MEMO

TO: Reporters and Editors
FROM: Jamie Raskin, Senior Fellow, People for the American Way Foundation
DATE:  May 24, 2013
RE: Blockbuster Decisions Coming Soon from the Supreme Court . . .Will Conservative Justices Twist the Constitution to Subvert Equal Protection?

The Roberts Court will soon release major decisions shaping the future of voting rights protection, affirmative action in university admissions, and the rights of marriage for gay and lesbian Americans. In each case, the promotion of equal rights under law in our society is opposed by a conservative agenda that seeks to enshrine inequality in the name of “federalism,” “color-blindness,” or “social tradition.” What is at stake in these cases is whether America continues its journey towards strong and inclusive multi-racial democracy or accepts conservative arguments that undermine constitutional and social progress.

Congressional Protection of Voting Rights versus “Federalism Costs”:

The Voting Rights Act on the Chopping Block in Shelby County v. Holder

In Shelby County v. Holder, conservatives seek to dismantle the essential machinery of modern voting rights protection, which is the pre-clearance procedure for voting changes in covered jurisdictions. This procedure is contained in Section 5 of the Voting Rights Act of 1965, the monumental statutory achievement of Congress in the last century. Chief Justice Roberts, in a near-miss decision on the same subject in 2009, has already expressed the sentiment of his conservative colleagues that the provision now “raises serious constitutional questions.” At oral argument in Shelby County, Justice Scalia offered his view that the Voting Rights Act has become nothing more than a “racial entitlement.” Despite broad bipartisan support in Congress for the Voting rights Act, including Section 5, the conservative legal movement is mobilized for its destruction.

Section 5 obligates covered states and jurisdictions to “pre-clear” changes affecting voting with the Department of Justice or the federal district courts in Washington. This procedure affects states and counties that were the worst offenders against voting rights and has been in place for nearly a half-century. Section 2 of the Fifteenth Amendment clearly gives Congress the “power to enforce” voting rights “by appropriate legislation.” The Court has four times—in South Carolina v. Katzenbach (1966), Georgia v. U.S. (1973), City of Rome v. U.S. (1980), and Lopez v. Monterey County (1999)—rejected invitations by states to declare Section 5 as outside of Congress’ powers under the 14th and 15th Amendments.  Thus, Alabama, Georgia, Louisiana, Arizona, Mississippi, South Carolina, Texas, Virginia and later Alaska (along with certain jurisdictions in California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota) have had to prove that proposed changes in election laws do not disadvantage minority voters. While the Justice Departments and the courts routinely approve more than 99 percent of submitted plans, the VRA remains a critical stop against laws meant to disenfranchise racial minorities. Hundreds of state plans and thousands of proposed changes have been rejected under the law, preventing a backslide in the project of building a strong interracial democracy.

But the case against Section 5 today turns on neither constitutional precedent nor text nor the facts of political life on the ground, but rather on the talk-show fallacy that a nation which twice elects an African-American president simply cannot contain any states or counties where minority voters face actual barriers to participation. Backing up this non-sequitur intuition are constitutional myths: that Congress has to treat all states and counties the same and cannot distinguish among them based on their records of committing voting rights violations. and that the pre-clearance mechanism in the Voting Rights Act and its “coverage formula” impose far too high “federalism costs” on covered areas (i.e., it allegedly takes too much power from the states). All of these taking points are supposed to justify the Court’s substituting its judgment for that of Congress and to find that Section 5 is no longer a “congruent” or “proportional” remedy, under either the Fourteenth Amendment or the Fifteenth Amendment, for threats to voting rights.  But the lower courts in this case reviewed more than 15,000 pages of Congressional findings and testimony and were convinced of the continuing need for preclearance to deal with the disingenuous disenfranchising and diluting schemes in the covered areas, including voter photo ID laws, tightening restrictions on registration and at the polls, and racist gerrymanders.

