The Onion’s Fun with the Future

Today’s headline at The Onion:

Here’s a choice cut from the article:

Upon learning that gay marriage actually had to go to the Supreme Court, where it barely passed in a controversial 5-to-4 decision, students from the class of 2086 speculated that “maybe people were just dumber [in the early 2000s],” at which point student Eminem Robertson began to loudly impersonate a bumbling Supreme Court justice from the turn of the century, eliciting loud laughs of approval from classmates.

Mr. Bernard, 58, told the class that he himself could remember how in the 2030s gay marriage was still a somewhat touchy subject in certain parts of the country.

“It’s true,” said Mr. Bernard, gesturing to a holographic projection of late-20th/early-21st-century antigay preacher Fred Phelps on the classroom’s V-screen. “Most people had come around by the time I was your age, of course, but you would still read and hear things about how certain people in New Washington were trying to overturn the court’s ruling. Hard to imagine anyone being that adamant about gays not marrying, but those were different times.”

This reminds me of my own fun with the future back when I first launched F1@1F.  Dare I say that The Onion’s looks far more realistic?

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Is the End Near for Affirmative Action?

The Fifth Circuit has just handed down its opinion in Fisher v. University of Texas upholding UT-Austin’s race-conscious admissions for those not among the auto-admitted top ten percent of their high school classes.  I flagged this case some months ago and have been eagerly awaiting its result.  In August, I devoted an entire post to the prospect of the Roberts Court granting certiorari to Fisher‘s inevitable petition and, in turn, reversing precedent to rule higher education affirmative action unconstitutional.

Senior Judge Patrick Higginbotham‘s opinion depends entirely on the Supreme Court’s 2003 decision, Grutter v. Bollinger, in which Justice Sandra Day O’Connor, writing for herself and the Court’s liberal bloc, reaffirmed the constitutionality of affirmative action in higher education.  While Justice Samuel Alito has not faced a higher-ed affirmative action case since arriving on the Court, his vote in 2007’s Parents Involved and his generally conservative voting pattern overall strongly suggest that he will not vote in accord with his predecessor’s opinion in Grutter.

The Fisher decision notably includes Judge Emilio M. Garza‘s 30 page anti-Grutter broadside, more politely labeled as a “special concurrence.”  Judge Garza, a Reagan appointee to the district court, a George H.W. Bush appointee to the Fifth Circuit, and a runner-up to Justice Clarence Thomas for Justice Thurgood Marshall’s seat on the Supreme Court in 1991, apparently wrote his special concurrence specifically for the consumption of the current Court’s conservative bloc–including Justice Anthony Kennedy, who dissented in Grutter and concurred in Parents Involved.

Garza’s concurrence in Fisher begins:

Whenever a serious piece of judicial writing strays from fundamental principles of constitutional law, there is usually a portion of such writing where those principles are articulated, but not followed. So it goes in Grutter, where a majority of the Court acknowledged strict scrutiny as the appropriate level of review for race-based preferences in university admissions, but applied a level of scrutiny markedly less demanding. To be specific, race now matters in university admissions, where, if strict judicial scrutiny were properly applied, it should not.

Today, we follow Grutter’s lead in finding that the University of Texas’s race-conscious admissions program satisfies the Court’s unique application ofstrict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles.

Justice Kennedy spoke to this very “misstep” in his Grutter dissent, arguing not that affirmative action is unconstitutional, but rather that the majority unlawfully loosened its own strict scrutiny standard for such race-conscious admissions programs.  Kennedy’s pivotal position is not lost on Garza, as evidenced in his explicit invocation of the justice:

After finding that racial diversity at the University of Michigan Law School (“Law School”) was a compelling governmental interest, the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at 387 (Kennedy, J., dissenting) (“The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.”); see generally Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517 (2007). The Court replaced narrow tailoring’s conventional “least restrictive means” requirement with a regime that encourages opacity and is incapable of meaningful judicial review under any level of scrutiny.

