Balkinization  

Tuesday, June 28, 2016

How War Lost Its Politics

Mary L. Dudziak

When it comes to the war powers, there is an underlying question of the structure of politics that has produced our profound contemporary apathy on issues of war and peace -- so that members of Congress avoid having to vote on authorizing the use of force. A common argument is that the absence of a draft lessens the stake American civilians have in war, and so the military/civilian divide is dated from the post-Vietnam era.

My current work rolls the clock back to the Civil War, arguing that the structure of American war politics changes much earlier. Its origins are in the loss of what Drew Gilpin Faust (quoting Frederick Law Olmsted) calls "this republic of suffering." I am attempting to write a history of what happens to American war politics when the battlefield and the polity do not share the same geographic space, and most American civilians are protected from direct engagement with death and suffering in war (with, of course, exceptions and caveats). It is a story, in essence, of how war lost its politics and became instead a policy option in the hands of American presidents.

An overview of just part of the argument is in the Summer issue of Dissent Magazine -- How War Lost Its Politics. The essay places in a broader context the recent lawsuit against the Obama administration brought by Captain Nathan Michael Smith arguing that the war against ISIS is illegal because Congress has not authorized it. I argue that:
The reason the president has been unable to get Congress to pass a new war authorization isn’t because Congress opposes military action against ISIS, and it isn’t a simple matter of partisan stalemate. It is because there is no real political constituency for military matters. Faraway conflicts upend lives on the battlefield. As long as someone else’s family does the fighting, U.S. military operations have little impact on Americans at home. Most Americans are protected from the costs of armed conflict. There is no required military service since Congress eliminated the draft in 1973. Other changes in the way the country wages war—relying on contractors to reduce the number of troops, and on technologies that make war appear more precise and less destructive—contribute to a buffer between American civilians and the wars their country is fighting. Without voters paying attention, neither the president nor Congress is held accountable.
How this has come about -- and how even WWI and WWII are part of the story of the way distant war affects American civilian engagement -- is taken up in the rest of the essay.




Significant Line from a Dissent From Denial of Cert.?

Mark Tushnet

In his dissent from the denial of certiorari in Storman's v. Wiesman, Justice Alito ends his introductory paragraph (technically, his second paragraph) with this: "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern." I've added the emphasis. Does Justice Alito foresee an extended period ("years ahead") in which conservatives won't be able to set the court's agenda?

Even if Justice Kennedy's "defection" in Fisher and Whole Woman's Health is as temporary as was (the first) Justice Roberts's in the 1936 Term, the agenda-setting point may still hold. If Justice Alito foresees the confirmation of Merrick Garland or a different nominee from a Democratic President, the conservatives might be able to count only to four in any "agenda"-type case, and might refrain from granting review without some confidence that there's a fifth vote somewhere to be found. (I think the point holds even if, as I think extraordinarily unlikely [contrary to views expressed by some bloggers], the Court's membership is permanently reduced by refusals to confirm nominees of a Democratic President.)

I've expressed my views about what a new majority with the power to set the agenda should do. We'll see whether Justice Alito's right, and if so what a new agenda will look like.

[I also like Justice Alito's use of Google maps to calculate driving distances.]

Monday, June 27, 2016

Whole Woman's Health, Gonzales v. Carhart, and Medical Uncertainty

Priscilla Smith

Just a quick note here, in response to Mark Graber's post below, to say that Whole Woman's Health's understanding of Gonzales v. Carhart is in fact right on.  The Fifth Circuit tried to use Carhart in a number of ways to support the application of rational basis review to Texas' abortion regulations.  Here is the section of our YLS Information Society Project amicus brief explaining the Fifth Circuit's distortions, including its claims about "medical uncertainty."  Glad to see that Court, including the author of Gonzales, agreed.  (Full disclosure, I was the (losing) attorney in Carhart.):

