SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.
Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:
Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.
[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.
There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.
More coverage of this development can be found here, here, here and here.
Karen Golinski, a federal employee in California, and her wife Amy Cunninghis. Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)
Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.
Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.
The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”
Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)
Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.
The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage. That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.
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* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.
That’s what Senator Tom Udall (D-NM) is going for. After surveying his options and concluding that no other alternative exists, Udall — who’s also integral to Senate filibuster reform efforts, which I’m covering in a magazine article to appear within the next month — is pushing for a constitutional amendment:
The amendment would give Congress the constitutional power to regulate the raising and spending of money in national elections, and it would give the states the same power to regulate spending in their elections. The amendment strikes at the fundamental heresy that lies at the heart of both Citizens United and Buckley v. Valeo, the 40-year-old case that made CU inevitable, given the correct composition of a future Supreme Court: namely, that money is speech. To this, of course, was added the equally preposterous notion that corporations are people and that, therefore, they have the same free speech rights as you, me, and the guy on the next bar stool. (How preposterous? Google Santa Clara County vs. Southern Pacific Railroad some time and get a good look at how corporate personhood got birthed on the wrong side of the constitutional blanket.) Pass the amendment, and all of the entangled absurdity of Citizens United goes away. One doomsday machine takes out the other.
As a law student, Udall watched the Buckley case work its way through the system all the way to fruition. He was already a local district attorney in the 1980s when a constitutional amendment was proposed to overturn Buckley. (Udall’s uncle, the late Congressman Mo Udall of Arizona, was one of the early supporters of that amendment and took campaign-finance reform as one of his signature issues when he ran for president in 1976.) He saw clearly where the country was headed once that decision was handed down. He heard the floodgates beginning to creak open.
“Back then, Mo and Dave Obey (the former Wisconsin congressman) believed that, if you could investigate, and find that campaign contributions injected corruption, or the appearance of corruption, into the system, then you could regulate it.” Unfortunately, in its intricate tricks and traps, to borrow a phrase from Senator-elect Warren, Citizens United took care of that, too, with weathervane Anthony Kennedy famously opining within his crucial concurrence to the CU-based decision that struck down the Montana law that corporate independent campaign expenditures “do not give rise to corruption or the appearance of corruption.” And thus are born Super Pacs and phony, covertly-financed 501(c) “welfare” organizations out of which come roaring a thousands attack ads.
“What they’ve done, essentially, is legalize money-laundering,” Udall says. “You can shut down the 501(c) and then sluice the money into the campaign, and the secrecy around the donors is maintained. Secrecy has no place in a democracy and particularly not in the electoral process.
“Once you say that money is speech,then you get what we have now — a Supreme Court that’s getting bolder and bolder in defending its decision. That’s what you saw when the Montana law was struck down. They passed that law because they saw what unlimited and anonymous corporate money could do to democracy. Right now, there is no possible legal remedy to this decision on a national level. We have to go with a constitutional amendment because we have to take the Supreme Court head-on.”
This is still an uphill battle, however: so far only 26 senators support the amendment. So…41 to go, plus the House?
“Wow, that went really well for the University of Texas!” – No one
Last Wednesday, the Supreme Court held a one-hour oralargument in Fisher v. University of Texas, in which our eight justices (Justice Elena Kagan recused herself) engaged in lively debate over the future of racial affirmative action in state universities. (For more on the case, see my post from last week.) Five highlights from that argument:
Predictably, the Justices on the left–Ginsburg, Sotomayor and Breyer–came flying out of the gate with questions for Bert Rein, Abigail Fisher’s attorney. Ginsburg and Sotomayor immediately questioned whether Fisher has suffered the requisite injury she needs to be able to sue, if (as UT claims) she would have been rejected even under a completely race-neutral plan. As is the case with SCOTUS oral arguments in general, a Justice from the other end (Scalia) jumped in not to ask Rein a follow-up question but to provide the answer on his behalf, countering that Fisher’s injury was not the loss of admission but the loss of an opportunity to be considered fairly by UT. Ginsburg, Sotomayor and Breyer seem convinced that the UT admissions scheme satisfies the Grutter test, and Rein certainly received quite a bit of help from Justice Scalia as the liberal justices continued to press him. On the other hand, Justices Alito, Roberts and Scalia hammered Gregory Garre, the attorney for UT, with Sotomayor occasionally stepping in to offer a helping hand.