Ultimately, Garza cites Kennedy five times despite Garza’s own more hardline opposition to affirmative action, which he spells out in conclusion:

My disagreement with Grutter is more fundamental, however. Grutter’s failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all. […]

Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles.

In so writing, Garza, who could have been the Court’s first Hispanic justice, makes sure to appeal not only to Justice Kennedy, but also to Justices Scalia and Thomas, the latter of whom has been a vocal opponent of affirmative action on and off the bench.  Neither Chief Justice Roberts nor Justice Alito have yet voiced their opinions on higher education affirmative action from their perches on the Supreme Court, but Roberts’s concluding aphorism in Parents Involved, which was joined by Justices Scalia, Thomas, and Alito, is instructive towards those seeking to divine the two George W. Bush appointees’ votes in Fisher.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously wrote in Parents Involved.  Justice Kennedy agreed to disagree with the statement’s simple certitude, filing his own concurrence in the judgment that put forward his more accepting–but still quite restrictive–take on race-conscious government measures.  As such, Judge Garza was smart in addressing the Court’s entire conservative bloc in his special concurrence: either way, Grutter‘s days are numbered.  Just as Citizens United reversed McConnell v. FEC and Gonzales v. Carhart all but wiped out Stenberg v. Carhart, Fisher will find the Roberts Court once again doing away with an O’Connor-backed, 5-4 precedent by the new 5-4 reality.

I’ve said it before and I’ll say it again: next term is going to be a doozy.

This piece is cross-posted at The CockleBur.

The Second Amendment: Ramifications of Repeal

The shooting of Representative Gabby Giffords in Arizona this weekend and the flurry of constitutional commentary upon the start of the 112th Congress–including talk of repealing or altering the 14th, 16th, and 17th Amendments and, thanks to Justice Scalia, a renewed call for an Equal Rights Amendment–has led me to think about what would happen if there was a push for a new constitutional amendment that would repeal the Second Amendment (2A).  Indeed, just a few of hours ago, Elie Mystal at Above the Law went there.  The more I think about it, the more it appears that such a repeal effort would paradoxically lead the most passionate gun rights advocates to embrace the dissenters’ views in Heller and McDonald in ways never anticipated by Justice Stevens et al.

The 2A, literally read, tethers gun ownership to militia membership, however hard the Heller majority tried to convince us otherwise by marginalizing the Amendment’s militia-speak as a “prefatory clause.”  Because we had no standing federal army at the time of the 2A’s ratification, and because states formed militias comprised of each state’s able-bodied men, individuals needed the right to own guns in case a tyrannical federal government did raise an army to invade the states.

But if we were to take Sharron Angle’s incendiary and irresponsible “Second Amendment remedies” quip from this summer in a charitably originalist manner, then those remedies mean the right of any people to rise up in revolution against a tyrannical government. This right is explicitly stated in our country’s Declaration of Independence and endorsed by Thomas Jefferson with his quote, “[t]he tree of liberty must be refreshed from time to time with the blood of patriots.”  And, unless an American revolutionary wants to wage guerrilla war or commit acts of terrorism, the accepted way to do this is to form militias, armed by individuals exercising their 2A rights, to engage in conventional warfare with the federal government.  Of course, just because the right to rise up in revolt exists doesn’t mean the cause is actually righteous or that the federal government cannot seek the perpetuation of its own just existence by putting down the revolt.  See, e.g., the Whiskey Rebellion or the Civil War.

Now, it’s currently unimaginable to think of Congress as currently situated ever passing a 2A repeal amendment, let alone finding 38 states willing to ratify it.  But if we can get past that hurdle of unimaginability, it’s absolutely imaginable that some states and certainly many individuals would consider Congressional passage of a 2A repeal amendment, whether or not it is ratified, to be a tyrannical act by the federal government that threatens to take away both a fundamental right to bear arms as interpreted by the Supreme Court as well as a mass taking of legally obtained property without just compensation.

