Category Archives: Law

A broken Constitution, and a few misplaced facts

Jeffrey Toobin’s latest piece for The New Yorker, “Our Broken Constitution” (paywalled), is an illuminating stroll through a myriad of justifiable complaints about the American founding document. But I couldn’t help but notice several questionable (and, in some cases, completely inaccurate) statements.

The essay opens thusly: “If there is a single point of consensus in this heated political moment, it’s that everyone loves the Constitution.” In the next paragraph, Toobin continues: “The Constitution, and the structure of government that it established, provides the backdrop, but never the subject, for every controversy.”

Skip ahead two paragraphs, however, and you’ll find the exact opposite: “Outside Washington,” Toobin explains, “discontent with the founding document is bipartisan and widespread…On the left and the right, [critics] are asking whether the pervasive dysfunction in Washington is in spite of the Constitution or because of it.” How can both be true simultaneously?

That’s not the only problem. Toobin’s opening statement, even if evaluated in the absence of his self-rebuttal a few lines down, is demonstrably inaccurate. Of course, there’s a certain futility to disproving any theory that includes the phrase “everyone loves” — which, to his credit, Toobin couldn’t possibly have meant literally. Nevertheless, even if afforded an ostensibly looser interpretation of “everyone,” his argument simply doesn’t work.

In fact, Toobin’s essay is itself just the latest in a series, all of which harp on the same general theme (a mostly justified one, to my eyes) that the Constitution is — to put it simply — overrated. A July 2012 Slate piece titled “Fixing the U.S. Constitution” invited readers and experts to amend the venerable document, introducing the effort thusly: “Politicians talk about the Constitution as if it were as sacrosanct as the Ten Commandments. But the document itself invites change and revision.”

In December of that same year, The New York Times ran an op-ed piece by Louis Michael Seidman, a constitutional law professor at Georgetown, headlined “Let’s Give Up on the Constitution.” In it, Seidman laments “our insistence on obedience to the Constitution, with all its archaic, idiosyncratic and downright evil provisions.” He also points out the long history of constitutional dissent: “Constitutional disobedience may seem radical, but it is as old as the Republic. In fact, the Constitution itself was born of constitutional disobedience…No sooner was the Constitution in place than our leaders began ignoring it.”

Less than three months ago, in September, Kevin R.C. Gutzman asked in The American Conservative: “Do We Need a New Constitutional Convention?” Perhaps more to the point, a National Journal article the following month by Alex Seitz-Wald was self-explanatorily titled, “A How-To Guide to Blowing Up the Constitution.” And these are just a few representative samples in a long canon of disenchantment with the output of “We the People” (or, rather, of their aristocratic appointees to the constitutional convention).

A second problem crops up soon enough. A little further along, but still on the article’s first page (p. 64 in the print edition), Toobin writes: “Implicitly but unmistakably, the 1787 Constitution allowed for the continuation of slavery.”

There is nothing implicit about the Constitution’s allowance for slavery. In the very first Article, Section 2, Clause 3 states, in part:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.

Later on, in Article I, Section 9, Clause 1, the Constitution explicitly allows for the slave trade’s continuation until at least 1808:

The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.

Article IV, Section 2, Clause 3 states:

No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.

And finally, Article V reaffirms the impossibility of eliminating the slave trade until at least 1808:

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Midway through Toobin’s piece, a third flaw emerges. Speaking of President Obama, Toobin writes:

Though he will spend eight years in office, his tenure as the actual leader of the national government lasted about a year and a half. On July 7, 2009, Al Franken was seated, after a recount, as the sixtieth Democratic senator. (Sixty votes are needed to overcome a filibuster.)…In the midterm elections of 2010, Obama’s party lost control of the House and fell below the filibuster threshold in the Senate.

But as has been well-documented (here, and here, and here, to name a few places) — and especially visible, one would imagine, to a political junkie such as Toobin — Obama’s actual filibuster-proof Senate majority lasted only four months in reality. Rachel Maddow’s blog explains:

In January 2009, there were 56 Senate Democrats and two independents who caucused with Democrats. This combined total of 58 included Sen. Ted Kennedy (D-Mass.), whose health was failing and was unable to serve. As a practical matter, in the early months of Obama’s presidency, the Senate Democratic caucus had 57 members on the floor for day-to-day legislating.

In April 2009, Pennsylvania’s Arlen Specter switched parties. This meant there were 57 Democrats, and two independents who caucused with Democrats, for a caucus of 59. But with Kennedy ailing, there were still “only” 58 Democratic caucus members in the chamber.

In May 2009, Sen. Robert Byrd (D-W.Va.) was hospitalized, bringing the number of Senate Dems in the chamber down to 57.

In July 2009, Sen. Al Franken (D-Minn.) was finally seated after a lengthy recount/legal fight. At that point, the Democratic caucus reached 60, but two of its members, Kennedy and Byrd, were unavailable for votes.

