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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Today’s opinions from the Supreme Court highlight how the
conservative majority is reverting to judicial practices before the New Deal,
but not in the way many commentators expected.
The justices are not restoring ancient doctrinal categories or dramatically
cutting back on civil liberties. Rather,
as was the case in 1915ish, the big winner is business. When business is not involved, the judicial
majority is often at least as liberal if not slightly more liberal than the
rest of the ruling regime.
As much historical
scholarship has demonstrated, the Supreme Court before 1932 was often far more
liberal than Congress or the President on what we now call civil rights and
civil liberties issues. During the first
third of the twentieth century, the court struck down peonage laws, declared
unconstitutional local ordinances mandating residential segregation, and voided
a few restrictions on African-American voting.
Fourth, Sixth and Eighth Amendment law moved in more libertarian directions
(often with more conservative than liberal support). Of course, lots of lousy decisions got handed
down from 1900-1932. Nevertheless the
general point is that on most civil rights and civil liberties issues, where
business was uninvolved, the justices were at least as liberty supporting as
any other institution in the national government.
word “union,” however, and conservatives became the conservatives who have been
reviled throughout history. Unions for
all practical purposes enjoyed a forty year losing streak from 1895 (In re
Debs) to 1936 (Carter v. Carter Coal Co.).
The issue did not matter much.
Unions lost when the issue was federal judicial power to enjoin strikes,
federal legislative power to prohibit yellow dog contracts, the scope of
federal anti-trust laws (baseball was exempt, but not unions) and federal power
to protect unions. If there was a union
on one side of the case, judicial conservatives voted with the other.
forward to today (or the past few weeks).
In cases where business is either uninterested or divided, the Roberts
Court has no powerful affinity for conservative positions. In the long awaited Fisher case, Justice
Kennedy, Chief Justice Roberts and Justice Alito essentially asked the lower
federal courts to take “narrow tailoring” a bit more seriously. Grutter, a decision that cites business
support for affirmative action, is reaffirmed.
This was far better than even most optimistic liberal commentators expected. In United States v. Kebodeaux, we learned that
Roberts, Kennedy, and Alito have no objections to congressional power requiring
sex offenders to register where they reside, particularly where the sex
offender was in the military. Hard to
see any business objection to that one.
As important, this term has had numerous cases involving non-business
interests where one or more conservative justice has joined the liberals to
form a majority for a moderately progressive outcome. Think, for example, of Jardines (Scalia and
Thomas join three liberals to declare the dog sniff an illegal search), the
Arizona vote case (Roberts and Kennedy join the liberals to declare that
federal law preempts Arizona’s requirement that persons produce proof of citizenship
to vote) or Alleyne v. United States (Thomas joins the liberals to declare
that facts increasing mandatory minimums must be found by a jury).
The winner today, as in most days in the
recent past, is business. All five conservatives torture a federal law in Vance
v. Ball State University when concluding that people who direct work activities
are somehow not supervisors. The result
is that when those people engage in racial (or sexual) harassment, the business
which gave them supervisory responsibilities is not liable. The pharmaceutical industry got a nice gift
from the justices when in another 5-4 vote the justices in Mutual Pharmaceuticals
v. Bartlett sharply limited state law remedies against inadequate warnings
about design defects. Finally, in
University of Texas Southwestern Medical Center v. Nassar, the same five
conservatives ruled that businesses are free to be motivated by a desire to
fire people who complain about discrimination as long as that is not the only
reason why employment was terminated.
lesson of these decisions is that all of us spend too much time on grand
constitutional law, where we have been waiting for the conservative apocalypse that
has never occurred. Business enterprise
either has little stake in such issues as abortion, same-sex marriage or
affirmative action or actually may lean somewhat in favor. In a time of legislative gridlock, the real
action is in statutory interpretation, preemption and administrative law and
here, largely out of the public’s eye, is where the conservative revolution in
law goes on apace.