Civil Rights and Civil Liberties in the Supreme Court's 2002-2003 Term

Civil Rights

The 2002-2003 term produced mixed results concerning civil rights, headlined by landmark rulings in a pair of affirmative action cases concerning University of Michigan admissions policies, which again emphasized the significant divisions on the Court on controversial issues and the importance of future nominations. In Grutter v. Bollinger, 2003 U.S. LEXIS 4800 (2003), in a narrow 5-4 decision, the majority of the Court upheld the University of Michigan law school’s admissions policy and held that promoting educational diversity in higher education is a compelling state interest. The opinion, written by Justice O’Connor and joined by Justices Breyer, Ginsburg, Souter, and Stevens, found that “the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” 2003 U.S. LEXIS 4800 at 64. The Court found that the policy used by the law school consisted of “a highly individualized, holistic review of each applicant’s file, giving serious consideration to all the ways an applicant might contribute to a diverse educational environment.” Id. at 53. The plan does not use race unconstitutionally, nor does it unduly harm nonminority applicants, explained the Court. Justices Thomas, Scalia, Rehnquist, and Kennedy dissented from the majority opinion and would have invalidated the law school’s admissions policies as an unconstitutional violation of the Fourteenth Amendment. According to Thomas, the law school must effectively choose between its goals of diversity and academic excellence, and “cannot have it both ways.” Id. at 123-24. Thomas and Scalia also “concurred” in what they claimed was a majority holding that said affirmative action will be deemed unnecessary and unconstitutional in 25 years, a “holding” not actually contained in Justice O’Connor’s opinion and explicitly described as a “hope” and not a holding by Justices Ginsburg and Breyer. Just one more justice in the mold of Scalia or Thomas would have overturned the law school’s admissions policy and would have effectively dismantled affirmative action across the country.

In the companion case concerning the admission policy at the undergraduate college, Gratz v. Bollinger, 2003 U.S. LEXIS 4801 (2003), the Court ruled in a 6-3 decision that the policy was unconstitutional under the Fourteenth Amendment. Chief Justice Rehnquist delivered the majority opinion, which was joined by Justices O’Connor, Scalia, Kennedy, and Thomas. They ruled that the admissions policy used at the college did not adequately provide for individualized consideration of applicants, but rather automatically assigned 20 points to any underrepresented minority who applied for admission. Justice Breyer concurred in the judgment of the Court but did not join in the majority opinion. Justices Stevens, Souter, and Ginsburg dissented, arguing that the students who brought the case did not have standing to bring the lawsuit. Reaching the merits of the case, Justices Souter and Ginsburg would have found the plan to be constitutional, contending that its admissions decisions did include individualized consideration of a wide variety of personal attributes, and that it did not improperly use race, particularly in light of the importance of preventing the perpetuation of the effects of past discrimination and segregation. (PFAWF filed an amicus brief in both affirmative action cases.)

The Court decided two cases concerning Section 5 of the Voting Rights Act. In a 5-4 decision, the Court vacated a ruling of a three-judge court in the District of Columbia that had found Georgia’s redistricting plan to be retrogressive and thus not suitable for pre-clearance under Section 5. Section 5 requires jurisdictions like Georgia with a prior history of voting-related discrimination to prove that proposed voting changes do not have a “retrogressive” effect on the voting power of minority voters. In Georgia v. Ashcroft, 2003 U.S. LEXIS 5012 (2003), Justice O’Connor, joined by Chief Justice Rehnquist and Justices Scalia, Thomas, and Kennedy, concluded that the district court failed to consider several important criteria in determining that a proposed Georgia redistricting plan, which altered the number of black-majority districts, was retrogressive. The majority found that the plan was designed to “‘unpack’ the minority voters from a few districts to increase blacks’ effective exercise of the electoral franchise in more districts,” and thus there was a high probability, explained the Court, that the plan was not retrogressive in its overall impact. 2003 U.S. LEXIS 5012 at 51. The Court remanded the case for reconsideration in light of the criteria set forth by the majority. Justices Souter, Breyer, Ginsburg, and Stevens dissented, arguing that the “majority unmoors §5 from any practical and administrable conception of minority influence that would rule out retrogression in a transition from majority-minority districts, and mistakes the significance of the evidence supporting the District Court’s decision.” Id. at 59. Georgia did not meet its burden of proving that its redistricting plan did not retrogressively impact minority voters, argued the dissent, and the district court thus correctly denied pre-clearance.

In an important Mississippi redistricting case involving competing redistricting plans approved by state and federal courts, the Court in Branch v. Smith, 123 S. Ct. 1429 (2003), upheld the federal court-approved plan because the state did not obtain timely pre-clearance from the Department of Justice or the D.C. district court as required under Section 5 of the Voting Rights Act. While recognizing that reapportionment is a state responsibility, the Court held that a federal court may act if a state legislature does not act within the required time. Furthermore, seven Justices held that the plan drawn by the federal court creating single-member congressional districts was constitutional, interpreting federal statutes to require creation of single-member districts whenever possible. Justice Scalia, joined by Chief Justice Rehnquist and Justices Kennedy and Ginsburg, further suggested that a 1941 law calling for the use of at-large elections should apply only when the state legislature and the state or federal courts have not provided for redistricting pursuant to the provision in the law requiring single-member districts. Justices O’Connor and Thomas partially dissented, suggesting that federal law should be interpreted to require the use of at-large elections until the state legislature completes redistricting, so that the district court should have ordered the use of at-large elections for the entire state congressional delegation.

