Balkinization  

Thursday, June 26, 2003

JB

Supreme Court Strikes Down Texas Sodomy Law, 6-3

This is a great day for liberty in the United States.

The opinion in Lawrence is by no means flawless, but it is much more than I think most supporters of equal citizenship for gays might have hoped for from the current Court.

Justice Kennedy wrote the majority opinion, joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer. Justice Sandra Day O'Connor concurred in the judgment.

The opinion is based on an extension of the right of privacy. Bowers v. Hardwick is overruled.

Justice Kennedy's opnion is noteworthy in several respects. First, he spends some time attempting to undermine the historical claim relied on in Bowers v. Hardwick that there is a long tradition of prohibition of same sex sexual relations; he argues that sodomy laws are of comparatively recent invention. Second, he points to decisions in other countries, including the U.K. as well as the European Court of Human Rights, as evidence that Western views about homosexuality have changed. Third, he argues that the reaffirmation of the right of privacy in Casey and the Court's decision in Romer v. Evans have undermined the precedental strength of Bowers, and that when a precedent's strength is undermined in this way, it is appropriate for the Court to look to scholarly commentary and the decisions of other constitutional courts. Finally, Kennedy argues that Bowers was wrong when it was decided, and it is wrong today.

Justice O'Connor concurred in the result, arguing that laws which are premised on mere moral disapproval of homosexuality fail the test of minimum rationality. This would also seem to reject a basic premise of Bowers v. Hardwick, which argued that the rational basis for Georgia's ban on sodomy was the legislature's moral disapproval of sodomy. O'Connor argues that Bowers involved general disapproval of sodomy; here, she insists, a ban only on same-sex sodomy must be nothing other than moral disapproval of homosexuals. In fact, I think this argument, which attempts to achieve a much narrower holding than the majority, is much more complicated than O'Connor thinks it is, for she is assuming a clear connection between what one does (engage in same sex relations) and who one is (a homosexual). That is, ironically, the very same assumption that Justices White and Burger made in Bowers.

Justice Scalia wrote the dissent, joined by Chief Justice William H. Rehnquist and Justice Clarence Thomas.

Justice Scalia felt very strongly about the result, and read his dissent from the bench: "The court has largely signed on to the so-called homosexual agenda," he argued, although he also insisted that he has "nothing against homosexuals, or any other group, promoting their agenda through normal democratic means." As in his previous dissent in Romer v. Evans, Scalia argued that "The court has taken sides in the culture war."

Although that argument sounds superficially plausible, the Court also took sides in the culture wars in Brown v. Board and in the 1970's sex equality cases. That in and of itself is not a sufficient reason to reject the decision.

In fact, the Lawrence decision continues a well known practice of the Court, which is to follow larger political and cultural trends, and to declare a legal prohibition or practice unconstitutional only when most states have already repealed or greatly limited it.

In 1960, for example, virtually every state had an anti-sodomy law. Since then, these statutes have been repealed or overturned in 37 states. 13 states still have some form of sodomy laws on the books, 9 (Alabama, Florida, Idaho, Louisiana, Mississippi, North Carolina, South Carolina, Utah and Virginia) ban all sodomy, 4 (Texas, Kansas, Oklahoma and Missouri) ban only same sex sodomy. All of these laws are likely unconstitutional in the wake of Lawrence.

In this sense the Supreme Court is much less antimajoritarian than is commonly assumed. To be sure, it clearly overturns decisions by particular majorities in states. But what is really does is impose a single national rule of minimal civil rights protection on the states that have contrary views. As I mentioned before, this is a fairly characteristic practice of the Court. Much of the work of the Warren Court, for example, can be seen as imposing national standards for criminal proceedure on recalicitrant states, mostly in the South, which had often cut corners where black defendants were concerned and violated their basic rights. It is probably more correct to say that Lawrence is antifederalist than that it is antimajoritarian.

The Supreme Court's decision to base Lawrence on privacy grounds rather than equal protection grounds (equality is what the petitioners originally argued) actually is a more modest change in the law than it first appears. By grounding gay rights in privacy rather than equality, the Court does not have to hold that gays are a suspect class or that classifications based on sexual orientation are entitled to heighted scrutiny. And it also holds off, for the time being, a decision about whether same sex marriage violates the Constitution.

