A Year at the Supreme Court 9780822385950

Profiles a watershed year (2002-2003) in the life of the U.S. Supreme Court, with contributions by journalists and Court

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A YEAR AT THE SUPREME COURT

Constitutional Conflicts A Series with the Institute of Bill of Rights Law at the College of William & Mary Series editors: Neal Devins and Mark Graber

A YEAR AT THE SUPREME COURT Edited by Neal Devins & Davison M. Douglas DUKE UNIVERSITY PRESS Durham and London 2004

Chapter 3 ∫ 2004 David J. Garrow All other contents ∫ 2004 Duke University Press All rights reserved Printed in the United States of America on acid-free paper $ Typeset in Trump Mediaeval by Keystone Typesetting, Inc. Library of Congress Cataloging-in-Publication Data appear on the last printed page of this book.

Contents

Acknowledgments

vii

The Justices of the Supreme Court of the United States, 2002–03 ix Introduction

neal devins and davison m. douglas

ONE

A High Court of One: The Role of the ‘‘Swing Voter’’ in the 2002 Term dahlia lithwick 11

TWO

Anthony M. Kennedy and the Road Not Taken david g. savage 33

THREE

A Revolutionary Year: Judicial Assertiveness and Gay Rights david j. garrow 55

FOUR

The Next Culture War

FIVE

The Affirmative Action Decisions

SIX

Was Affirmative Action Saved by Its Friends? carter g. phillips 113

SEVEN

The Court’s Faux Federalism

EIGHT

Cross Burning: Virginia v. Black

NINE

Cruel and Unusual: Lockyer v. Andrade erwin chemerinsky 175

TEN

Glasnost at the Supreme Court

jeffrey rosen

1

71

stuart taylor, jr.

ramesh ponnuru rod smolla

tony mauro

131

151

191

87

Notes

209

Table of Cases Index

229

233

Notes on the Contributors

vi

Contents

241

Acknowledgments

T

his book would not have been written but for Rod Smolla and Valerie Millholland. Rod’s A Year in the Life of the Supreme Court (1995) set the mold for this book. Rod, who was then director of William & Mary’s Institute of Bill of Rights Law, thought that an excellent way to educate the public about the Supreme Court was to ask a group of distinguished journalists to write chapters about the leading cases from a single Supreme Court term. In critical respects, we have followed that model. For her part, Valerie, the editor at Duke University Press who oversees the Constitutional Conflicts book series, lobbied us (the past and current directors of the Institute of Bill of Rights Law) to follow Rod’s lead and put together another collection along the same lines. After two years of prodding, we took the bait. After agreeing to pursue this project, we were helped by a great many people. First and foremost, we owe a great debt to the journalists and advocates who have contributed to this book. Not only did they do excellent work, they all adjusted their busy schedules to meet our deadlines. We also benefited from first-rate support at William & Mary. Felicia Burton provided exceptional word processing support; Stacy Haney helped us prepare and format the notes. Finally, the Institute of Bill of Rights Law has played a pivotal role in preparing both this collection and its predecessor. Among other things, the institute sponsors an annual Supreme Court Preview at the College of William & Mary. This program brings together leading journalists, law

professors, and advocates to talk about the Supreme Court’s upcoming term. Most of the contributors to this book have participated in the Preview. We have written this book in the spirit of the Supreme Court Preview—as an effort to educate the public about the workings of the Court. Recognizing the vital role that the press plays in helping the nation better understand the Supreme Court, we dedicate this book to that small group of journalists whose good fortune it is to devote themselves daily to the task of helping the rest of us understand the complexities and significance of the Court and its decisions.

viii

Acknowledgments

The Justices of the Supreme Court of the United States, 2002–03

William H. Rehnquist, Chief Justice Appointed Associate Justice by President Nixon in 1972 Elevated to Chief Justice by President Reagan in 1986 John Paul Stevens, Associate Justice Appointed by President Ford in 1975 Sandra Day O’Connor, Associate Justice Appointed by President Reagan in 1981 Antonin Scalia, Associate Justice Appointed by President Reagan in 1986 Anthony M. Kennedy, Associate Justice Appointed by President Reagan in 1988 David H. Souter, Associate Justice Appointed by President Bush in 1990 Clarence Thomas, Associate Justice Appointed by President Bush in 1991 Ruth Bader Ginsburg, Associate Justice Appointed by President Clinton in 1993 Stephen G. Breyer, Associate Justice Appointed by President Clinton in 1994

A YEAR AT THE SUPREME COURT

Introduction neal devins and davison m. douglas

T

his is a book about the Rehnquist Court, and in it we purport to answer several questions: Does the Court see itself as the ultimate interpreter of the Constitution, or does it simply follow the election returns? Are its decisions principled, or are Senate Democrats and others correct in complaining that it engages in ‘‘conservative judicial activism’’? Do other parts of the government conform to its decisions, or do lawmakers sometimes countermand the justices for going too far? Is it a Court of nine justices (each of whose vote is equally important), or is it a Court whose identity is shaped by its swing justices— Sandra Day O’Connor and Anthony Kennedy? And what of the advocates before the Court: do their arguments and briefs influence the justices? Looking at the 2002–03 Supreme Court term, our book examines these and other questions. The 2002–03 term was a watershed. Not only did the Court issue critical rulings on gay rights, affirmative action, hate speech, federal-state relations, and criminal law, the justices typically backed up liberal positions and, in so doing, upended expectations (or at least the expectation of law professors and journalists who thought that the Court was ‘‘play[ing] against type’’).∞ By trying to make sense of these rulings, the contributors to this book grapple with larger questions about the Rehnquist Court’s identity and the Supreme Court’s role in the larger political life of the country. Correspondingly, by examining one year in the life of the Supreme Court, they remind us that the Supreme Court works in real time. The same group of justices hears the same group of cases and needs

to issue decisions within a few months of oral argument. In other words, just as a page of history is worth a volume of logic, a Supreme Court decision may be best understood by looking at when it was decided. In keeping with the model of A Year in the Life of the Supreme Court (1995), most contributors to this book are journalists who ‘‘have made observing and reporting on the Court their lives’ avocation.’’≤ These journalists, as Rod Smolla observed in his introduction to A Year in the Life, ‘‘are the source of much of the information most Americans have on the decisions of the Court over the years.’’≥ For this book we have recruited David Garrow (a frequent contributor to the New York Times and other papers), Dahlia Lithwick (Slate), Tony Mauro (the Legal Times), Jeff Rosen (the New Republic), David Savage (the Los Angeles Times), and Stuart Taylor (the National Journal and Newsweek). Unlike the contributors to A Year in the Life, several contributors to this book are Supreme Court advocates. Advocates have a unique lens on the Court: in filing briefs and making oral arguments, advocates must sort out what matters to the justices. What role, for example, should emotional appeals play in a case about cross burning at a Ku Klux Klan rally? When arguing that a life sentence for shoplifting is ‘‘cruel and unusual punishment,’’ how should defense counsel balance concerns for fairness with the state’s interest in punishing repeat offenders? In defending affirmative action, will national security claims made by former military officials outweigh competing arguments made by the Bush administration? Three Supreme Court advocates, Carter Phillips (affirmative action), Erwin Chemerinsky (‘‘three strikes and you’re out’’ criminal statutes), and Rod Smolla (cross burning), tackle these questions and, along the way, underscore how a lawyer’s job before the Supreme Court is first and foremost about winning his or her case.

The 2002 – 03 Term: Upending Expectations, or Business as Usual? Before its 2002–03 term, the Rehnquist Court had been characterized as ‘‘arrogant, self-aggrandizing, and unduly activist’’ by both law professors and journalists.∂ Not only did it settle the presidential election of 2000, it struck a blow against federal power by invalidating thirty-one federal statutes from 1995 to 2002. Reacting to these and other decisions, Cass Sunstein of the University of Chicago Law School wrote in the New York Times, ‘‘we are now in the midst of a remarkable period of right-wing judicial activism. The Supreme Court has moderates but no liberals.’’∑ For Walter Dellinger (who served as the Clinton administration’s chief advo2

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cate before the Supreme Court), the Court assumed that it was ‘‘more qualified than Congress to resolve disputed electoral votes, more entitled than the president’s agencies to fill gaps in federal law and better equipped than the professional golf association to determine the rules of golf.’’∏ Responding to the Court’s increasing willingness to strike down federal statutes, law schools sponsored conferences on ‘‘conservative judicial activism,’’ on ‘‘federalism and judicial activism,’’ on whether there is a ‘‘conservative vision of the law,’’ and on ‘‘Congressional power in the shadow of the Rehnquist Court.’’ For their part, Senate Democrats spoke of the Court as ‘‘dominated by conservatives’’ and expressed fear that appointees of George W. Bush would ‘‘push our Court sharply away from the core values held by most of our country’s citizens.’’π In 2001, for example, Patrick Leahy (D-Vt.), then chair of the Senate Judiciary Committee, said that the Supreme Court was ‘‘dominated by ideologically conservative Republican appointees’’ and that ‘‘the dominant flavor of judicial activism is right wing.’’∫ Hearings were held on Court decisions limiting federal power and on whether ‘‘ideology should matter’’ when voting on President Bush’s judicial appointees. Needless to say, Republican lawmakers defended the Court against these charges. Moreover, a handful of academics argued that allegations of conservative judicial activism ‘‘tell us more about legal academia and the media than they do about the Court’’Ω and that ‘‘[m]any of the recently invalidated federal statutes were . . . unnecessary, badly drafted, and often patently unconstitutional.’’∞≠ For the most part, however, law professors and journalists agreed that the Court was both ‘‘conservative’’ and ‘‘activist.’’ What a difference a year makes. By agreeing to broadcast tapes of oral arguments in the affirmative action cases and otherwise making the Court more accessible, the justices acknowledged that the Court is a public institution.∞∞ Far more significantly, law professors and journalists were befuddled by decisions upholding affirmative action, invalidating a same-sex sodomy statute, reversing a death sentence for ineffective assistance of counsel, and approving federal gender-equality legislation that required states to grant workers twelve weeks of unpaid leave to care for family members. Writing in the Nation, known for its liberal politics, David Cole remarked that ‘‘Nation readers should be excused for wondering whether they were in some sort of time warp as the Supreme Court closed its term with a slew of decisions that recalled the halcyon days of Chief Justice Earl Warren.’’∞≤ In sharp contrast, Michael Greve, conservative founder of the Center for Individual Rights (the group that unsuccessfully challenged affirmative action plans at the University of MichiIntroduction

3

gan), depicted the Court’s latest decisions as ‘‘post-modern gobbledygook,’’ calling into question whether the Supreme Court is ‘‘serious about constitutional law.’’∞≥ Supreme Court reporters for the New York Times, the Chicago Tribune, the Legal Times, and the Los Angeles Times described these decisions as ‘‘surprising’’ and ‘‘counterintuitive’’; ‘‘the normally conservative high court’’ ‘‘stun[ned] the right.’’∞∂ No doubt, the 2002–03 term caught Court watchers off guard. But did the justices really play against type? In particular, was it correct to assume that in the past the Rehnquist Court had typically backed the social conservative agenda—and therefore that its decisions on gay rights, affirmative action, and gender equality marked a dramatic break in precedent and practice? And might the Court have looked to signals from elected officials and the American people—so that its decisions during the 2002–03 term could withstand the charges of ‘‘judicial activism’’ and ‘‘judicial supremacy’’?

The Supreme Court and American Political Life Judicial decisions are ‘‘not babies brought by constitutional storks’’; instead, as Chief Justice William Rehnquist put it, the ‘‘currents and tides of public opinion lap at the courthouse door,’’ for judges ‘‘go home at night and read the newspapers or watch the evening news on television; they talk to their family and friends about current events.’’∞∑ As such, ‘‘policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.’’∞∏ Lacking the powers to appropriate funds or command the military, the Court understands that it must act in ways that garner public acceptance. Witness, for example, the demise of the Lochner era (a time in which the justices struck down state and federal regulation of the workplace). After Franklin Roosevelt was reelected president in 1936, winning all but two states, the Court, embarrassed by populist attacks against the justices, announced several decisions upholding New Deal programs. In explaining this transformation, Justice Owen Roberts recognized the extraordinary importance of both elected officials and the public in bringing an end to the Lochner era: ‘‘Looking back, it is difficult to see how the Court could have resisted the popular urge for uniform standards throughout the country—for what in effect was a unified economy.’’∞π Élite opinion—the views of journalists, academics, and other leaders— also plays a significant role in shaping Court decisions. ‘‘[O]verwhelmingly upper-middle or upper-class and extremely well educated, usually at the nation’s more élite universities,’’∞∫ these economic and social leaders 4

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arguably matter more to the Court than to lawmakers (who must appeal to popular sentiment to win elections). In particular, since the justices’ reputations are shaped by the media, law professors, and lawyers’ groups, justices may seek to bolster their own status by taking elite opinion into account.∞Ω The Rehnquist Court is not immune to these pressures. Consider, for example, its decisions in 1992 to reaffirm both abortion rights and the ban on school prayer.≤≠ By refusing to sign on to the conservative social agenda, the Court validated efforts by the Senate to ‘‘make clear to nominees that a willingness to profess belief in some threshold constitutional values is a prerequisite for the job.’’≤∞ In 1987 the Senate had rejected Robert Bork’s nomination to the Court because if confirmed, he almost certainly would have supplied the fifth vote needed to overturn Roe v. Wade.≤≤ Similarly, the Senate Judiciary Committee’s sharp questioning of Clarence Thomas ‘‘served as a warning to sitting justices that if they persisted down the path of seeking to overturn Roe and securing other conservative objectives.’’≤≥ Congress might retaliate by, for example, rejecting judicial nominees or freezing judicial salaries. Against this backdrop, it seems likely that the Senate played an instrumental role in the Court’s rejection in 1992 of certain aspects of the conservative social agenda. Not only did it keep Bork off the Court, it also sent a message to other justices that the repudiation of earlier Court decisions on abortion, school prayer, and the like would be seen as an act of defiance. Perhaps for this reason, the decision reaffirming Roe in 1992 both emphasized the costs of ‘‘overrul[ing] under [political] fire’’ and explicitly linked the Court’s ‘‘legitimacy’’ to the people’s ‘‘confidence in the Judiciary.’’≤∂ By the start of its 2002–03 term, the Court’s reputation among journalists and law professors had been eroded by Bush v. Gore≤∑ and a string of decisions striking down federal legislation. These decisions, however, did not prompt a populist backlash against the Court. Lawmakers, unlike their predecessors who were enraged by the Warren Court’s school desegregation decision in Brown v. Board of Education and the Burger Court’s abortion ruling in Roe v. Wade, did not seek to strip the Court of jurisdiction or to overturn its rulings by legislation or constitutional amendment. For example, notwithstanding complaints by Democrats of ‘‘conservative judicial activism,’’ lawmakers have either ignored or backed rulings by the Rehnquist Court limiting congressional power. The impact of these decisions is hardly ever mentioned in the Congressional Record. More tellingly, Congress has shown relatively little interest in rewriting the statutes that the Court has struck down, and when it has done so, lawmakers have paid close attention to the Supreme Court’s rulings, limIntroduction