A.   Carhart Does Not Support the Fifth Circuit’s Rational Speculation Review.

To justify its use of hyper-deferential rational basis review,[1] the Fifth Circuit invokes Gonzales v. Carhart, the Supreme Court’s 2007 decision that upheld the federal Partial Birth Abortion Ban Act.  But the Fifth Circuit’s hyper-deferential rational basis review is inconsistent with the Court’s decision in Carhart, and eliminates the crucial distinction between the state’s interests in protecting potential life and its interest in women’s health, thereby permitting Texas to violate the limitations Casey imposes on the means by which the state may protect unborn life.
In the Supreme Court’s opinion in Gonzales v. Carhart,[2] issued fifteen years after Casey, the Court accepted the continuing authority of Casey’s undue burden framework[3] and the protection it provides for a woman’s choice in obtaining previability abortions.[4]  In addition, the Court declined the government’s call to defer categorically to claims supporting the legislation made in Congressional Findings of Fact.  Instead, in upholding the Partial Birth Abortion Ban Act, the Court observed, “The Court retains an independent constitutional duty to review factual findings where constitutional rights are at stake. . . . Uncritical deference to Congress’ factual findings in these cases is inappropriate.[5] The Carhart Court probed and, in two instances, rejected congressional findings invoked by the government as reasons for enacting the Partial Birth Abortion Ban Act.[6] Probing Congress’s reasons behind enacting the challenged statute is not minimal rational basis review of the kind that the Fifth Circuit mandates.[7]
Moreover, Carhart did not concern a health-justified abortion regulation.  Instead, that case concerned a potential life-justified law that the Court held furthered the interest in protecting the “integrity and ethics of the medical profession.”[8]  The law as construed by the Court concerned a rarely employed method of performing abortions late in the second-trimester of pregnancy.  The Court held that due to the availability of alternative safe abortion procedures, the law did not restrict any woman’s access to abortion before viability.[9] Both references to “rational basis” and regulation being within “legislative competence” in Carhart[10] are carefully limited to the specific context at issue there, a law involving the substitution of one procedure for another where only “marginal safety” considerations separated the two.[11]  Carhart’s statements about a potential life-justified regulation simply do not apply to the health-justified regulations here that would shut down three quarters of the clinics in the state of Texas.
Nor does the language in Carhart discussing the “wide discretion” that state and federal legislatures have to pass legislation in areas where there is medical and scientific uncertainty,”[12] support the Fifth Circuit’s call for judicial deference in this case.[13]  The condition of medical uncertainty in Carhart is unrelated to the question of whether the law promoted women’s health. It related to the question of whether health was endangered enough by the law in certain circumstance to require an exception to the ban where the woman’s health was at risk. Moreover, the fact of medical uncertainty was itself established through extensive and detailed judicial review, through the fact finding of the District Courts. By contrast, the Fifth Circuit finds uncertainty by ignoring the fact-finding of the District Court.[14] If appellate courts can justify deference to the legislature by invoking medical uncertainty that is untethered to facts found and credibility determinations made by the trial court,[15] they can easily erode protections for constitutional rights. Whatever deference Carhart might be read to warrant on the issue of promotion of the interest in potential life, it cannot be the extravagant deference to the legislature that the Fifth Circuit practices here.[16]