Ironically, at the same time, basing Lawrence on privacy rather than on equal protection has some advantages for those members of the queer community who do not wish courts to view all sexual orientation minorities as a single group. An equality holding would push gays toward a civil rights paradigm based on an analogy to blacks and women. Instead, the queer community has been arguing for their right to conduct their sexual lives as they see fit, free from government sanction, thus allowing them to experiment with different forms of attachment and different forms of sexuality. A decision grounded in liberty rather than equality is more hospitable from this perspective.

Nevertheless, Justice Kennedy went out of his way to argue that the privacy right recognized in Lawrence is limited. It applies only to consensual conduct between adults, it does not encompass prostitution or public sexuality, or coerced sex, or sex with minors, (or, indeed, any of Rick Santorum's parade of horribles) nor does it give any right to same sex marriage or legal recognition of same-sex relationships. It is clear that this Court, at least, is not willing to say any more than that what homosexuals do in the privacy of their own homes is up to them. Of course, that's not the same thing as full equality of citizenship, and Kennedy's insistence on what people do in their "private lives" may eventually be turned to undermine the rights of gays to the extent that they are not fully free to express their sexual orientation in public. But it is a start.

Finally, Justice Kennedy's decision closes with a passage that sounds pretty much like an endorsement of living constitutionalism. He argues that the framers of the Due Process Clauses of the Fifth and Fourteenth Amendments "knew that times can blind us to certain truths and that later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom."

That's not very orignalist of Justice Kennedy, if I may say so.


UPDATE: Phil Carter discusses what this means for the military ban on gays. Because lower courts have relied so heavily on Bowers to justify the military's policies of exclusion and "don't ask don't tell," it seems likely that the constitutional underpinnings of these decisions will now collapse. But it will take some time.


Wednesday, June 25, 2003

JB

The Calling of a Prophet (Or is it Profit)?

Apparently it's not Karl Rove who is behind President Bush's policies, as explained in this article from Ha'aretz:

According to [Palestinian Prime Minister Mahmoud] Abbas . . . Bush said: "God told me to strike at al Qaida and I struck them, and then he instructed me to strike at Saddam, which I did, and now I am determined to solve the problem in the Middle East. If you help me I will act, and if not, the elections will come and I will have to focus on them."

I for one am particularly glad to learn that George W. Bush has been acting on direct orders from Almighty God. If he had been relying on his own intelligence, I would be deeply worried that he was running the country into the ground.


Of course, it is always possible that God is hardening Bush's heart, as he did with Pharaoh.

Nah, wouldn't happen.


We all know he's a compassionate conservative. There's no chance that Bush could be hard hearted.


(But if you see any frogs or locusts, please let me know as soon as possible.)



Tuesday, June 24, 2003

JB

See Dick Say Stupid Things

Glenn Reynolds wants to know if any left wing bloggers think that the following remark of Dick Gephardt is stupid:

"When I'm president, we'll do executive orders to overcome any wrong thing the Supreme Court does tomorrow or any other day "

On behalf of all lefty bloggers out there, let me say that if Gephardt meant to say that a president could unilaterally overturn a Supreme Court construction of the Constitution through an executive order, what he said was stupid. I'd be happy to give him a crash course in constitutional law, or even send him a copy of my constitutional law casebook (shameless self-promotion).

If all he meant was that he would try to migitate the effect of Supreme Court decisions he does not like through various executive orders, (which can sometimes be done constitutionally, especially if the decision in question is statutory or a construction of administrative regulations rather than based on an interpretation of the Constitution) he expressed himself very badly indeed and should work harder at being more precise and not misleading his audience.

Bryan Preston, however, wants to argue that Gephardt's remark is as bad as Trent Lott's remark that the country would be better off if Strom Thurmond had been elected President in 1948. With all respect for Bryan's undoubted love of our constitutional system, I'm afraid I can't go that far. Gephardt's remark shows that he panders to constituencies and has only a passing acquaintance with the separation of powers. Lott's remark shows that he panders to constituencies by using racist code. Gephardt should be ashamed of himself for telling folks that he can do what he has no power to do. Lott should be ashamed of himself for playing to racist sensibiilties.