5

iting their efforts to revisions that the Court is likely to approve.≤∏ It may be that many members of Congress are somewhat sympathetic to the Court’s efforts to protect state prerogatives. For this very reason, Representative Lee Hamilton (D-Ind.), after observing that lawmakers seemed ‘‘detached from the actual work of the federal judiciary, particularly as it relates to the exercise of congressional power,’’ speculated that Congress ‘‘has become more conservative, and many members are comfortable with most of the Court’s rulings.’’≤π None of this is to say that Congress did not support the laws that the Court struck down; our point, instead, is that the Rehnquist Court was operating within the latitude afforded it by Congress and the American people. What then of claims that the Rehnquist Court sees its rulings as definitive interpretations of the Constitution and, consequently, that its ‘‘most important legacy’’ is ‘‘judicial supremacy?’’≤∫ After all, if the Court is afforded broad latitude by elected officials and the people to sort out the Constitution’s meaning, that latitude may well be broad enough to allow the Court to embrace judicial supremacy. Consider, for example, the Court’s decision in Nevada Department of Human Resources v. Hibbs in the 2002–03 term.≤Ω By approving a federal law allowing state employees to take unpaid leave, the Court seemed to bow to political pressure and élite opinion—women’s interests that strongly supported the law. At the same time, the decision was moored to the Court’s finding that Congress was empowered to remedy sex discrimination because the Court had earlier identified it as a problem that warranted national solutions. Much the same can be said of the Court’s gay rights decision, Lawrence v. Texas.≥≠ On the one hand, it appears as if the Court responded to popular and élite opinion. Texas’s criminal ban on same-sex sodomy was seen as discrimination against gays and, consequently, out of step with the nation’s growing acceptance of homosexuality. But the Court went much further than it needed to go. Instead of rejecting the Texas law as illegal discrimination, the Court reasoned that ‘‘[l]iberty presumes an autonomy of self.’’≥∞ This sweeping language presumably opens the door to gay marriage—something that much of the public and many elected officials strongly oppose.≥≤ This question—whether the Rehnquist Court typically conforms to majoritarian pressures or, instead, is a frequent conservative proponent of judicial supremacy—will no doubt be topic A at the next Supreme Court confirmation hearing. The other question that will likely consume the next few confirmation hearings is whether the nomination threatens to push the Court to either the right or the left. On most issues, justices on the Rehnquist Court can be grouped into three blocs: a conservative bloc (consisting 6

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of Chief Justice William Rehnquist and Justices Antonin Scalia and Clarence Thomas), a moderate-to-liberal bloc (consisting of Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer), and two swing justices (Sandra Day O’Connor and Anthony Kennedy). Today, the Court often splits 5–4 on the issues that divide the nation. Consequently, a conservative nominee could move the Court to the right if he or she were to replace one of the Court’s moderate liberals or swing justices; likewise, a liberal nominee could move the Court to the left if he or she were to replace one of the Court’s conservatives or moderates or swing justices.

The O’Connor Court? The Rehnquist Court divides 5–4 more than any other Supreme Court in history. It did so in a third of all cases decided in the 2000–01 term, and a fifth of those decided in the 2002–03 term. One of the two swing justices, Sandra Day O’Connor, in the 2002–03 term voted with the majority in twelve of the fourteen cases decided by 5–4 votes—more than any other justice. She and the other swing justice, Anthony Kennedy, rarely cast dissenting votes—O’Connor dissenting only five times and Kennedy dissenting nine times.≥≥ On social issues, for example, Justices Kennedy and O’Connor are not truly committed to the conservative social agenda and, as such, often appear to reflect élite opinion. Indeed, contrary to the expectations of President Reagan, who appointed them, O’Connor and Kennedy often sided with Congress in its battles with both Reagan’s administration and that of George H. W. Bush over race, religion, and abortion. Needless to say, were either of these justices to resign from the Court, conservatives and liberals would see the battle over the successor’s confirmation as nothing less than a fight over the Court’s future. For identical reasons, the attempted appointment in 1987 of the conservative Robert Bork to succeed the moderate Lewis Powell was especially bitter. Senator Joseph Biden (D-Del.), then chair of the Senate Judiciary Committee, explained that the controversy was more about the loss of Justice Powell than about Bork himself, remarking that if ‘‘Bork were about to replace Rehnquist or . . . Scalia, this would be a whole different ball game.’’≥∂ Kennedy and O’Connor each played defining roles in several of the key decisions from the 2002–03 term. In Lawrence v. Texas, Kennedy’s vote and opinion for the Court were pivotal. By holding that the Texas statute violated implicit constitutional protections of individual liberty (rather than, more narrowly, the Equal Protection Clause’s guarantee against pernicious discrimination), Kennedy’s opinion has prompted a nationwide Introduction 7

conversation about gay marriage and the Court’s role in the culture wars.≥∑ O’Connor cast the fifth vote and wrote the Court’s opinion in Lockyer v. Andrade, approving the application of California’s ‘‘three strikes’’ statute to a minor shoplifting violation,≥∏ and did the same in Grutter v. Bollinger,≥π upholding affirmative action at the University of Michigan law school.≥∫ In so doing, O’Connor returned these contentious issues to the political branches for ultimate resolution. In some states, that political process might reject affirmative action plans like Michigan’s or criminal sentencing schemes like California’s. Other states, of course, might embrace them. That O’Connor and Kennedy cast the deciding votes and wrote some of this term’s most important decisions is hardly surprising. In contrast, Chief Justice Rehnquist and Justice Thomas made headlines by playing against type in decisions approving federal unpaid leave legislation and state cross-burning laws. Chief Justice Rehnquist wrote Nevada Department of Human Resources v. Hibbs,≥Ω a decision which limited the reach of other federalism rulings by Rehnquist himself. Specifically, by holding states accountable to federal gender-equality standards, Rehnquist concluded that Congress had greater leeway to remedy gender discrimination than discrimination against the aged, disabled, and religious minorities.∂≠ Thomas caused a stir in Virginia v. Black,∂∞ breaking ranks with libertarian defenders of free speech and attacking cross burning as something ‘‘intended to cause fear . . . and to terrorize a population.’’∂≤ One of the lawyers in the case, Rod Smolla, observes in this book that the impact of these comments was ‘‘palpable and physical’’: ‘‘In all my life as an advocate and observer of legal proceedings, I have never seen the mood in a courtroom change so suddenly and dramatically.’’∂≥ William Rehnquist became Chief Justice in 1986. Since 1994 (when Justice Stephen Breyer joined the Court), there have been no changes on the Court. Never in the Court’s history has a single group of justices sat together for such a long period. That the 2002–03 term caught so many Court watchers by surprise is a testament both to the unpredictability of the Rehnquist Court and to dramatic changes in attitudes among the public and government officials toward gay rights, affirmative action, and the balance of power between Congress, the Court, and the states. In other words, even though the cases examined in this book are not linked by subject matter, the seemingly disparate topics underscore the tugs and pulls inside today’s Court (and society). We hope that readers of this book will gain a fresh perspective on the Court and its role in American political life. Also, because we have called 8

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upon journalists and advocates to write opinionated pieces about the justices and decisions of the Court, we hope that readers of this volume will glean some insights into the reporters who cover the Court and the advocates who argue before it. In particular, we hope to present the Court as a flesh-and-blood institution. Those who argue before it and write about it have their own opinions—opinions that do not necessarily make their way into news stories or legal briefs. As was true of its predecessor A Year in the Life of the Supreme Court, this book is intended to assist readers who do not make their living as lawyers. The shaping of constitutional values is a process that affects all Americans. By appreciating the dynamics inside the Court and the Court’s role in American political life, the public can better assume its critical role as a player in an ongoing constitutional dialogue.

Introduction

9

CHAPTER ONE

One of the most fascinating features of the current Supreme Court has been the large number of 5–4 decisions, particularly in some of the Court’s most important cases. In the past few years, some of the Court’s highestvisibility decisions, including cases involving the 2000 presidential election, school vouchers, affirmative action, and campaign finance reform, have been decided by 5–4 margins. These narrowly decided decisions on cases of crucial public importance have placed intense scrutiny on those justices whose jurisprudential orientation places them at the ‘‘middle’’ of the Court, particularly Justices Sandra Day O’Connor and Anthony Kennedy. This scrutiny is magnified because Justices O’Connor and Kennedy have on occasion frustrated efforts to overturn important precedents involving issues that sharply divide America, such as abortion, affirmative action in universities, and school prayer. Conservatives in particular have been quick to notice that neither O’Connor nor Kennedy, unlike Justice Antonin Scalia, has become the reliable vote that President Ronald Reagan might have hoped for when he appointed the two to the Court. Dahlia Lithwick, a senior editor at Slate, examines both O’Connor and Kennedy and their role as the ‘‘centrist’’ justices on the Court. She specifically responds to conservative charges that these justices are ‘‘unduly influenced by extrajudicial forces’’ such as the media or the legal academy. Lithwick places O’Connor and Kennedy in a larger historical context, noting that ‘‘there have been swing voters [on the Court] to twit and

frustrate Presidents almost as long as there have been presidents to be annoyed.’’ Moreover, for Lithwick the charge of undue extrajudicial influence doesn’t stick. Speaking of O’Connor, Lithwick writes: ‘‘Her votes may not be ideologically consistent. But that need not mean that she is readily subject to influence. It may only mean that context plays a greater role in her thinking.’’ Lithwick emphasizes O’Connor’s admiration for Justice Lewis Powell, another non-ideological centrist justice who, in Lithwick’s words, was ‘‘just interested in making cases turn out fairly in the end.’’ Lithwick also examines how Supreme Court justices over the course of the last century abandoned the need to speak with a unanimous voice, resulting in ‘‘an explosion in the number of dissents and concurrences published, as well as a rise in the number of fractured opinions.’’ For example, the proportion of Supreme Court cases decided unanimously was about 85 percent during the 1920s but only about 25 percent during the 1990s. In this modern era of 5–4 decisions and fractured opinions, the justice in a five-vote majority who writes most narrowly controls the precedential value of the decision. And that justice quite often turns out to be O’Connor. Hence, in many cases Justice O’Connor’s opinion, even if it is only a concurring opinion, articulates the rationale that future courts must apply. For Lithwick, the non-ideological approach of Justices O’Connor and Kennedy is in the end a positive. As she concludes: ‘‘That both conservative and liberal scholars and commentators [complain] about the undue power at the Court’s center suggests that the current Court is likely doing more right than wrong. . . . To have a Court that keeps us guessing, that gets it wrong, then gets it right, that hikes one way and tacks another, . . . may not, in the end, be a dangerous thing at all.’’—the editors

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A High Court of One: The Role of the ‘‘Swing Voter’’ in the 2002 Term dahlia lithwick

I

f there is one Supreme Court dynamic that becomes more pronounced each year, it is the consolidation of power residing with the Court’s ‘‘swing justices’’: Sandra Day O’Connor and to a lesser extent Anthony Kennedy. With each term, it becomes clearer that while a sophisticated computer program could predict most of the votes in most of the cases fairly reliably, votes by the swing justices are not only unpredictable but also determinative. While scholars have been struggling for decades to identify with any empirical precision what a ‘‘swing justice’’ means, for our purposes we can adopt the earliest published definition, from an article in the Stanford Law Review in 1949: ‘‘a middle justice who is reasonably susceptible of being attracted’’ to either of ‘‘two equal and counterbalancing blocs.’’∞ Both O’Connor and Kennedy fit nicely within this definition. In a court polarized into a traditionally conservative camp (consisting of Chief Justice William H. Rehnquist, Justice Antonin Scalia, and Justice Clarence Thomas) and a more liberal camp (Justice John Paul Stevens, Justice David Souter, Justice Ruth Bader Ginsburg, and Justice Stephen Breyer), the votes of Kennedy and O’Connor are highly likely to carry the day. Moreover, since O’Connor tends to decide cases on the narrowest of grounds, her individual logic often controls not only the court’s ultimate direction but also the precise holding of the case. During its 2002–03 term, the high court decided fourteen of its seventyone published decisions by a 5–4 margin. That means almost one case in five was decided by a single justice. And in twelve of those fourteen cases,

O’Connor was that justice. No other justice was in the majority as frequently, as is evidenced by her having dissented in only five cases in 2002. Kennedy dissented in just nine. And these close cases were not obscure tax cases, or maritime disputes. O’Connor or Kennedy, or both, ‘‘swung’’ the high court in the most high-profile cases of the term, the so-called blockbusters that will reshape the legal landscape for years. In the two affirmative action cases from the University of Michigan,≤ the Texas sodomy case,≥ the ‘‘three strikes, you’re out’’ cases from California,∂ the library pornography filters case,∑ the case involving California’s retroactive sex-offenders law,∏ the crucial federalism challenge to the Family and Medical Leave Act,π an appeal alleging ineffective assistance of counsel,∫ and the Virginia cross-burning case,Ω O’Connor was in the majority every time. As a result, public attention was focused on the two centrist justices as never before. Many of the above decisions were surprises. Some overturned precedent and others reversed key Rehnquist Court trends. It is now clear not only that the two swing justices determine the course of the law but that their rationales, theories, and legal tests are more and more apt to become the law of the land. This pattern is not unique to the 2002 term. Scholars have been noting the disproportionate influence of the two centrist justices for several years now, with a wary nod to the number of cases decided 5–4, and the number of times O’Connor votes with the majority (virtually always).∞≠ Yet it is worth noting from the outset that this dominance of a ‘‘swing voter’’ on the Court is not new. There have been moderate or centrist justices since the Supreme Court came into being. Still, the outcry about the excessive influence of the two current swing justices grows shriller each year. Why? For one thing, the composition of the court has been static for a long time—almost ten years now—and so we are witnessing in stark relief the accumulated ‘‘havoc’’ wrought by the same one or two swing voters over a decade. As O’Connor, Kennedy, or both stand at the epicenter of a Court that has upheld the constitutionality of abortion, found a privacy right for homosexual conduct, and allowed for racial preferences, it is easy to see why conservatives single them out for special blame—they are single-handedly stalling the progress of the so-called Rehnquist revolution. When the courts were more fluid, dynamics and influence were more fluid as well. Another factor is that structural and philosophical changes in the Court over the years have changed how decisions are made and written, in ways that may spotlight the behavior of swing justices more than that of strict ideologues. Lastly, the modern swing justices, particularly O’Connor, blend their tie-breaking powers with a uniquely

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personal and fact-specific way of deciding the law. The outcry about O’Connor’s disproportionate influence is sometimes conflated with a resentment of the way she decides cases. It is therefore important to separate O’Connor the jurist from O’Connor the centrist in contemplating whether swing voters have too much influence over the Court. That O’Connor and Kennedy are the court’s pivotal justices is now a journalistic truism. The words ‘‘perennial swing vote’’ routinely follow their names in news accounts. It is abundantly clear that in most of the landmark cases the lawyers, parties, journalists, and even other justices hang on their every word at oral argument. But there has been surprisingly little analysis of why this is so, or how it happened, or whether it is good for the country or the Court, or whether this dynamic is as novel or dangerous as some would argue. Amid all the media references to ‘‘the O’Connor Court’’∞∞ it is all too easy to forget that O’Connor’s single vote does not in fact command any more statistical significance than Antonin Scalia’s. Especially after the dramatic decisions in the affirmative action and Texas sodomy cases, however, court commentators from across the political spectrum began to suggest that the influence of the swing voter had got out of hand; that O’Connor wields too much power, that Kennedy cannot be trusted to vote predictably, and that both justices make personal, ideologically motivated decisions, then justify them by twisting the law to achieve their desired outcomes. As a result, during the summer of 2003 many voices were clamoring to blunt the power of the court’s two swingers. According to a despairing George Weigel, ‘‘the Constitution now means whatever Justice O’Connor decides it means at any given moment in her perusal of the signs of the times.’’∞≤ Jonathan Turley argued that the only solution to the O’Connor problem was ‘‘unpacking the court’’— creating new justiceships so as to dilute the influence of any one individual swing voter.∞≥ And Ramesh Ponnuru urged that O’Connor’s refusal to consistently vote with the Court’s conservative bloc, coupled with her unwillingness to disturb Warren Court precedents, makes her uniquely ‘‘authoritarian’’ and unreliable as a conservative jurist.∞∂ In short, many of the postmortems of the 2002 Court term attempted to explain and understand the unpredictable swing justices and to determine what, if anything, was to be done about them. Increasingly O’Connor is cast as the constitutional equivalent of a careening drunken uncle at Thanksgiving dinner, and Kennedy as a dithering Hamlet. The consensus from the right is that they are not to be trusted, and from the left that they cannot be relied upon.