Both lawyers were repeatedly asked what a “critical mass” of underrepresented minority students at UT might be, at which UT would have adequate student body diversity. When asked by Sotomayor when enough was enough, Rein punted and stated that the definition of “critical mass” (a phrase that comes from Grutter) is something that UT and not Fisher needs to prove, declining to say out loud that the critical mass is whatever number of minorities that the top-10% plan captures in any given year. On the other hand, the conservative justices pressed UT hard on its own fuzzy definition of “critical mass,” appearing at points to try and bait the school into admitting that it has a certain number or percentage of minority admits in mind. This, of course, would be an unconstitutional quota forbidden under Grutter, which is exactly what the conservative wing thinks UT is actually using. UT, for the record, thinks of critical mass as the point where minority students do not feel like the spokespeople for their race, which is a nebulous answer most unsatisfactory for Scalia, Alito and Roberts.
Justice Roberts asked UT’s lawyer, Gregory Garre, about self-identification of race on UT applications and whether the school had any way of knowing when applicants were lying about their minority status. Roberts also wanted to know whether someone who is 1/4 or 1/8 Latino (or 1/32 Latino, as Scalia added on later) could self-identify as being Latino, or whether that would be violating some kind of honor code. Undoubtedly, Roberts’ point was to question the effectiveness and sincerity of UT’s plan to increase classroom diversity, if it has no way of even figuring out which applicants actually are underrepresented minorities. But the flip side of this question seems to undercut Fisher’s argument: if Roberts is right and applicants are fraudulently self-identifying as minorities, that means UT’s student body has an even lower number of minority students than it currently thinks it does.
Justice Alito questioned twice whether it’s fair that affirmative action is being used to help the wrong group of people. Specifically, he wants to know why wealthy African American and Latino students are getting a preference instead of students from underprivileged or even just plain middle-class families. Alito also wants to know how all Asian Americans can be grouped into one category when some ethnic subgroups are more underprivileged and underrepresented than others. UT’s answer is that applicants can state their countries of origin as well, which the school will take into account–but again, Alito doesn’t seem convinced.
The big question in all this is what Justice Kennedy thinks, since he is likely to be the deciding vote. Donald Verrilli, arguing for the United States in support of UT, appealed to the swing justice by bringing up his 2007 concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, in which Kennedy spoke of the country’s strength as arising from the fraternizing of different creeds, races and cultures. However, Kennedy seems skeptical of the UT plan, characterizing it at one point as prioritizing “race above all.” At another point, Kennedy calls race a “tie-breaker “ in UT’s admissions scheme, the same term that was used in Parents Involved to describe Seattle’s usage of race in its ultimately-doomed affirmative action plan.
The bottom line is that the justices are likely to rule 5-3 in favor of Fisher and strike down UT’s admissions scheme, which is going to put universities across the country back at square one. (A 4-4 tie would leave the status quo in place, thus allowing UT’s admissions process to continue as is.) The question is how far the Court will go not just in striking down the specifics of the UT plan but in limiting racial affirmative action across the board. Despite the fact that he invited the Court to do so in his brief, Rein maintains that he’s not asking the justices to overrule Grutter. But as Justice Sotomayor stated toward the end of oral argument, “You don’t want to overrule it, but you just want to gut it.” It looks like a gutting of Grutter is exactly what we’re headed toward. Of course, this is far too early for Justices Breyer, Ginsburg and Sotomayor (whose dismay at Fisher’s arguments was palpable)–but for the rest of the Roberts Court, this moment couldn’t come any sooner and is certainly nine years too late.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
If you haven’t been living under a rock for the past few months, you’ve probably heard that affirmative action is back on the docket of the Supreme Court this term. Even if you have been living under a rock, you’ve probably still heard about it. You may be sick of hearing about it already. (If so, stop reading.) While there is a whole hell of a lot that can (and will) be said about race-based affirmative action in the context of higher education–whether it’s about its consequences for certain minority groups, its main beneficiaries, its effectiveness or its future direction–I’m going to limit myself to an overview of SCOTUS’ recent affirmative action cases and try to point out some of the inconsistencies that the Court must resolve with Fisher v. University of Texas (to be argued this Wednesday), and then close out with a couple of thoughts on affirmative action in general.
Fisher arises directly from a pair of 2003 cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. Jennifer Gratz, a white applicant to the undergraduate school, argued that UM’s practice of granting underrepresented racial minorities automatic “points” in an admissions equation violated the Fourteenth Amendment’s Equal Protection Clause. Barbara Grutter, a white applicant to the law school, argued that UM Law’s practice of taking race into account in its admissions decisions, period, was also unconstitutional.