And here comes the paradox: anti-repeal states could very well then vindicate liberals’ 2A interpretation by calling up “well-regulated militias” to “secure” their “free states” comprised of individuals who, in joining the militias, are exercising their “right of the people to keep and bear arms.”

In other words, an amendment to take away peoples’ guns could trigger the very scenario, in the eyes of Second Amendment supporters, that the framers imagined in drafting the Second Amendment.  In creating that scenario, then, gun owners would throw into relief through actual practice just how unoriginalist Scalia et al. were in their theory supporting the Heller majority.

I believe both components of this scenario–(a) the passage of a repeal amendment in Congress that (b) will trigger the mainstreaming of the militia movement–will never come to pass.  As an intellectual exercise, however, it’s worth thinking through possible consequences of our responses to heinous acts such as the one that took place this weekend in Arizona.

If the shooting inspires enough political momentum for Congress to re-up the statutory Federal Assault Weapons Ban and inspire state and local governments to strengthen their gun regulations, then it is worth looking to the Court for how politics has and will influence its shaping of the Second Amendment.

Heller could not have been decided the way it was had it not been for the rise in the last half-century of the “individualist” narrative.  Whether or not that narrative constituted “fraud,” as Chief Justice Burger stated from retirement in 1991, it became a tenet of modern conservatism and so mainstream a strain of American political thought that many Democratic politicians–including then-Senator Barack Obama, former Senator Russ Feingold, and Representative Gabby Giffords–supported Heller‘s result.  In essence, the conservative majority in Heller may have inflamed the half of the public rooting for the “collectivist”–or militia-based–interpretation, but the political winds had pushed the Court’s decision into safe harbor.

Had the liberal dissent prevailed in Heller, the country would have had a massive administrability problem that could have quickly descended into political chaos and violence.  Who gets to keep his or her guns?  What guns remain protected?  Can the federal government, finding militias anachronistic, ban guns altogether throughout the country?

While the Heller decision is often rightly explained in ideological terms, it still got the pragmatics right: it relieved the country of its polarized, zero-sum politics over gun rights on the side of least ideological and practical resistance, while defining the right so narrowly as to leave for later cases the true scope of reasonable regulations of the individual right to keep and bear arms for self-defense.

It remains easy to imagine that a Democratic nominee to Justices Kennedy’s or Scalia’s seat could lead to a reversal of Heller or so broad an acceptance of reasonable regulations as to limit Heller to its specific facts.  But now that this country’s steady stream of massacres has finally flooded into Congress and the Judiciary with the shooting of Rep. Giffords and the slaying of Chief Judge John Roll, perhaps the Court as presently constituted will be inspired by Justice Breyer’s Heller dissent to look more kindly upon state, local, and federal gun regulations than they would have had such violence remained for them a political and legal abstraction.

UPDATE: Josh Blackman responds.

UPDATE II: Michael Doyle of McClatchy has an article headlined, “Arizona shootings unlikely to change federal gun laws.” (h/t How Appealing)

UPDATE III: Jo Becker & Michael Luo of the New York Times posit Tucson’s gun culture against federal regulatory efforts.

UPDATE IV: Patrick J. Charles responds at his site, The Charles Law & History Blog.

Bond and The Bar

On February 22, while I’ll be locked in a lecture hall taking the bar exam, the Supreme Court will be hearing oral argument in what may be the most salacious suit of the term.  Bond v. United States appears so factually, legally, and politically wild that it almost makes me question my taking that term off during my 2L year: had I stayed at Georgetown rather than go to ABC News, I would have graduated in May, taken the bar in July, and been able to be at the Court in February to hear the lawyers tell the tale of a scorned woman seeking solicitude for her hell-fury under the protection of the Tenth Amendment.

In his brief for Carol Anne Bond, Paul Clement tells the story:

In 1995, petitioner moved with her mother and sister to the United States, where she became very close friends with Myrlinda Haynes, a woman who was also a Barbados native.  Haynes owned a home in nearby Norristown, and petitioner came to consider and treat Haynes as a sister.

