"I may be wrong and you may be right, and by an effort, we may get nearer to the truth." (Karl Popper)

Friday, September 29, 2006

More on U.S. Supreme Court's October 2006 term

By way of follow-up to last Sunday's post post on the topic, I would suggest that anyone interested in goings on at the U.S. Supreme Court, pop over to the American Constitution Society blog. There is a set of previews of various upcoming cases, on such subjects as the constitutional requirement that abortion statutes contain a health exception (Gonzales v. Carhart; Gonzales v. Planned Parenthood), employment discrimination (not mentioned in my post: Ledbetter v. Goodyear Tire & Rubber Co.), the Clean Air Act (Massachusetts v. Environmental Protection Agency), puntive damages (Philip Morris USA v Williams), and affirmative action, in the form of racially based school selection policies (Parents Involved in Community Schools v. Seattle School District; Meredith v. Jefferson County Public Schools).

The headline to the latter piece rather gives the game away as to what the writer", Anurima Bhargava, thinks should happen in the affirmative action cases: "Threatening Brown’s Promise: Supreme Court Cases from Seattle and Louisville Could Undermine Local School Districts’ Voluntary Efforts to Combat Segregation". It might be said that it is a strange place the law has got to when striking down a school selection policy based explicitly on racial criteria would be to undermine the promise of Brown v Board of Education, the world famous 1954 desegregation case. Here is the core of Bhargava's argument about the upcoming cases:
"The battle to integrate the nation’s public schools and to secure a quality education for all students has been at the epicenter of the struggle for racial equality. These cases are significant for the effect they could have on the ability of school districts to fulfill the promise of Brown v. Board of Education, particularly against the backdrop of entrenched residential segregation. Yet there is an ironic twist to these cases that bears discussion, namely the possibility that the Court might prohibit school districts from voluntarily pursuing race-conscious measures to promote integration. The Court could bar school districts from pursuing that which it has previously ordered de jure systems to do. Understood in the context of this country’s long, tragic history of racial discrimination and the continuing, widespread persistence of segregation in public schools, a Court ruling to this effect would turn the command of the Equal Protection Clause on its head."
A lot depends on how one frames the question. Lawyers are experts at framing questions in a manner that suits them. These cases are either about preventing explicit racial discrimination (without strong justificatory diversity benefits), or about the Court not meddling in states' good faith efforts to combat racial inequality, the aim of which efforts is to ensure true equality between children of all races. Both sides claim to carry the anti-discrimination baton. Let us wait and see how the Court frames the issue.

One other point. I mentioned in the previous post that the question of stare decisis (respect for precedent) would loom especially large in the Gonzalez abortion cases. The same is true in the affirmative action cases. Especially important will be the views of the relatively new justices: Chief Justice Roberts and Justice Alito. One clue I have since found as to their possible approaches comes from a June 2006 decision (Randall v Sorrell) on the issue (not important for present purposes) of campaign finance. The Court (in an opinion by Justice Breyer) held that "departure from precedent is exceptional and requires special justification". (This was in the context of rejecting a challenge to a 30 year old precedent, Buckley v Valeo 424 U.S. 1) The Chief Justice joined this part of the opinion; Justice Alito did not, arguing that the issue wasn't directly presented in the case (see pp.36-37). Admittedly it's a small clue, given that Alito J.'s holding is tied to the particular case. He certainly did not set out any general aversion to applying stare decisis in the constitutional context. His objection to even hearing the plea to reconsider Buckley is thus not firm evidence as to the latitude he will in future allow himself.

Remember too that Stenberg will - assuming that the seven surviving justices maintain their position from six years ago - be upheld unless both Roberts and Alito say otherwise. Their approach will also be potentially decisive in the Philip Morris case, for this reason: "Three justices -- Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg --have never accepted the court's decade-old ruling that imposed the first constitutional limits on awards." Clearly, should the two new justices agree, change is afoot in that area of law.

Update (2.20 pm) The Court agreed on Tuesday to hear nine further cases, some of which may be heard in December. Also, for the interested, Term previews galore.

Update 2 (6 pm) Jack Balkin, law professor at Yale, has a very interesting take, which I have only just come across. In short, it is that Bush nominated Roberts and Alito in the hope that they would not overrule Roe. Were Roe to be overruled 33 or more years down the line, the Republican political coalition might well fracture and the Republicans might lose power for a generation. (I realise the post is a year old, but it is a thought-provoking - not to mention plausible - hypothesis, nonetheless.) If Balkin is right, then there was never any prospect of Bush nominating someone like Edith Jones, who has judicially criticised Roe itself.

Update 3 (Sat. 5.25 pm.) Briefs filed in all listed cases are available on the ABA site - here.


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