JB

How Honest is the Court's Decision in Grutter?

Stuart Buck points to some very puzzling language in Justice O'Connor's opinion:

The Law School's educational judgment that such diversity is essential to its educational mission is one to which we defer. The Law School's assessment that diversity will, in fact, yield educational benefits is substantiated by respondents and their amici. Our scrutiny of the interest asserted by the Law School is no less strict for taking into account complex educational judgments in an area that lies primarily within the expertise of the university. Our holding today is in keeping with our tradition of giving a degree of deference to a university's academic decisions, within constitutionally prescribed limits. See Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985); Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 96, n. 6 (1978); Bakke, 438 U.S., at 319, n. 53 (opinion of Powell, J.).

Stuart points out that this makes little sense if the court is applying the strict scrutiny that it says applies to all racial classifications, and regardless of whether whites or minorities are harmed or benefitted.

[N]ever have I seen a case in which a court announced that an entity accused of racial discrimination was to be given deference as to its claim that the discrimination at issue produced positive benefits. Supporters of affirmative action would do well to think hard and long before applauding this sort of analysis. (Unless, that is, the Court takes the unprincipled route of limiting the application of deference to this particular case.)

[Is that last parenthetical a reference to Bush v. Gore?]

I also found the language about deference rather striking, although for somewhat different reasons. The issue at stake in Grutter is whether Michigan is unconstitutionally discriminating on the basis of race. The Court seems to be giving them the benefit of the doubt because, presumably, it thinks that Michigan's decisionmaking process is benign rather than invidious.

I think this demonstrates, rather conclusively, that the majority is not applying strict scrutiny, even if they say they are. And it also seems to demonstrate that the Court has effectively adopted a distinction between benign and invidious motivation even though they deny it. Both of these positions are inconsistent with what the Court says in Adarand. (Although, I must point out, even Adarand is not really consistent with the rule it announces, because had the government contracting policies in that case favored whites instead of minorities, the Court would not have sent the case back for further hearings to see if the policy satisifed strict scrutiny but would have struck the policy down immediately.)

Thus, it seems that to this extent Justice Marshall and Justice Brennan's position in Bakke has won out, although nobody is willing to admit it. Even though Stuart and I probably don't agree about the result in Grutter, I am sure that he agrees with me that it would be better to be honest about what the Court is doing rather than to hide behind these particular legal fictions.



Monday, June 23, 2003

JB

Do Republicans Have Litmus Tests, Too?

Perish the thought.

But according to this story from the New York Times, at least some of them do:

The Supreme Court rulings on the University of Michigan admission policies set off a wave of consternation among conservative groups today. As a result, several officials of the groups plan to demand that President Bush choose someone whose opposition to affirmative action is beyond doubt for a vacancy on the court. . . .

Many conservative public policy groups and conservative political figures have urged the adoption of a wholly race-blind policy that shuts the door completely on any advantage for race or ethnicity. There is great scorn among those conservatives who form an important part of Mr. Bush's political base for any equivocation on such issues. . . .

"It's outrageous that the majority in favor of these racial preferences was formed by Republican appointees," said Clint Bolick, vice president of the Institute for Justice, another conservative group that challenged the Michigan programs.

"Conservatives will want to make sure that anyone appointed to the court in this administration is a strong and sure opponent of racial preferences," Mr. Bolick said, adding that many do not believe that [Alberto R. ] Gonzales [the White House counsel] fits that description.

Speaking on the condition of anonymity, a lawyer who advises the White House on judicial nominations said Mr. Gonzales's position of openness to diversity is now an even greater problem with Mr. Bush's conservative supporters.


In fact, there is nothing suprising here. Since Richard Nixon, the Republican Party has been pursuing a strategy of partisan entrenchment-- attempting to place judges on the federal bench who will take conservatve stands on important issues like race relations, church and state, abortion, criminal procedure and federalism. The goal is to turn back decisions of the Warren and early Burger courts that conservatives cannot abide and to push the Constitution in still more conservative directions. (Indeed, one of the ironies of judicial nominations of recent vintage is that as the Republicans have been taken over by the party's vibrantly conservative southern and western wings, and thus become much more conservative in the past twenty years, the earlier Republican judicial appointments of Presidents Nixon and Ford have seemed altogether moderate by comparison.)