In 2006, Haynes announced that she was pregnant.  Unable to bear a child of her own, petitioner was excited for her closest friend.  Her excitement did not last, however, for petitioner soon discovered that her own husband was the child’s father.  This double betrayal brought back painful memories of her own father’s infidelities and caused petitioner to suffer an emotional breakdown…

In the midst of this emotional breakdown, petitioner became fixated on punishing Haynes for her betrayal. Petitioner took a bottle of 10-cholo-10H-phenoxarsine (an arsenic-based chemical) from her employer, the chemical manufacturer Rohm & Haas, and she purchased a vial of potassium dichromate through Amazon.com from a photography equipment supplier.  Petitioner knew that the chemicals were irritants and believed that, if Haynes touched them, she would develop an uncomfortable rash.  Both chemicals are toxic and, if ingested or exposed to the skin at sufficiently high doses, can be lethal.

According to the government, petitioner went to Haynes’s home on several occasions between November 2006 and June 2007 and spread chemicals on Haynes’s car door handle, mailbox, and apartment doorknob.

These facts alone are enough to send reporters rushing to the Court, but the love triangle and poisonous revenge are backed up by crazy law and strange meta-bedfellows.

Rather than be subjected to a state charge of assault, Bond’s use of toxic chemicals against her now-former best friend got the Feds involved.  They charged her with a violation of a federal statute that Congress passed in obligation to an international treaty entitled, “Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction.”  A grand jury indicted her under the statute’s sweeping plain language – the chemicals fit the law’s definition of banned substances “not intended by defendant Bond to be used for a peaceful purpose” – and she pled guilty after the federal judge rejected her constitutional claims against the law as applied to her.

And it gets weirder.  The scorned woman turned terrorist-in-law invoked her Tenth Amendment rights, something that’s only recently come back in vogue with the rise of the Tea Party and the Affordable Care Act.  Bond argued to the Third Circuit that the federal criminal law used to convict her was beyond Congress’s Article I authority and therefore invaded the province of rights reserved to the states and the people.  The appeals court did not reach the merits, ruling instead that Bond, as an individual, did not have standing to bring her Tenth Amendment claim absent the state or its officials as parties to her suit.

By the time Bond petitioned the Court for review, however, the United States switched sides, officially telling the justices to let her sue.  The Solicitor General urged the Court to GVR–grant, vacate, remand–the case without oral argument.  The Court disagreed and ordered oral argument.

With the Tenth Amendment and Article I limits swirling in the air these days, it is striking to see the SG in this case on the same side as Bond’s other amici: Alabama, Colorado, Florida, South Carolina, Texas, and Utah (all parties to the health care challenge awaiting decision in Florida); CATO Institute; Gun Owners of America; and the Eagle Forum.

Ultimately, this case is about Bond’s standing to bring her Tenth Amendment challenge, not the merits of that challenge.  Still, this case is a thorny thicket of jurisprudential themes.  Textually, the law does apply to Bond.  But will the patent absurdity of this law’s use against Bond compel the Court’s more textualist justices to put aside their interpretive principles?  Perhaps because this question is embedded in a contest between conservative values–deference to federal law and order efforts versus the commitment to a limited federal government–the Court’s right flank may with an easier conscience forego the letter of the law for its more equitable spirit towards Bond.

The oral argument itself may simply be a formality so that someone may argue for the wisdom of the position that the United States has since abandoned rather than GVR the case without the dignity of a proper adversarial process.  That someone who the justices assigned to adopt the orphaned argument for the Government is Stephen R. McAllister, former state solicitor general of Kansas and dean of the the University of Kansas’s law school.  Accordingly the advocates, like the arguments they will be making, will embody a clash of legal conservatism: McAllister and Clement launched their careers from clerkships in the chambers of Justices Thomas and Scalia, respectively.