In August 2009, Kennedy died, and Democratic caucus again stood at 59.

In September 2009, Sen. Paul Kirk (D-Mass.) filled Kennedy’s vacancy, bringing the caucus back to 60, though Byrd’s health continued to deteriorate.

In January 2010, Sen. Scott Brown (R-Mass.) replaced Kirk, bringing the Democratic caucus back to 59 again.

Thus Obama’s supermajority, for all practical purposes, lasted only from September 24, 2009 until February 4, 2010, when Scott Brown took Kennedy’s old seat in the Senate.

Finally, towards the end of his article Toobin notes the undemocratic nature of the House of Representatives: “In 2012, House Democratic candidates across the country won about half a million more votes than their Republican opponents, but the G.O.P. emerged with thirty-three more seats than the Democrats.”

Toobin is correct on the seat differential, but significantly off on the vote gap. According to analysis performed by the Cook Political Report’s U.S. House editor, Dave Wasserman (and briefly explained by Talking Points Memo editor Josh Marshall), House Democrats actually won 1,365,157 more votes than Republicans in 2012 — a differential nearly three times that cited by Toobin.

Out of an abundance of caution — since Toobin had specifically compared the Democrats’ vote totals to those of their Republican opponents (emphasis mine) — I copied Wasserman’s Google spreadsheet and eliminated all House races in which either the Democrat or Republican candidate received 0 votes. This, I believe, should serve as a reasonably good proxy for uncontested races — in other words, those with no opponents. When only contested races are counted, the Democrats’ vote advantage over the GOP extends to 2,444,369. This is nearly five times as high as Toobin’s count.

I bring all this up not to rag on Toobin, who is obviously an astute legal mind. I enjoyed his article and am generally sympathetic to the complaints registered by the progressive movement regarding the Constitution’s many inadequacies. But several passages somehow slipped past The New Yorker‘s legendary fact-checking desk.

Enhanced by Zemanta

After Illinois, Look West for the Next Same-Sex Marriage Battles

IMG_1679
Celebrations at the Chicago Pride Parade in June 2013. Today, Illinois becomes the 16th state (plus Washington, D.C.) to legalize same-sex marriage.

When Illinois Governor Pat Quinn signs a same-sex marriage bill into law today, the Land of Lincoln will officially become the 16th state to grant recognition to same-sex spouses, just one week after Hawaii.

2013 has been a banner year for gay rights activists–in addition to the Supreme Court decisions striking down the federal Defense Of Marriage Act and permitting same-sex marriage in California, the movement has seen the legalization of same-sex marriage almost double at the state level. Nearly one year ago, when the Supreme Court first agreed to hear United States v. Windsor and Hollingsworth v. Perry, only nine states and the District of Columbia recognized same-sex marriage.

Of course, their work is still far from done. After Illinois, the focus will turn west toward New Mexico and Oregon.

Traditionally, states have legalized same-sex marriage through one of three ways: by referendum, through the state legislature, or via a ruling from the state’s judiciary.

New Mexico, the only state that has neither a constitution nor a state law explicitly addressing same-sex marriage, could become the 17th state to legalize such unions, thanks to the third route. Because of the state law’s silence on the matter, eight out of thirty-three counties began issuing marriage licenses to gay and lesbian couples after the Windsor and Hollingsworth rulings–eventually prompting all thirty-three New Mexico county clerks to ask the state supreme court for clarification on the constitutionality of same-sex marriage. The New Mexico Supreme Court heard oral argument in October 2013 and is expected to hand down a decision by the end of this year.

If the New Mexico Supreme Court rules in favor of legalizing same-sex marriage, the state will join Massachusetts, Connecticut, Iowa, California and New Jersey as having decided the issue through a judicial ruling.

Meanwhile, advocates in Oregon are planning to overturn the state constitution’s ban on same-sex marriage through a referendum. The coalition Oregon United For Marriage is in the process of collecting the 116,284 signatures required by next July in order to place the question on the ballot in November 2014. If it succeeds (as of today, it needs only 1,204 more names), there’s cause for optimism: a December 2012 poll showed that 54% of Oregon voters would support marriage equality, versus 40% who would vote against it. Though gay and lesbian couples cannot be legally married in Oregon just yet, the state announced in October 2013 that it would start recognizing valid same-sex marriages from other states.

Should a same-sex marriage initiative pass in Oregon, the state will join Washington, Maine and Maryland as having settled the issue by popular vote.

The Human Rights Campaign anticipates that 40% of Americans will live in a state with marriage equality by the end of 2014.

At Fernandez v. California Oral Argument, Supreme Court Debates What It Means To Be Roommates

At yesterday’s oral argument over a warrantless search, Breyer tries to draw lines while Scalia seems to have made up his mind. Picture via The Atlantic.
At yesterday’s oral argument, Breyer tries to draw lines while Scalia seems to have made up his mind. Picture via The Atlantic.