[1] The Fifth Circuit’s claims about rational basis are not entirely clear.  See Greenhouse and Siegel, Clinic Closings, at Part II.C.1. (discussing Judge Jones’ opinion in Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583 (5th Cir. 2014), Judge Elrod’s opinion in Whole Woman’s Health v. Lakey, 769 F.3d 285, 30405 (5th Cir. 2014) (overturning District Court injunction against Texas ambulatory-surgical-center requirement), vacated in part, 135 S. Ct. 399 (2014), and the per curiam opinion in Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir. 2015), mandate stayed pending judgment by 135 S. Ct. 2923, and cert. granted, 2015 WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274), which goes out of its way to reaffirm Abbott II’s rational basis reasoning. Whichever account the Circuit embraces, its rational-basis claims flout both Casey and Carhart).
[2] 550 U.S. 124 (2007).
[3] See id. at 146 (observing that Casey’s undue burden standard “struck a balance” between protecting “the woman’s exercise of the right to choose” and the ability of the state to “express profound respect for the life of the unborn” (quoting Casey, 505 U.S. at 877)); see also id. (“Casey, in short, struck a balance. The balance was central to its holding. We now apply its standard to the case at bar”).
[4] Id. at 15354 (construing the statute to avoid constitutional questions and protect ordinary second-trimester abortions).  See Smith, Priscilla J., Is the Glass Half-Full?: Gonzales v. Carhart and the Future of Abortion Jurisprudence, 2 Harv. L. & Pol’y Rev. (Online), (2008), available at http://ssrn.com/abstract=1357506 (noting that decision upholding statute preserved viability of Casey’s framework while rejecting plaintiffs’ claim that there was a significant medical distinction between banned procedures and allowable procedures).
[5] 550 U.S. at 165–66 (2007) (“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law, necessary to the performance of that supreme function.”) (quoting Crowell v. Benson, 285 U.S. 22, 60 (1932)); see also Planned Parenthood Ariz., Inc. v. Humble, 753 F.3d 905, 913 (9th Cir. 2014) (discussing Carhart).
[6] Carhart, 550 U.S. at 165-66 (drawing on evidence presented in the district courts to reject the claim that no medical schools provided training in the abortion method the statute banned, and the claim that “the prohibited procedure is never medically necessary.”).  Moreover, despite the legislative finding that “partial-birth abortion remains a disfavored procedure that is not only unnecessary to preserve the health of the mother, but in fact poses serious risks to the long-term health of women and in some circumstances, their lives,” Partial Birth Abortion Ban Act of 2003, Pub. L. 108–105, at § 2(2) (Nov. 5, 2003), the Court did not consider that the statute might be health-justified.
[7] Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583, 594 (5th Cir. 2014) (citations omitted) ((“[a] law ‘based on rational speculation unsupported by evidence or empirical data’ satisfies rational basis review.”).
[8] 550 U.S. at 157.  By banning a procedure that had a “disturbing similarity to the killing of a new born infant,” and which “implicate[d] additional ethical and moral concerns that justif[ied] a special prohibition,” the Court held that the law furthered the government’s “legitimate interest in regulating the medical profession in order to promote respect for life, including life of the unborn.”  Id. at 158 (law “‘draw[s] a bright line that clearly distinguishes abortion and infanticide.’”) (internal citations omitted).
[9] Carhart, 550 U.S. at 154-56.
[10] Id. at 158; cf. Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott (Abbott II), 748 F.3d 583, 590 (5th Cir. 2014) (characterizing Carhart as “holding that the State may ban certain abortion procedures and substitute others provided that ‘it has a rational basis to act, and it does not impose an undue burden’” (quoting Carhart, 550 U.S. at 158)).
[11] See Carhart, 550 U.S. at 158, 166.
[12] Id. at 163.
[13] Whole Woman’s Health v. Cole, 790 F.3d 563, 587 (5th Cir. 2015) (chastising the trial court for “substituting its own judgment for that of the legislature” and asserting “medical uncertainty underlying a statute is for resolution by legislatures, not the courts”), mandate stayed pending judgment by 135 S. Ct. 2923, and cert. granted, 2015 WL 5176368 (U.S. Nov. 13, 2015) (No. 15-274).
[14] See Cole, 790 F.3d at 587 (explaining why Abbott II “disavowed the inquiry employed by the district court” to evaluate admitting privileges requirement); see id. at 584–86 (same with reference to ASC requirement).
[15] The District Court found that the testimony of the state’s key expert witnesses lacked “the appearance of objectivity and reliability” because a non-physician third party exerted “considerable editorial . . . control” over the contents.  Lakey, 46 F. Supp.3d at 680 n.3. In finding “medical uncertainty,” the Fifth Circuit rejected the findings of the District Court and endorsed the state’s evidence without ever mentioning adverse credibility findings made by Judge Yeakel. See Cole, 790 F.3d at 585 (5th Cir. 2015).
[16] Nor does Mazurek v. Armstrong, 520 U.S. 968 (1997), support the Fifth Circuit’s position.  In a brief per curiam opinion, that case upheld a Montana law providing that only a doctor could perform an abortion. The Court noted that physician-only requirements of various kinds had been sustained in its prior cases, including both Roe and Casey.  Id. at 973–74 (emphasizing that “[o]ur cases reflect the fact that the Constitution gives the States broad latitude to decide that particular functions may be performed only by licensed professionals, even if an objective assessment might suggest that those same tasks could be performed by others” (emphasis omitted) (quoting Casey, 505 U.S. at 885)). As the regulation at issue in Mazurek would not force any woman to travel to a different facility, the Court judged its effects minimal.  Id. The Court declined to find Montana’s physician-only requirement unconstitutional in purpose in light of: the Supreme Court’s several cases sanctioning physician-only requirements, the requirement’s minimal effects on abortion access, and the fact that similar rules existed in forty other states.  Id. at 973.