Bond brings layer upon layer of exciting stuff, from its own facts and law to its place in the moment’s larger legal-political milieu.  I guess in lieu of attending the oral argument, I will just have to inspire myself with Bond’s focused rage and sophisticated legal arguments so to unleash the fury on the bar exam.

Greenhouse & The Roosevelt Rubicon, Redux

Linda Greenhouse has a compelling Opinionator column today at the New York Times that concludes that Chief Justice Roberts, not Justice Kennedy, may be the key vote in the individual mandate cases that will ultimately come before the Court.  Thus continues the Great 2010 F1@1F-Greenhouse Mind-Meld.

Reminding readers that Roberts’s mentor and predecessor, Chief Justice Rehnquist, aborted his own “federalism revolution” in 2003’s Nevada Department of Human Resources v. Hibbs, Greenhouse goes on to examine Roberts’s own role as the fifth vote to last year’s broad, Breyer-written federalism case, United States v. Comstock.  She concludes:

In his decision this week, Judge Hudson also mentioned the Comstock case, endeavoring to show why it didn’t save the statute. In my view, his effort to wish the case away was unpersuasive, but my view is not the one that matters. The view that ultimately may count the most is that of Chief Justice Roberts. As everyone knows, he was once William Rehnquist’s law clerk. So my question, as the health care debate continues on its path to the Supreme Court, is this: When John Roberts thinks about his former boss and mentor, which Rehnquist does he see? The one who started the federalism revolution, or the one who ended it?

Without my gunning for her attention (a/k/a “the Greenhouse Effect) and surely without her looking to F1@1F, Greenhouse and I have been on the same wavelength, absent reference to Rehnquist’s ghost, for nearly a year now.

F1@1F in January:

For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.

Greenhouse in March:

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

F1@1F in May, post-Comstock:

Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.

After Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the individual mandate.  Before oral argument in EMA, no one could see any daylight between Roberts’s robust First Amendment opinion for the Court in Stevens and the similar violence-as-obscenity facts in EMA, but Roberts made clear from the bench that he believed that Stevens, however sweeping in its language striking down Congress’s ban on depictions of animal cruelty, did not touch the constitutionality of California’s ban on the sale of violent video games to minors.  Accordingly, in the health care cases, Roberts already has a blueprint in Judge Hudson’s decision for distinguishing Comstock away, however apposite Comstock might seem.

Still, history and politics will be sitting like massive gorillas in the room–indeed, every room: chambers, conference, court–when this case finally reaches the Court.  Not only would a decision against the mandate mark the Court’s deepest incursion into pre-1937 territory since, well, 1936, but it would also come during a Presidential Election year.  A conservative majority ruling against the liberal incumbent’s signature first-term legislation will be an inter-branch collision not seen since, you guessed it, 1936.  The decision itself will fast become campaign fodder for Obama to cast the Court as unprincipled political actors hell-bent in their conservative activism to collide with the elected branches and stand athwart the forward march of history screaming “NO!”

How unseemly it all could be.

And let’s not forget that unlike Citizens United, which sat alone on last term’s docket among a bunch of less-than-massive cases, the health care cases may very well reside on the same docket as the Prop 8 case, the University of Texas affirmative action case, the Arizona immigration case, and maybe a Nebraska abortion case.  The Court will have to pick its hot button to push in a deeply political moment, and I can’t see the Chief selecting the one that reduces to rubble a cornerstone of modern American jurisprudence.

The Future is Here

This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night.  In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.

Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:

Either Justice Alito or Justice Sotomayor has been a part, if not an author, in every one of those opinions, all but one dissents from denials of certiorari.

This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor.  At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.

Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility.  They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas.  Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean.  Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.

Alito and Sotomayor, on the other hand, are their sides’ enforcers.  Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle.  In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded.  Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action.  Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America.  It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.

The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it.   For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements.  But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.

This piece is cross-posted at The CockleBur.

Whither Incandescence?