Last term, the Supreme Court’s Fourth Amendment cases made for some curious cross-aisle alliances, pitting a privacy-friendly Justice Scalia and his liberal colleagues Ginsburg, Sotomayor and Kagan against a government-supporting Justice Breyer and the conservative bloc of Chief Justice Roberts and Justices Alito and Thomas (and sometimes Kennedy). Wednesday’s oral argument in Fernandez v. California, however, saw Breyer and Scalia falling back along more conventionally ideological lines, with the former attempting to balance a rather unsympathetic defendant’s rights against a domestic violence victim’s needs, and the latter coming out in favor of a more expansive reading of law enforcement’s investigatory powers.

Fernandez v. California stems from a 2009 encounter between Los Angeles police and a man suspected of committing robbery and gang-related assault, who was spotted near the crime scene and subsequently seen running into an apartment. After Fernandez’s live-in girlfriend, Roxanne Rojas, opened the door for officers, fresh bruises and blood visible on her body, Fernandez told them that they could not legally come inside. He was removed from the premises anyway based on suspicion of domestic violence, arrested and taken to the police station. Two officers then returned to the apartment without a warrant and received consent from Rojas to search the premises, where they found evidence that would later be introduced at Fernandez’s robbery and assault trial, resulting in his conviction. The question before the Supreme Court now is whether the police violated Fernandez’s Fourth Amendment rights by warrantlessly searching his home with only the permission of the co-tenant girlfriend, even though Fernandez had earlier told the police in no uncertain terms that they could not enter. (If so, the state would not have been able to use the incriminating evidence from the apartment at his trial.)

In 2006’s Georgia v. Randolph, the Supreme Court established that a co-occupant’s objection to the police search of a home overrides another co-occupant’s consent if both co-occupants are present. California argues that its search did not violate Randolph because Fernandez was absent at the time the police officers returned and Rojas, as the only present co-tenant then, had the right to open her home to whomever she wished to grant entry. The removal of Fernandez from the apartment–even if it was forcible–effectively nullified his refusal to consent to a search.

Fernandez, on the other hand, interprets Randolph to mean that once a physically present co-tenant has objected to the search, “an objection… remains in effect until officers learn that the objector no longer wishes to keep the police out of his home”–or until the police get a warrant. In other words, for the seven-year-old precedent to have any force, the police must not be allowed to gain consent for a warrantless search simply by carting an objecting tenant away from the premises.

This reading of Randolph appeared to be in trouble from the moment that Justice Breyer– whose Fourth Amendment jurisprudence typically reflects an optimistic view of the government using its investigatory powers in good faith–opened questioning with a hypothetical about a domestic abuse victim who is unable to ask the police to come investigate a shared home for evidence of the crime even after the assailant has been arrested, because there is no clear probable cause for a warrant and no consent from the violent co-tenant. Breyer is clearly troubled by Fernandez’s argument, which he believes would deny Rojas her rightful authority as co-occupant to admit a visitor into their home during the 500-plus days he spent in custody.

On the other hand, Breyer, who joined the majority (and authored a concurrence) in Randolph, also doesn’t want to undermine his previous position by giving free rein to law enforcement to change presences into absences. So he tries to reconcile his vote in Randolph with his unease in Fernandez with a compromise: the known objection of a tenant who is then removed from the house by law enforcement could remain valid for a limited “reasonable time” afterward (the exact definition of “reasonable time” to be decided by the lower courts), during which the police cannot search the house without a warrant.

Unfortunately for Breyer, none of his colleagues seem terribly receptive to this idea. Of the nine justices, Alito articulates the case against Fernandez most vociferously, suggesting at several points that Georgia v. Randolph was wrongly decided and ought to be overturned entirely. “I don’t understand why the fact that one is a joint tenant is not the end of the analysis. Why shouldn’t it be?” Justice Alito asked Fernandez’s lawyer, indicating his belief that present consent should always override a present objection, much less an absent one. For Alito, Randolph has got it reversed–since he can’t imagine having the authority to ever tell his co-tenant what visitors she could or couldn’t permit into the home, Rojas’ consent alone should have disposed of the entire case.

Justice Scalia, who was in last Term’s cases a champion of privacy interests and mistrustful of government in search and seizure cases, dissented in Georgia v. Randolph, in part over concerns that abusers would use the rule privileging present objections to prevent police from investigating domestic violence, over the wishes of their battered partners. Today, he returned to that stance, telling Fernandez he was asking for an overbroad extension of a narrow ruling. Likewise, Chief Justice Roberts (who dissented in Randolph) and Justice Kennedy (who was in the majority) treated Fernandez’s Fourth Amendment rights as virtually nonexistent in this situation, repeatedly stating that assault victims should not be deprived of the law enforcement assistance they might want to ask for in the abuser’s absence. The fact that Fernandez is basically the world’s worst roommate has made this an easier case for them to decide.