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If O’Connor truly is the most important member of the Court (and when one of her colleagues suggested as much at a judicial conference, she retorted, with characteristic acerbity, ‘‘You’ve been reading too many newspapers!’’), there is a very real danger that the Court’s work begins to look like so much kabuki. Appeals to the high court are reduced to an elaborate piece of theater in which nine justices appear to apply sober, considered reason to a question, while in fact O’Connor is at work behind the curtain, single-handedly deciding the fate of the nation. The situation is variously described as an autocracy, a theocracy, and an empire. Of course an opposite argument may also be advanced: the existence of two swing voters on an otherwise polarized court goes a long way toward alleviating the public suspicion that everything decided is purely ideological. Public confidence in the Court might actually increase with the knowledge that decisions are not reflexively political, and that issues are decided, case by case, by justices who are as conflicted as the rest of us. After he retired Justice Lewis Powell was not derided by commentators as a weathervane but celebrated as a great ‘‘balancer’’; as a ‘‘moderator and uniter.’’∞∑ One possibility is that the ‘‘swing justices’’ are only consistently disappointing to critics who are themselves ideologues. What, precisely, is a swing voter, and why does it matter if swing voters exist? Is there a legitimate role for a judge who does not behave predictably (or at least predictably within the narrow confines of precedent and ideology), or does unpredictability threaten core notions of justice by which the courts are bound? Is there something radically novel or pernicious in the roles played by O’Connor and Kennedy on the Rehnquist Court, and if so, what can be done about it? Or is the ‘‘swing’’ problem just old wine in new bottles, a perennial complaint that only seems new? First off, it is important to emphasize that these two allegedly erratic justices are by no means centrists on all issues, or even on most. A review of the voting patterns of O’Connor and Kennedy last term reveals that they consistently voted with the court’s conservative bloc far more frequently than they voted with the traditionally liberal one. This is a pattern that has held constant for many years now. There is, for the most part, a coherent and uniformly conservative jurisprudence and ideology animating both O’Connor’s and Kennedy’s decisions. We only see the deviations at the margins—which margins happen to encompass the landmark social rights cases that engender the most public scrutiny. The reason Kennedy and O’Connor are considered unpredictable (or unprincipled) has more to do with the notoriety of the cases in which they vote with the liberals than the number of times they do so.

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Swing Justices in History There have been swing justices, or better, centrists, since there has been a Supreme Court. Justice O’Connor, in casting the crucial fifth vote upholding the University of Michigan Law School’s affirmative action program, did not just solidify and reify the ‘‘diversity rationale’’ spelled out by Justice Lewis Powell in 1978 in his plurality opinion in Regents of University of California v. Bakke:∞∏ she also stepped neatly into the role he vacated as a conciliator, tie breaker, and moderate. Powell was in many ways O’Connor’s spiritual and intellectual model on the Court. In both Bakke and Bowers v. Hardwick∞π —the precursors of the Michigan and Lawrence decisions—his was the deciding vote. Political scientists have struggled to understand what Powell’s role as a ‘‘swing voter’’ meant for the Court, particularly because his vacancy (and the belief that a vacillating justice might be replaced with a consistently ideological one) ushered in the failed nomination of Robert Bork and what became known as the era of ‘‘Borking.’’∞∫ In most ways, Powell’s influence as a ‘‘swing voter’’ remains unknowable. We know only that like O’Connor, Powell put a premium on staking out a middle-of-the-road position, both politically and on the Court. Indeed he described his decision in Bakke as ‘‘an effort to map out a middle ground which will avoid the dire consequences each side predicts if it should lose.’’∞Ω Just as O’Connor and Kennedy are the frustrating, unpredictable swing votes today, Powell and his colleague Potter Stewart were the moderate conservative voters in their time. It is a mistake to see O’Connor and Kennedy’s power as unprecedented, or their influence as uniquely dangerous. In fact, there have been swing voters to twit and frustrate presidents almost as long as there have been presidents to be annoyed. In the early 1930s the Court was as sharply divided as it is today—the difference then was that the cleavage was over economic and property rights rather than race, abortion, and religion. When Charles Evans Hughes was confirmed as Chief Justice, in 1930, he found himself at the center of a court torn in half over the relationship between the federal government and the court. As Franklin Delano Roosevelt’s New Deal legislation came under the scrutiny of the judiciary, divisions surfaced that were much like those we see today—a split between justices who wished to apply the Constitution as written and justices seeking to expand the meaning of the document so as to be relevant in changing times. The ‘‘Four Horsemen,’’ George Sutherland, James McReynolds, Pierce Butler, and Willis Van DeVanter, would thus reliably vote against Roosevelt’s economic legislation. The three liberal justices—Benjamin Cardozo, Louis Brandeis, and Harlan Fiske Stone—

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would vote to support it. Thus the two more moderate, ‘‘swing voters’’— Hughes and Owen Roberts—became the keys to whether the New Deal would survive. And in numerous 5–4 decisions in the mid-1930s, the whims of these two men drove not only the Court but also Congress and the country. The public, the President, and the Congress were apoplectic, foreshadowing the furor over the 2002 term. President Roosevelt believed that the problem was neither constitutional nor legal. In his view, it was personal. As Felix Frankfurter had noted in an essay in 1938, ‘‘In law also, men make a difference . . . There is no inevitability in history except as men make it.’’≤≠ The infamous ‘‘Courtpacking plan’’ was thus born. Roosevelt planned to create a new justiceship for every sitting justice over seventy who refused to retire. This would, he felt, dilute the influence of the stuffy old men, and allow him to appoint a slew of new justices who shared his views of the law and the role of the courts. To save the Court, Hughes and Roberts changed sides, voting with the liberals in what came to be known as ‘‘the switch in time that saved nine.’’ Hughes switched his vote not because his theory of constitutional interpretation had spontaneously evolved. This was not a swing voter who suddenly saw the interpretive light. He changed his vote to save the Court. Hughes endured more than his share of ridicule for the defection, and more so for his protests that his new votes were consistent with his former ones. The New Yorker that spring sneered: ‘‘We are told that the SupremeCourt’s about-face was not due to outside clamor. It seems that the new building has a sound-proof room, to which the justices retire to change their minds.’’≤∞ All this history may suggest at least one defining characteristic of the typical swing voter: They may vote with an eye toward preserving or protecting the integrity of the institution that is the Supreme Court, rather than merely casting individual votes on the merits of a case. This meta-concern, for public legitimacy and acceptance, animated the odd-bedfellows swing alliance that reaffirmed Roe v. Wade in 1992 in the crucial case of Planned Parenthood of Southeastern Pennsylvania v. Casey.≤≤ Justice O’Connor, joined by Kennedy and Souter, expressly stated that to overrule Roe would ‘‘seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.’’≤≥ Casey was decided not doctrinally, but with an eye toward ‘‘the people’s acceptance of the Judiciary.’’ That Justice O’Connor thinks about the national image and perception of the Supreme Court, writ large, when she casts her own votes is certain. One extra-legal clue to her thinking was revealed this term. For the spring of 2003 did not just see O’Connor casting deciding votes in key individual

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rights cases. It also saw the publication of her book, The Majesty of the Law, which reveals a lot about her values, if not explicitly, then at least through her editorial choices. In addition to expositions of the Court’s history and the role of women in the law, O’Connor offers sketches of some of ‘‘the people who have changed the Court,’’ with the caveat that these are not the most important justices in history but rather important contributors to the law or to the way the Court functioned. Perhaps not coincidentally, she then singles out some of history’s great moderates and swing voters for discussion. Among those is Hughes, for killing fdr’s Court-packing plan. O’Connor similarly celebrates William Howard Taft for his ability to achieve unanimity on the Court, by using his assignment powers, his political influence, and his friendships with his brethren to allegedly suppress at least two hundred dissents over his career.≤∂ Taft was less interested in having individual justices vote their true opinions than in the appearance of a unified Court. While it is ironic that Taft should be a model for a justice so obsessive about getting the law precisely right that her lone concurrences often become the law of the land, O’Connor nevertheless admires his ability to keep the Court together, thus building for it a store of public confidence that abides to this day. The last hero in O’Connor’s book is as revealing as the others. She honors Lewis Powell, both for opening his door to her when she was a junior justice and for his care in each case for the ‘‘equity at the bottom line.’’≤∑ Her respect for Powell, who was, like O’Connor, just interested in making cases turn out fairly in the end, reveals a good deal about the character of a swing voter. Powell was not a legal visionary—not a Brandeis or a Holmes or even a Brennan or Scalia. He was more like O’Connor, a judge doing equity, day in and day out—and not that much interested in the contours of the legal landscape as a whole. In a profound way, O’Connor’s book therefore offers a brief history and a manifesto; a celebration of centrist judges who, like herself, saw the Court as a larger entity than nine individual preferences, who viewed their roles on the Court as simultaneously larger than the single vote they provided and smaller than the role dictated by philosophers or scholars. Justice Kennedy has shown a similar tendency to agonize over the big picture, over History, and Public Acceptance, and the Role of the Court. Before the decision in Casey came down, he famously told an interviewer that he didn’t know if he was ‘‘Caesar crossing the Rubicon, or Captain Queeg cutting his tow line,’’ and as we will see below, his jurisprudence is often informed by a grand, even romantic view of history, unmoored from any strict interpretive theory.

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What Makes Any One Justice More Influential Than Another? Some political scientists who have studied judicial voting patterns caution that it is dangerous to try to make too much of the power of judicial moderates. Although centrist judges make it harder to predict the outcomes of cases, it is not empirically clear that they wield more influence than their brethren. If Justice O’Connor had planned to uphold affirmative action in the Michigan case all along, for example, then the only reason her vote was more noteworthy that that of, say, Justice David Souter, was that we did not know it in advance. Thus one crucial point to be made about swing voters is that they are not necessarily ambivalent. They are simply not predictable, or more precisely, not predictable by any obvious metric. If, on the other hand, a defining feature of these moderate voters is that they are routinely undecided on close cases, then their choices become interesting. Why? Because their indecision opens up the possibility that some external force can inform their vote. One of the conclusions drawn by many conservative pundits after the alleged defections of Kennedy and O’Connor this spring was that they were unduly influenced by liberals in the legal academy and the news media. Liberals similarly argued that amicus briefs detailing the importance of affirmative action in the military in one case and the influence of international law in another forced O’Connor and Kennedy to rethink earlier positions on these issues. Herein lies another factor in considering swing voters: the broad public perception that they are more readily influenced than their colleagues by externalities. The notion that O’Connor and Kennedy are less firm in their legal convictions is manifest in the ways Supreme Court briefs are written (deliberately citing to and appealing to these two justices) and the way oral argument unfolds. There can be no doubt that in close cases, advocates frame their arguments to appeal to the moderates. Protesters outside the high court have been known to appeal to these justices personally, bearing signs that urge them by name to decide cases in specific ways. One of the liabilities of being considered a swing voter is that it brings with it the public certainty that one may be lobbied and swayed. But it does not necessarily follow that the perception is accurate. Perhaps the true paradox of swing voters is not that they hold more influence than their colleagues, but that the public believes it holds more influence over them. Perhaps the hue and cry by conservatives over the supposed defections of the swing justices last term was only really a result of a feeling among

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conservatives that the justices had been unfairly influenced by external arguments from the left, as opposed to their own. Certainly if an O’Connor or a Kennedy is easily swayed by an editorial, a law clerk, or a comment from Laurence Tribe at a cocktail party, then the Court has a serious problem with swing voters. But no one who argues that O’Connor is dangerously powerful has been able to show that she is in fact being unduly influenced by extrajudicial forces. Her votes may not be ideologically consistent. But that need not mean that she is readily subject to influence. It may only mean that context plays a greater role in her thinking. Thus the broad public belief that swing voters are dangerous may exist only because we have no understanding of what influences them. As a result there is a widespread fear that the forces which influence them may be illegitimate. And while certainly liberals and conservatives may differ on what they deem ‘‘legitimate influence’’ (the former would laud the influence of international law, polls, and evolving national values, while the latter would not), both camps might be uneasy at the prospect of a justice swayed by a stray remark over breakfast, or manipulations by other justices. It is also worth noting that many of the most influential justices on the Court have not been moderates, or swing voters. Influence takes on many forms. To criticize a swing justice for wielding excessive influence is to ignore the long history of justices who have influenced the Court by means other than their votes. There can be no question, for instance, that Justice Antonin Scalia is one of the most influential jurists alive, and not because he casts a lot of deciding votes. Scalia has been frustrated far more often than he might have expected to be on a court with seven Republican appointees. In fact, commentators who bemoan O’Connor’s disproportionate influence on the Court frequently blame her for Scalia’s failure to spearhead a massive conservative counter-revolution worthy of his intellectual and personal force. But it would be a mistake to devalue the critical role that Scalia has played on the Court. And even though he wrote nine dissents this term—second only to Thomas’s eleven—Scalia knows that the way he has influenced the Court is through his caustic jeremiads and his insistence on consistency and rigor. Legal scholars agree, moreover, that Scalia has single-handedly been the source of a growing devaluation of the use of legislative history in interpreting legislative intent. One needn’t be in the majority, in other words, to profoundly reshape the legal landscape. At the opposite end of the ideological spectrum, Justice William Brennan, one of the least distinguished legal thinkers in the recent history of the Court, nevertheless managed to become one of the most influential A High Court of One

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justices in history. Indeed, just as the Rehnquist Court is sneeringly dismissed as the ‘‘O’Connor Court,’’ critics at the time derided the Warren Court as the ‘‘Brennan Court.’’ Why did Brennan have such a huge impact on the Warren Court? He was never an equivocal swing voter, but his vision and preferences shaped the Court’s for many years. Brennan was a politician, and he worked hard to influence his colleagues, lobbied aggressively, and thought constantly about the bigger picture, all the while managing to ensure that his colleagues all liked and admired him.≤∏ Brennan fits easily into that class of justices, discussed above, who thought first of the Court as an institution and only second of individual cases. To place too much emphasis on the power of a swing justice is to overlook the fundamental changes effected by more ideological justices, who nevertheless shape the law through powerful personalities, vigorous opinions, or broader vision.