Professor Noah Feldman has written a column at Slate that asks whether the reputations of Justices Sotomayor and Kagan will one day occupy the same rarefied air as those of Justices Black and Frankfurter.  The comparison, extrapolated from a single Sotomayor dissent from denial of certiorari in a habeas case this term and nothing at all from Kagan, seems little more than an attempt to peddle his new book, Scorpions: The Battles and Triumphs of FDR’s Great Supreme Court Justices, in which he explores the rivalries and relationships of Justices Black, Frankfurter, Douglas, and Jackson.

I am eager to read Feldman’s book–I just badgered Georgetown’s law library today about when it is slated to arrive–because I have long been fascinated by the Court’s primordial ideological oozing between 1937 and 1954.  FDR appointed nine justices, all supporters of the New Deal’s constitutionality.  They helped vanquish conservatism as it was known and realign partisan politics such that both Republicans and Democrats would support, or at least did not reject, the New Deal for the next half-century.

Beyond burying Lochnerism, however, the nine “young” men were left to their own devices in molding a jurisprudence for the modern era, when end of the Depression began the fraying of FDR’s big tent.  World War II led to questions about executive power.  The start of the Cold War returned to the Court’s docket questions of free speech rights of political dissidents.  And postwar America, after destroying the Nazis in Europe, was finally forced to reckon with its own racist regimes.

The greatness of these questions required great answers.  And those answers, from judicial restraint to strident activism, from originalism to living constitutionalism, all variations on even older themes of principle versus pragmatism, remain with us today.

So I found myself puzzling over Feldman’s concluding paragraph:

[O]ne lesson of Roosevelt’s court—more relevant than ever—is that strong rivalries and personalities make great justices. No fewer than four of Roosevelt’s appointees—Black, Douglas, Frankfurter, and Jackson—became towering figures in judicial history. In recent years, we have had on the left and center polite justices who do not vie for leadership—and who do not produce comparably incandescent constitutional ideas or judicial opinions. As we are beginning to see, the new justices on the Roberts Court have the chance to do better. The first move was Sotomayor’s. Will Kagan go next?

Strong rivalries and personalities are not enough to make great justices.  The times must also require greatness.  And greatness does not come by playing defense, for which the Court’s liberal wing has been increasingly relegated since the 1970s.  Meanwhile, the left’s big offensives are towards full gay equality and death penalty abolition, and getting there depends, at least for now, on Justice Kennedy’s sense of his own greatness.

It’s hard to see right now when, if ever, the next great political realignment will occur.  History says such realignments revolve around one great issue, and we’ve had only three: Revolution, Civil War, Depression.  Gay rights and the death penalty, however huge they are for those in the arena now, are not epoch-defining issues that, once resolved, will bring us into a brave new world both politically and jurisprudentially.  For his part, Feldman, in a New York Times Magazine article over the summer, proposed the “rediscovery” of liberal economic jurisprudence as a way to create room for the left’s greatness on the Court, but there’s a difference between quoting Holmes and Brandeis and being Holmes or Brandeis.  Similarly, the conservative justices will be revisiting history, not writing it anew, if they follow the right’s flirtation with neo-Lochnerism into the death of Obamacare, and finally achieve the end of affirmative action and the reversal of Roe.

This is not to say that Sotomayor and Kagan, or Roberts and Alito, will not rise to the greatness of their most incandescent predecessors.  But I’d rather have a bench full of moderates often politely–and, on occasion, forcefully–making inevitable progress in our imperfect, somewhat stable society than suffer through the doom and gloom that gives birth to a few squabbling greats.

This piece is cross-posted at The CockleBur.

Perry Brief Bonanza

On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution.  Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month.  The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.

Yesterday, the opposition amicus briefs–that is, those arguing to uphold Walker’s decision–flooded in.  Prop8TrialTracker.com has compiled 24 of the briefs here.

I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief.  I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap.  If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.

In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:

Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.

Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically.  But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:

The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”

Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination.  “In light of these repeated legislative and ballot-box defeats,” the brief states,

it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women.  Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.