USA - Politics - Supreme Court Nominee Judge Sotomayor on Capitol Hill
Sotomayor thinks the police need to try harder before resorting to warrantless searches. Picture via The New Yorker.

With the conservative justices focusing mainly on the social customs of roommates and the rights of Fernandez’s co-tenant, it fell on Justice Sotomayor, the most vocal defender of Fernandez’s position yesterday, to point out that California’s proposed reading might grant law enforcement too much control in situations where they already have a great amount of power. Sotomayor questioned the wisdom of giving the police carte blanche to manipulate Randolph’s absence/presence test –“[a]ll they have to do is arrest and remove people”– and circumvent proper search and seizure procedures. When California’s lawyer told Justice Breyer that his “reasonable time” compromise would not be a sufficiently “clear answer” for law enforcement, Sotomayor interjected: “How about a clear answer? Get a warrant.” She reiterated this point again later: “I don’t know why that’s so difficult for police officers to understand. Your first obligation under the Fourth Amendment is to get a warrant.”

While that may be true in principle, there’s an argument to be made that the Roberts Court has been slowly weakening the warrant requirement over the years, and the unsympathetic facts of Fernandez’s case surely did not help his cause. From today’s argument, it looks as though the Supreme Court will reduce Georgia v. Randolph to “nothingness,” as Justice Ginsburg mused. Sotomayor may be able to convince Ginsburg and Kagan, who both showed some discomfort with the amount of control their conservative colleagues would hand to the police. She might also get Breyer’s vote if she can somehow figure out a test that is consistent with both his Randolph concurrence and his desire to limit it in situations like these. Without the support of Scalia, however, the list of justices supporting Fernandez’s claim is stuck at four, which, in the Supreme Court, is still a losing number.

Schuette v. Coalition to Defend Affirmative Action: Death By A Thousand Cuts for Race-Based Affirmative Action?

Michigan Attorney General Bill Schuette will defend Proposal 2, which changed the state constitution to ban affirmative action in public education, before the Supreme Court Tuesday. (Picture via Detroit Free Press)
Michigan Attorney General Bill Schuette will defend Proposal 2, which changed the state constitution to ban affirmative action in public education, before the Supreme Court Tuesday. (Picture via Detroit Free Press)

Tomorrow afternoon, the Supreme Court will once again tackle the thorny question of affirmative action in higher education, less than four months after bouncing Fisher v. University of Texas back to a lower court for a newly-tightened and more rigorous examination of the constitutionality of Texas’ race-conscious undergraduate admissions process.1 While the central dispute in Fisher involved the limits of one university’s specific plan to use race as a factor amongst others to achieve a diverse student body, the question in Schuette v. Coalition to Defend Affirmative Action comes at the issue from a different direction: can a state’s voters change their constitution to ban public universities from considering race in their admissions plans at all?

In 2006, Michigan voters did precisely that by passing Proposal 2, which amended the state’s constitution to prohibit preferential treatment on the basis of race, sex, ethnicity or national origin in its public education system.2 Proposal 2 was written as a direct response to Grutter v. Bollinger, the 2003 Supreme Court decision that reaffirmed the constitutionality of universities considering race as one factor in holistic admissions policies, while simultaneously noting that such plans, if challenged, were still subject to strict scrutiny, the toughest level of judicial review. Under the strict scrutiny standard, a university (in Grutter, the University of Michigan Law School) must do two things: it must show that it has a compelling interest in the challenged admissions scheme, and then show that it has narrowly tailored its admissions process to fit that interest.

In the Grutter opinion, Justice Sandra Day O’Connor wrote that the First Amendment right of a university to attain a diverse student body–a principle first laid out in 1978’s Regents of the University of California v. Bakke–sufficed as a compelling interest in the context of higher education. “[U]niversities occupy a special niche in our constitutional tradition,” she asserted, and are therefore entitled to “educational autonomy” that allows them to “make [their] own judgments as to … the selection of [their] student body.” Because of this First Amendment right, the Supreme Court should in the process of applying strict scrutiny accord a great deal of deference to the University of Michigan’s “educational judgment that diversity is essential to its educational mission.” In fact, where diversity is the compelling reason for an affirmative action plan, courts should presume the school has acted “in good faith” in narrowly tailoring the plan to that interest. Using this standard, the Grutter court deemed constitutional the University of Michigan Law School’s admissions plan.

Three years after Grutter, opponents of affirmative action successfully pushed through Proposal 2 in order to stop the state’s universities from implementing such plans. In turn, the day after the amendment’s passage, a number of individuals and interest groups (including the Coalition to Defend Affirmative Action) banded together to file suit against Proposal 2 as it pertained to higher education. A federal district court upheld the affirmative action ban, but an en banc Sixth Circuit subsequently overruled that decision, 8-7, in 2012 on the basis that the prohibition violated the Equal Protection Clause of the Fourteenth Amendment.