Structural Changes on the Court and the Rise of the Individual There is one important way in which the modern swing justices differ from their predecessors: the role of the individual justice on the Supreme Court has expanded in recent decades, which makes the centrist appear more important than ever. Whereas the Court once placed a premium on speaking in one voice, subordinating personal preferences or objections to unanimity, we live in an era in which it is deemed more important for each justice to express his or her distinct legal views. This has meant an explosion in the number of dissents and concurrences published, as well as a rise in the number of fractured plurality opinions. The obvious result of this trend is that individual justices, when they disagree with the outcome of a case, will very rarely change their votes merely to foster the appearance of legitimacy by preserving unanimity. Far more likely, therefore, is a scenario in which single justices can shape an entire opinion by refusing to sign on unless certain changes are made, or reconfigure whole areas of law with a single concurrence that becomes the opinion on a 4–4 Court. Of course this means, as observed above, that every justice becomes more important—not just the swing justices, since any one justice now has a greater incentive to behave strategically and thus take the helm in the decision-making process. When John Marshall was Chief Justice of the Supreme Court, virtually every opinion was unanimous, not because the justices agreed on everything, but because Marshall believed that the value of unanimity was greater than that of individual expression. Indeed in his first four years as 22

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chief, Marshall himself wrote every opinion that was not published per curiam. Over that period, there was one dissent published and no concurrences. As noted earlier, Chief Justice William Howard Taft felt much the same way. Over his tenure as chief, the Court issued unanimous opinions 84 percent of the time. Taft felt that it was better to ‘‘stand by the Court and give its judgment weight than merely to record my individual dissent where it is better to have the law certain than to have it settled either way.’’≤π Taft also went on record stating that ‘‘most dissents . . . are a form of egotism. They don’t do any good and they only weaken the prestige of the Court.’’≤∫ Times have changed. As opinions became more widely circulated, and the justices stopped working from their own homes, moving into the collective court building and spending time together, and as the Court took on more and more cases of broad national significance, individual justices increasingly began to insist on the right to peel off from the majority and dissent. Indeed, it came to be seen as something of a moral imperative to voice one’s objections or limitations in a given case. Felix Frankfurter once noted cogently that ‘‘[u]nanimity is an appealing abstraction’’ but that ‘‘a single court statement on important constitutional issues and other aspects of public law is bound to smother differences that in the interests of candor and of the best interests of the Court ought to be expressed.’’≤Ω Many justices have come to feel that dissents play a vital role in cementing the Court’s legitimacy, by demonstrating to the losing party in a case, as well as the public, that all sides were considered and that the Court took the minority arguments seriously. Whether or not dissents and concurrences have added to or detracted from the Court’s institutional stability, there can be no doubt that they have created an expanded role for any justice who seeks to express personal preferences. And as more justices dissent and concur, the strategic value of any one vote in either direction obviously increases as well. Over time, therefore, it has become clear that ‘‘when individual opinions are more highly prized than opinions for the Court, consensus declines and the Court’s rulings and policy-making appear more fragmented, less stable, and less predictable.’’≥≠ This need not mean that the Rehnquist Court is necessarily more fragmented or divisive than the Marshall Court. It may only appear that Justice O’Connor is able to single-handedly swing the court in one direction or another because her role is now public, whereas Chief Justice Taft’s negotiations happened behind the scenes, and beneath the opinions. One can certainly argue that such subterranean practices are far more ominous and anti-democratic than the current ones. Individual justices, as we have A High Court of One

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seen, have long been able to swing their colleagues around to their preferences. The only difference in the current Court is that the instruments of that influence—the draft opinions, concurrences, and plurality opinions— are now on public view.

Behavioral Psychology and the Strategies of Swing Voting In light of the above discussion, it may seem that the question of why a justice would choose to be a centrist, or just how a centrist affects the Court, is not an important one. If there have always been swing voters, and if swing voters are no more influential than other justices, perhaps the whole area of inquiry is a tempest in a teapot. We may worry a good deal about the damage being done to the court and the law by swing votes, but in the end the discussion is entirely academic. We have no way of divining why any one justice votes as he or she does, and no way of knowing whether extrajudicial forces may influence a vote, or whether such forces are valid or trivial. Perhaps for this reason, legal scholarship has largely avoided researching why judges vote as they do, and whether swing votes matter when it comes to thinking about the Constitution. We seem to prefer clinging to the belief that judges—and specifically Supreme Court justices—are above such machinations and manipulation. At least that is what lawyers prefer. Legal scholarship thus principally confines itself to what judicial decisions mean, as opposed to how and why they were made. And while journalists may faithfully report that O’Connor and Kennedy are ‘‘perennial swing voters,’’ we only rarely hint at what that might mean, or why it might matter. This has left political scientists to step in where legal scholars fear to tread, resulting in a growing body of work on the issue of judicial voting patterns. Theirs are conversations that lawyers and law professors would prefer not to overhear. The political scientists have been hard at work, however, trying to classify and test judicial votes, with an eye toward proving whether judges behave in ways that serve the law, or themselves. If the former is true, the presence of a swing voter is largely irrelevant. But if the latter is true—as most political scientists now argue—then swing voters are more powerful than kings. In their book The Choices Justices Make, Lee Epstein and Jack Knight analyze the policy and strategic choices made by the justices,≥∞ arguing that they very rarely attempt to apply the law or do justice, and are far more engaged in strategic behaviors that promote individual preferences. Bargaining and influence trading happen at every level of decision mak24

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ing, according to the authors, from decisions on grants of certiorari to bargaining over votes. Their discussion of the unique powers of the swing voter is illuminating: Employing the strategic model of decision making, they contend, means that ‘‘the fifth Justice clearly carries most of the power within the Court. By controlling the decision, this Justice can control the opinion.’’≥≤ In this view, justices may even affirmatively attempt to maneuver themselves to the center so that they can ‘‘occupy the pivot’’ on the Court. According to Edward Lazarus in his book Closed Chambers, Justice Kennedy even boasted of employing this strategy.≥≥ These ‘‘behavioralist’’ researchers seem to have come to the near universal conclusion that Supreme Court justices never apply ‘‘the law,’’ and that all their decisions can be explained in terms of personal policy preferences and strategic behaviors that promote such preferences.≥∂ Under that model the fifth justice is of course vitally important. A second school of theorists has put forth what is known as ‘‘the external strategic actor hypothesis,’’ which holds that some justices exhibit a deep concern for the preferences of Congress or the executive branch, and thus make decisions based on how sustainable their decisions will be given the constraints imposed by these other institutions.≥∑ Perhaps O’Connor and Kennedy are subject to this type of influence, which after all is more legitimate than others: in other words, they care a good deal about what other branches of government, and the public, think and try to conform their opinions to these larger demands. Of course a ‘‘strict constructionist,’’ intent on seeing judges interpret the document before them and nothing else, would likely find this kind of decision making no less disturbing than the other, less high-minded kind. The results of the social science research jibe with the conclusions of the Court’s recent critics: that there is a problem with swing voters, and it is that they are unprincipled, ad hoc, power-mad lunatics, who seek only to win at all costs (with ‘‘winning’’ defined as seeing their own policy preferences elevated over those of their colleagues). Alternatively, in more benign terms, there is a problem with swing voters, and it is that they care too much about what Congress, the president, and the public think, instead of applying the law as required. While all this scholarship is fascinating, it assumes that there is some empirical means of testing whether judges are voting their policy preferences or just adhering to some conception of the law that may not seek consistency as much as some other value, such as the legitimacy of the courts, or doing equity in individual cases. It does not allow for justices, like Justice Harry A. Blackmun, whose views evolved dramatically over his time on the bench. By setting up a binary metric according to which A High Court of One

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valid votes are never strategic and strategic votes are never valid, these scholars may be telling us more about their own anxieties than the making of justice. Since it is impossible to know whether Justice Kennedy decided the gay sodomy case based on his personal moral code, the amicus briefs, a gay friend, or what he ate for breakfast, we are left with fascinating theories which remain, in the end, untestable. What is easier to prove, as it is easier to believe, is that some justices will tend to vote their personal ideologies in some cases and others may try to impose some objective system called the ‘‘law,’’ while nevertheless voting based on personal preferences. Some justices may behave strategically, but as the earlier example of William Brennan suggests, strategic behavior need not require staking out centrist positions. So, too, is it impossible to argue that justices who are more consistent—who vote according to their notion of some objective, existing law—are not also simply voting their policy preferences. They may just be hiding them better. In short, it is more instructive to look at the term’s swing voters themselves, for insight into why their legal constellations are less fixed, or at least less predictable, than those of their colleagues. Game theory may tell us less than O’Connor’s own temperament about why she votes as she does.

Anatomy of the Swing Temperament That Justice O’Connor has held both appointed and elected political office is often invoked as a key to understanding her willingness to think institutionally and worry about the perceived legitimacy of the court, and her tendency to rule from the middle. It is immediately clear from observing her on the bench that O’Connor understands the world of sharp elbows and backroom deals in ways that would shock her more scholarly colleagues. In 1969 O’Connor was chosen to fill a vacant Republican seat in the Arizona Senate. She not only learned about state legislatures but also about successfully running for elected office. When she was elected majority leader in 1973, she found herself faced with an almost evenly divided Senate, sixteen Republicans and fourteen Democrats. If that sounds familiar, you will not be surprised to learn that her approach even then was one of bipartisanship and reconciliation. She was willing to defect from the Republican party line on issues she cared about, such as abortion. So if it sounds as if O’Connor is most comfortable at the center, thinking independently and unpredictably, while building coalitions and fostering agreement, that may be because she is psychologically overdetermined to play that role. Intellectually, O’Connor is known as a pragmatist and a realist before she is an ideologue. Once during a case con26

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ference, she listened quietly while Scalia gave a fifteen-minute lecture on the evils of affirmative action, and how particularly pernicious it was with regard to women. When he was done O’Connor smiled, then offered, ‘‘Why Nino, how do you think I got my job?’’≥∏ O’Connor is not unmindful that she was a product of affirmative action. It would therefore be hard for her to fail to see its value for women and minorities—which may well clarify why she voted as she did in this term’s Michigan cases. Her need to temper legal abstraction with real-world understanding means that she is open, in ways her colleagues often are not, to arguments about slippery slopes, discussions about the actual parties, and arguments about the basic appearance of fairness. In some ways, she was born to be a moderate because she is as uncomfortable in an ivory tower as some of her colleagues are in the real world. One other aspect of O’Connor’s character is worthy of note: she is candid about the influence of storytelling in her legal thinking. In her book The Majesty of the Law, O’Connor offers a tribute to an unlikely hero, Thurgood Marshall, whose chapter she subtitles ‘‘The Influence of a Raconteur.’’ O’Connor is forthcoming about her own lack of exposure to racial segregation, having grown up in the Southwest. She approvingly cites Marshall for having used oral argument and conference to impart ‘‘not only his legal acumen but also his life experiences,’’ thus prodding his colleagues to arrive at not only legal but ‘‘moral truth.’’≥π Indeed, one of the most revelatory sentences in her book would doubtless send Justice Scalia into shock, as she celebrates Marshall for constantly reminding her that ‘‘the law is not an abstract concept removed from the society it serves, and that judges, as safeguarders of the Constitution, must constantly strive to narrow the gap between the ideal of equal justice and the reality of social inequality.’’≥∫ The words might as easily have appeared in her Michigan decision. They reveal a tremendous amount about her willingness to defect from the conservative party line. A behavioralist might take all these observations and conclude that O’Connor is frighteningly susceptible to external influences. But another possibility arises: O’Connor may simply see her job as requiring her to weigh these pragmatic factors and real-world consequences, along with personal narrative and her perceptions of the Court’s role, into her ultimate conclusions about the law. This does not necessarily make her weak, or less than constant, or manipulative. It simply means that she has more shades of grey to integrate into any given opinion. It means that context often means more to her than black-letter law. That it may also make her a better liberal than conservative is a whole other paper. Justice Kennedy’s votes are more reliably cast with the conservatives on A High Court of One

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the Court, but he too has shocked them on occasions, with decisive votes and passionate opinions upholding the right to abortion, the rights of homosexuals, and the right to burn flags, to name just a few. Kennedy’s moderate voting pattern, like O’Connor’s, is the subject of endless speculation. Robert Novak has argued that he is in the nearly hypnotic thrall of Laurence Tribe, and Edward Lazarus, in his book Closed Chambers, suggests that Kennedy—or at least the Kennedy who first came to the Court—was endlessly malleable at the hands of both his law clerks and his colleagues. There is another possible explanation: Kennedy has experienced some personal evolution in his views on social issues. Critics call this being ‘‘Blackmunized,’’ after Justice Harry Blackmun, who became more and more liberal over the course of his Supreme Court tenure. (Blackmun reportedly once slipped Kennedy a note saying, ‘‘Don’t worry. It’s not fatal.’’)≥Ω But Kennedy is not following the path of Blackmun, or anyone else. He seems instead to be becoming more and more Justice Kennedy—following his own counsel in unpredictable ways. One of the most common depictions of Kennedy holds that he is the Court’s great agonizer; former clerks say that he can brood, Hamlet-like, for days about a case, switching his vote back and forth, as he paces and thinks. Like O’Connor, he fears missing even a single shade of grey. Professor Earl Maltz describes Kennedy’s jurisprudential evolution in terms of the difference between ‘‘affluent country-club Republicanism . . . and conservative ideology’’ embodied by Justices Antonin Scalia and Clarence Thomas.∂≠ Linda Greenhouse, quoting Joan Didion, similarly characterizes Kennedy’s childhood as much influenced by his having been the son of a lobbyist in Sacramento—growing up in a home that ‘‘had a constant flow of people and ideas . . . a world outside their personal world.’’ She notes that Kennedy has three grown children living in New York, and that therefore his gradual acceptance of difference and diversity is not necessarily surprising.∂∞ But Kennedy, described by Edward Lazarus and others as a ‘‘romantic,’’∂≤ also bears some resemblance to the paradigmatic ‘‘swing voters’’ described earlier—the men with grand visions about the role of the Court in American society. Kennedy, when he has defected from the rankand-file positions espoused by his conservative brethren, has typically done so in sweeping social rights cases. His objective in cases such as Planned Parenthood v. Casey∂≥ had less to do with isolating the legally correct answer than with shoring up the Court’s legitimacy by respecting the imperatives of stare decisis. Kennedy worries about the state of the democracy and the role of the Court in ways not shared by his colleagues. Which fact goes a long way to explaining his per curiam position in Bush v. Gore. 28

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In short, Kennedy is not an ideologue as much as a philosopher. His tendencies are conservative, but he values the public trust placed in the Court in ways that force him to look at the really ‘‘hard’’ cases with an eye toward what the public expects, and needs. This eye on the Court as an institution is what allowed him to break with the Framers in Lawrence v. Texas, and to do so with this eloquent (and surprising) statement about the need for a living Constitution: ‘‘times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’’ Perhaps Kennedy, like O’Connor, can be cavalierly accused of vacillating between strict construction and unbridled activism. But such binary distinctions would constrain his task, and so he is willing to answer to a different calling when need be. Like O’Connor, Kennedy would probably say that the role of the justice, and more vitally, the role of the Court, is far more expansive than mechanical adherence to a single interpretive theory would allow. In fact both justices might well contend that all this worry about swing voters is misplaced. Indeed both justices reportedly dislike the term altogether. Perhaps one ought to worry instead about those justices who vote together so consistently as to suggest a dangerous single-mindedness. The argument can be made that unblinking adherence to a single theory or doctrine, to the exclusion of all things, does not result in justice so much as in reflexive decisions, unmoored from reality or morality. Kennedy shares with O’Connor a Westerner’s suspicion of big government, as well as a belief in the power and dignity of the individual. Like O’Connor, he worries about the coercive effect of religion in schools on children. Like her, he is open to suggestions about where the law should go. Both Kennedy and O’Connor accept that the role of the justices sometimes includes listening to and responding appropriately to the evolving political will. Thus, whether or not they would agree with his politics, both O’Connor and Kennedy are sometimes spiritual heirs to Thurgood Marshall, who famously said that the job of a justice is to ‘‘do what you think is right and let the law catch up.’’∂∂ The 2002 term revealed more than one case in which these otherwise stalwart conservatives made the decision to do precisely that.