Whole Woman's Health I: Justice Kennedy's Undue Burden Test

Mark Graber

“Justice Breyer delivered the opinion of the Court” is the most important, unnecessary and interesting sentence in Whole Woman’s Health v. Hellerstedt (2016).  The sentence is important because even unsophisticated court observers could deduce that the Texas regulations on abortion were going to be declared unconstitutional once they knew that Justice Breyer was writing the majority opinion.  The sentence is unnecessary because almost every paragraph in the majority opinion exhibits Justice Breyer’s Brandeisian obsession with constitutionally significant facts. The sentence is interesting because this is the first major rights case in years in which Justice Anthony Kennedy has not written the majority opinion.

Kennedy’s absence was particularly notable when Breyer declared, “The statement that legislatures, and not courts, must resolve questions of medical uncertainty is also inconsistent with this Court’s case law.”  Justice Kennedy seemingly reached the opposite conclusion in Gonzales v. Carhart (2007) when sustaining a federal ban on partial-birth abortions.  Kennedy's majority opinion in that case insisted on deferring to a legislative judgment that safe alternatives to partial birth abortions existed, even though every reputable medical organization in the United States disputed that claim. One initially wonders whether Kennedy read the majority opinion or was implicitly recanting his Gonzales opinion.  This is an important question because, pending new appointments to the Supreme Court (which may be pending for a long time), Kennedy remains the swing vote on abortion and most other rights issues.

Although this is speculation, some evidence suggests that Kennedy may have a distinctive understanding of “undue burden.”  Breyer and the other liberals take the commonsense position that “undue burden” is two words.  The court must first determine whether an abortion regulation burdens the abortion choice and then whether that burden is undue in light of the benefits of regulation.  The Texas regulations did not come close to meeting this standard for reasons Breyer elaborates.  Chief Justice Roberts, Justice Alito and Justice Thomas focus only on “burden.”  Their opinions focus almost exclusively on how many women were how severely burdened by how Texas regulated abortion to the exclusion of any serious analysis of the evidence that these regulations served no medical purpose.  Readers of their opinions might think those justices would sustain a facial challenge to a regulation requiring woman seeking abortions to first read the entire text of Les Miserables on the ground that a reasonable percentage of women have either read that text or could do so in two-three days of uninterrupted reading.  Justice Kennedy may be the one justice who emphasizes “undue” to the near exclusion of "burden."  His voting pattern suggests that if and only if a state regulation on abortion is advancing a policy he believes is legitimate, Kennedy is likely to sustain the regulation.