The arguments against Section 5 appeal to the racial fatigue of Supreme Court arch-conservatives, who are willing to give state legislatures, a majority of which are in conservative Republican hands today, the freedom to restrict voting rights. The pre-clearance procedures of Section 5 are the major obstacle to this goal because they mean that all of the traditional hijinks of Jim Crow politics must be submitted in advance to federal judges or DOJ civil rights lawyers for approval. Rather than placing the burden on African-Americans and other minority voters to find lawyers and make the case against repressive practices after they go into effect, the covered jurisdictions have to affirmatively show that their innovations are not discriminatory or “retrogressive” before the damage is done. As the Supreme Court put it approvingly in South Carolina v. Katzenbach, “After enduring nearly a century of systematic resistance to the Fifteenth Amendment,” Congress chose “to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”

The word “federalism” does not appear in the Constitution, nor does the opaque and mysterious phrase “federalism costs,” which has become the key mantra for the conservatives.  At least four Justices—and we’ll see about Justice Anthony Kennedy—appear poised to use these malleable concepts to override the clear enforcement powers that the Constitution explicitly assigns to Congress through Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment. Thus, the Supreme Court is on the brink of usurping Congressional power plainly granted by the Constitution by thwarting Congressional decisions to enforce the equal rights of Americans to vote and participate in the political process.

Racial Integration, Inclusion and Diversity versus “Color-Blindness”:

Affirmative Action Walks the Plank in Fisher v. University of Texas at Austin

The ceaseless attack on affirmative action returns again this Term with Fisher v. University of Texas at Austin, a sweeping challenge to a modest use of race and ethnicity in UT’s admissions process that was adopted to correct for continuing weakness in the numbers of minority students on campus. The twist here is that most UT students are admitted through a policy guaranteeing admission to students who graduate in the top 10 percent of their public high school classes. About one-fifth of the class is admitted outside of that race-neutral policy, and affirmative action plays a role in this small part of the process.

Most people thought that the lawfulness of such a policy was settled for at least 25 years in 2003, when the Court decided Grutter v. Bollinger and Gratz v. Bollinger, cases testing the constitutionality of affirmative action programs as practiced, respectively, at the University of Michigan Law School and the University of Michigan’s undergraduate program. The majority upheld the Law School’s “holistic” use of race and ethnicity in the process to promote diversity in the educational experience because all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process. (The University of Texas modeled its law school’s affirmative action program after that upheld in Grutter in 2003.) Meanwhile, the majority invalidated the undergraduate plan because racial or ethnic minority status was quantified and treated as adding bonus points in a rigid numerical weighing system, a process that the Court said leaned towards being a quota system. While rejecting the college plan as a blunt instrument, Justice O’Connor found that the kind of diffuse and holistic use of minority status embodied in the law school program was permissible. She thought such affirmative action would be warranted for a period of what she predicted to be another quarter-century. Given that most public universities remained segregated through the 1950s and 1960s, this seemed like a sensible time-line.

The Grutter decision reaffirmed and updated Regents of the University of California v. Bakke, the 1978 high Court decision which struck down numerical quotas for minority admission but approved the generalized use of race in the admissions process to promote the compelling interest in having a diverse student body. Grutter was met with relief and enthusiasm throughout American academia, in the business sector, by the armed services, and across American society.

Now, once again, conservatives hope to turn the Constitution against the project of equal rights and equal opportunities.  The key move is to claim that Equal Protection mandates absolute “color-blindness” and therefore forecloses any conscious efforts to build diversity and inclusion into the educational experience of students. But the history of the Equal Protection Clause demonstrates that its Framers clearly contemplated that government would seek to take account of the racial implications of official discrimination in the past to fashion consciously inclusionary policies going forward.

Equal Protection of the Rights of all Citizens in Marriage versus “Social Tradition”:

United States v. Windsor and Hollingsworth v. Perry

Two significant cases raise the important issue of whether gay and lesbian Americans enjoy an equal right to marry and to enjoy all the rights of marriage. Here, straightforward understandings of Equal Protection clash with an extra-constitutional commitment to the “social tradition” of discrimination against gay people.

One case, United States v. Windsor, deals with the constitutionality of Section 3 of “DOMA,” the 1996 federal Defense of Marriage Act, which provides that the word “marriage” in any federal law or regulation—including the Social Security Act, the Internal Revenue code, immigration law, and more than 1,000 others—shall apply only to the “legal union of one man and one woman as husband and wife.” This sweeping discrimination means that, although hundreds of thousands of gay and lesbian Americans have won and exercised the right to marry in twelve states and the District of Columbia, the rights, benefits, and duties that they should receive as married people under federal law are categorically withheld from them. Under federal law, married couples who are gay are treated as legal strangers to one another and as unworthy of the rights enjoyed by other citizens.