Whose rights were being violated? Was it the universities’ rights to put together a diverse student body in order to fulfill its educational mission–an academic freedom that, as Bakke and Grutter told us, long has been viewed as a special concern of the First Amendment? Given what Justice O’Connor had written in 2003, one might have assumed so, but the Coalition and its allies had decided to take a different tack. Instead, they–and the en banc Sixth Circuit opinion, in turn–relied on the “political restructuring” doctrine first set out in 1969’s Hunter v. Erickson and later reaffirmed in 1982’s Washington v. Seattle School District No. 1 to find that Proposition 2 had unconstitutionally deprived minorities of equal access to “the tools of political change.”

In Hunter v. Erickson, the citizens of Akron, Ohio overturned a municipal fair housing ordinance and changed the city charter to require a citywide vote on any similar laws in the future. The Supreme Court invalidated the amendment, ruling that “the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person’s vote or give any group a smaller representation than another of comparable size.” In Washington v. Seattle, the Supreme Court struck down a voter-approved state law that banned the use of mandatory busing in general, non-racial terms, but included so many exceptions that its true effect was to prohibit busing for the racial integration of public schools. Applying Hunter, the Seattle Court found Washington state had placed “unusual burdens” on the ability of racial minorities to enact legislation “specifically designed to overcome the ‘special condition’ of prejudice.”  Because the majority of voters had created an extra obstacle in the political process that specifically targeted a minority group unlikely to win at the ballot box, the judiciary was obligated to step in and “[safeguard] the interests of those groups that are relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.”

Taken together, Hunter and Seattle created a two-part rule for determining when an enactment has engaged in impermissible political restructuring: (1) the law in question has a racial focus that targets a program that “inures primarily to the benefit of the minority,” and (2) reallocates political power in a way that puts special burdens on the minority group.  Applying this test, the Sixth Circuit found that Michigan’s Proposal 2 disadvantages minorities in this exact manner, by removing the decision of whether to use race consciousness in university admissions from the educational institutions and fixing the ban in the state constitution. Now, a citizen of Michigan who wants a public college or university to consider race as one factor in the admissions process–a practice still constitutional under Supreme Court precedent–cannot merely lobby the university for such a policy, as an individual who desires special preferences for legacies or athletes can do. Rather, he or she must undergo the expensive and time-consuming process of amending the state’s constitution as well.  This showed, the Sixth Circuit concluded, the majority had “not only won, but has rigged the game to reproduce its success indefinitely.”

University of Michigan students at a pro-diversity rally on October 9, 2013. (AP Photo/The Ann Arbor News, Melanie Maxwell)
University of Michigan students at a pro-diversity rally on October 9, 2013. (Picture by AP Photo/The Ann Arbor News, Melanie Maxwell, via Monroe News)

Whether the Supreme Court agrees with the Sixth Circuit opinion will depend on how it distinguishes Proposal 2 from the laws challenged in Hunter and Seattle. Michigan Attorney General Bill Schuette (rhymes with ‘duty’) argues that the Sixth Circuit misapplied the political restructuring rule, which is only relevant to laws that create political obstacles to equal treatment, not laws that bar preferential treatment as Proposal 2 does. Rather, by “prohibit[ing] the State from classifying individuals by race or gender,” Proposal 2 actually furthers, not subverts, the goals of the Equal Protection Clause. “It is curious to say that a law that bars a state from discriminating on the basis of race or sex violates the Equal Protection Clause by discriminating on the basis of race and sex,” the Schuette brief states, in an unmistakable echo of Chief Justice John Roberts’ most famous line in Parents Involved in Community Schools v. Seattle School District No. 1, a 2007 case involving affirmative action at the elementary school level: “The only way to stop discriminating on the basis of race is to stop discriminating on the basis of race.” In addition, Schuette maintains that Proposal 2 could not have targeted a politically powerless minority, as the amendment bars both preferential treatment for race and for gender. “[T]o the extent [Proposal 2] can be characterized as ‘disadvantaging’ any groups, those groups constitute a majority of Michigan’s population,” the brief states, arguing that it would be much easier than the Sixth Circuit suggests for Proposal 2’s opponents to overturn the amendment.

Given the way that each Justice has voted on affirmative action programs in the past, there is good reason to believe that Chief Justice Roberts and Justices Alito, Thomas and Scalia will be sympathetic to Attorney General Schuette’s arguments. Though the Sixth Circuit’s en banc opinion purposely avoided revisiting Grutter and discussing the constitutionality of affirmative action, focusing solely instead on the political restructuring arguments, it is hard to imagine that Roberts, Alito and Scalia’s unease with race-conscious admissions policies will not come out in the oral argument tomorrow. Justices Sotomayor, Ginsburg and Breyer, on the other hand, are likely to be skeptical of Schuette’s position. Since Justice Kagan has recused herself from this case and there are only eight justices voting, a 4-4 split would allow the Sixth Circuit decision invalidating the affirmative action ban to stand–making Justice Anthony Kennedy, once again, the likely decider.