O’Connor: A Special Kind of Swing Vote It is impossible to conclude that Justice O’Connor’s terrific influence over the court is entirely benign, however, without addressing her nowA High Court of One

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famously frustrating method of opinion writing. Much has been written about how O’Connor decides cases as narrowly as possible, always leaving herself ample space in which to change her mind in the future. She is a great fan of balancing tests, and other personal, visceral means of deciding cases—often based entirely on lines she seems to invent out of the ether. Abortion regulations are permitted unless they pose an ‘‘undue burden.’’ Gerrymanders are permissible unless she finds them ‘‘bizarre.’’ And, after this term, racial preferences to promote diversity are permissible so long as they are not ‘‘mechanical.’’ As any lawyer attempting to argue subsequent cases or any lower court judge attempting to divine a bright-line rule from her opinions will tell you, O’Connor’s good-for-one-ride tickets have proved maddening. Since hers are so frequently the fifth votes, and her grounds the narrowest ones for a plurality decision, the legal landscape is now littered with O’Connor tests which often confuse more than they enlighten. And so for many critics weary of her hold over the rest of the Court, this is the principal objection: an O’Connor opinion is frequently the sole key to the future resolution of cases, yet it offers few clues about how those cases ought to be resolved. For commentators who see O’Connor as calculatingly strategic, therefore, it appears that this is precisely how she wanted the world to look: with herself at the center of the Court, laying out test after test for which she alone can be the arbiter. She has created a Supreme Court of One, with respect not only to past cases but future ones. And certainly, it is not impossible that O’Connor is that Machiavellian. But this goes beyond the evidence. O’Connor’s method of deciding cases is not necessarily an outgrowth of her position at the center of the Court, or the cause of it. And critics would do better to decouple their objections to the results in O’Connor cases from her motives, which remain unknowable. Most of the fretting and strutting over the evils of the swing vote this year have been, I have suggested, just that. Posturing and worrying fail to explain what makes a swing voter different from any other voter—even if their inconsistency and the possibility that they have been influenced by pernicious external factors make us anxious. I have argued that since we cannot know what animates a justice’s votes, and since the empirical efforts to test them yield evidence that cannot ultimately be proved, much of this discussion is both futile and uninteresting. What is interesting is that two members of the Rehnquist Court do tend to vote in somewhat unpredictable ways—or more precisely, in ways that are predictable if one looks beyond the constraints of binary models of 30

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legal interpretation—and that their votes have prevented a profound conservative rollback of the Warren Court revolution. What is also interesting is that two members of the current Court struggle with the tension between real life and theoretical decisions; struggle with their conceptions of the role of the Court in the country; and struggle to balance basic fairness with strict doctrine. If the result of all these struggles is the presence of two ‘‘swing voters,’’ so be it. But that presence hardly amounts to a constitutional crisis. To whatever extent concerns about the disproportionate influence of the current swing voters are valid, however, they ignore one important truth: the centrist voters are the only thing standing between us and a Court so ideologically polarized and predictable that it really might be replaced by a computer program. That both conservative and liberal scholars and commentators complained last spring about the undue power at the Court’s center suggests that perhaps the current Court is likely doing more right than wrong. Anyone with an investment in the 2002 term’s decisions found cases about which to be pleased, and cases about which to weep. Everyone felt betrayed and vindicated. That kind of equilibrium—particularly on a court with seven Republican appointees—is a legal rarity, and just possibly a public gift. What the current Court offers us is an almost perfectly calibrated balance, a situation in which political ideology and interpretive theory are tempered by extrinsic factors, if only rarely, to produce decisions that are right down the middle on the most hotly disputed issues of our times. If this is a nation deeply divided over the questions of abortion, homosexuality, race, and religion, is it not fitting to have a Court in which neither side ‘‘wins’’ definitively, or loses? Is it not fitting to have a Court that is both deeply divided, yet capable of coming to resolution, sometimes to my satisfaction and sometimes to the satisfaction of the other side? In a profound way, the Court’s moderates defy the caricatures—of vacillating, weak-minded jurists, blown heedlessly by the winds of popular opinion and the culture wars—and instead illustrate the reality: that these issues which divide us are difficult, and complicated, and even possibly insoluble. How lucky to have a Court that mirrors that reality! To have a Court that keeps us guessing, that gets it wrong, then gets it right, that hikes one way and tacks another, just like the rest of us—that may not, in the end, be a dangerous thing at all.

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CHAPTER TWO

The Supreme Court’s memorable 2002–03 term ended on 26 June with perhaps its most remarkable decision. On that morning, Justice Anthony Kennedy read the Court’s opinion in Lawrence v. Texas, a case involving the constitutionality of a Texas law that criminalized homosexual sodomy. Would the Court overrule its decision in Bowers v. Hardwick (1986), in which the Court had held that homosexuals did not have a constitutional right to engage in consensual sodomy? Many observers predicted that the Court in Lawrence would not disturb the Bowers precedent but would instead hold more narrowly that the Texas law—which applied only to homosexual sodomy—denied homosexuals the equal protection of the law in comparison with heterosexuals. Kennedy’s opinion for the Court, however, stunned the nation. The flaw in the Texas law, Kennedy announced, was not merely that it singled out homosexuals, but that it infringed core notions of human liberty by criminalizing sexual conduct between two consenting adults. ‘‘Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct,’’ Justice Kennedy wrote. ‘‘Bowers v. Hardwick should be and now is overruled.’’ The Court’s decision three days earlier in Grutter v. Bollinger sustaining the University of Michigan Law School’s affirmative action program may have earned the term’s biggest headlines, but Justice Kennedy’s expansive decision in Lawrence v. Texas proved to be the shocker of the term. David Savage, a longtime Supreme Court reporter for the Los Angeles

Times, uses Justice Kennedy’s opinion in Lawrence v. Texas as a lens through which to view his surprising tenure on the Court. Kennedy, along with Justices Sandra Day O’Connor and Antonin Scalia, was appointed to the Court by President Ronald Reagan. Conservatives held hope that Reagan’s appointments might stem the liberal tide that began in the Warren Court. Yet time after time, on some of the most crucial issues for conservatives—abortion, school prayer, and gay rights—Kennedy has cast the deciding vote with the Court’s more liberal bloc (and written or cowritten the Court’s opinion) in cases that proved to be bitter pills for conservatives: Planned Parenthood v. Casey (abortion), Lee v. Weisman (school prayer), and now Lawrence v. Texas. In each case, Kennedy’s ‘‘betrayal’’ provoked a bitter dissent from Justice Scalia blasting Kennedy’s logic. How could these two Roman Catholic justices of the same age, both educated at Harvard and both appointed by Reagan, diverge so sharply? From the perspective of conservatives, what went wrong? Savage seeks to answer those questions. He examines the two justices’ biographies, as well as their jurisprudence in cases involving church-state issues, equal protection, and individual rights in which litigants claim a ‘‘liberty’’ interest. Savage concludes that Kennedy and Scalia have a different understanding of how the Constitution should be interpreted. For Scalia, the meaning is essentially fixed; for Kennedy, the meaning can and does evolve. Kennedy concluded his opinion in Lawrence v. Texas with a bold statement suggesting an evolving conception of constitutional meaning: ‘‘Had those who drew and ratified the [Constitution] known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.’’ Suffice it to say, those words would never have come from the pen of Justice Scalia.—the editors

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Anthony M. Kennedy and the Road Not Taken david g. savage

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n the last day of the Supreme Court’s term for 2002–03, the courtroom was surprisingly empty. On most Mondays, all the seats are filled well before the gavel sounds at 10 a.m. Schoolchildren, tour groups, and visitors crowd in, glad to be there for a few moments just to glimpse the black-robed justices. Lawyers fill the front half of the room, there because they are awaiting the outcome in one of the scores of pending cases. On Monday, 23 June, the tightly packed room had been buzzing with expectation, since the fate of college affirmative action hung in the balance. To the apparent delight and relief of most of those assembled, Justice Sandra Day O’Connor announced that the twenty-five-year-old Bakke decision would be renewed for perhaps another twenty-five years. Colleges and universities may continue to consider a minority student’s race as a ‘‘plus factor,’’ she said.∞ When the justices departed, the crowd burst out of the room and into the bright sunlight like schoolchildren celebrating the last day of class. A few cases were left, however, and they were set to be announced on Thursday, 26 June. That morning, only the front rows in the lawyers’ section were filled. There sat at least a dozen young attorneys, several of whom had worked on the briefs in the pending gay rights case, Lawrence v. Texas.≤ They sat stiffly and quietly in the hushed room, unlike the buzzing, nearly jubilant crowd of a few days earlier. They had reason to be optimistic. Three months earlier, the Texas lawyer defending the state’s Homosexual Conduct Act had struggled to ex-

plain what interest was served by the law that branded as criminals a significant number of its otherwise law-abiding citizens. The state has a ‘‘right to set bright line moral standards for its people,’’ responded Charles Rosenthal, the district attorney of Harris County. Why not a law against lying at the dinner table?, asked an evidently unimpressed Justice Stephen G. Breyer.≥ Still, for gays and lesbians the Supreme Court carried bad memories. In 1986 the Court had looked back to medieval England for condemnations of homosexual behavior and cited Blackstone’s description of it as an ‘‘infamous crime against nature, . . . the very mention of which is a disgrace to human nature.’’ In Roman times, homosexual sodomy was a capital crime, Chief Justice Warren Burger added helpfully. The case then before the Court had arisen when Michael Hardwick, a bartender in Atlanta, had been arrested in his apartment for having sex with another man. The U.S. Court of Appeals in Atlanta struck down the state’s law, but the Georgia attorney general, Michael Bowers, petitioned the Supreme Court. He relied in his appeal on an opinion by Judge Robert Bork, who had written that while the high court had recognized privacy rights for married couples, ‘‘none of these covers a right to homosexual conduct.’’∂ Chief Justice Burger wrote in Bowers v. Hardwick that it would ‘‘cast aside millennia of moral teaching’’ to lift the criminal sanction for sex acts between persons of the same gender. ‘‘Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards,’’ he said in a concurring opinion.∑ To claim that the Constitution’s historic protection for personal privacy extends to gays and lesbians in their own homes ‘‘is, at best, facetious,’’ Justice Byron White concluded in the main opinion.∏ White was not a man of light humor. A football star of the late 1930s, he was known for sticking a stiff arm into the face of those who got in his way. His opinion in Bowers showed that he had not lost the instinct for the ‘‘in-your-face’’ attack—or his locker-room contempt for homosexuals. He had grown up in an era when smart opinion had it that homosexuality was a mental disorder or moral failing, certainly to be avoided and best not to be discussed. Justice Harry Blackmun, who had grown up in the same era, had seen beyond White’s ‘‘obsessive focus’’ on the right to engage in ‘‘homosexual sodomy.’’ This case, Blackmun wrote in dissent, ‘‘is about ‘the most comprehensive of rights and the right most valued by civilized men,’ namely, the ‘right to be let alone’ ’’ (quoting another great dissent, by Justice Louis Brandeis in a wiretapping case in 1928).π In a separate dissent in Bowers, Justice John Paul Stevens pointed out a queer aspect of the case that Georgia lawyers—as well as the Supreme Court majority—were quite 36

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willing to overlook. Georgia law, then and throughout its history, prohibited sodomy. It did not distinguish between homosexuals and heterosexuals, he noted.∫ Yet Georgia had chosen to defend the law as though it singled out gays for special punishment. This proved to be a smart strategy, since Justice White and the Court’s majority were not about to uphold an anti-sodomy law that applied to married couples. (It also proved to be a convenient strategy for Attorney General Bowers. His later campaign for governor was derailed when he admitted to a fifteen-year adulterous affair with a female employee, and an ex-lover was quoted as saying, ‘‘As far as sodomy is concerned, Mike Bowers is a hypocrite.’’)Ω Still, Georgia’s victory in Bowers v. Hardwick did not spur a national wave of terror in gay communities, with police officers raiding the homes and apartments of these suspected criminals. Its impact was felt elsewhere—in family courts, adoption agencies, and assorted government offices. Defenders of morality and Western Civilization were encouraged to discriminate against gays and lesbians. Why should these persons, branded as criminals by the state and by the Supreme Court, be given equal rights to adopt children, have joint custody of their offspring, or work for the city or county as police officers or lawyers? Bowers v. Hardwick supplied an answer of sorts: homosexuals were outcasts to the law, and had been so for two thousand years. So the young gay rights advocates who gathered in the courtroom that morning had reason to be anxious too. The country had changed greatly in recent decades on the issue of homosexuality. Today’s young people tend to view being gay as akin to being left-handed, a mere variation on the normal. But the Supreme Court was not made up of young people. Most of the men and women who wore the black robes had grown up during the in-between decades of the twentieth century—after the Great Depression of the 1930s but before the civil rights movement of the 1960s, closer to Byron White’s era than to today’s youth. Nonetheless, they would decide whether the Declaration of Independence’s ‘‘unalienable rights, . . . life, liberty and the pursuit of happiness’’ applied to gays and lesbians.

Bork versus Kennedy Shortly after the gavel sounded, the Chief Justice announced that Justice Anthony M. Kennedy would deliver the opinion of the court in Lawrence v. Texas. Kennedy was sixty-six years old and had a thin face, wirerimmed glasses, and wispy hair. He was an Irish Catholic from Sacramento and an early protégé of Edwin Meese and Ronald Reagan, then governor of California. Thanks to Reagan’s backing, he had been named at Kennedy and the Road Not Taken

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thirty-eight to the U.S. Court of Appeals in San Francisco. He had emerged in 1987 as the unlikely victor in one of the most tumultuous political battles over the Supreme Court. Reagan’s first choice to fill the seat of Justice Lewis F. Powell, who was retiring, was Judge Bork, the stout, bearded proponent of preserving the old order by focusing on the ‘‘original intention’’ of the men of 1787 who drew up the Constitution. Civil rights for blacks were outside that old order. In 1963 Professor Bork in the pages of the New Republic condemned the Civil Rights Act, then pending, because of its ‘‘cost in freedom.’’ He foresaw the ‘‘unsurpassed ugliness’’ of requiring whites to serve black customers. He feared for the white ‘‘barber (who would be told) that he must deal with all who come to him’’ or ‘‘a chiropodist (who) cannot refuse a Negro patient.’’∞≠ As for homosexuality, it is best controlled through public condemnation, Professor Bork said. At the Yale Law School, he fought a move to ban recruiters who discriminated against gays. ‘‘Societies can have very small or very great amounts of homosexual behavior, depending on the degrees of moral disapproval or tolerance shown,’’ he wrote in a memo to the faculty.∞∞ But Bork’s rigidright views were rejected by most Americans, and his nomination was decisively defeated by the Senate. Unbowed, Meese’s Justice Department pressed for another reliable conservative, but Reagan’s second choice—Judge Douglas Ginsburg, age fortyone—soon went up in smoke, as the wags had it. Friends revealed that Ginsburg was a smoker of marijuana as a student and professor at the Harvard Law School. Thanks to the First Lady, Nancy Reagan, ‘‘Just Say No’’ to drugs was the motto of the Reagan administration, so just a week after walking into the glare of the Washington spotlight, Ginsburg quietly exited the stage. ‘‘Tony. This is it!,’’ said the voice on the other end of the line at 4 a.m. in Sacramento. ‘‘Sometimes, the Lord works in mysterious ways.’’∞≤ The caller was Meese, a notorious early riser whose mysterious ways included making calls to the West Coast at the start of his day in Washington. Judge Kennedy had been talked about when Powell’s seat first became vacant, but he was passed over. The hard-liners said his opinions made them uneasy. In a case in 1980 involving the discharge of a gay sailor, Judge Kennedy had taken seriously the claim that the Constitution’s protections of liberty and privacy might extend to homosexuals. He cited law review articles and the constitutional law treatise written by Harvard Law Professor Laurence H. Tribe, who would go on to argue this claim—and lose—in Bowers v. Hardwick.∞≥ Kennedy ultimately deferred to the Navy’s judgment that having open homosexuals would upset the military, but unlike Robert Bork, he noted that he could not easily square this conclu38