Now for a little bit of constitutional law: in Equal Protection challenges, a government policy that affords differential treatment between the races is examined under a standard known as “strict scrutiny.” Strict scrutiny means that the policy can only be upheld if the government can show two things: (1) a “compelling state interest,” and (2) “narrowly tailored” means to achieve this goal. Applying this standard, the Supreme Court ruled for Gratz–striking down the undergraduate school’s “bonus” points for underrepresented minorities–but against Grutter. It distinguished the two admissions schemes based on the fact that the law school merely considered race as one of many potential “pluses” and not as an automatic “booster”. Significantly, the Court accepted UM Law’s rationale that student body diversity itself is a compelling state interest “essential” to UM’s educational mission, because we learn to reject racial stereotypes and see members of different groups as individuals (rather than spokespeople for their entire race) when we encounter them frequently in our classrooms.* It then found that the law school had narrowly tailored its use of race in the admissions process. While quotas and automatic points unfairly insulated candidates from comparison with other applicants, taking race into account as part of a holistic process did not. Thus, UM Law’s policy was constitutional. The majority opinion, authored by Sandra Day O’Connor, represented a compromise between the reality of the obstacles still encountered by underrepresented minority students and the American ideal of a pure, colorblind meritocracy. But Justice O’Connor also wrote that she expected race-conscious admissions policies to be “limited in time” and Grutter to be obsolete in twenty-five years.
Who doesn’t want to be a part of this?
The Court is sixteen years ahead of schedule, but it looks ready to limit or even overturn Grutter now. In Fisher v. University of Texas, Abigail Noel Fisher argues that her rejection from UT violates the Equal Protection Clause. Under existing Texas law, the top 10% of students in every high school in the state receives automatic admission to state-funded universities. Race is not taken into account for this group of students, which is how UT gets 70-80% of its incoming class. For the rest of the applicants who do not make the 10% cutoff (now competing to be part of the remaining 20-30% of UT’s incoming class), race is taken into account as one factor among many, per the Grutter rule. Fisher, who is white, didn’t make the top 10% of her high school, and didn’t make the cut when her application was passed down to the pool where race was taken into consideration. She contends that the UT plan is unconstitutional because Texas doesn’t need to give underrepresented minorities a boost in the non-top-10% pile. UT’s race-neutral top-10% plan already results in a significant number of Latino and African American enrollees and makes UT’s classrooms plenty diverse enough without having to disadvantage Asian American and white applicants, Fisher claims. Any further consideration of race is just a smokescreen used by UT to admit a target number of Latinos and African Americans per year–in other words, a racial quota, which is expressly banned by SCOTUS. Texas, on the other hand, doesn’t see a problem with making its classes more racially diverse than the top 10% plan would allow and thus considers race as merely one part (“a factor of a factor of a factor of a factor”) of its holistic look at the non-top-10% applicants.
Fisher never directly argues that Grutter was wrong to accept diversity in higher education as a compelling interest, only that UT has already achieved adequate diversity through race-blind means and should stop there. (In other words, there is a “tipping point” of racial diversity after which you become less diverse by admitting too many students of color, despite the irony that white students are currently admitted at a higher rate under Texas’ non-top-10% holistic consideration than under the top-10% rule, thus… increasing racial diversity at UT.) But Fisher also wants the Court to consider clarifying or overturning Grutter altogether because courts have been too deferential to schools’ admission schemes–not truly questioning whether there is both a compelling state interest and narrowly tailored means–thus turning Grutter into a meaningless and unworkable standard.
On this argument, Fisher may very well find a majority of sympathetic Justices. It’s helpful to her that the perspective of the Court has changed dramatically in the past nine years, now that Sandra Day O’Connor has retired and Samuel Alito and John Roberts have moved in. Justices Alito and Roberts have made no secret of their disapproval of race-based affirmative action. Importantly, Roberts ruled in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 that Seattle could not use race as a “tiebreaker” when assigning elementary students to schools. Justice Roberts refused to acknowledge that diversity was a compelling state interest at the grade school level, dismissing Seattle’s goals of reducing racial isolation and racially-entrenched housing patterns. Unlike Justice O’Connor, Roberts believes that society is already colorblind enough, and that all this talk about racism is what’s really perpetuating racism: “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
No diversity for you!
Where things get sticky is when we try to make sense of Grutter and Parents Involved together. Parents Involved did not overturn Grutter; both are good law. Justice Roberts made sure to dispose of Grutter early on in his opinion, noting that it was limited to the realm of higher education and therefore did not apply to Parents Involved, which took place in the context of grade schooling. But this seemingly pat division raises inconsistencies when you look at what the Court is saying about diversity in each case: how can student diversity suddenly become compelling at the age of 18 and above when it hasn’t been for the last 12 years? Does it actually make any sense to say that elementary and high school students don’t need to be exposed to peers of different cultures and backgrounds, but then say that this exposure becomes of paramount importance when you leave for college, where you can then learn to reject racial stereotypes? Wouldn’t it be too late by then, and wouldn’t it make more sense to start teaching these lessons at an early age? Roberts wriggled his way out of this in Parents Involved by appealing to nebulous “considerations unique to institutions of higher education,” though he doesn’t bother to elaborate on how exactly this is different for grade school education. But either you believe that the state has a right to cobble together diverse classrooms in order to teach its young people acceptance and respect, or you don’t. It looks as though the Court’s conservative wing–Scalia, Thomas, Roberts and Alito–is eager to take the latter approach.