The brief goes on to tackle the Ninth Circuit precedent standing in its way.  In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny.  But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”

The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:

The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers.  The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”

Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled.  Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.

Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation.  But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom?   Here, there is some equivocation.  As Walker wrote:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.  Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test.  Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension.  That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws.  But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.

As I wrote on the night of Judge Walker’s decision:

[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall.  Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades.  Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.

In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously.  After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense.  The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America.  Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity.  Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.

Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s.  I have doubts that his liberal colleagues will once again join him in ducking the standard of review.  If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws.  At worst, he will be committing unprincipled, political cowardice.

My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved.  However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself.  If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force.  Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.

Corporate Personhood Redux

Among the fourteen cases the Supreme Court added to its docket today, FCC v. AT&T most caught my attention.  The case asks whether corporations can claim personhood so to qualify for the Freedom of Information Act’s Exemption 7(C), which exempts from mandatory disclosure records collected for law enforcement purposes when such disclosure could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”

The Third Circuit ruled that because the statute defined “person” as an “individual, partnership, corporation, association, or public or private organization other than an agency,” then corporations were entitled to 7(C)’s “personal privacy” exemption.  The FCC’s petition for certiorari, signed by then-Solicitor General Elena Kagan–who will be recused for this case–argued that the Third Circuit’s ruling upset a thirty-five year understanding that the “personal privacy” exemption only applied to individuals.

To bolster their case, the FCC cited then-Professor Scalia’s 1981 testimony before Congress that Exemption 7 did not protect “associational or institutional” privacy from mandatory disclosure upon request.

Although this case will ultimately turn on statutory construction, it still hearkens back to last year’s Citizens United, which established that corporations are legal persons whose independent campaign expenditures cannot be limited under the First Amendment’s free speech protections.

What makes this case even more interesting is that next Tuesday, the Court will hear argument in NASA v. Nelson, which asks whether a government employee has a right to “informational privacy” that allows him to withhold information in government background checks.  Specifically at issue is whether an employee, once established he has done drugs, may then refuse to disclose if he has obtained treatment for the drug use.  Justice Kagan will also recuse herself in this case.

Informational privacy is hardly a deeply established fundamental right.  Even if it were, and if the Court’s conservative bloc embraced it, drug-tinged cases tend to soften the justices’ principles.  In Gonzales v. Raich, Justice Scalia voted to approve Congress’s Commerce Clause power to ban the personal cultivation of medical marijuana, despite his earlier votes to restrict the Commerce Clause’s scope and later votes to cabin the power of the Necessary and Proper Clause.  And in Morse v. Frederick, Chief Justice Roberts, who takes a largely robust view of the First Amendment, found a high school student’s unfurled banner reading “BONG HiTS 4 JESUS” to be unprotected pro-drug speech under the Court’s First Amendment-for-students doctrines.

In contrast to AT&T, the issue in NASA is not statutory, but constitutional.  Further, it is grounded in an individual’s Fifth Amendment Due Process rights, not in one’s First Amendment rights, which was the flashpoint of last year’s corporate personhood contest.  Still, if the Court rejects an individual’s right to informational privacy, but embraces a corporation’s ability to withhold information under the personal privacy exemption, expect some commentators’ heads to explode.

The Next Roberts Court: Affirmative Action

Michael Kirkland of UPI wrote yesterday about Fisher v. University of Texas, the affirmative action case currently before the Fifth Circuit.  I noted this case in a link at the top of my last post, and had originally gone on to discuss it, but I decided to keep that post focused on the abortion laws in Nebraska.  Now’s as good a time as any to continue my thoughts on the hot buttons that may reach the Court in the next election cycle, and how the Court may handle them:

Affirmative action in higher education is the remaining hot-button issue on which Kennedy and O’Connor disagreed, but has yet to be tested since Alito joined the Court.  When O’Connor sided with the liberal bloc in determining that the University of Michigan Law School’s race-conscious admissions policy survived strict scrutiny in 2003’s Grutter v. Bollinger, Kennedy dissented.