Gonzales and Whole Woman’s Health look very different when only “undue” is considered.  Kennedy began his Gonzales opinion with a long graphic description of partial birth abortions.  I suspect the vast majority of persons who read that description would be quite willing to ban partial birth abortions if some alternative existed such that the partial birth abortion ban would not burden women.  At the very least, the opinion clearly demonstrates that Kennedy believes that bans on partial birth abortions serve legitimate public purposes.  By comparison, Texas failed to demonstrate that that state's regulations on abortion clinics served any public purpose.  As Breyer pointed out in his opinion, Texas could not identify one case in which the state regulations on abortion had actually advanced public health.   In short, an admittedly speculative case can be made that, just as “burden” drowns out “undue” for Roberts, Alito, and Thomas, so “undue” drowns out “burden” for Kennedy.  A burden that serves legitimate public purposes is not undue, not matter what the consequences for women.  Similar, a burden that serves no legitimate public purposes is for that reason unconstitutional.  Unlike Justice Oliver Wendell Holmes, Jr.,, who coined the phrase, Justice Kennedy appears willing to declare unconstitutional abortion regulations that are "a fraud on the Constitution."

These reflections suggested a more tempered liberal response to Whole Woman’s Health.  On the one hand, just winning is good and much language in Whole Woman’s Health can be used in the future to support a far more robust “undue burden” test (that may, with a more liberal majority, start to resemble a compelling interest test).  On the other hand, Justice Kennedy may have been happy to assign the opinion to Breyer because Breyer’s fact intensive style was far more suited than Kennedy’s to highlight how the Texas regulation was “a fraud on the Constitution.”  If this speculation is correct, then we can expect that Whole Woman’s Health announces the end of sham regulations on abortion, but the question and Kennedy’s vote remain open when a regulation that severely burdens the abortion choice does have some medical or medical benefits in some cases.

The State of Scholarship on Religion and Constitutional Law

Mark Tushnet

Paul Horwitz has a typically judicious post on the annual Law and Religion Roundtable, which I've attended a couple of times. I did some work on constitutional law and religion in the 1980s and early 1990s, and then stopped because the field had, in my view, atrophied -- nothing new was being said either by the secular liberals (or people whose religious beliefs led them to conclude that the constitutional law of religion was secular liberalism) or by the Catholics, two groups that dominated the scholarship. I got back into thinking about the field, though not writing much in it, about a decade and a half later because there had been an influx of younger scholars -- the regular participants in the Roundtable Paul describes -- who were doing exciting and innovative work, mostly, in my view, because they took religion a lot more seriously than had been the case with the earlier scholarship.

A fair amount of the work of those scholars, and other new participants in the field, continues to be extremely interesting, in my view -- although often wrong (but what's new about that?). The discussion of "Freedom of the Church" provoked in part by Hosanna-Tabor, for example, is quite provocative. But, as Paul also suggests, a fair amount of the recent work of these scholars is intellectually (almost) homogeneous: They agree too much with each other. My own take on the scholarship is that -- in contrast to an earlier generation's work -- it takes religious liberty as more central to the field than nonestablishment. But I don't want to impute too many views to the group -- just report my sense that there has been a convergence of views of the sort that led to the atrophy of scholarship I mentioned earlier. To put it in the kind of political terms to which I am attracted: There's been a convergence to the mushy center -- center-right and center-left, with some strong voices on what in this context has to be called the conservative side, particularly in connection with so-called complicity claims, and almost no representation in the recent scholarship done by the Roundtable's regular or even somewhat irregular participants of strong non-establishment views.

One reason for the convergence may be demographic near-homogeneity in this group. My somewhat snarky way of putting the demographic point is that my family, when we get together for Thanksgiving dinner, is more diverse in terms of gender, sexual orientation, and even religion than the group attending the Roundtable. (What we most obviously lack is a liberal Catholic and an evangelical Protestant, but hey, there are some limits to the size of our dining room.) It's their group, of course, not mine. But, I think, scholarship in the field would be reinvigorated (again) by more direct interchanges among people with a broader range of views and backgrounds than seems to be the case with the current crop of scholars in the field. (A different sociological account of convergence and homogeneity is the difficulty of sustaining a group with a stable core and truly rotating participation; if one event is successful, everybody pretty much wants to return the next time, and the organizers -- despite their real commitment to some degree of rotation -- accede to a fair number of those desires. That's been the experience of the constitutional law "schmoozes" I've organized, for example, except for the one done by the American Constitution Society, where the needs of the sponsoring organization dominate the choice of participants.)