As I explained in a piece on Fisher and affirmative action last year, Justice Kennedy has long harbored conflicting feelings about affirmative action programs. Just last Thursday, Jess Bravin of The Wall Street Journal asked the justice whether the inclusion of women and ethnic minorities on the Court had benefited the institution. Kennedy replied: “Sure, I think it’s helpful that we have different points of view. I’m not sure that rigid categories of gender and ethnic background are always proxies for diversity, but it gives legitimacy to what the court does.” This, in a nutshell, is Kennedy’s continuing attitude toward affirmative action in public education–it’s somewhat good, but it’s also a somewhat lazy way to achieve true diversity. He doesn’t have a definite answer about how exactly schools can work around this contradiction, but he knows that he wants them to try harder. How well Proposal 2’s challengers fare at tomorrow’s oral argument may hinge on their ability to convince Kennedy that these schools should not be barred from even giving it a shot.

So where does all of this lead us? Personally, I find it most helpful to view Fisher and Schuette as parallel cases that hammer away at affirmative action from two different sides. When the 7-1 Fisher decision was first handed down in June, many supporters of affirmative action breathed a sigh of relief, as they had feared a wider-ranging decision ruling racial affirmative action unconstitutional outright. However, with Kennedy’s majority opinion in Fisher ordering the lower court to give “no deference” to the University of Texas’ narrow tailoring on remand, the public university’s First Amendment right to a diverse student body has been all but gutted, making it much harder for schools to defend race-conscious admissions policies. Schuette now presents another possible alternative for states to defeat affirmative action by pre-emptively prohibiting it, thus eliminating the need to even bring the university to court. In other words, the Roberts Court may well choose a “death by a thousand cuts” strategy rather than one fatal body blow–especially with Justice Kennedy’s ongoing ambivalence–but the result remains the same.

  1. Fisher will be heard on remand by the Fifth Circuit on November 13th of this year. []
  2. Other parts of Proposal 2 also barred preferential treatment for the same categories in public employment and public contracting, but the challengers in Schuette are only questioning the validity of the affirmative action ban in the context of public education. []

[Infographic] Supreme Court Rules DOMA Unconstitutional

In a barn-burner of a decision today, the Supreme Court found unconstitutional the federal Defense of Marriage Act (DOMA), striking down the law based on a combination of states’ rights, equal protection and due process arguments. As expected, Justice Anthony Kennedy wrote the majority opinion for United States v. Windsor, joined by Justices Breyer, Kagan, Sotomayor and Ginsburg. Justices Scalia, Roberts, Alito and Thomas dissented, with the former three each penning his own dissent.

The voiding of DOMA, which had kept the United States government from recognizing married same-sex couples, means that all legally-married couples can now receive the federal benefits allocated based on marital status, regardless of whether your spouse is of the same sex or not. The question of whether you can legally marry a person of the same sex in the first place, however, remains in the hands of the states, as the Court stopped short of declaring same-sex marriage to be a fundamental right.

The above interactive graphic shows key quotes from the justices, pulled from the March oral argument and from today’s ruling. You can scroll over each justice to open up a text box with his/her quotes. The red dot indicates the author of the majority opinion; yellow dots indicate the other justices in the majority; blue dots indicate the dissenters.

Further analysis of the Court’s decision in United States v. Windsor to come.

Some Thoughts on DOMA on the Eve of Supreme Court’s Ruling

Edie Thea
Thea Spyer and Edie Windsor. Windsor is suing the federal government for the return of over $363,000 that it charged her in federal taxes after she inherited her late wife Spyer’s estate. Had Windsor been married to a man instead of a woman, she would have been exempt from the tax. Picture via CNN.

We are now hours away from the last rulings of the Supreme Court’s term, and we know for certain that we’ll be getting a decision in United States v. Windsor, the challenge to the federal Defense of Marriage Act (as well as Hollingsworth v. Perry, the California Proposition 8 case). On the eve of what will surely be a historic day for gays and lesbians across the country, it’s worth going back and reading the March oral argument for the case. A few points I’d like to make1:

  • Based on the way the other Justices were falling in line behind his questions at the oral argument and some deduction skills on the part of SCOTUSblog, there’s a decent chance that Justice Anthony Kennedy has the majority opinion in Windsor.
  • Assuming that Windsor isn’t decided on a standing issue (and I freely admit that it could be), I expect a Kennedy opinion to discuss states’ rights. Traditionally, family law has been left exclusively to the states, and Kennedy seemed quite concerned at the oral argument about the federalism issues implicated by DOMA, which orders the federal government not to recognize same-sex marriages even if they are legally recognized by the state. At one point, he reminded Paul Clement, the attorney defending the law: “[DOMA] applies to over 1,100 federal laws… when it has 1,100 laws, which in our society means that the Federal government is intertwined with the citizens’ day-to-day life, you are at real risk of running in conflict with what has always been thought to be the essence of the State police power, which is to regulate marriage, divorce, custody.”
  • Alternatively, if it does reach the merits of Windsor, the Supreme Court could strike down DOMA as a violation of the Fourteenth Amendment’s Equal Protection Clause (i.e. the law is unconstitutional because it singles out same-sex people for unfavorable treatment versus their opposite-sex counterparts). Such a ruling would, going forward, provide heightened legal protections for gays and lesbians in the face of discriminatory laws. However, this is also a much broader and groundbreaking route, and I’m not convinced that Kennedy will take it if he can decide the case based on a narrower states’ rights argument instead.