I am confused but powerful.
As ever, it may come down to Justice Anthony Kennedy, the current swing vote who will surely play as crucial of a role now as Justice O’Connor did in 2003. (Justice Elena Kagan has recused herself, so a 4-4 tie would mean that the Fifth Circuit’s decision upholding the UT plan stands, but if Kennedy votes with the four conservatives, UT loses 5-3.) And on the topic of affirmative action, Justice Kennedy seems to be a bit confused. Kennedy dissented in Grutter. He agreed with Justice O’Connor that diversity was in fact a compelling state interest, but found UM Law’s admissions scheme unconstitutional because he did not think it was narrowly tailored. In Parents Involved, Justice Kennedy again found that the challenged plan met the compelling interest test but not the narrowly tailored requirement. His concurrence broke with Justice Roberts on the question of whether diversity is a compelling educational goal at the grade school level (Kennedy believes it is), but then slammed the Seattle plan for categorizing students as “white” and “non-white” and not being narrowly tailored. Ultimately, his vote alongside the Court’s conservatives decided the case in favor of Parents Involved and the Seattle plan was struck down. What’s unclear, however, is exactly what kind of a plan Justice Kennedy would find narrowly tailored enough, and whether the University of Texas scheme will meet this unknown Kennedy standard. While diversity may survive as a compelling state interest as long as Kennedy hasn’t changed his mind, the UT plan might not–and if it doesn’t, schools across the country will be sent scrambling once again to devise a plan that does pass muster.** Diversity is nice, the Court seems to be saying, but we still haven’t figured out what the best way to achieve that is, or where we cross over the line into too much diversity.
As a final note, it’s worth remembering that colleges and grad schools use affirmative action in their admissions decisions in a multitude of ways that extend well beyond race. Justice O’Connor noted in Grutter that the University of Michigan’s admissions policy included “many possible bases for diversity admissions,” including languages spoken, community service performed and hardships overcome. Studies consistently show that female students get better grades in school and outperform men in universities, but colleges use gender affirmative action to try to admit a male-female student ratio as close to 50-50 as possible (since a student body that skews too much toward one gender will hurt campus social life and be “unappealing”). Schools use geographic affirmative action–if there’s 50 applicants from California and 50 applicants from New York with perfect GPA’s and perfect SAT scores and one applicant from North Dakota with an almost-perfect GPA and almost-perfect SAT scores, there’s a good chance that the North Dakotan is going to be admitted ahead of at least some of the perfect California and NY applicants despite the lower numbers. Athletes get preferences. Legacies get preferences (sometimes getting a boost in admissions chances by as much as a whopping 45%). And the list goes on and on. If a school has 50 applications from clarinet players and one from a piccolo player and it just so happens that the university orchestra’s one piccolo has just graduated, the piccoloist might get a bit of a boost. Amidst a pile of 50 applications from students who speak French as a second language and one from a student who is fluent in Croatian, the Croatian speaker might get some special consideration.
Despite all this, very few people ever kick up a big fuss about the injustices in the admissions process that discriminate against non-athletes, non-legacies, non-piccolo players, non-Croatian speakers and women, choosing instead to cry foul about race-based preferences. After all, Abigail Fisher isn’t mad about the male students or the children of UT alumni who might have cost her a shot at being a Longhorn. She’s mad about the African American and Latino students who got in before her, because it’s somehow easier to swallow the idea that students of color are the ones “stealing” spots they don’t deserve, and that they bring less to the college or grad school experience than other “preferred” students do. Of course, the existing system of affirmative action is not perfect, and there are a lot of ideas out there about what we can do to improve it.*** But the Supreme Court would do well to consider the realities of the holistic admissions process–which already have built-in considerations that benefit white/upper-class/male applicants and that have largely been left unchallenged in the courts–before it tries to convince us that we’ve reached our colorblind ideal, sixteen years ahead of schedule.
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*The idea that racial diversity in the context of education can be a compelling state interest is not a new one; SCOTUS had accepted this argument earlier in the 1978 case Regents of the University of California v. Bakke.
**Or they could switch to a completely race-blind admissions process in which top-scoring students constitute all of the incoming class. In the absolute worst-case scenario for supporters of affirmative action, Kennedy may agree with Fisher’s argument that it’s time to stop considering race in higher education, period, and overturn Grutter.
