an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Why Has the Roberts Court Suddenly Gone Minimalist?
What Ricci v. DeStefano, the Title VII case, and NAMUDNO, the Voting Rights Act case, have in common is that the five person conservative majority avoided doing what many commentators thought they would do: declare unconstitutional important aspects of important civil rights statutes dating back to the civil rights revolution of the 1960s. In NAMUDNO, the Court suggested (but did not hold) that parts of section 5's preclearance procedures might be beyond Congress's powers to enforce the Fifteenth Amendment. Instead it resolved the case by reading the statute to allow the municipal utility district to get out from under the requirements of section 5's preclearance requirements, thus weakening the statute's practical effect. In Ricci, the Court avoided saying that when New Haven threw out firefighter exams to avoid disparate impact liability, its action violated the Fourteenth Amendment, much less that the very notion of disparate impact liability violated the Fourteenth Amendment. It resolved the case on statutory grounds, creating new defenses against disparate impact liability in certain cases. In each case, one member of the Court's conservative majority went where the conservative majority would not go: Justice Thomas flatly stated that the Voting Rights Act was unconstitutional; Justice Scalia questioned whether disparate impact liability violated the Fourteenth Amendment.
The interesting question is why the Roberts Court stopped short in each case. Judicial minimalism is (pace Cass Sunstein), not a substantive theory of how to interpret the Constitution, but rather a prudential strategy that Justices tend to employ when they are unsure of the right answer or are otherwise on the defensive. Whatever one can say about today's conservative Justices, they do not lack certainty. So the question is why the conservative members of the Roberts Court felt themselves on the defensive and thus resorted to a minimalist approach when they could have been far bolder and made a far bigger splash.
One theory is that the Court's conservatives saw that they were in a politically weakened position and feared retaliation. The Democrats hold the Presidency and both houses of Congress. If they held parts of Title VII or the Voting Rights Act unconstitutional, both the President and Congress might retaliate. But one needs to spell out in more detail what Congress could have done by way of retaliation or why it should matter to the Justices. Congress could have re-passed parts of the affected statutes, but this would not necessarily cure the constitutional defects in the Court's eyes. If the Court wanted to strike down these statutes and stick to its guns, it could. Indeed, it might make sense for it to do so; since there may be no new conservative appointments for the next eight years, perhaps the conservative majority should strike while the iron is hot.
Another theory is that the Court's swing Justice, Anthony Kennedy, has been disproportionately influenced by the recent changes in political culture, and is now unwilling to join in 5-4 opinions he might have joined in a decade earlier. This may be why NAMUDNO is written as it is, and it may be why Kennedy received the assignment to write Ricci. But it doesn't explain why Kennedy has been influenced in ways that the other Justices have not been, other than simply to confirm that he is, indeed, the swing Justice.
A third theory is Bruce Ackerman's view that these two statutes, the Civil Rights Act of 1964 and the Voting Rights Act of 1965, are more than statutes: they are now parts of the Constitution. Hence the conservative members of the Court felt that they could not hold them unconstitutional any more than they could hold the Fourteenth or Fifteenth Amendments unconstitutional. This would explain the result, but it is doubtful that members of the conservative majority actually agree with Professor Ackerman that these statutes are amendments to the Constitution.
My theory of framework originalism would offer a slightly different account that is nevertheless consistent with the general spirit of Ackerman's proposal. It argues that these two statutes are not amendments, but they are important constitutional constructions that are characteristic of the constitutional regime in which we currently live. They are both durable and canonical constructions, which have become important symbols of America's civil rights history. They invoke the memory of Martin Luther King's fight for a civil rights bill and the police attack on civil rights demonstrators at the Edmund Pettus Bridge. They are as central to our notion of what the Federal government can do and should do as the Social Security Act or the Fair Labor Standards Act, both products of the New Deal.
If the Court had struck down elements of these two crown jewels of the civil rights era, passed by democratic majorities, this would have had powerful symbolic significance, and undermined the Justices' legitimacy, especially if the decisions had been by a vote of 5-4, with the conservatives voting to use the power of judicial review to hold key civil rights provisions unconstitutional. (Note that this is an argument about the Court's legitimacy, not about whether Congress or the President could retaliate, the first theory mentioned above.)
This does not make the Civil Rights Acts constitutional amendments, but it does make them important parts of our constitutional tradition that the American people have come to expect will be preserved over time; they symbolize important values that Americans now associate with their Constitution. The Court's legitimacy as an institution comes in part from respecting the boundaries of the constitutional tradition as the public understands them. Put differently, courts largely serve to police and to legitimate the existing constitutional regime; they only act to substantially alter it when the national political coalition supports them or urges them to do so. That is not what happened recently in American politics: the conservative movement that created a conservative Supreme Court majority has run out of steam, and the Republican Party that housed the movement was decisively rejected at the polls in 2006 and 2008. The national political coalition does not support a conservative constitutional revolution that would strike down key elements of the Civil Rights regime. If anything, change is tending in the opposite direction.
I said earlier that judges turn to minimalism when they believe that they are on the defensive. If I am correct, what put the conservative Justices (and especially Justice Kennedy) on the defensive was the assumption that they would risk sacrificing the Court's legitimacy in a climate in which neither the President nor the Congress would support their gambit and would in fact do everything possible to undermine their legitimacy.
It is worth comparing this pair of imagined 5-4 decisions to Bush v. Gore. In that case, the Court was supported by a Republican controlled Congress and a Republican President (whom they helped install). Even if the decision in Bush v. Gore seemed outrageous to Democrats, it was amply supported by the national political coalition that took power in 2000. Perhaps if John McCain had won the Presidency in 2008, the five conservatives might have risked declaring parts of one or the other of these two civil rights statutes unconstitutional. But in the current political climate, with a Democratic President and a Democratic Congress, the Court's calculations of legitimacy would have to be very different.