The modern conservative legal movement grew up in response to the Warren Court’s activism in the 1960s. In opposing the decisions of Justice Brennan and the rest, conservatives made use of the same arguments that liberals had used during the New Deal, when the Supreme Court had a conservative majority resistant to the Roosevelt program. In essence, the conservatives during the Warren years called liberals hypocrites for not deferring to the legislature, since deference was the claimed reason for the 1937 overturning of Lochner v. New York (1905). When the conservatives finally did get a majority on the Court in the 1980s, it was under a Republican president, and deference to the Reagan administration made a lot of sense for conservatives.
In American constitutional law, it is common to speak of “levels of scrutiny” or “tiers of judicial review.”
Recently, I completed a draft of an article on affirmative action and the original meaning of the 14th Amendment. I thought I would put up a couple of posts on the article. For the syllabus or to download the article, see here. While I did not write the article with the University of Texas v. Fisher case in mind, it is clearly relevant to the case.
The article responds to various scholars who have argued that the original meaning of the Constitution clearly permits affirmative action. These scholars actually make two claims: first, that the Constitution’s original meaning strongly supports the constitutionality of affirmative action, and second that the originalist justices – Justices Scalia and Thomas – are behaving like hypocrites because they are both originalists and believe that government affirmative action is unconstitutional.
For example, consider Cass Sunstein’s claim that originalism:
strongly suggests that affirmative action policies were originally regarded as legitimate. Hence there is no historical warrant for the [originalist] view that affirmative action is generally unconstitutional. On the contrary, history supports affirmative action. In the aftermath of the Civil War, Congress enacted programs that provided particular assistance to African-Americans, and this makes it extremely difficult to attack affirmative action on [originalist] grounds.
[The originalist justices] have abandoned their own favorite principles of interpretation. Astonishingly, the Court’s most enthusiastic [originalists], Justices Scalia and Thomas, have voted to strike down affirmative action programs without devoting so much as a sentence to the original understanding of the Equal Protection Clause. Both justices usually pay a great deal of attention to history, particularly when they are voting to invalidate the actions of other branches of government. But on affirmative action their judgments do not depend on history at all. They don’t seem to care about it.
Sunstein and the other scholars base their argument on a set of federal statutes that were passed at the time of the enactment of the 14th Amendment. In my next post, I will show that these statutes are weak evidence of the original meaning, because they are federal statutes, they are in most cases not clearly race based, and they are merely expected applications. Thus, Sunstein’s confidence here about the original meaning is not at all justified.
Thinking about President Obama’s second inaugural address and the ubiquity of egalitarian political rhetoric is enough to make you wonder if anything can be preserved from the reach of government. Even philanthropy itself, the unique American contribution to civil society, made by possible by the overflows from prior gains in trade, might now have to account to government for its independent work. So what does equality mean in the American republic? The inability to speak in a grounded manner about this principle seems to doom attempts to limit the size of government, protect commerce from undue interference, and uphold a robust civil society, among other worthy goals.
As Mitt Romney continued his hapless class warfare rhetoric, the federal judiciary followed suit. In the most extreme post-Brown federal court opinion on equal protection ever issued, the Sixth Circuit held, in an en banc opinion, that certain unspecified minorities have privileged status in the American constitutional order. This promotion of classes over individual rights of course overthrows the American founding’s basic principle of equality of individual rights and the separation of powers that follows from it.
At issue was Proposal 2, whose victory in 2006 via popular vote of 58-42% amended the Michigan Constitution to reject race, ethnic, and sex preferences in public institutions, including universities.
Two years ago, in his annual State of the Union address, President Obama publicly upbraided the Supreme Court, six of whose members were seated immediately before him in their robes, alongside chiefs of the military.
The President delivered this unprecedented public rebuke because a week earlier the Court had upheld the legality of the corporate and union financing of political advertising, something not to his advantage, and hence not to his liking. He declared:
‘With all due deference to the separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests.’
From their expressions and body language, the six justices were not too pleased by receiving that pubic reprimand from the President who may yet in turn rue having delivered it. For yesterday (February 21), the Court announced that later this year it will hear a case with potential to inflict on the President serious political damage in the immediate run-up to the November elections.
The case that the Court has decided to hear is that between Abigail Fisher and the University of Texas. The plaintiff is a young white woman who, in 2008, unsuccessfully applied to the University of Texas at Austin. She claims that her application was unlawfully turned down on account of race and in contravention of her Fourteenth Amendment constitutional right to equal protection under the law. Her grounds for making this claim are that the University admitted in preference to her several academically less well qualified minority applicants without any good cause.