***Richard Kahlenberg, who I’ve linked to multiple times in this post, has done extensive research into both race-based and legacy affirmative action and advocates a switch to income-based affirmative action, an approach which, he argues, would benefit many underrepresented minority students as well as students from lower-income white and Asian American families.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
In Monday night’s Massachusetts Senatorial debate, Scott Brown noted that his favorite Supreme Court justices are Scalia, Kennedy, Sotomayor and Roberts, which is a little bit like saying that your favorite foods are spam, foie gras, twinkies and vegan butter. While Brown might have been able to pick two out of the above four without raising too many eyebrows, the more names he added to that list, the more it looked like he was randomly grasping at any Justices he could remember. (Especially with Sotomayor and Scalia; for God’s sake, doesn’t Brown know that they are both YANKEES fans??) But what if, despite Elizabeth Warren’s guffaws and obvious glee–which even a facepalm could not hide–Brown actually knows more about The Nine than we’re giving him credit for? The First Casualty has come up with a Venn Diagram to see if we could make any possible sense out of Brown’s answer (click to enlarge):
Bottom line: Brown’s answer would have been way more credible had he stuck with any combination of Scalia // Kennedy // Roberts. As it is, barring some further explanation that we’ve all missed, his four-way answer makes little sense unless he highly prioritizes Catholicism in a Justice. Either that, or he’s a huge fan of the United States v. Jones majority opinion from last term (where the Court held that the Government’s attaching of a GPS device to a car constitutes a search requiring a warrant), which all four model justices joined.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
The width of the smile seems to be inversely proportional to the amount of time the Justice has been on the court.
After a busy summer spent lecturingabroad, appearing at book promotions, publicly sparring with other federal judges, attending Yankees games and having their homes robbed, the Supreme Court is set to start its 2012-2013 session next Monday, October 1st. Though it may not quite match last term’s level of drama with its Affordable Care Act and immigration rulings, this term promises to bring a few blockbusters as the Court prepares to tackle cases on hot-button issues such as affirmative action, gay marriage, government wiretapping and capital punishment for the mentally incompetent. The Supreme Court’s calendar for the term is not entirely set in stone–an opening conference held on September 24th placed six new cases on the docket, and more cases are yet to be added–but here are some highlights we can expect to see in this coming year:
Revisiting Affirmative Action in Higher Education: Abigail Fisher, a Caucasian student, applied but did not gain admission to the University of Texas. She claims that UT unfairly denied her a spot on the basis of her race: under a 1997 Texas law, automatic admission to state-funded universities, including UT, is granted to the top 10% of students in every Texas high school regardless of race. At UT, race is then used as one factor among many to determine admission for the rest of the remaining spots. Fisher did not make the top 10% cutoff at her high school and her application was passed down to the pool that took the applicant’s race into consideration. In 2003, SCOTUS ruled in Grutter v. Bollinger that the University of Michigan could constitutionally take race into account as one factor in its admissions decisions since racial diversity in higher education was a “compelling state interest.” Sandra Day O’Connor famously wrote in her opinion then that she expected the Court to review this ruling again in 25 years, when racial disparities had (hopefully) faded to the point where affirmative action for ethnic minority students was no longer necessary. It has only been nine years since Grutter, but the Court has seen some personnel changes and a marked shift to the right since then–and some believe that Justice John Roberts (who has in a previous case indicated that racial diversity at the elementary school level is not a compelling state interest) & Co. are ready and willing to either overturn or restrict the Court’s previous ruling. Fisher will be argued on October 10th.
Gay Marriage (Finally) Makes Its Way Up to SCOTUS… We Think: Last year saw a boom of gay marriage cases being fought in various federalappellatecourts across the country, and a number of these decisions have now been petitioned to the Supreme Court. Of the various cases seeking review, most involve challenges to the constitutionality of the Defense Of Marriage Act (which currently denies federal benefits to same-sex couples even if their marriages are legally recognized by their home states), while one involves an appeal from the Ninth Circuit’s February 2012 decision finding unconstitutional California’s Proposition 8 (which changed the state’s constitution to bar same-sex marriage). This last case, Hollingsworth v. Perry, is the most marquee of the bunch, though Emily Bazelon of Slate argues in this essay that proponents of gay marriage should want SCOTUS to take a step-by-step approach and hear one of the less-glitzy DOMA cases instead of Hollingsworth–which may demand too much of SCOTUS by seeking a sweeping decision that marriage is (or is not) a basic right guaranteed to all. SCOTUS has not decided exactly which case to grant cert to yet, if any–none of the six new cases that it agreed to review on Monday involved gay marriage–but Ruth Bader Ginsburg did mention at a University of Colorado conference this summer that the high court is likely to hear a DOMA case this term.