The quest to take back the courts from the wicked Warren Court and its liberal philosophy became even more urgent under President Reagan, and George W. Bush has pushed it even harder, refusing to compromise with Democrats, and thus helping contribute to the current unpleasantness over judicial nominations.

Until very recently, Republicans have simply cared more about the average judicial appointment than the Democrats have, and they have fought long and hard to put people who think the right way (in both senses of that term) on the federal bench. Although this is usually phrased in terms of appointing judges who will abide by the Framers' intentions and will uphold the law and not impose their personal perferences, the politics of Republican judicial appointments, particularly since Reagan, have been abundantly clear.

Nevertheless, President Bush, who is a shrewd politician, well understands that even as he attempts to pack the Court with judges whose beliefs he admires, he must keep public opinion in mind in making judicial appointments at the Supreme Court level (by contrast, very few members of the public pay much attention to lower court nominations). His father understood this point too, which, I think, explains both Souter's appointment and Thomas'. (Souter was more acceptable because unknown, Thomas was expected to be more acceptable because although he was very conservative he was also African-American).

I have long believed that it is not in the interest of the Republican Party for Republican-appointed judges to overrule Roe v. Wade. (See my discussion of the Supreme Court and party coallitions). Nor, for that matter, is it in the interest of the Republican Party for those judges completely to outlaw affirmative action in college admissions (government contracting is another matter). Getting rid of Roe and affirmative action through judicial fiat simply bolsters the Democratic coallition. I'm sure that Bush and Karl Rove understand this perfectly.


UPDATE: Brett Bellmore wants to know whether it is my view that Republicans were the first to engage in partisan entrenchment. Goodness no. The most important example is Democrat Franklin D. Roosevelt's stocking the courts with pro-New Deal judges, who eventually produced the New Deal revolution in constitutional law. Partisan entrenchment has been a key engine of constitutional change throughout the country's history, as Sandy Levinson and I have argued. In fact, partisan entrenchment is neither a Democrat or a Republican invention. It is a Federalist invention. It begins with the Midnight Judges Act of 1801, in which the lame duck Federalist Congress tried to stock the federal courts with their ideological allies. That attempt produced the famous case of Marbury v. Madison and the equally important if less well known case of Stuart v. Laird. The most lasting effect of this partisan entrenchment was none other than John Marshall himself, who continued to promote nationalist ideas long after the party that promoted him to the Chief Justiceship had been disbanded.

JB

Supremes Affirm Michigan Law School Affirmative Action Policy, 5-4, Strike Down Undergrad Policy, 6-3

All in all, a big victory for institutions of higher education, which can engage in race conscious affirmative action as long as they engage in individualized determinations and do not use point systems to ensure a specific number of minority admissions.

The Law School policy, which focuses on achieving a critical mass of minority students, was upheld, 5-4.

Justice O'Connor wrote the majority opinion in the law school case. (Available here.) She reaffirmed the central premise of Bakke: "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."

The lineup was the expected one: Stevens, Souter, Ginsburg and Breyer joined O'Connor. The dissenters were Rehnquist, Scalia, Kennedy and Thomas.

In the undergrad case, (available here) Chief Justice Renquist wrote the majority opinion. O'Connor and Breyer switched sides. Breyer concurred in the judgment but did not join Rehnquist's majority opinion. Stevens, Souter, and Ginsburg dissented.

The result, one hopes, is a set of two opinions that will allow schools to know what they can do and cannot do in affirmative action programs.

Several things are noteworthy about these opinions.

The Court reaffirmed Justice Powell's opinion in Bakke. Justice O'Connor, who has been concerned about treating students as individuals rather than as members of groups, focused on Justice Powell's concern with individualized determinations. As a result, she joined the majority in the undergrad case, where, Chief Justice Rehnquist said, the university failed to offer individualized determinations.