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sion with a Constitution that respected the rights of individuals and frowned upon irrational discrimination. But Reagan and Meese were in desperate straits. After a year that saw the Iran-contra scandal, Bork’s defeat, and Ginsburg’s immolation, they needed a judge who could be confirmed without surprises. Kennedy was the ‘‘original Mr. Clean,’’ a Justice Department lawyer said. With his wife Mary, a schoolteacher, he had three fine children and lived in the same old neighborhood in Sacramento where he had grown up. He was a muchadmired teacher of constitutional law at the McGeorge Law School who practiced a scrupulous adherence to the rules in his private and public life. Longtime friends said that when walking to lunch, he insisted on crossing the streets at the corner. A judge should not be jaywalking, he said. When reporters descended on Sacramento in search of tales of his reckless youth, the best story they could produce was that on a high school field trip to the nation’s capital, he had thrown a wad of chewing gum from the top of the Washington Monument. Kennedy’s Senate hearings had none of the drama of Bork’s. Republicans were satisfied that Reagan’s nominee was generally conservative; the Democrats were pleased that he seemed at least to have an open mind on matters such as abortion, privacy, and civil rights. Where Bork had called it ‘‘illegitimate’’ for the justices to go beyond the Constitution as it was understood in the eighteenth century, Kennedy said that the court must give meaning to the great principles of liberty and equality. Looking to the past might be the starting point, but not the end point. ‘‘There is a zone of liberty, of protection, when the individual can tell the government there is a line beyond which you cannot go,’’ Kennedy testified. He added that he had ‘‘no fixed view on abortion or privacy.’’ Asked about the Fourteenth Amendment and civil rights, he replied, ‘‘The whole lesson of our constitutional experience has been that a people can rise above its own injustice . . . and the inequities that prevail at a particular time.’’ The Senate, relieved, confirmed his nomination unanimously. In the fifteen years since he joined the Court, Kennedy’s record fit with the initial assessments. He was a moderate conservative, inclined to uphold the government in crime and death penalty cases. He agreed with Chief Justice William H. Rehnquist more often than any other justice, even Justices Antonin Scalia and Clarence Thomas. During the 2002–03 term, for example, Kennedy agreed with Rehnquist in 93 percent of the cases decided. Next in line of agreement with the Chief Justice were Justices O’Connor (87 percent), Scalia (86 percent), and Thomas (81 percent).∞∂ Kennedy has also been the Court’s most reliable supporter of free speech. As Professor Eugene Volokh of ucla has shown, it is not true that support Kennedy and the Road Not Taken

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for the First Amendment divides along the traditional liberal-conservative lines. Since 1994 Kennedy has voted the most often—in 75 percent of the cases—in favor of a free-speech claim. He is followed by Justices Thomas and Souter at 61 percent. The justice least likely to favor a freespeech claim is President Clinton’s second appointee, Justice Breyer, at 39 percent.∞∑ But as always, statistics tell only part of the story. On issues that deeply divide conservatives and liberals, such as religion, abortion, and term limits—Kennedy has been anything but a predictable conservative. Week after week, the hardest cases at the Supreme Court are decided by Justices Kennedy and O’Connor. Unlike the former justices William Brennan or Thurgood Marshall on the left, or Justices Scalia and Thomas on the right, Kennedy never gives the impression that the right answer is obvious from the start. In his later years, Marshall told his clerks that he would not retire with Ronald Reagan in the White House. ‘‘If I die, prop me and keep voting,’’ he joked. It is hard to imagine a similar joke emerging in the future from the chambers of Justices Kennedy or O’Connor. But vote which way?, the clerks would have to ask. Kennedy has been quite willing to say that judging is hard work. On occasion, he has talked about the difficulties raised by constitutional disputes, and the result has been less than flattering portrayals. A profile of Kennedy in the New Yorker carried the title ‘‘The Agonizer.’’∞∏ Consistency and certitude are the ways to win high marks as a justice. Brennan and Scalia are widely admired because their principles were easily understood and consistently followed. For Brennan, the Constitution was a benevolent document designed to protect the downtrodden: criminal defendants, racial minorities, immigrants, and the poor. Scalia sees the Constitution as a set of written rules for the government of 1787. Any new interpretations of those old rules are, by his definition, illegitimate. Kennedy follows neither path. He does not subscribe to Brennan’s openended style of judicial liberalism, nor Scalia’s style of conservative literalism. Americans see the Constitution as protecting their basic values, including liberty and equality, and the task for the justices is to apply those principles in a way that is faithful today to those enduring values, Kennedy says. He has no simple formula for deciding cases, and he is not determined to come out on the same side all the time. Justices should be evaluated on the full record of their decisions—not just on the philosophy they espouse—and by that standard, Kennedy’s record stands up well. A former law professor, Kennedy is a constitutional philosopher at heart. Given an opportunity, he is inclined to write broadly and at considerable length and to explain the basis for his decision. He also writes 40

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quotable lines, a rarity these days. Most of the Court’s opinions are dry and conclusory. They read as though a young clerk sought to string together a series of snippets from earlier opinions, as if determined to not write a single original sentence. But the blame for this blandness lies with the justices, not their clerks. Justice White’s dismissive comment in Bowers that the gay rights claim was ‘‘at best, facetious’’ is one of the only memorable lines from his thirty-one years of work on the Court. Alone among the current justices, John Paul Stevens writes his own first drafts, and though he is well past his eightieth birthday, his opinions and dissents retain an energy and a freshness of expression. And no one would mistake a caustic dissent from Justice Scalia as the words of anyone but him. For his part, Kennedy had shown an ability to rise to the occasion when given an important opinion. As he read Lawrence he leaned forward and began to speak slowly and deliberately. The justice explained that the case tested the validity of a Texas law that made it a crime for two adults of the same sex to engage in certain intimate conduct. The police in Houston had been called to an apartment complex because of what turned out to a false report of a gun discharging. They entered the apartment of John Geddes Lawrence and found him engaged in sex with another man, Tyron Garner. The two were arrested, held in jail overnight, and charged with ‘‘deviate sexual intercourse.’’ Texas was one of four states that continued to enforce a criminal law against sex between persons of the same gender. Lawrence and Garner were each fined $200. They challenged the state’s prosecution as violating the Fourteenth Amendment’s guarantee of liberty and equal protection of the law. Many experts had predicted that the Court would focus on the equal protection issue, thereby steering clear of Bowers and the hard question of what liberty was protected by the Constitution. But Kennedy signaled a different path. This case requires us to revisit the Court’s holding in Bowers v. Hardwick, he said, after summarizing the case. At the mention of Bowers, the young lawyers sat perfectly still, as if suppressing even a breath. The Bowers opinion, Kennedy said, began by asking whether the Constitution ‘‘confers a fundamental right upon homosexuals to engage in sodomy.’’ This statement ‘‘discloses the Court’s own failure to appreciate the extent of the liberty at stake,’’ he said. Focusing on ‘‘a particular sex act . . . demeans the claim’’ put forward, he said, just as it would demean a married couple to describe their marriage as ‘‘the right to engage in sexual intercourse.’’ His voice strengthened as he spoke: ‘‘When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring,’’ he said. Kennedy and the Road Not Taken

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The petitioners in this case are ‘‘two adults who, with full and mutual consent from each other, engaged in sexual practices that are common to a homosexual lifestyle. They are entitled to respect for their private life. The state cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.’’ As Kennedy spoke, one of the young lawyers who had been listening intently peeked up and looked into the eyes of those down the row, as if seeking confirmation that they too had heard the words ‘‘dignity’’ and ‘‘respect’’ used to describe the private lives of gays and lesbians. The justice was not finished either. Kennedy went on to explain that Burger’s history—the ‘‘ancient roots’’ to anti-gay laws—was something of a historical myth. In medieval England as well as in eighteenth- and nineteenthcentury America, laws against sodomy applied to heterosexuals too, and virtually the only prosecutions were for ‘‘predatory acts’’ of adults against minors, he said. American laws targeting same-sex couples did not develop until the last third of the twentieth century. The Texas law at issue in Lawrence was enacted in 1973. Burger was also off base in enlisting the weight of Western civilization on his side, Kennedy added. In 1981, five years before the Bowers decision, the European Court of Human Rights had struck down the laws against consensual homosexual conduct.∞π Kennedy’s view on gay rights was not a true surprise. In Romer v. Evans in 1996 he had spoken for the Court in striking down a voter initiative in Colorado that would have stripped gays and lesbians of all antidiscrimination protections in city and state laws. Then he began by invoking Justice John Marshall Harlan’s great dissent in Plessy v. Ferguson, the ruling that upheld racial segregation: ‘‘One century ago, the first Justice Harlan admonished this Court that the Constitution ‘neither knows nor tolerates classes among citizens,’ ’’ Kennedy wrote. ‘‘Unheeded then, those words now are understood to state a commitment to the law’s neutrality where the rights of persons are at stake.’’ Turning to Colorado, he wrote, ‘‘Laws singling out a certain class of citizens for disfavored legal status are rare,’’ and the state’s initiative ‘‘seems inexplicable by anything but animus’’ toward homosexuals. ‘‘A state cannot so deem a class of persons a stranger to its laws,’’ he concluded.∞∫ The 6–3 decision was the first significant gay rights victory in the Supreme Court. Nonetheless, as Kennedy noted from the bench in his Lawrence opinion, Bowers remained on the books, emitting ‘‘statesponsored condemnation’’ of homosexuals and inviting discrimination against them. But not for a day longer, he said, rising to the conclusion. 42

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‘‘Bowers was not correct when it was decided, and it is not correct today. It ought not to remain precedent. Bowers v. Hardwick should be and now is overruled,’’ he said. There are no high fives in the Supreme Court or outbursts of applause. But as Kennedy finished, quiet weeping could be heard in the courtroom. Tears flowed amid the smiles. In one judicial opinion from the nation’s highest court, gays and lesbians had gone from outcasts in law, condemned by the centuries, to full-fledged Americans entitled to the same respect and dignity as everyone else in their private lives. Larry Tribe, the Harvard law professor who had once described his loss in the Bowers case as feeling like a ‘‘hard kick right in the gut,’’ was in the courtroom to hear the opinion. As Kennedy spoke, Tribe had his head down and his hands clasped tightly in his lap. At the end, he too looked up with relief and a tear in his eye. Justice Stevens, the lone remaining dissenter from Bowers, had assigned the opinion to Kennedy, and he joined it in full, as did Justices David H. Souter, Ruth Bader Ginsburg, and Stephen Breyer. Justice O’Connor, who joined the majority in Bowers, wrote a concurring opinion in the Lawrence case that echoed Kennedy’s opinion in Romer v. Evans. ‘‘A law branding one class of persons as criminal solely based on the state’s moral disapproval of that class and the conduct associated with that class runs contrary to the values of the Constitution and the Equal Protection clause,’’∞Ω O’Connor wrote. Like Kennedy, she agreed that the Texas law had no ‘‘rational basis’’ and should be voided, regardless of whether discrimination against homosexuals deserved a special, higher scrutiny from the courts. Combined with the ruling upholding affirmative action, the Lawrence decision made for the most dramatic final week of a Court term—and the worst for social conservatives—since June 1992.

Revolt against the Reagan Revolution In the spring of 1992, conservatives looked to be on the verge of victory. The Court had eight Republican appointees and a conservative Democrat in Justice Byron White. At issue that spring were two causes that were at the core of the Reagan Revolution: overturning the right to abortion and restoring prayer to the public schools. Chief Justice Rehnquist believed that religion deserved a greater place in public life. In 1985, the year before Reagan elevated him to Chief Justice, he called for rejecting the notion of ‘‘separation of church and state’’ that in the 1960s had driven the decisions banning state-sponsored school prayer, the posting of the Ten CommandKennedy and the Road Not Taken

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ments, and public aid to parochial schools. Thomas Jefferson’s notion that the First Amendment erected ‘‘a wall of separation’’ between church and state is a ‘‘misleading metaphor based on bad history,’’ Rehnquist wrote. ‘‘It should be frankly and explicitly abandoned.’’≤≠ He had also dissented in Roe v. Wade≤∞ and continued to believe that the decision should be overruled. Already in 1989, Rehnquist had come close to winning a reversal of Roe. In a Missouri case, he drafted an opinion for a five-member majority upholding a series of abortion restrictions on the grounds that they ‘‘reasonably further the state’s interest in protecting potential human life.’’ In a bid to hold on to Justice O’Connor’s vote, his draft disavowed overruling the ‘‘holding of Roe’’ and ruling that all abortions could be made a crime. Justices White, Scalia, and Kennedy quickly joined his opinion.≤≤ But to Rehnquist’s surprise, O’Connor balked and refused to sign the opinion. She said his legal approach would have overruled Roe without saying so. The 4–4–1 split in 1989 left the future of the abortion right hanging by a thread.≤≥ In the next two years, the most liberal justices, William J. Brennan and Thurgood Marshall, retired, and were replaced by appointees of President George H. W. Bush: Justices David H. Souter and Clarence Thomas. The Court then had eight Republican appointees and a conservative Democrat—Justice White—who favored overturning the abortion right and allowing a greater role for religion in the schools. That spring, the case of Lee v. Weisman≤∂ looked ideal for breaking down the strict ban against school-sponsored prayer. A junior high school principal in Providence, Rhode Island, had invited a cleric—in this instance, a rabbi—to deliver an invocation at the graduation ceremony. At the same time, the Court was considering the abortion right in a Pennsylvania case. Remarkably, Justice Kennedy, Reagan’s final appointee, cast the decisive vote in both cases, in the first to preserve the ban on school-sponsored religious exercises and in the second to uphold the basic right of pregnant women to choose abortion. In the school case, Kennedy noted that calling the invocation merely ceremonial did not change the fact that it was a ‘‘state-sponsored and state-directed religious exercise in a public school. . . . Though the First Amendment does not allow the government to stifle prayers,. . . . neither does it permit the government to undertake that task for itself.’’≤∑ If anything, the abortion ruling came as an even bigger surprise. At the conference in the Pennsylvania case, seven of the nine justices—all but Harry Blackmun and John Paul Stevens—were in favor of upholding the state’s new restrictions, such as requiring pregnant women to wait 44