Saturday, June 25, 2016

Two Kinds of Pluralism and the Future of Affirmative Action

Joseph Fishkin

Fisher v. Texas II, decided this week in a startling opinion by Justice Kennedy for a 4-3 majority of a short-handed Court, will not end the controversy—or the litigation—over affirmative action in American higher education, which has been an enduring battleground in American constitutional politics for four decades.  Throughout that time a succession of conservative near-majorities on the Supreme Court have attempted to end race-based affirmative action once and for all, and to make that rejection the centerpiece of a broader constitutional repudiation of a broad category of liberal race-based interventions.  They have perennially come up one vote short.  A succession of conservative swing Justices—Lewis Powell, Sandra Day O’Connor, and now as of this week, Anthony Kennedy—have made it their mission to make peace, on their own particular terms, between pro- and anti-affirmative-action constitutional arguments.  Each time, that peace has involved tightening the constraints under which universities implement affirmative action programs.  In past rounds, these conservative swing Justices have barred uses of race that were more mechanical and blunt, instead favoring a more holistic, individualized approach.  (This approach was a sort of handmade gift from the Justices to college admissions officers across America, many of whom owe their very jobs to its labor-intensiveness.)

There were good reasons to expect this pattern to continue with Fisher v. Texas—to expect that Justice Kennedy, while once again stopping short of ending affirmative action, was poised to further tighten the constraints on universities.  This time the constraint would not be about holistic review.  Instead the plaintiffs in Fisher urged the Court to hold that no affirmative action program that considers the race of individual students is constitutional if there is a “workable” race-neutral alternative.  Doctrinally, the plaintiffs more or less got this holding from Justice Kennedy’s opinion in 2013, when Fisher v. Texas reached the Court the first time (Fisher I).  But this week Justice Kennedy wrote a different ending to the story.  Instead of yet again tightening the constraints on universities—and thereby making their affirmative action programs ever more precisely defined by the contours of legal doctrine, and therefore ever more uniform—he did something unexpected.  He loosened the constraints on universities instead, opening up new room for experimentation and for the use of a variety of admissions criteria.  He opened up a space for pluralism.

Two different kinds of pluralism.  The first is about the approaches different institutions use in admitting their students.  The tighter the constitutional constraints imposed by a hostile Court, the more constitutional law tends to press every institution to proceed according to the same model.  Justice Kennedy recognized in Fisher II that this is a problem for a democracy that is continuing to contest and revise its approaches to a complex issue that implicates competing, deeply held constitutional values.  “In striking this sensitive balance,” he wrote, “public universities, like the States themselves, can serve as ‘laboratories for experimentation.’”  In other words, we need a diversity of approaches to diversity.

I find this point quite powerful and unexpected.  We are nowhere near the end of the American debate (and increasingly, a global debate) about college access, affirmative action, and equal opportunity.  For instance, the interaction among class, geography, and race is emerging now as an area of especially significant contestation.  Encasing diverse institutions’ ongoing struggles with these questions too tightly in a straitjacket of Court-made constitutional doctrine is clear folly.  But, to see that, you need to place a significant amount of trust in the good faith of our institutions of higher education and in the seriousness with which they weigh competing values and priorities and assess their own performance.  That is the most surprising thing about this opinion.  A reader of Justice Kennedy’s prior opinions in affirmative action cases—his Grutter dissent is an especially pointed example—would be hard-pressed to find evidence of any such trust.  But now, it seems, he has it.  I hope that both the University of Texas and American colleges and universities more generally repay the trust that allows them to operate as laboratories for experimentation by fulfilling the concomitant obligation Justice Kennedy spells out at the end of his opinion: to take data collection seriously and assess, in an ongoing way, the effects of affirmative action and other college admissions policies on students and their trajectories.