Although Kennedy is not hostile to affirmative action itself, he believes the Grutter majority watered down the Court’s strict scrutiny standard formulated in Justice Powell’s concurrence in 1977’s Bakke, which approved of a narrowly tailored use of race to achieve the compelling state interest of holistically diverse student bodies in higher education. In other words, Kennedy approved of the use of race, but would give higher-ed affirmative action schemes more searching review than the Grutter majority had demonstrated.  As he concluded in his Grutter dissent:

If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.

Whether or not Kennedy believes that UT’s consideration of race for applicants beneath its top-10% auto-admit program satisfies his application of strict scrutiny, what is certain is that his application of strict scrutiny will supersede Grutter as precedent.

If Kennedy rejects UT’s policy, he will be the limiting agent on the conservative bloc in the Roberts Court’s first foray into higher-ed affirmative action.  Dependent on Kennedy for the fifth vote to invalidate UT’s race-conscious admissions policy, the conservative bloc could not go the whole Thomas and strike down all consideration of race.  After all, Kennedy, in giving the conservative bloc its fifth vote in 2007’s Parents Involved, refused to sign onto Roberts’s opinion declaring that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  This maximalist statement was certainly not only meant for public high school admissions schemes.

Nevertheless, Kennedy’s accepting UT’s policy will have the same constitutional effect as his rejecting it.  In any scenario (assigning the majority opinion to himself and strong-arming the liberal bloc into joining him lest he change his vote; assigning the majority opinion to himself and losing his majority, thereby writing for himself in a 4-1-4 decision; assigning the majority opinion to a justice he believes to be simpatico who manages to keep him in the fold; assigning the majority opinion to another justice unwilling to revisit Grutter, compelling Kennedy to write for himself), Kennedy will bury–or, at the very least muddy–Grutter.

The justice to watch, then, will be the Chief.  In Parents Involved, he showed his hand.  He wrote more aggressively than he had written in Wisconsin Right to Life,  in which he refused to follow Kennedy, Scalia, and Thomas towards striking down the same provision of the McCain-Feingold Act that he ultimately voted to put out of its misery this past year in Citizens United.  By making his antipathy to affirmative action so clear in Parents Involved, then, the Chief does not leave himself the same room to backpedal on affirmative action as he had given himself to press onward with campaign finance.

Yet might he want to cast his lot with Kennedy in Fisher?   Roberts’s best case scenario for effectively ending affirmative action is to work with Kennedy to make its scrutiny impossibly restrictive rather than stand on the sidelines calling for affirmative action’s immediate demise.  Roberts can better retain control over his Court’s direction by placing himself in the position to put his own stamp on Kennedy-dominated jurisprudence and placing seeds of doubt within the opinion that at present will be within Kennedy’s boundaries but in the future could be used, should the Chief have a majority, to bring upon affirmative action’s demise.

But I don’t think this will happen.  I take the Chief’s position in Parents Involved at face value.  He will stand firm in his opposition to affirmative action, extending his antagonism to its use in higher education.  In doing so, he will be mindful of his own words in his Citizens United concurrence, where he stated that

if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.

Kennedy had hotly contested the Court’s approval of campaign finance restrictions since he had joined the Court, refusing the entire way to give any weight to disagreeable precedent.  Ultimately, that resulted in the Court’s overturning not only 2003’s McConnell, the most recent facial affirmation of campaign finance rules, but also 1990’s Austin v. Michigan, the case of original sin for Kennedy and his Citizens United majority.

Having provided the justification for such principled intransigence on disagreeable lines of precedent, Roberts might rather dig his heels in and argue that the problem is not simply Grutter, as Kennedy will suggest, but Grutter‘s very root, Bakke.  This position will not prevail with the current court, but if elections work in Roberts’s favor, he will be able to cite his own hot contestation–in which he and Alito will have joined Scalia and Thomas’s decades of protest–in striking down affirmative action well before Justice O’Connor’s suggested 25-year sunset provision in Grutter.