Can Suspected Drunk Drivers be Forced to Undergo Warrantless Blood Tests?: In a case concerning the privacy rights of motorists stopped by police for drunk driving, the Supreme Court will consider Missouri’s appeal of a state supreme court ruling that its police wrongly administered a warrantless, non-consensual blood test on Tyler McNeely. Under current Fourth Amendment jurisprudence, there are certain defined exceptions that would justify a police officer’s warrantless search and seizure of a person, but McNeely claims that none of these exceptions applied to his blood test, which was forcibly taken at a hospital less than a half-hour after he was first pulled over and refused to take a breathalyzer test. McNeely argues that over half the fifty states have laws prohibiting law enforcement from administering non-consensual blood tests without a warrant. On the other hand, Missouri argues that the 1966 precedent of Schmerber v. California allows for warrantless blood tests where the “special facts” exception exists, including the fact that the body begins eliminating alcohol from its blood shortly after drinking.
While We’re On the Subject of Warrants, Drug-Sniffing Dogs Come Under Scrutiny As Well:Franky the drug-sniffing dog. We’re not sure what the white stuff around his muzzle is.
On October 31st, the Court will hear a pair of Florida cases involving drug-sniffing dogs and warrantless searches. In Florida v. Jardines, the defendant argues that the police violated his Fourth Amendment Rights against illegal search and seizure when they brought a drug-sniffing dog named Franky to sniff at his door without a warrant. Jardines contends that there was no probable cause for the sniff, which constituted a search in and of itself. Meanwhile, in Florida v. Harris, the Supreme Court will decide whether an “alert” from drug-sniffing dog Aldo can be assumed credible (thereby establishing probable cause for a warrantless search) merely on the basis that Aldo attended sniffing school, or whether prosecutors must provide more detailed information to show that the dog is indeed reliable. The Florida Supreme Court ruled last year in favor of the latter approach, ordering that the State provide evidence of the dog’s training and certification, field performance records, and evidence of the handling officer’s own experience and training.
Capital Punishment, Habeas Relief and the Mentally Incompetent: In the U.S., inmates who have been tried and sentenced to death have a right to challenge their convictions and sentences in a habeas corpus hearing. The Supreme Court has also held that the Eighth Amendment bars capital punishment for the insane and the mentally disabled. But what happens when an inmate is convicted of a capital crime, sentenced to death, and then argues at the habeas corpus petition stage that he is mentally incompetent and therefore cannot assist his lawyers in preparing the petition? Is he entitled to a competency hearing? TwoCircuits have found that inmates do have a “right to competence” at the habeas stage and have granted mentally incompetent inmates indefinite stays until they become competent–meaning that if they never do become competent, their death sentence is effectively turned into life imprisonment. Supporters say that it is unjust to force the mentally incompetent into habeas proceedings if they cannot help their own counsel assemble their case, and point out that capital punishment for the insane and mentally disabled is unconstitutional anyway. Opponents argue, however, that these indefinite stays run contrary to the state’s interest in the finality of convictions. The Supreme Court will hear arguments for Ryan v. Gonzales and Tibbals v. Carter on October 9th.
Corporations Behaving Badly and Causing Human Rights Atrocities Abroad: The Alien Tort Statute was penned in 1789 to provide for foreign citizens redress for violations of international law, in United States courts. Modern applications of this law have focused on bringing to justice former government officials accused of atrocities abroad, but Kiobel v. Royal Dutch Petroleum adds a Citizens United-esque twist: can corporations be sued under the ATS for genocide, torture and other violations of international law committed abroad? And what is the exact scope of the ATS in cases where the alleged violations were committed outside of the U.S., anyway? The Second Circuit said no to the first question in 2010, dismissing the case based on its holding that corporate liability is not a universally recognized norm of customary international law. Upon Kiobel’s appeal, the Supreme Court held oral argument on the case in February 2012, but took the unusual step of ordering further argument for the new term beginning in October. This will be the first argument of the 2012-2013 year: look for the justices to focus not so much on the corporate liability issue but on the question of whether Kiobel can even bring her case in an American court for human rights abuses committed on foreign territory.
Government Wiretapping: The Supreme Court referees on October 29th the latest chapter in the fight between national security and civil liberties. In Clapper v. Amnesty International USA, a group of strange bedfellows (including Amnesty Int’l, the New York State Bar Association and the Gun Owners Foundation) have banded together to sue the government over the constitutionality of a provision in the Foreign Intelligence Surveillance Act that permits the “targeting” of “persons reasonably believed to be located outside the United States” for the purposes of “gathering foreign intelligence information.” Amongst other things, the law authorizes the government to wiretap such persons’ communications. The trouble for Amnesty and friends, however, is that in order to even sue in federal court, they must have standing, which requires them to show that they have suffered or will imminently suffer the injury they are complaining of. Unfortunately, they have no definitive proof that the government is in fact wiretapping their communications. Despite this obstacle, the Second Circuit permitted the caseto proceed; SCOTUS will now decide whether the group does in fact have standing to sue.
