So Justice Kennedy did what he usually does, put the stigma of implicit bigotry around anyone who disagrees with his emancipated individualism. If you’ve read Romer v. Evans or Lawrence then you’ve seen this show, more or less. Kennedy, I think, only deepens the application of his own philosophy and attempts to vindicate why he must appeal to it to decide that DOMA is unconstitutional. Coming soon, of course, is the use of the majority opinion to throw out the state prohibitions. Some notion of self government, some republic.
Archives for June 2013
In Fisher, the Supreme Court majority clarified Grutter v. Bollinger’s holding that higher education admission plans that promote diversity by taking race into account are subject to strict scrutiny. As he did in Gutter and Parents Involved in Community Schools v. Seattle School District No. 1, Justice Thomas wrote a significant separate opinion setting forth his views on the issue.
Thomas’s concurrence in Fisher made the following points:
1. Traditional strict scrutiny for race discrimination requires a compelling state interest, which is either national security or remedying past discrimination. The educational benefits from diversity are not a compelling state interest.
2. Brown and its progeny rejected the idea that a school’s survival would be a compelling state interest. It had been claimed that desegregation would lead to public schools being closed down, but that was not thought adequate to justify segregation.
3. The desegregation cases rejected arguments virtually identical to those advanced by Texas: that differential standards prepares Texas’s students to become leaders in a diverse society, improves interracial relations, and is a temporary necessity because of the enduring race consciousness of society.
4. While Texas probably believes it is helping minorities, racial discrimination is never benign. The worst forms of discrimination, such as slavery or segregation, were justified as beneficial. Here blacks and hispanics are harmed as they are far less prepared for admission, would have access to college in any event, and are stamped with a badge of inferiority.
Tomorrow the Supreme Court will issue its opinions in the marriage cases. Today, in a less prominent case, the Court treated the issue of parental, and more particularly, paternal rights. As I've discussed here, there is a constitutional presumption in favor of natural-parental trusteeship, a presumption that is in tension with the contradictory presumption that arises where the state recognizes same-sex relationships as marriage. Today's case, Adoptive Couple v. Baby Girl, involved a statutory, and not a constitutional, issue. Still, the dissent , authored by Justice Sotomayor, took pains to mention the constitutional presumption that I've emphasized. There is, she…
In addition to an excellent exchange my excellent book, balkinization has many other excellent things—such as yesterday’s post by Mark Graber. It suggests that the Supreme Court is reverting to the posture of a century ago, but not in the way “all of us”—meaning, progressive law profs—had been expecting. Here’s Mark’s opening: [T]he 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…
As we all try to keep up with the Supreme Court’s Operation Fast and Furious (And Keep the Best For Last), here’s a dorky but perhaps telling point on yesterday’s civil rights decisions: Two of the cases dealt with employment discrimination—one, with the question of who qualifies as a “supervisor”; the other, with the legal standards that apply to retaliation claims. (Both were 5-4 decisions, with the usual ideological line-up.) In both cases, the statutes at issue are administered by the Equal Employment Opportunity Commission. The EEOC wasn’t a party to the proceedings (it just issued “right to sue” letters), but…
The Supreme Court has labored mightily since the fall term, likely revised and re-revised the court opinion in the Fisher v Texas University of Texas racial preferences admissions case, and let loose what at first appears to be a ridiculous mouse. The 7-1 opinion, written by Justice Kennedy, Justices Scalia and Thomas concurring, and Justice Ginsberg dissenting, remands the case to the Fifth Circuit, with the admonition to apply the “strict scrutiny” standard to University practices. This command could be construed, in Texas terms, as a Nolan Ryan brushback. But the batters are wily veterans and are not easily intimidated; after all, they are university professors and masters of their universe. Plaintiff Abigail Fisher didn’t ask for a reversal of the Grutter case, and the Court didn’t make this reversal.
In recent years, conservatives have frequently complained about the length of controversial legislation, whether the federal budget, the Affordable Care Act, or the proposed immigration reform bill. Kevin Drum asks why size suddenly matters for conservatives: "But the real question is why this has become such a favorite gripe from the tea party set. I mean, who cares how long a bill is? If you don't like immigration reform, you don't like immigration reform. You still wouldn't like it if the bill were 20 pages long instead of 1,200." Without commenting on the propriety of any particular bill, I think there…
There has recently been some significant discussion of Justice Thomas’s concurring opinion (joined by Justice Scalia) in Salinas. See here and here and here. In his Salinas concurrence, Justice Thomas argued that the doctrine announced in Griffin v. California – that the privilege against self incrimination barred a prosecutor or judge from commenting on the fact that the criminal defendant did not testify at trial– was not in accord with the Constitution’s original meaning. Thomas also argued that the doctrine should not be extended in Salinas to comments on the criminal defendant’s precustodial silence.
What is interesting about this issue is that when one looks at the originalist history, one finds entirely different practices than those of the modern courts. It is often said that the purpose of the privilege against self incrimination was to prevent the government from forcing individuals to testify against themselves. And so it probably was. Some courts such as the Star Chamber would require that the defendant provide such testimony.