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twenty-four hours after initially seeking to obtain an abortion. The Chief Justice set out to draft an opinion—similar to his effort in the Missouri case—that would cut the structure out under from under the abortion right, without explicitly overruling it. Of course O’Connor would not go along, but Rehnquist figured that he did not need her vote this time: Clarence Thomas would provide a fifth vote to overrule the abortion right. In September 1991, Thomas testified under oath before the Senate Judiciary Committee that he had no firm view on Roe v. Wade and had not even thought much about it. But by the spring of 1992, his views had become firm. He was against it. Souter, still a newcomer, had resolved to stand by the abortion right as a precedent. Like his hero, the second Justice John Marshall Harlan, Souter believed that the law was a wall built brick by brick, and that tearing down the brickwork of the past rarely made sense. He proposed to O’Connor that they draft an opinion explaining why the abortion right itself should be affirmed. A few days later, Souter and Kennedy spoke and realized that the two had come to a similar conclusion. Since joining the Court, both knew that they would eventually face the decision whether to overturn Roe v. Wade. It was inescapable, and perhaps better faced now than put off for another day. This was an especially excruciating decision for Kennedy. He believed that abortion was morally wrong. If his daughter or a relative became pregnant but did not want the child, he had said that the members of his family would come together and raise the child themselves. But not all families were in the same situation, he observed. And in his view, it would be wrong to impose his moral view of abortion on others. He too had questioned the correctness of Roe v. Wade as a constitutional decision when it was handed down, but he doubted the wisdom of backtracking on a liberty right that had been set for a generation. The three justices decided to draft a joint opinion. Kennedy worked at home. He would spell out his view of the Constitution’s protection for liberty and privacy. Souter sat with a legal pad on his office couch and drafted a section that would rely on precedent as a reason for upholding Roe v. Wade. And O’Connor honed her view that an ‘‘undue burden’’ was the right standard for judging state abortion regulations. ‘‘The hard fact is that sometimes we must make decisions we do not like,’’ Kennedy had written in 1989 when he cast the decisive fifth vote to strike down laws against flag burning.≤∏ This had become something of a mantra for him. Where most of the justices seem adept at construing the Constitution and federal law in line with their view of the right policy, Kennedy saw his highest duty as enforcing constitutional principles Kennedy and the Road Not Taken

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when—and especially when—they conflicted with his view of the right policy. ‘‘Liberty finds no refuge in a jurisprudence of doubt,’’ wrote Kennedy, O’Connor, and Souter in their joint opinion in the Pennsylvania abortion case. ‘‘Men and women of good conscience can disagree, and we suppose some always shall disagree, about the profound moral and spiritual implications of terminating a pregnancy, even in its earliest stage. Some of us as individuals find abortion offensive to our most basic principles of morality, but that cannot control our decision. Our obligation is to define the liberty of all, not to mandate our own moral code,’’ the Court said in a passage that Kennedy drafted.≤π

Scalia versus Kennedy Needless to say, all three decisions—on school prayer, abortion, and gay rights—were accompanied by fierce dissents from Justice Scalia, which he read from the bench in an angry voice. In private, he spoke of Kennedy’s decisions as though they were a personal betrayal. The two were contemporaries: Both were born in 1936, grew up in Catholic families in postwar America, graduated from high school in the early 1950s, and excelled at Harvard Law School. They were conservative Republicans amid the upheavals of the 1960s, and rose through the ranks of the legal profession thanks to Ronald Reagan. Upon his appointment to the court, Kennedy bought a house in the same neighborhood in McLean, Virginia, as Scalia’s. Yet having reached the pinnacle of the law, the two had taken different roads. Kennedy sees an American tradition of personal freedom and respect for individual differences, and a Constitution that protects both. Scalia sees a nation whose faith, tradition, and moral standards are threatened, not preserved, by judges whose constitutional rulings reflect élite opinions. In a sense, the decisions on abortion, school prayer, and gay rights were the last clashes of the Bork battle and a final verdict on the divided legal legacy of Ronald Reagan. Reagan was the preeminent conservative political leader of the late twentieth century. His sunny optimism revived the Republican Party and made it the nation’s dominant political force in the 1980s. But in 1992, when he spoke as a former president to the Republican National Convention in Houston, the gop was profoundly split. In what proved to be his farewell address, Reagan talked of freedom and an open society that offered opportunity to all. ‘‘Whether we come from poverty or wealth, whether we are Afro-American or Irish-American, Christian or Jewish, from big cities or small towns, we are all equal in the eyes of God,’’ Reagan 46

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told the convention crowd. ‘‘And whatever else history may say about me when I’m gone, I hope it will record that I appealed to your best hopes, not to your worst fears, to your confidence rather than your doubts,’’ he said in closing. Reagan was paired that night with the conservative commentator Patrick Buchanan, who shared his worst fears with the audience—and won the loudest applause for doing so. ‘‘There is a religious war going on in our country for the soul of America. It is a cultural war, as critical to the kind of nation that we will one day be as the Cold War,’’ said Buchanan, who had mounted a strong challenge for the gop presidential nomination. He spoke of the danger of ‘‘radical feminism’’ and ‘‘abortion on demand,’’ the ‘‘raw sewage of pornography that pollutes our popular culture,’’ and the threat posed by ‘‘the amoral ideas that gay and lesbian couples should have the same standing in law as married men and women.’’ The Republican Party platform also spoke of ‘‘elements within the media, the entertainment industry, academia and the Democratic Party [who] are waging a guerilla war against American values. They . . . disparage traditional morality, denigrate religion and promote hostility toward the family’s way of life.’’ Kennedy could well have spoken Reagan’s idealistic words, while Scalia indeed has echoed Buchanan’s comments about a culture war fought over abortion, prayer, and pornography. And need it be said, Robert Bork, like Scalia, shared Buchanan’s fear of a nation in moral and cultural decline. After leaving the bench, Bork published three books that gave a gloomy assessment of the law and culture. The first, The Tempting of America: the Political Seduction of the Law, used sexual metaphors to argue that judges had been seduced by elitists to diverge from the straight and true path. The second, Slouching toward Gomorrah: Modern Liberalism and American Decline, expanded on the theme of a nation whose foundation is being rotted, notably by a certain breed of termites who hold life tenure. All of Western Civilization is under attack from a ‘‘judicial disease,’’ Bork wrote, and ‘‘moral traditions are in retreat everywhere’’ because of overly ambitious judges.≤∫ From his perch on the high court, Scalia sounded much like Bork in thundering his disapproval of the gay rights decision. ‘‘Today’s opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda . . . directed at eliminating the moral opprobrium that has traditionally attached to homosexual conduct,’’ Scalia wrote in defense of the Texas anti-sodomy law. After Kennedy read the majority opinion, Scalia followed with a harsh denunciation that cut through the courtroom. He spoke of bigamy Kennedy and the Road Not Taken

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and bestiality, adultery and adult incest, masturbation and prostitution and same-sex marriage, all now threatening to burst into the open as legal. ‘‘This Court should not impose foreign moods, fads or fashions on Americans,’’ he said. A decade earlier, he had denounced Kennedy’s opinion in the school graduation prayer case as ‘‘an instrument of social destruction, a bulldozer of social engineering’’ that was ‘‘incoherent’’ in its reasoning. Scalia cited a ‘‘longstanding American tradition of nonsectarian prayer to God at public celebrations generally.’’ Presidents from George Washington forward have put their hand on the Bible and sworn to Almighty God upon taking office, he noted.≤Ω Yet there is not one tradition regarding the role of religion in American government, but two. Thomas Jefferson described the ‘‘wall of separation between church and state’’ as a fundamental principle of the nation’s founding. The First Amendment drafted by James Madison also sets forth a strict rule—‘‘Congress shall make no law respecting an establishment of religion’’—and in 1947 the Court unanimously agreed that the Constitution envisioned a true separation between religion and government. ‘‘The ‘establishment of religion’ clause of the First Amendment means at least this,’’ wrote Justice Hugo Black. ‘‘No tax in any amount, large or small, can be levied to support any religious activities or institutions, . . . whatever form they may adopt to teach or practice religion.’’≥≠ Scalia tends to dismiss this tradition as another of the foreign fads or fashions that have been imposed on America by judges. Neither the Chief Justice nor Justice Scalia has encountered a government program that in his view unconstitutionally promotes religion. The two have voted to uphold a city’s Christmas season depiction in a courthouse of Christ’s birth, the posting of the Ten Commandments in classrooms and outside a city hall, graduation prayer led by a cleric, and a school-sponsored prayer by a student leader. They also have approved the flow of federal and state funds to parochial schools.≥∞ By contrast, Justice Kennedy—along with Justice O’Connor—has drawn a reasonable distinction between government programs that explicitly promote religion and general educational funding that permits the flow of some money to religious schools. He has opposed the first but defended the second as a matter of fairness and equal treatment. In 1995 Kennedy wrote the Court’s opinion for a 5–4 majority holding that a campus magazine with an evangelical Christian perspective was entitled to the same subsidy as other student publications at the University of Virginia. School officials had maintained that this subsidy violated the ban on an ‘‘establishment of religion.’’ Kennedy disagreed and said the exclusion of the Christian students violated the First Amendment’s protection for free48

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dom of speech. Giving the student journalists with the Christian perspective the same subsidy as others ‘‘respects the critical difference between government speech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect,’’ Kennedy wrote, quoting an earlier opinion by O’Connor.≥≤ His more conservative colleagues—Rehnquist, Scalia, and Thomas—joined Kennedy’s opinion siding with the Christian students, while the Court’s liberal wing dissented. Justices Stevens, Souter, Ginsburg, and usually Breyer have adhered to Justice Black’s statement in 1947 that ‘‘no tax in any amount, large or small’’ should go to promote religion. Five years later, in 2000, Kennedy and O’Connor joined the liberal side when Christian students were handed a microphone and a loudspeaker by school officials. In the small Baptist-dominated town of Santa Fe, Texas, near Galveston, the school board was determined that the football games should begin with a prayer to Jesus Christ. And since the Court had stressed the free speech rights of religious students, the school board decided that the high school’s seniors could elect one student to deliver the prayer over the public address system. Kennedy and O’Connor had no problem concluding that the board’s action crossed the line from student free speech to a school-sponsored religious message. In dissent, the Chief Justice and Justices Scalia and Thomas wrote that the Court’s refusal to permit the practice ‘‘bristles with hostility to all things religious in public life.’’≥≥ Kennedy also put an important check on the revived states’ rights doctrine in 1995. At issue was whether a state’s voters could set term limits on their members of Congress. Since the Democrats had controlled the House of Representatives for four decades, the term limits movement had a populist appeal to conservatives in the early 1990s. But Kennedy, casting the fifth vote, voted to strike down a state’s term limits as infringing the Constitution’s rules for federal lawmakers. ‘‘Federalism was our Nation’s own discovery. The Framers split the atom of sovereignty,’’ he wrote. ‘‘It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other.’’≥∂ In dissent, Justice Thomas spelled out a theory of states’ rights that read as though it could have been written before the Civil War. ‘‘The ultimate source of the Constitution’s authority is the consent of the people of each individual State, not the consent of the undifferentiated people of the Nation as a whole,’’≥∑ Thomas wrote. ‘‘Because the people of the several states are the only true source of power,’’ they may change the election rules for federal legislators.≥∏ His dissent was joined by the Chief Kennedy and the Road Not Taken

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Justice and Justices Scalia and O’Connor. Disagreeing, Kennedy wrote that the U.S. Constitution gave birth to a new nation and a federal government, one whose fundamental rules cannot be revised by the states. ‘‘There exists a federal right of citizenship, a relationship between the people of the Nation and their National government, with which the States may not interfere,’’≥π Kennedy wrote. Often the disagreement between Justice Scalia and the moderate to liberal members of the Court is said to be all about the power of unelected judges. ‘‘There is no right to ‘liberty’ under the Due Process clause,’’≥∫ Scalia wrote in a little-noted comment in his dissent in the Texas case. After the 1960s, conservatives mocked the liberal Warren Court and Justice William O. Douglas for his vaporizing about ‘‘emanations,’’ ‘‘penumbras,’’ and a ‘‘zone of privacy’’ in justifying his vote to strike down Connecticut’s ban on the sale of contraceptives.≥Ω After Roe v. Wade legalized abortion, critics attacked the Court’s invocation of an invented ‘‘right to privacy,’’ since those words are not in the Constitution.∂≠ Scalia focused his attack on the word that does appear in the Constitution: ‘‘liberty.’’ Many Americans were probably surprised to be told, in the aftermath of the 2000 presidential election, that they had no right under the Constitution to vote for president. The states held that power, and they could revoke it at any moment, the Court held in Bush v. Gore.∂∞ Similarly, they might be surprised to learn, as Scalia has written, that the Constitution, unlike the Declaration of Independence, does not give Americans a true right to liberty. It says only that they may not be ‘‘deprived of liberty . . . without due process of law,’’ which may mean nothing more than having the right to be charged with a crime before being locked up. For most of the Court’s history, however, the justices have said that the Constitution protects something more. Sometimes, they have spoken of the personal ‘‘right to contract’’ for work on one’s own terms. In other eras, the justices have described certain implicit fundamental rights, such as a right to travel or a right to marry. Since the 1960s the Court has ‘‘confirmed that our laws and tradition afford constitutional protections to personal decisions affecting marriage, procreation, contraception, family relationships, child rearing and education,’’∂≤ as Kennedy wrote in his opinion in the Texas case. Scalia has forthrightly labeled all these decisions as wrong, the illegitimate inventions of activist judges. He has not been truly tested, however, since he opposes abortion, gay rights, and assisted suicide, and in every case so far the judges whom he calls activists have been on the other side. Suppose he were faced with a much harder case. Imagine a small city, a growing retirement community, confronting a need to build new schools. 50

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And its city council, with the strong backing of its citizens, decides to take a stand. To preserve its character and its resources, the council passes an ordinance that forbids families with children to live there. Women who get pregnant have two choices: have an abortion or leave town. This sort of ‘‘no children allowed’’ law would certainly be unusual, but would it violate Scalia’s Constitution? Maybe not. Several years ago, the Court was asked to decide whether the states could empower their judges to order a mother to give up her children for a few weekends, perhaps even for several weeks in the summer, not because the mother was unfit but because in the judge’s opinion, it ‘‘may serve the best interest of the child’’ to spend some time with another family. In Troxel v. Granville, the Court in a splintered 6–3 decision found this legal scheme to be unconstitutional, even though it had sprung from good motives. Washington state’s lawmakers wanted to ensure that grandparents would have the right to regular visitations with their grandchildren, even when family relationships were strained. A challenge arose when Tommie Granville, the mother of two young girls, balked at a judge’s order that would have required her to send her daughters for two weekends a month to the parents of her former husband. Siding with the mother, Justice O’Connor wrote that the Constitution and the ‘‘liberty’’ clause of the Fourteenth Amendment protect ‘‘the fundamental right of parents to make decisions concerning the care, custody, and control of the children.’’∂≥ Scalia dissented. ‘‘In my view, a right of parents to direct the upbringing of their children is among the ‘unalienable rights’ with which the Declaration of Independence proclaims ‘all Men . . . are endowed by their Creator.’ . . . The Declaration of Independence, however, is not a legal prescription conferring powers upon the courts; . . . I do not believe that the power which the Constitution confers upon me as a judge entitles me to deny legal effect to laws that (in my view) infringe upon what is (in my view) an unenumerated right.’’∂∂ So the mother about to lose her child to the clutches of the state could not look to Scalia’s Constitution for protection; nor presumably could the prospective mother protect her baby’s right to life in the ‘‘no child permitted’’ city of the future. But Scalia’s hands-off approach is limited to claims of individual rights, not states’ rights. Like Kennedy, he has been willing to strike down federal laws based on principles of state sovereignty that were ‘‘implicit’’ in the Constitution, that is, not spelled out in the text.∂∑ Scalia has also been willing to aggressively wield the Court’s power to limit the reach of some anti-discrimination laws. Consider the other key phrase in the Fourteenth Amendment: ‘‘No state shall . . . deny to any person within its jurisdiction the equal protection of the laws.’’ The Reconstruction Congress wrote Kennedy and the Road Not Taken