Davids v. Goliaths–Immunity for Government Officials in Military and Prison Contexts: On Monday, the Supreme Court added to its docket not one but two cases from lawyerless petitioners, each involving the rights of individuals to sue the federal government. Millbrook v. United States arises from the claims of Kim Lee Millbrook, an inmate at a federal prison in Lewisburg, Pennsylvania who accused three prison guards of sexually assaulting him. Though his suit was dismissed by the lower courts, Millbrook handwrote an appeal in pencil to the Supreme Court, which then decided to use Millbrook’s case to resolve the question of government liability for claims made against federal prison guards, according to the Associated Press. Meanwhile, Levin v. United States addresses government liability for tortious acts committed by military medical personnel. The case arises from a battery claim against the U.S. government, made by a Guam resident whose eye was allegedly damaged in a botched cataract operation carried out by a U.S. Navy surgeon. Levin appealed to the Supreme Court after the Ninth Circuit ruled against him and held that the federal government has sovereign immunity from battery claims.
Does the Government “Take” Your Land If It Repeatedly Floods Those Lands? Finally, the Supreme Court will settle this term the age-old question of whether the government must compensate parties under the Fifth Amendment’s takings clause if it repeatedly causes those parties’ properties to flood, thus “taking” the private property for “public use.” Arkansas contends that over a six-year period, the United States Army Corps of Engineers did just that to one of its forests, the 23,000-acre Dave Donaldson Black River Wildlife Management Area, causing degradation of the forest’s timber and destroying wildlife habitats. The government’s response is that the lands were not rendered completely unusable because the flooding was only “temporary” and the waters always receded. It maintains that its behavior may constitute a tort but does not rise to the level of a “taking.” While this case may sound a little bit like a no-brainer–why shouldn’t the government pay back the state for this recurring damage?–SCOTUS has in the last half-century chipped away slowly at the Takings Clause, going so far as to allow a Connecticut city to take over private property, without compensation, for the purpose of selling it to a private developer (in 2005’s Kelo v. City of New London). Oral argument for Arkansas Game & Fish Commission v. United States will be held on October 3rd.
Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.
Americans split evenly on the Supreme Court’s recent 5 to 4 decision upholding Obama’s health-care law, with 42 percent approving of the decision and 44 percent opposing it. But in a significant change, the legislation is now viewed less negatively than it was before the ruling. In the new survey, 47 percent support the law and 47 percent oppose it. In April, 39 percent backed it and 53 percent opposed it.
House Republicans will vote again this week on a measure to repeal the health-care law. In the poll, just one-third of all Americans favor repealing the legislationin its entirety or in part. At the same time, Thirty-eight percent of Americans consider Romney’s support for repeal a major reason to vote for him, compared with 29 percent who say it is a major reason to vote against him.
I say this time and time and time again, but I feel compelled to say it again now anyway: Americans don’t care about policy; they care about comportment. If you look like you know what you’re doing, as long as it’s not something completely crazy, they’ll support it — no matter who the party in charge is. Hell, most Americans don’t even understand policy. I don’t think one could even find 30% of the population that’s capable of answering two or three basic questions about the health care law.
But look what happens when the Supreme Court rules in its favor: suddenly the law isn’t so bad anymore. Same with gay marriage among African-Americans: everyone was freaking out about what Obama’s declaration of support might do to his black constituency, and within days of his announcement, black support for gay marriage skyrocketed (by around 10% in some places, I believe).
This is why the Democrats are such a pathetic party: they still haven’t learned this lesson. They enacted healthcare in 2010, the Republicans screamed “death panel,” and the Democrats retreated. So of course voters hate the law: Democrats looked like they didn’t know what they were doing, and Republicans looked like they did. It was never about actual policy.
For an example of real leadership, even if the policies themselves weren’t necessarily good, Scott Walker ran for office promising to balance budgets, decided to bust the unions, withstood massive public discontent and a recall election, and held his ground and won. That’s balls. But the ballsiest Democrat is still a bigger coward than the weakest Republican (with the exception of Mitt Romney). When will this sad excuse for a party learn to actually vouch for its own ideas? It’s pathetic.
Check out the Sunlight Foundation. It’s an incredible site filled with tons of great tools — including online charts, graphs, widgets, mobile apps, etc. — for tracking the influence of money on politics. This is one big step in counteracting the influence of unlimited campaign dollars unleashed by the Supreme Court’s Citizens United v. Federal Election Commissionruling in 2010.
I was first made aware of David A. Strauss’ The Living Constitution via a Stanley Fish column on the New York Times web site. Titled “Why Bother With the Constitution?,” Fish’s blog post for May 10 dovetailed Supreme Court nominee Elena Kagan’s impending confirmation process with the fundamental constitutional questions raised by Strauss in his 139-page book.
Professor Fish’s reaction to The Living Constitution is best described as righteous indignation. To some of Strauss’ statements he retorts, “This is simply wrong.” To others, with considerable consternation, “This is an amazing statement.” Towards the end he proclaims that “the incoherence of what Strauss is urging is spectacularly displayed in a single sentence. Given the importance of common ground, ‘it makes sense,’ he says, ‘to adhere to the text even while disregarding the framers’ intentions.'”