The Supreme Court decided several cases concerning federal laws on job and housing discrimination. In a unanimous opinion, the Court held that direct evidence is not required in order to prove discrimination in a “mixed-motive” case under Title VII of the Civil Rights Act. In Desert Palace v. Costa, 2003 U.S. LEXIS 4422 (2003), in an opinion delivered by Justice Thomas, the Court affirmed the judgment of the Ninth Circuit Court of Appeals, which had held that a plaintiff alleging that sex discrimination was a motivating factor in an employer’s treatment of her was not required to present direct evidence of discriminatory motive when the employer provided a nondiscriminatory reason for its action. Instead, a plaintiff need only “present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘race, color, religion, sex, or national origin was a motivating factor for any employment practice.’” 2003 U.S. LEXIS 4422 at 21. This evidence may be direct or circumstantial. The Court’s unanimous holding carries out the intent of Congress in the Civil Rights Act of 1991 and eliminates a barrier that has faced workers in some lower courts in proving discrimination on the basis of race, color, sex, religion, or national origin.

In Clackamas Gastroenterology Associates v. Wells, 123 S. Ct. 1673 (2003), the issue was whether four physicians actively engaged in medical practice as shareholders should be considered “employees” for purposes of the Americans with Disabilities Act. By a 7-2 vote, the Court reversed the Ninth Circuit decision that they should be considered employees for purposes of employment discrimination liability, adopted a multi-factor test to help answer the question, and remanded the case. Justices Breyer and Ginsburg argued in dissent that since the doctors were considered employees of a corporation for purposes of state workers compensation and federal pension laws, there was “no reason to allow the doctors to escape from their choice of corporate form when the question becomes whether they are employees for purposes of federal antidiscimination statutes.” 123 S. Ct. at 1682. The result could be to decrease the protection under the ADA available to workers at professional corporations with less than 15 employees.

In Meyer v. Holley, 123 S. Ct. 824 (2003), a unanimous Court held that, when a corporate employee discriminates on the basis of race, the Fair Housing Act does not make an officer or owner of the corporation vicariously liable, but rather applies vicarious liability only to the corporation itself. “[T]he Court has assumed that, when Congress creates a tort action, it legislates against a legal background or ordinary tort-related vicarious liability rules and consequently intends its legislation to incorporate those rules.” 123 S. Ct. at 828. Therefore, “in the absence of special circumstances it is the corporation, not its owner or officer, who is the principal or employer, and thus subject to vicarious liability for torts committed by its employees or agents.” Id. at 829.

With respect to a claim brought by the White Mountain Apache Tribe against the federal government for breach of fiduciary duty in the management and improvement of land held in trust for the Tribe, a majority of the Court held that the Court of Federal Claims had jurisdiction over the suit. In United States v. White Mountain Apache Tribe, 123 S. Ct. 1126 (2003), the five-Justice majority held that the Indian Tucker Act gives federal courts jurisdiction over Indian tribal claims that “otherwise would be cognizable… if the claimant were not an Indian tribe,” but the Act creates no substantive right enforceable against the government for a claim for money damages. 123 S. Ct. at 1132. The dissent, authored by Justice Thomas and joined by Chief Justice Rehnquist, Justices Scalia and Kennedy, accused the majority of fashioning “a new test to determine whether Congress has conferred a substantive right enforceable against the United States in a suit for money damages.” Id. at 1140. One more Justice on the bench in the mold of Scalia or Thomas would have reversed this decision on the ability to seek monetary relief for claims against the federal government.

In Chavez v. Martinez, 123 S. Ct. 1994 (2003), in a fractured opinion about coercive police interrogation without the provision of Miranda warnings, a majority of the Court agreed that there was no violation of the constitutional right against self-incrimination where the statements obtained were not used in a criminal prosecution. While Justices Souter and Breyer contended that a violation of this right might occur in certain circumstances when constitutional rights need to be protected, Justices Scalia, Thomas, O’Connor, and Chief Justice Rehnquist maintained that a “violation of the constitutional right against self-incrimination occurs only if one has been compelled to be a witness against himself in a criminal case.” 123 S. Ct. at 2003. Justices Kennedy, Ginsburg, and Stevens strongly dissented from the ruling, holding that the Fifth Amendment creates a present right that is violated once coercive interrogation is conducted. In the second part of the opinion, a majority of the Court (comprised of Justices Breyer, Ginsburg, Kennedy, Souter, and Stevens) found that the interrogated person could file a civil lawsuit against the police based on the claim of deprivation of a liberty interest, and remanded the case for determination of whether Martinez could pursue a claim under 42 U.S.C. §1983 for deprivation of substantive due process. These Justices noted in particular that the coercive police interrogation may be found to have increased Martinez’s pain and suffering. Despite the demonstration in the record of persistent questioning while Martinez was in fear for his life while being treated in a hospital emergency room, however, Justice Thomas’s opinion, joined by Justices Scalia and Rehnquist, did not find the interrogation to be “egregious” or “conscience-shocking,” and claimed that freedom from unwanted questioning was not a fundamental liberty interest protected by the due process clause that would allow a civil lawsuit to vindicate the deprivation of constitutional rights.

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