Associate Justice Elena Kagan Investiture Ceremony

While the lion’s share of attention re: DOMA has been focused on Kennedy (including, of course, this post, which has already given him three bullet points), I also want to highlight a couple of points that Justices Ruth Bader Ginsburg and Elena Kagan made at the Windsor oral argument:

        • Ginsburg drew big laughs at the argument when she compared the current state of same-sex marriage to “skim milk”i.e. not the real thing. Snappy sound bite aside, however, it’s interesting to note that Ginsburg–who by all accounts had a happy, fulfilling marriage to the late tax attorney Martin Ginsburg–was the one justice who focused the most on the everyday effects DOMA has on very real people and very real relationships. Again and again, Ginsburg steered the discussion back to the everyday hardships caused by this law–the loss of benefits, a higher tax burden, the inability to take leave to tend to a sick spouse–implicitly asking her colleagues to think about what a marriage really means. We need to strike down DOMA, she was saying, because it is unconstitutional to subject these Americans to a lower quality of life than what their heterosexual brothers and sisters expect and receive.
        • Whereas Justice Ginsburg made it a point to talk about (to put it in a cheesy way) love being love, Justice Kagan had an equally compelling observation about hate. Kagan’s strategy at oral argument was to focus on the people behind the law rather than the people the law affected. DOMA has no place in our society, Kagan suggested, because there are indications that it was motivated by “fear,” “animus” and “moral disapproval” against gays and lesbians–all constitutionally impermissible reasons for imposing differential treatment on a whole class of people. Memorably, she shut down Paul Clement when he tried to dispute this by reading aloud the House Report for DOMA: “‘Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.'”
        • Together, Kagan and Ginsburg’s arguments about the suspect motivations and unjust results of DOMA made for a pretty good one-two punch. Assuming, again, that Kennedy actually has the majority opinion and dispatches DOMA based on a theory of states’ rights, I’m really hoping for a concurrence or two from either (or both) of these Justices, laying the intellectual groundwork for an equal protection decision somewhere down the line.
        • If that is the outcome, we can expect at least one fiery dissent as well. My money’s on Justice Scalia, who just last Friday gave a speech to the North Carolina Bar Association insisting that courts had no business deciding moral issues, which should be left to the political process. (He forgets that mixed-race marriage was also considered immoral back when Loving v. Virginia [the 1967 Supreme Court decision overturning anti-miscegenation laws] was decided, and that it was the Court that pulled public opinion along on this, not the other way around.)

Finally, it bears remembering that exactly ten years ago, the Supreme Court issued its landmark decision in Lawrence v. Texas, striking down the criminal convictions of two men who had been arrested and tried under a Texas law that prohibited certain forms of sexual conduct between members of the same sex. In overruling an earlier Supreme Court decision that had upheld the application of state sodomy bans to gay and lesbian sexual activity, majority opinion author Justice Anthony Kennedy invoked the Founding Fathers:

They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.

In a few short hours, we’ll find out just how committed Kennedy and the rest of the Supreme Court remain to this principle.

 

  1. With the major caveat, of course, that I realize oral arguments are not always an accurate indicator of the eventual outcome of a case. []

[Infographic] Supreme Court Strikes Down Key Section of Voting Rights Act

In a highly-anticipated 5-4 decision today, the Supreme Court struck down a key part of the Voting Rights Act, ending nearly a half-century of robust federal supervision over the election procedures of states with histories of racial discrimination.

At issue in Shelby County v. Holder was the Act’s requirement that certain states and districts obtain federal approval prior to changing their election laws, in a process known as Section 5 “preclearance.” To determine which areas of the country would be “covered” and therefore subject to preclearance, Congress in 1965 wrote into the Act a coverage formula, also known as Section 4. This formula asked whether a jurisdiction had a voting test in the 1960s or 70s, and had low voter registration or turnout at the time; if the answer was yes, then Section 5 applied to that jurisdiction.

