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 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
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
Q. What’s worse than discrimination? (A) Accusations of bigotry. (B) Stopping discrimination.
For the past couple of days I’ve been turning over in my head one important question that was part of both Shelby County and Windsor. The common question is: to what degree should the Court defer to the judgments of Congress? Apparent hypocrisy on this issue is easy to find—perhaps easiest in the case of Justice Scalia, whose Windsor dissent excoriates the majority at considerable length for impugning the judgments of “our respected coordinate branches, the Congress and Presidency” in enacting DOMA (p.19). Just 24 hours earlier, he joined the Shelby County majority in the extraordinary decision to toss aside, largely without discussion, Congress’ 15,000 page record of discrimination in support of the Voting Rights Act renewal.
However, on a different reading, those two votes are perfectly consistent. On this second reading, the troublesome thing in Windsor to Justice Scalia is not overturning the considered judgment of Congress, but rather, impugning legislators’ motives as being in some way bigoted or racist. On this second reading, the problem with the Windsor majority was that in holding that those enacting DOMA acted from a “bare . . . desire to harm a politically unpopular group,” the majority unfairly portrayed that Congress (and President Clinton, I guess) as the “unhinged members of a wild-eyed lynch mob” (p.19). That’s unfair, Justice Scalia says, adding: “Bear in mind that the object of this condemnation is not the legislature of some once-Confederate Southern state (familiar objects of the Court’s scorn [a citation follows to a Louisiana case about teaching creationism]).” If the Court wants to charge Congress with being as ignorant and bigoted as a lynch mob or a bunch of Louisiana creationists, he writes, the Court needs “the most extraordinary evidence.”
This view is sort of consistent with the majority opinion in Shelby County. There, of course, interestingly, we are actually talking about “some once-Confederate Southern state[s].” In renewing the VRA, Congress might be viewed as acting like the Court majority acted in Windsor (in Justice Scalia’s telling): Congress was condemning some democratically elected governments—those of the covered jurisdictions—as being a bunch of unreconstructed racists, whereas in fact this is unfair, as “[t]hings have changed in the South” (Chief Justice Roberts’ opinion in Shelby County at p.6, quoting himself in NAMUDNO).
So here’s a consistent principle: don’t impugn the motives of modern governments—even or perhaps especially in the South—as bigoted, whether against black people or gay people or anyone else. Call it the Anti-Romer principle: don’t do what Justice Kennedy did in Romer. Don’t hold that the people or their representatives are bunch of bigots. (In Romer, the Court concluded that the people of Colorado enacted an initiative prohibiting certain legal protections for gay people for an illegitimate reason: “to make them unequal to everybody else.”) We can stipulate, I think, that anyone who believes strongly in this Anti-Romer principle would have been among the three dissenters in Romer.
I got this far and tried this story out on Cary Franklin. She was skeptical, and threw a major wrench in it, by asking “what about Fisher?”
In Fisher, after all, the Court does not get as far as actually deciding whether the University of Texas’ affirmative action plan is constitutional, but it does decide one thing for sure: the Fifth Circuit was too deferential to the educational expertise and purportedly benign motivations of the University. Justice Thomas would go further. In a long opinion heavy on citations to old segregationist arguments from the 1950s, he attacks UT’s motives with a vengeance, arguing that UT’s goal of racial integration is essentially the same as the old goal of racial segregation, from its gestalt to its particulars. I don’t think it’s overstating it to say that Thomas finds the University to be roughly as racist as the old segregationists. That was the point of Cary’s question: Justice Thomas impugns UT’s motives as being rooted in racism or bigotry at least as sharply as Justice Kennedy in Windsor impugns Congress’ motive in passing DOMA, or as Justice Roberts seems to view Section 4 as unfairly impugning the racial motives of the southern states.
Now of course, UT is not a legislature. But structurally, we’ve got a somewhat similar situation. One public body takes an action (Congress enacts DOMA, Southern states enact their voting laws, UT formulates its affirmative action policy). Another public body (the Court, in the case of DOMA or Fisher; Congress, in the case of the VRA), responds to those actions in a way that seems to impugn the motives of the first public body, suggesting that those motives may be impermissible or even bigoted. This drives the conservative Justices crazy—except when it doesn’t (Fisher).
There are a few ways to thread this needle and come up with a consistent view of deference and impermissible public motive that could drive conservative Justices’ arguments in all three of this week’s blockbuster constitutional cases. (I’ve left Perry out of this discussion, but had the merits been reached, I’m sure that the Romer-like question of whether or not to impugn the motives of the people of California would have been at the center of that case as well.) Here are three possibilities: (1) Only the people and their democratically elected representatives deserve deference and respect as to motive; universities, in contrast, are unelected, elitist, and suspect. (2) Don’t forget that Justice Thomas wrote only for himself here; for the others, perhaps the problem in Fisher is not one of motive at all. Instead, the University meant well and had a purpose that was permissible and even compelling, but used inappropriate means to achieve it—although this does raise the further question, what motivated the University to do that? (And of course, one could come up with other cases in which other conservative Justices impugn as racist the motives of a public body, see e.g. Justice Alito in Ricci.) (3) Perhaps this whole blog post has been leading you down the garden path: really there is no consistent attitude about impugning the motives of legislatures and other public bodies to be found across the three cases—all that is consistent is “the anti-antidiscrimination agenda.”
That brings me to the title of this post. Reading Shelby County, one certainly has the sense that the Court views it as very important to stop impugning what (Justice Scalia in Windsor calls) “once-Confederate Southern state[s,] familiar objects of the Court’s scorn.” That is why it is crucial to strike the Section 4 coverage formula from the pages of the U.S. Code. Indeed, doing this is apparently so crucial that it is worth not blocking whatever racially discriminatory laws Section 5 might have blocked in the next decade or two. (I assume here that the Justices are realistic enough to understand that Congress is not likely to come back with a revised coverage formula.*) In other words it would seem from reading Shelby County that something is worse than whatever discrimination Section 5 might have prevented. Possibly, (A) what’s worse is the indignity of portraying some states as racist, or as more racist than others. Possibly, (B) what’s worse is using antidiscrimination law to stop the discrimination. These two readings relate in different ways to the other major constitutional law cases of this week. Either way, we are deep, deep into legal territory that the architects of our modern antidiscrimination law regime in the 1960s and 70s would have found Alice-in-Wonderland strange.
*I think it's fair to assume that the Justices are well aware that Congress is not likely to come right back with a new Section 4. An earlier version of this post suggested that the Justices actually acknowledged this political/Congressional situation, but that was in the Arizona case of the previous week, not Shelby County. Posted
by Joey Fishkin [link]