This discrimination has dramatic consequences. The respondent in Windsor, Edith Windsor, was forced to pay $363,000 in federal taxes on the estate she inherited after her wife (and life partner of 40 years) died, since DOMA prevents same-sex spouses from inheriting marital property on a tax-free basis, a benefit that heterosexual couples take for granted. Windsor won a clean victory in the United States Court of Appeals for the Second Circuit, which found that discrimination against gay people triggers Equal Protection “intermediate scrutiny” and that Congress could not even demonstrate a valid, much less an important, interest for defining marriage at the federal level so as to exclude from its benefits thousands of married couples in the states.

The other case taken up by the Supreme Court  is Hollingsworth v. Perry, which tests the constitutionality of California’s infamous Proposition 8 ballot measure, which revoked the marriage rights that gays and lesbians had enjoyed in the state under a landmark California Supreme Court decision.  Proposition 8 was voided in a broad pro-marriage decision handed down by California United States District Court Judge Vaughn Walker, a decision that was reaffirmed on narrower grounds by the United States Court of Appeals for the Ninth Circuit, which essentially found that California had no rational basis for taking away from its gay citizens the marriage rights that it had previously granted.

Both cases involve government refusing to recognize the equal rights of gay people, either in married couples or couples who want to get married.  With DOMA, Congress denied the same equal rights and benefits to gay married people as it offers to straight married people, and with Proposition 8, California actually revoked the marriage rights of gay people and prohibited the legislature from ever restoring those rights.  The Proposition 8 proponents even sought to use the measure to annul gays’ and lesbians’ existing marriages without their consent.  The discrimination in both cases is plain to see, all of it justified on the grounds of “traditional marriage” and “social tradition.”

The right to get married as a basic civil right has frequently been  addressed by the Supreme Court, but the Court has never addressed whether that right extends to gay and lesbian Americans, and the Court could successfully dodge the underlying issue here.

One good possibility is that the Court will strike down DOMA as a naked Equal Protection violation, saying that states need not necessarily extend marriage rights to gay and lesbian residents but that, if states do extend equal marriage rights, the federal government may not discriminate against people who avail themselves of those rights. Pro-marriage forces expecting this result place a high burden of hope on Justice Anthony Kennedy, who has written excellent majority opinions upholding the equal rights of gay and lesbian Americans in Romer v. Evans (1996) and Lawrence v. Texas (2003). But Kennedy may instead decide purely on federalism grounds, potentially providing a fifth vote to strike down DOMA but preventing any pro-equality legal rationale from having a majority that would bind lower courts in the future.

In the California Proposition 8 case, the Court could say that states that give all of the state-law rights of marriage to gay and lesbian citizens cannot withhold from them the title of marriage; this would affect eight states in a similar situation as California. Another possibility, more remote, is that Justice Kennedy would agree to join the moderate-liberal faction in simply declaring that gay people have equal rights to marry, which would mean invalidating discriminatory  laws still on the books in the vast majority of states. Conversely, the Court might also say that there is no obligation for California to protect the right of gay and lesbian citizens to marry at all. Or, finally, it could dismiss the whole case on either standing grounds—the Attorney general of California refused to defend  Proposition 8, leaving that task to anti-marriage advocates who put the initiative on the ballot—or on the grounds that cert was improvidently granted. There are still many ways to escape the basic issue of discrimination, even though all of the momentum in the states is towards marriage equality and the rationales for discrimination have been collapsing everywhere like a giant house of cards.

Equal Protection versus the Politics of Inequality

As we await the Supreme Court’s decisions in these cases, Americans should not miss the big picture of this constitutional moment.  In a society that disenfranchised African-Americans and other minorities for centuries and discriminated openly against racial minorities and the gay and lesbian population, we are living through giant progressive changes in political democracy and voting rights, educational opportunity, and marriage rights for all. Yet, in politics, as in physics, every action creates an equal and opposite reaction, and a huge ideological undertow has formed on today’s Supreme Court, which has replaced the values of the long-ago Warren Court with commitments to corporate power over government and government power over people. What is at stake in these cases is whether the Supreme Court will interpret the Constitution to be the instrument of equal protection for all or will twist it to make it the guarantor of inequality and injustice.

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Jamie Raskin, a Senior Fellow at People for the American Way Foundation, is a professor of constitutional law at American University’s Washington College of Law and a State Senator in Maryland.