weekend, I lamented that Roberts hadn’t asked Nate Silver to weigh in on the voting statistics Roberts employed at the argument last week in the Voting Rights Act case. I also said Roberts & Friends were unlikely to ask him to weigh in on it.

Which I’m sure is accurate.  But Silver’s weighed in on it anyway.  And his analysis and comments are likely to be cited in the dissent to Roberts’ 5-4 opinion–a dissent that will claim, falsely, that the Union won the Civil War.

Tags: , , , Comments (0) | |

Anthony Kennedy and Antonin Scalia Say the Confederacy Won the Civil War and the Purpose of the Reconstruction Amendments Was to Reinforce Rather Than Diminish State Sovereignty. (Except on Affirmative Action, the Second Amendment, and Real Estate Property “Takings.”)

Leaving race aside for the moment (did someone mention that the Voting Rights Act has something to do with empowering black voters – who just might, for some strange reason, prefer Democrats?), what the court’s conservatives seem to see in Section 5 is a threat to state sovereignty — the “sovereign dignity” of the states, a phrase Justice Anthony M. Kennedy has used in another federalism context. This theme ran throughout the argument. Justice Scalia referred to Section 5 as imposing “these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them.” Justice Kennedy asked whether “if Alabama wants to acknowledge the wrongs of its past, is it better off doing that if it’s an independent sovereign or if it’s under the trusteeship of the United States government?”
A Big New Power, Linda Greenhouse, The New York Times, today, discussing the Feb. 26 argument at the Supreme Court in a case challenging the continuing constitutionality of the Voting Rights Act

Just so you know, the main Reconstruction Amendment at issue in Shelby County, Ala. v. Holder, the Voting Rights Act case–the 15th Amendment–provides in full:

Section. 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.
Section. 2. The Congress shall have power to enforce this article by appropriate legislation.

That language in Section 2, giving Congress the “power to enforce this article by appropriate legislation,” is standard Constitutional Amendment language.  It appears also in the other Reconstruction Amendment at issue in Shelby County–the 14th Amendment–a five-section amendment, the two relevant ones which read:

Section. 1. All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Section. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
Section 1, but not Section 5, also, as it happens, is at issue in the other culture-wars blockbuster Supreme Court case this term, Fisher v. The University of Texas, a.k.a., the big affirmative-action-in-state-university-admissions-policy case.

John Roberts will write the 5-4 opinions in both cases.  In Fisher, he and Kennedy will agree that the Union won the Civil War, and that the three Reconstruction Amendments–the third one, the 13th Amendment, actually being the first of the three; it abolished slavery–did not, after all, flip the Supremacy Clause in Article VI, Clause 2.  It said (and the 5-4 Court majority will confirm in Fisher) still says:

This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.

But Fisher was argued early in the Court’s term, in October, and probably will be decided before Shelby County. So Roberts & Kennedy & Co. will be able to clarify very quickly that–as Kennedy, Thomas and the others routinely and unselfconsciously, and without explanation–say, states are sovereigns.  Not that states have some but not all the attributes of sovereigns; no, that states are sovereigns.  And so, the Supremacy Clause notwithstanding, states need not comply with federal constitutional or statutory law.  Except, of course, on issues important to 1980s-90s Republican White House, Justice Department and judicial appointees.

These folks have a list, and they are checking off each item on it, even when that means that in the very same Court term they’ll casually flip the Supremacy Clause back and forth. As it will this term.  Christmas will come in May and June this year.  Or at least Santa Claus will.

Federal trusteeships of states are, it will become clear by the end of this Court term, constitutional only when the trusteeship is of a state, such as Texas, whose legislature enacts a statute that butts up against a 1980s-’90s-era rightwing cause célèbre–a bullet point on the list.  Federal trusteeships of states are clearly unconstitutional, however, when the trusteeship is explicitly authorized in the Constitution itself, as it is in Section 2 of the 15th Amendment, but the explicit authorization is itself on the list.  That’s because, then, it turns out, that despite appearances–i.e., the language in the Amendment itself–the purpose of the 15th Amendment was not to make the states’ racial-minority citizens better off vis-à-vis the states, but apparently, as matter of historical fact, the opposite.

Who knew?  Other than the Republican far-right, that is?

Not me, and probably not you.  You probably learned, incorrectly, back in U.S. History class that the Reconstruction Amendments were added after the Civil War in order to make the states’ racial minorities better off vis-à-vis the states.  But, then again, you also probably learned that the Confederacy lost the Civil War.  Even those of you who went to upscale suburban schools or to fancy private ones.  Well, those of you who took that class pre-1980s, anyway.  But we’ll soon be disabused of that misconception, in a high-profile Supreme Court 5-4 opinion that will be simply the denouement of a decades-long juggernaut by a bizarre cadre of legal wingnuts who have gained a stranglehold on the American judicial system to deny that the Confederacy did not win the Civil War.

Sort of like the Tea Party congressional delegation’s decision to deny the result of last November’s election, but with no near-term reversal possible in 2014.  Only an unexpected vacancy on the Court will do that.

Meanwhile, if Alabama wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.  Which is good, since Alabama surely will want to acknowledge the wrongs of its past. (Assuming, of course, that constitutional wrongs were committed in the past, which in this case presumes facts not in evidence at the Supreme Court on the day of the argument in Shelby County.  Including the fact that that Section 1 of the 15th Amendment eliminated the concept that the right to vote is a racial entitlement.) I suggest a statue.  And as an independent sovereign, which “it”–the intended beneficiary of the 15th Amendment–is better off as, Alabama might decide to erect one.

But these extraordinary procedures that deny the states sovereign powers which the Constitution preserves to them apply only to extraordinary procedures enacted by Congress. They do not apply to extraordinary procedures in the Supreme Court.  Such as the one in which the Reconstruction Amendments are rewritten, right along with Civil War and Reconstruction-era history.
I do have a suggestion for Texas, though, just as I have one for Alabama, since, when Texas, like Alabama, wants to acknowledge the wrongs of its past, it will be better off doing that if it’s an independent sovereign rather than if it’s under the trusteeship of the United States government.
Again here, I suggest a statue–this one honoring all the white Texas high school seniors who narrowly missed the cut to gain admission to their state’s flagship university since the current state statute and its predecessor statute were enacted.

Tags: , , , , , , , Comments (3) | |