So what exactly is going on here? Clearly something that Strauss is advocating, or even simply implying, is rather disagreeable to Mr. Fish. The former’s thesis is described (on the book’s front flap) as a defense of “the living Constitution…a common law approach to the Constitution, rooted in the written document but also based on precedent. Each generation has contributed precedents that guide and confine judicial rulings, yet allow us to meet the demands of today, not force us to follow the commands of the long-dead Founders.” Or, as Stanley Fish would have it, “Why is Strauss trying to take the Constitution out of the constitutional interpretation loop? Because he wants to liberate us from it as a constraint.”
Not exactly. I don’t get the impression Strauss intended to relegate the written Constitution to window dressing. Nevertheless, Fish is correct in noting that the The Living Constitution makes some bold claims as to the document’s role in contemporary jurisprudence. In large part, the book is a crusade against “originalism,” the judicial philosophy espoused most visibly by Supreme Court justices Antonin Scalia and Clarence Thomas. According to the originalist line of thinking as delineated by Strauss, “when we give meanings to the words of the Constitution, we should use the meanings that the people who adopted those constitutional provisions would have assigned…It is impermissible — it’s a kind of cheating, really — to take the words of the Constitution and give those words a meaning that differs from the understandings of the people who were responsible for including those words in the Constitution in the first place.”
The obvious counterpoint is, of course, the question of what to do in the majority of scenarios in which the Founding Fathers set forth no explicit guidelines (what exactly constitutes “cruel and unusual punishment?”), could not possibly have foreseen the issues (privacy on the Internet), or espoused views that are no longer acceptable in modern society (slavery). Acknowledging these obstacles, Strauss contends that they render originalism useless as a judicial philosophy. (In a section he headlined “The Originalists’ America,” Strauss remarks that “racial segregation of public schools would be constitutional,” “the government would be free to discriminate against women,” “the Bill of Rights would not apply to the states,” and so on.)
In titling his book The Living Constitution, he follows a long (albeit controversial, like nearly everything else related to jurisprudence) tradition of adhering to a more flexible view of the Constitution. But then he takes matters a step further. “It is the unusual case,” Strauss notes, “in which the original understandings get much attention.” In Strauss’ estimation, not only is the Constitution necessarily mutable to fit the needs of a dynamic society, in a way it is actually irrelevant to modern “constitutional” law itself. This is because of what he terms the “common law” approach: historically, “the law was a particular set of customs, and it emerged in the way that customs often emerge in a society…It can develop over time, not at a single moment; it can be the evolutionary product of many people, in many generations.”
In contemporary American law, this series of ever-shifting customs takes the form of precedent. Past judges’ rulings are considered the foundation upon which future verdicts are rendered; thus, Strauss claims, this methodology avoids both the impracticalities of originalism and the dangers of judicial overreach inherent to the dominant view of “living Constitutionalism,” in which activist judges are free to bend the law to their liking at will.
In reality, however, what the author deems an alternative approach to mainstream modes of thought is not entirely groundbreaking. At its simplest, Strauss’ thesis is simply a reassurance that living Constitutionalism works, that it does restrain judges from arbitrary decision-making. Where it differs, however, is in his attitude toward the actual text of the Constitution. To Strauss, the lip service that justices pay to the sacred text in their judicial opinions is just that: lip service. In actuality, he argues, current legal interpretation has so completely evolved and transformed over the years that the written Constitution itself has lost its germaneness to today’s legal wrangling. Quoting Thomas Jefferson, who wrote that “the earth belongs…to the living,” Strauss maintains that the Constitution, restrained as it is by the chains of centuries-old thinking, is an insufficient substitute for judicial precedent. And yet by forcing judges to formulate constitutional justifications for their every ruling — however tenuous the connection may be — living Constitutionalism, in most cases, prevents the worst variants of judicial activism. (Of course, depending on one’s particular ideological affiliations and the results of any given trial, this may or may not always be readily apparent.)
Stanley Fish, meanwhile, is having none of this. “You don’t interpret a text by looking for meanings people would find agreeable,” he writes. “You interpret a text by determining, or at least trying to determine, what meanings the creator(s) had in mind; and the possibility that the meanings you settle on are not ones most people would want to hear is beside the interpretive point.” He then angrily concludes: “If this is what the ‘living Constitution’ is — a Constitution produced and reproduced by serial acts of infidelity — I hereby cast a vote for the real one.” That Fish and Strauss cannot even agree on what the “real” Constitution is provides a worthy bellwether of the political whirlwind that is sure to accompany Elena Kagan into her much-anticipated confirmation hearings.