Because they require individualized determinations, Grutter and Gratz together will require state universities to spend extra money. The result benefits elite schools and private colleges with relatively fewer applicants and imposes more costs on large state universities that have many, many more applicants every year.

O'Connor's opinion in Grutter also made clear that the states do not have to adopt race netural alternatives (like ten percent plans, which are not really race neutral in any case) before they consider race conscious affirmative action in admissions. This is a rebuff to advocates of race neutral plans who insisted that if strict scrutiny applied to race classifications, then states would have to exhaust all possible race neutral methods of increasing minority enrollments before they considered race conscious affirmative action programs. Indeed, Justice Kennedy's dissent in Grutter says that he does not believe that what Justice O'Connor applies in Grutter is really strict scrutiny at all.

Finally, Justice O'Connor's opinion states near the end that she expects that 25 years from now race conscious affirmative action plans will be unnecessary and therefore unconstitutional. This is a familiar theme in her opinions-- she wants race conscious measures to be temporary, with sunset provisions, and she is deeply suspicious of plans that have no foreseeable endpoint.

Nevertheless, it is hard to know what to make of her statement in Grutter. Surely she is not saying that plans automatically become unconstitutional after 25 years. The best interpretation is probably that she wants a future Court to revisit the constitutionality of affirmative action plans if they go on too long. In other words, she is laying down a marker for a future Supreme Court someday to put an end of race conscious affirmative action in higher education, akin to the Court's retrenchment in school desegregation in 1990's cases like Pitts and Dowell. That leaves the door open for the Court to reverse Bakke someday, just not for many years. And it reflects Justice O'Connor's well-known tendency toward judicial compromise. (Update: I see that my friend --and former O'Connor law clerk-- Eugene Volokh concurs with this assessment of what O'Connor was doing in mentioning the 25 year period).

Most institutions of higher education should be breathing a sigh of relief at these two opinions. They allow most elite institutions to go about their business as before. They impose higher costs on big state universities, but many of these universities are already so firmly committed to affirmative action that they will probably gladly take on the additional costs. Essentially the Court has said that affirmative action in higher education is constitutional, as long as individualized determinations are made and specific markers or point systems virtually guaranteeing predetermined numbers of minorities are not used.

JB

Jane's Law and the Problem of Self-Reference

Jane Galt of Assymetrical Information offers the following pithy assessment of contemporary partisanship:

Jane's Law: The devotees of the party in power are smug and arrogant. The devotees of the party out of power are insane.

Which leads to the obvious question: Which is Jane then, smug and arrogant or insane?


Sunday, June 22, 2003

JB

Hey George, You Put On the Flight Suit a Bit Too Soon

Jim Lobe's story from Inter Press explains:

It was just 45 days ago that President George W Bush, in a campaign-perfect photo-op, landed on the USS Abraham Lincoln off the coast of California, swaggered across the deck in full flight gear, and declared that ''Operation Iraqi Freedom'' had liberated that nation from the evil clutches of former President Saddam Hussein.

But within six weeks, the U.S. Central Command in Baghdad has unleashed a new campaign with a far more ominous name. ''Operation Desert Scorpion'' is designed, in the equally ominous words of Monday's 'Wall Street Journal', ''to avoid a prolonged guerrilla campaign'' that appears to be underway, at least in what is now referred to as ''the Sunni Triangle'' of central Iraq.

It is clear that the 10 weeks of chaos that followed the collapse of Hussein's government in early April have taken a serious toll on U.S. hopes that Iraqis, either out of fear and awe of Washington's military might or out of gratitude, would simply do what they were told by their liberators.


To this point many Americans have been so overjoyed that we won a quick and decisive victory in Iraq that they have not been too concerned that the Administration has failed to find the weapons of mass destruction that were the stated justification for the war.

But what happens if it turns out the war isn't over? What if turns out that we didn't win an easy victory, but are in fact in for a much longer, more difficult war of attrition, in which many more American soldiers will be killed or wounded?

Perhaps then Bush's dressing up in the costume of a military man, strutting around the deck of the Abraham Lincoln, and announcing the war is over will look arrogant, foolish, and shortsighted.

Perhaps it already does.


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