Read more »

Friday, June 24, 2016

Brexit, the Populist Moment, and Trust

Stephen Griffin

The stunning Brexit vote showed all too clearly a chasm between elite and mass opinion, something that has always fascinated me, at least when it comes to democracies.  How do such splits happen in political systems that have regular and fair elections?  Or better, when they happen, why are they not corrected over time by the election of new elites?  In my armchair estimation, Britain is more vulnerable to such splits than most because its elite is so homogeneous.  But then again, America seems to be suffering from its own version of this split.

Surely the version of such a split most dangerous to a political and constitutional order is when elites in both parties (in a two party democracy) are alienated from mass opinion.  Who favored NAFTA?  The presidential wing of the Democratic party and both wings of the Republican.  Who favored looser rather than stricter controls on immigration?  Elites in both parties.  And who was responsible for bailing out the banks after the fall 2008 financial crisis?  All elites, although the congressional wing of both parties ran for cover in 2009.  I do not mean to suggest that any of these policy measures were wrong.  But when elites avoid the responsibility of justifying their policies, this can create a political crisis.  The almost unbelievable failure of political elites to justify the bailout measures produced the toxic environment in which the Tea Party flourished.  In many ways, the aftermath of the financial crisis is still with us.  When both parties fail (and do not admit it!), American democracy does not have an easy way forward.

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The Isle of Constitutional Radicalism

Gerard N. Magliocca

The story told until recent years about the "unwritten" British Constitution was a charming paradox. On the one hand, the lack of a written Constitution there meant that the law could adapt much more easily to crises or changing circumstances.  Nonetheless, this constitution was remarkably stable and rights were well-protected because respect for precedent and tradition was deeply entrenched among elites and voters.

Not any more. Since the 1990s, Britain has embarked on a series of constitutional experiments unlike  those in any other Western democracy. There was the end of hereditary peers in the House of Lords, the creation of regional parliaments in Scotland and Wales, the establishment of a Supreme Court to replace the House of Lords as the leading judicial authority, a referendum on Scottish independence, the end of discretion for the Prime Minister in calling general elections, and more. Now we have the Brexit referendum (and soon, perhaps, another Scottish independence referendum), which will have far-reaching implications for domestic law and for the continuation of the United Kingdom.

Whether this was a good idea or not remains to be seen, but you can't say that Britain's Constitution is, to use Sandy's term, "undemocratic." If by democratic, you mean majoritarian. The only exception is the Queen, who seems to be the last refuge of the old-fashioned.

Thursday, June 23, 2016

Another June Surprise: Justice Kennedy Upholds Race-Conscious Admissions in Fisher

David Gans



Confounding those who expected the Roberts Court to deliver a blow to the use of race in university admissions, Justice Anthony Kennedy today authored a 4-3 opinion in Fisher v. University of Texas at Austin upholding the constitutionality of the University of Texas’ modest use of race as one factor among many in choosing a diverse student body.  In line with Justice Kennedy’s surprising 5-4 opinion last term interpreting the Fair Housing Act to provide for disparate impact liability as a way of breaking down unconscious racial prejudices, Kennedy’s opinion is a resounding reaffirmation that the government may use race sensitively to help foster diversity and ensure equality of opportunity for all, regardless of race.  The Framers of the Fourteenth Amendment were the originators of affirmative action, and today’s ruling is consonant with their understanding of the text, history, and purpose of the Equal Protection Clause.

Today’s decision was the second time the Court has ruled in Fisher.  Three years ago, in Fisher I, Justice Kennedy wrote that enrolling a diverse student body “promotes-cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.”  Kennedy’s opinion today in Fisher II followed these precepts, upholding the University’s modest use of race under strict scrutiny, finding that the University had employed race minimally and only after finding “consistent stagnation in terms of the percentage of minority students enrolling at the University,” reports that minority students “experienced feelings of loneliness and isolation,” and data showing that “only 21 percent of undergraduate classes with five or more students in them had more than one African-American student enrolled.”   