In 2006, Congress renewed the Voting Rights Act without making any changes to the Section 4 coverage formula. Shelby County, a covered jurisdiction in Alabama, challenged the constitutionality of the Act. Today, a majority of Justices agreed that the coverage formula “can no longer be used as a basis for subjecting jurisdictions to preclearance,” saying that the decades-old data does not reflect the strides that states have made in eradicating voter discrimination. Chief Justice John G. Roberts’ majority opinion left it open to Congress to re-write a new coverage formula, but as Rick Hasen of the Election Law Blog notes, this is highly unlikely given the degree of polarization in today’s Congress. It’s interesting to note that the Court did not get to the constitutionality of Section 5, but it didn’t have to–invalidating Section 4 releases all jurisdictions swept up by the formula, effectively stripping the Voting Rights Act of most of its power.

Collectively, the majority opinion, concurrence and dissent run 68 pages long, but I’ve assembled some highlights from each Justice, which you can read by scrolling over the graphic above. (You can also enlarge the graphic by hovering over the icon in the top-left corner and selecting the link to “see more.”) Each dot will open up a box that shows key quotes from that Justice: one (or two) from the March oral argument, and one from today’s decision (if the Justice wrote an opinion, concurrence or dissent). The red dot indicates the author of the majority opinion. The yellow dots indicate the rest of the Justices who were in the majority, and the blue dots indicate the dissenters.

Waiting for #SCOTUS: now we know next week is going to be amazing

Thursday morning came and went without any decisions from the Supreme Court on same-sex marriage, affirmative action in public universities and the constitutionality of a key provision in the Voting Rights Act, meaning that next week (the last scheduled week of this term) is going to be amazing. We did get rulings in three other cases (Descamps v. United States on enhanced sentences for those with prior convictions, American Express v. Italian Colors on class action suits and arbitration clauses, and Agency for International Development v. Alliance for Open Society on government preconditions for aid and the First Amendment), leaving the number of yet-to-be decided cases at 11 now. Here’s the tweet recap (tweetcap?) of the frenzied period between 10:00-10:30 a.m. EST this morning:

Finally, of course:

 

 

Enhanced by Zemanta

Waiting for #SCOTUS: Tweets from the Peanut Gallery

As the Supreme Court inches toward the end of its term in late June with fourteen cases still undecided, court-watchers are now surging toward Twitter and SCOTUSblog every Monday and Thursday morning at 10 a.m. EST in anticipation of history-making rulings on same-sex marriage, voting rights, and affirmative action in higher education. No one outside of the Court knows what and how many opinions are issued on any given day–and we did not in fact get any of the aforementioned “marquee” decisions today, which only adds to the tension for Thursday–but waiting is half the fun, right?

Here’s a roundup of today’s action in tweet form, showing our collective breath being held, held, held and then released over the span of 30 long minutes (thus freeing everyone up with time to spare for the Edward Snowden Q&A). In all, #SCOTUS handed down five opinions today, including a couple of important criminal procedure decisions and an Arizona voter registration ruling that saw Chief Justice Roberts and Justice Scalia siding with the liberal wing of the Court against the state’s proof-of-citizenship requirement. It also agreed to hear oral argument in four more cases for its next term. We begin with the one and only SCOTUSblog, the definitive source for everything Court-related:

https://twitter.com/ben_mccall/status/346628902707417089

https://twitter.com/khjEsq/status/346705366123438081

https://twitter.com/julierheinstrom/status/346632980514631680

“Too Far, Too Fast:” A Timeline of Ruth Bader Ginsburg’s Disappointment with Roe v. Wade

Judging. Picture via AP.

Justice Ruth Bader Ginsburg made headlines this past weekend when she criticized the legal basis of Roe v. Wade at an event marking its 40th anniversary, saying that the 1973 decision had gone too far and “given opponents of access to abortion a target to aim at relentlessly.”

Ginsburg, who was at the time of the decision head of the ACLU’s Women’s Rights Project, told the packed audience at the University of Chicago Law School that the Supreme Court should have stuck to a narrower ruling striking down the Texas statute challenged in Roe. (That law had banned abortion in all cases except for those that would save the woman’s life.) Instead, however, the Court issued a sweeping pronouncement on the right to privacy encompassing a woman’s choice to end her pregnancy–a decision which, Ginsburg said, stopped the momentum of grassroots pro-choice groups and galvanized the anti-abortion movement.  Ginsburg also characterized Roe as not being “woman-centered” enough, as the opinion focused mainly on “a doctor’s freedom to practice his profession as he thinks best” rather than “a question of a woman’s choice.”

Though Justice Ginsburg’s remarks may be particularly relevant now–her preferred bottom-up, state-by-state approach to abortion mirrors the strategy that same-sex marriage advocates have been using–this isn’t the first time that the justice has publicly expressed disappointment with Roe’s lack of judicial restraint. Over the years, Ginsburg has been quite vocal about the many roads not taken, even while she approves of the outcome of increased access to abortion. The following is a timeline of Ginsburg’s comments from 1985 to present (you can zoom in and click on each box for more detail):

 

 

If I’ve missed any other quotes from Justice Ginsburg during this period, please let me know in the comments.