In a strongly worded dissent, Justice Samuel Alito castigated the University’s policy as “affirmative action gone wild” and accused the majority of abandoning strict scrutiny.  But, as Justice Kennedy’s opinion explained, “[c]onsiderable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission”  and the University had acted sensitively—only after race neutral methods proved ineffective—“to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.”  This is in line with the Supreme Court’s precedents applying strict scrutiny since Bakke

Strikingly, Justice Kennedy recognized that percentage plans—like the Top Ten Percent plan employed in Texas—are no substitute for race-conscious admissions policies that help ensure meaningful diversity, quoting at length from Justice Ruth Bader Ginsburg’s Fisher I dissent: “Percentage plans are ‘adopted with racially segregated neighborhoods and schools front and center stage.  It is race consciousness, not blindness to race, that drives such plans.’”  Hence, Kennedy wrote today, Fisher “cannot assert simply that increasing the University’s reliance on a percentage plan would make its admissions policy more race neutral.”  One of the most unexpected—and welcome—aspects of Fisher II is Kennedy’s full-throated reliance on these key points made by Justice Ginsburg. 

Fisher II marks the first time that Justice Kennedy has voted to uphold an affirmative action program against constitutional attack.   Many observers today are asking: what’s changed?  But Kennedy has always accepted the basic principle—first established by the Court in Bakke and reaffirmed today—that universities may use race in admissions as one factor among many in choosing a diverse student body.  In 2007, in the Parents Involved case, Kennedy rejected Chief Justice Roberts’s absolutist view that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” insisting that was “too dismissive of the interest government has in ensuring all people have equal opportunity regardless of their race.”     

Last term, in Texas Department of Housing v. Inclusive Communities Project, Kennedy authored a 5-4 opinion that, like today’s ruling in Fisher II, was joined by the Court’s liberals, and castigated in a sharp dissent by Justice Alito as impermissibly race conscious.  Refusing to gut the Fair Housing Act, Kennedy gave the Act a broad reading, noting that “much progress remains in our nation’s continuing struggle against racial isolation” and that disparate impact liability can help break down “covert and illicit stereotyping” that stand in the way of equal opportunity.  These same concerns about racial isolation and stereotyping—more important than ever in the wake of events in Ferguson and elsewhere—are at the fore of Kennedy’s Fisher II opinion.  

Both Justice Thomas and Justice Alito filed dissenting opinions accusing the majority of abandoning their obligation to enforce the constitutional guarantee of equal protection.  But neither made any effort to come to grips with the text and history of the Fourteenth Amendment.  Far from establishing a constitutional ban on the sensitive use of race by the government—the view espoused by Thomas, Alito, and Chief Justice John Roberts—the Framers of the Fourteenth Amendment rejected proposals to prohibit any and all use of racial classifications by the government and, in fact, enacted a long list of forward-looking race-conscious legislation intended to ensure equality of opportunity for all persons regardless of race.  Conservative Supreme Court Justices opposed to the use of race to foster equality have never been able to answer this history.  Indeed, as Josh Blackman recently noted, there has never been any convincing originalist rebuttal to the fact that the Framers of the Fourteenth Amendment were the originators of affirmative action.  The Court’s decision in Fisher II moves the law more in line with constitutional text and history.   

Ed Blum—who financed and spearheaded the Fisher case—hoped to establish a precedent to gut affirmative action across the nation and force universities to abandon policies that, for decades, have helped ensure equal opportunities for all regardless of race.  Today’s ruling dashes Blum’s hopes of rewriting the Fourteenth Amendment to strike down efforts to ensure true racial diversity on our nation’s campuses.  Fisher II makes clear that universities may act to further our Constitution’s promise of equality.  

David H. Gans is the Director of the Human Rights, Civil Rights & Citizenship Program at the Constitutional Accountability Center.  This piece is cross-posted at Text and History

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