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this provision to protect blacks in the South from discrimination by whites. Justice Scalia says that the text and history are the starting points for interpreting a constitutional provision. Four prominent cases before the Rehnquist Court tested the equal protection clause. First, can a southern city with a large black population steer a percentage of its city contracts to black business owners, or does this violate the rights of a white contractor from Ohio? Second, can lawmakers in a southern state where nearly one in four persons is black but that has sent only white representatives to Congress for the entire twentieth century seek to draw its congressional district boundaries so as to create a black majority in two of twelve districts, or does this violate the rights of white voters who find themselves in a new district with a black majority and a newly elected black congressman? Third, can a southern state exclude qualified women from one of its state universities? And fourth, can a state university give more favorable consideration to qualified black applicants in hopes that its entering class will more nearly match the racial makeup of the state, or does this ‘‘affirmative action’’ effort violate the rights of white students? Those who follow the Court know, or can guess, the outcomes. Justice Scalia sided with the white challengers in three of the cases and voted to strike down the city’s contracting law, the state’s redistricting law, and the state university’s admissions policy.∂∏ However, he voted to uphold the state’s exclusion of women from a public university, the Virginia Military Institute (vmi), and in a solo dissent railed at his colleagues for judicial activism: ‘‘Today the Court shuts down an institution that has served the people of the Commonwealth of Virginia with pride and distinction for over a century and a half,’’ he began in dissent.∂π In 1864 young cadets from vmi had taken to the battlefield to halt the Union invaders from the North, and the academy was still fighting the federal forces in the mid-1990s. Justice Department lawyers said that vmi’s adamant refusal to consider qualified women violated federal civil rights law and the equal protection clause. While no doubt taking comfort from Scalia’s dissent, vmi officials might have been surprised to learn that opening its door to women would ‘‘shut[] down’’ the academy. As usual when in dissent, Scalia accused his colleagues of writing their ‘‘preferences’’ into law. His, of course, played no role, although it might be noted he graduated from a high school military academy for boys in New York City. ‘‘This most illiberal Court . . . has embarked on a course of inscribing one after another . . . [of] the counter-majoritarian preferences of the society’s law-trained elite . . . into our Basic Law,’’∂∫ he wrote. Scalia had chosen to interpret the equal protection clause as prohibiting a state 52

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from engaging in racial discrimination of any sort, whether against whites or blacks, and as prohibiting little else. This is certainly a reasonable view, and one supported by most of the justices in one form or other. It is not, however, the only or obviously correct view based on either the text or the history of the Fourteenth Amendment. Like Robert Bork, Scalia has rarely delved into the history of the Reconstruction era in his opinions, yet he has set forth a rigid view of ‘‘liberty’’ and the equal protection clause as though none other than dolts and political hacks could disagree with him. His chosen view has allowed him to reject nearly all equal protection claims, except those from whites challenging affirmative action. States are free to discriminate against those who are blind, deaf, or in a wheelchair, he has written, joining a 5–4 decision that voided in part a federal law prohibiting discrimination against disabled state employees.∂Ω Similarly, he has written that states may discriminate against older workers, federal law to the contrary.∑≠ And as the Colorado and Texas cases showed, he has asserted that the states are free to discriminate against qualified job applicants simply because of their sexual orientation and to single out gays and lesbians for prosecution based on their private sexual behavior. Whether principled or not, this view of the equal protection clause seems to fit nicely with what might be called ‘‘the preferences’’ of a certain ‘‘lawtrained elite.’’ Justice Kennedy has joined many of these decisions, but not all of them. He has maintained that a core principle of the Fourteenth Amendment is a ban on official racial discrimination, but he would not apply the ban as rigidly as Justices Scalia and Thomas. In the University of Michigan cases, he would have followed Justice Lewis Powell’s path by allowing colleges and universities to ‘‘take race into account as one factor’’ in evaluating applicants. However, he faulted the majority for upholding a law school admissions policy that is ‘‘tantamount to a quota.’’∑∞ More importantly, Justice Kennedy has been willing to see the Constitution as protecting more than the old order. Though a student of history and a former law professor who can rhapsodize about the Framers of the Constitution, Kennedy is not one who portrays the past as more nearly perfect. While a student at Stanford University in the late 1950s, he recalls hearing Thurgood Marshall speak and thinking—naïvely, he says—that racial discrimination was no longer a problem, since the Court had already decided the Brown v. Board of Education case. In his Harvard Law School class, there were but a handful of women. Only later did the discrimination and prejudice of that era become clear, he has said. The reporters who went to Sacramento in 1987 to learn about the judge who had been named to the Supreme Court heard about his days as an Kennedy and the Road Not Taken

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altar boy, his stellar record as a student, and his devotion to his family, friends, and church. One other story, told in passing, seems more significant now. Two gay men had moved into a house on the block, and Judge Kennedy and his wife Mary were off to meet their new neighbors at a housewarming. ‘‘If they can tolerate me, I sure can tolerate them,’’ the judge told a friend. Unlike Judge Bork, he did not see the only proper course as a show of stern moral disapproval. The Framers of the Constitution also would have welcomed new insights and new neighbors, he said in the closing passage of his opinion in the Lawrence case. ‘‘They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress,’’ he wrote. ‘‘As the Constitution endures, persons in every generation can invoke its principles in their search for greater freedom.’’∑≤

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CHAPTER THREE

The Supreme Court’s decision in Lawrence v. Texas declaring unconstitutional a Texas law criminalizing homosexual sodomy was, without question, a landmark. Not only did the Court find a constitutional right for consenting adults to engage in homosexual sodomy, it also spoke in surprisingly broad terms about the scope of the liberty protected by the due process clauses of the U.S. Constitution. In the aftermath of Lawrence, legal observers have struggled to understand all the decision’s ramifications. What does the Lawrence decision mean for a variety of other issues involving gays and lesbians—including most prominently same-sex marriage? And what does the broad language in Lawrence about the scope of constitutional protection for liberty mean in contexts other than gay rights? In other words, how big a landmark will Lawrence v. Texas ultimately prove to be? David Garrow, a frequent commentator on the Supreme Court for major newspapers and the author of Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, a book that examines the Court’s individual liberty and privacy decisions of the past half-century, considers in this chapter the jurisprudential context of the Lawrence decision and its implications for subsequent constitutional claims. In Garrow’s view, Lawrence is best seen as part of a long progression of decisions dating from the 1960s in which the Court has extended constitutional protection for a range of private and intimate activities—decisions that Justice Anthony Kennedy referred to in Lawrence as ‘‘an emerging awareness that liberty

gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.’’ Viewed in this larger context, Garrow argues, Lawrence was ‘‘wholly unsurprising.’’ Garrow also suggests that Lawrence should be understood as part of an increasingly ‘‘insistent judicial assertiveness the Rehnquist Court has manifested in widely different areas of the law and with wildly different political and ideological overtones.’’ For Garrow, the most dramatic and immediate impact of Lawrence will be in the context of same-sex marriage. Indeed, within five months of the Lawrence decision, the Supreme Judicial Court of Massachusetts held that a ban on same-sex marriage violated the state constitution. Although the court did not expressly rely on Lawrence in reaching its decision, its discussion of the ‘‘individual’s liberty and due process rights’’ reflected the influence of Lawrence. The early reactions to Lawrence focused almost exclusively on the decision’s impact on gay rights, but for Garrow, Lawrence does more than simply open the door to greater constitutional protections for gays and lesbians. In Garrow’s view, Lawrence has ‘‘significantly magnified . . . the vitality’’ of the Court’s abortion rights decision in Planned Parenthood v. Casey (1992) and thus further solidified the constitutional protection for a woman’s choice to have an abortion. The broad language in Lawrence has also opened the door to other liberty-based constitutional claims. Garrow argues, for example, that the liberty analysis in Lawrence has ‘‘significantly undercut’’ the Court’s decision in Washington v. Glucksberg (1997), in which it found no constitutional protection for a terminally ill person’s desire to hasten his or her own death. The Lawrence decision’s expansive discussion of liberty will have considerable ramifications for both homosexuals and other Americans, leading Garrow to conclude that 2003 was ‘‘the most historic year for landmark civil liberties victories’’ in thirty years.—the editors

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A Revolutionary Year: Judicial Assertiveness and Gay Rights david j. garrow

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ven in a year that featured Grutter v. Bollinger,∞ few Supreme Court observers would deny that Lawrence v. Texas≤ was as important a decision as any that the Court has rendered in more than a decade. Writing in the New York Times, Linda Greenhouse characterized Lawrence as a ‘‘stunning’’ ‘‘constitutional watershed,’’ and other commentators called it both ‘‘momentous’’ and ‘‘revolutionary.’’≥ Lawrence represented the greatest legal victory that gay Americans have ever won. The Court’s explicit overruling of its notoriously homophobic decision in Bowers v. Hardwick (1986)∂ surprised many Court watchers who had anticipated a less bold and sweeping resolution, even though the ultimate voiding of Texas’s statute prohibiting gay sodomy was never much in doubt once the justices agreed to hear the case. But Lawrence represented more than just a historic gay rights triumph. Justice Anthony M. Kennedy’s opinion on behalf of a five-member majority (Justice Sandra Day O’Connor concurred separately) contained three constitutionally important elements in addition to voiding the thirteen remaining state anti-sodomy laws. Kennedy’s pointedly explicit reliance on the controlling opinion in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992)∑ gave further constitutional heft to the holding in Casey that the core of the Roe v. Wade (1973)∏ protection of a woman’s right to choose abortion would remain inviolable. Kennedy’s repeated invocation of the Casey due process clause liberty analysis also called into further question the far narrower and more exclusive approach to

substantive due process liberty that Chief Justice William H. Rehnquist had offered in 1997 on behalf of a barely cobbled-together majority in Washington v. Glucksberg.π And most notably, Kennedy’s opinion expressly declined to spurn the question of whether constitutional protection might extend to gay Americans’ right to marry. Indeed, in at least two passages, the Kennedy majority manifestly left the constitutional door wide open for just such an argument. One of this country’s all-time finest appellate jurists, the late Judge Irving L. Goldberg of the U.S. Court of Appeals for the Fifth Circuit, once asserted, ‘‘If the subject matter permits it, then I think an opinion should be a crusading force.’’ In a memorable phrase, Goldberg opined that ‘‘an opinion should have not only a beginning and an end, but a future.’’∫ Kennedy’s opinion in Lawrence, like his portions of the controlling opinion in Casey, certainly corresponds to Judge Goldberg’s precept, as commentators immediately realized. Asked whether Lawrence could indeed open the door to same-sex matrimony, Laurence H. Tribe of Harvard Law School replied, ‘‘I think it’s only a matter of time, but it might be a good amount of time.’’Ω But then, just five months later, came the bookend case that outstripped even Lawrence, the decisively more revolutionary assertion by the Supreme Judicial Court of Massachusetts in Goodridge v. Department of Public Health of state constitutional protection for same-sex marriage.∞≠ Without Lawrence, Goodridge would have been far more difficult to envision,∞∞ but given Lawrence, most observers expressed relatively little astonishment about the advent of Goodridge. Within the larger context of the overall work of the U.S. Supreme Court, Lawrence v. Texas should be understood from two distinct yet related perspectives. The first and most obvious requires us to understand Lawrence as a natural and in the long run inevitable extension of the doctrinal series of opinions that began with Justice John Marshall Harlan’s hugely influential dissent in Poe v. Ullman (1961),∞≤ came to first fruition in Griswold v. Connecticut (1965),∞≥ overturning the Connecticut anticontraception statute that had been unsuccessfully challenged in Poe, and reached full flower in Roe v. Wade and Doe v. Bolton∞∂ in 1973. Other less famous cases such as Eisenstadt v. Baird (1972)∞∑ and Carey v. Population Services International (1977)∞∏ can be cited as smaller parts of this evolving doctrine. Bowers v. Hardwick in 1986 brought this evolution to a screeching and painful stop, but even beforehand careful observers had realized that the Burger Court of the mid-1980s had no appetite whatsoever for extending to the realm of recreational sex the tradition of constitutional protection for reproductive choice embodied in Griswold and Roe.∞π 58

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The ominous shadows created by the Court’s decision in Webster v. Reproductive Health Services (1989)∞∫ were surprisingly pushed aside and reversed by the astonishing controlling opinion in Planned Parenthood v. Casey (1992). Four years after Casey, Justice Kennedy’s rhetorically heartfelt majority opinion in Romer v. Evans∞Ω appeared to signal that a majority of the Rehnquist Court was no longer fundamentally comfortable with the homophobic precedent of Bowers. Granted, the Romer majority for some unstated reason subsequently declined to address a decision by the U.S. Court of Appeals for the Sixth Circuit, Equality Foundation of Greater Cincinnati v. City of Cincinnati,≤≠ that all but explicitly contradicted the high court’s holding in Romer. However, the Kennedy majority’s statements in Romer, particularly its conclusion that the Colorado provision at issue ‘‘classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else,’’≤∞ signified a fundamentally different judicial attitude from what had prevailed just a decade earlier in Bowers. Within this doctrinal context, Lawrence represented a natural and unsurprising progression. Griswold and Roe had spoken of the fundamental constitutional right at issue as one of ‘‘privacy,’’ but when Casey without explanation jettisoned any mention of privacy and replaced it with explicit and repeated invocation of the ‘‘liberty’’ guaranteed by the due process clauses of the Fourteenth and Fifth Amendments, constitutional commentators such as Professor Tribe correctly observed that the change was all for the good.≤≤ Romer offered the Lawrence court a clear opportunity to strike down Texas’s anti-sodomy statute under equal protection, a path that Justice O’Connor alone did advocate, rather than as a violation of substantive due process liberty, but the Lawrence majority’s invocation and application of the vision of constitutional liberty expressed in Casey represented judicial decision making at its boldest. The second perspective from which Lawrence must be viewed is that of the insistent judicial assertiveness that the Rehnquist Court has manifested in widely different areas of the law and with wildly different political and ideological overtones. Depending upon one’s tastes, the beginnings of the Rehnquist Court’s pronounced assertiveness, or what Jeffrey Rosen criticizes as ‘‘haughty declarations of judicial supremacy,’’≤≥ can be traced to Texas v. Johnson (1989),≤∂ New York v. United States (1992),≤∑ or Planned Parenthood v. Casey (1992). The invocation in Casey of the Court’s power of judicial review, reaching all the way back to Marbury v. Madison (1803),≤∏ was in several crucial respects a direct mirroring of Cooper v. Aaron (1958),≤π the most important immediate progeny of Brown v. Board of Education (1954),≤∫ but even Cooper, never mind A Revolutionary Year

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Casey, is too forceful a declaration of the Court’s supremacy over issues of constitutional interpretation for some conservative critics.≤Ω Most of the attention paid to the Rehnquist Court’s ‘‘judicial supremacy’’ proclivity, and most of the criticism, has focused on its federalism cases, beginning with New York v. United States or, more commonly, United States v. Lopez (1995).≥≠ Even a brief comprehensive survey of those cases falls well outside the scope of this chapter, but in virtually every instance, from Lopez through Seminole Tribe of Florida v. Florida (1996)≥∞ to the most recent manifestation of this now-mature trend, Board of Trustees v. Garrett (2001),≥≤ the Court’s muscular activism has come from a five-vote majority composed of the Chief Justice and Justices O’Connor, Scalia, Kennedy, and Thomas. Initially many commentators looked at this developing trend primarily through a federalism lens in which the interpretive emphasis was placed on the so-called ‘‘states’ rights’’ effects of these rulings, but in more recent years a widespread consensus has developed that the Court’s assertion of its own constitutional superiority, particularly vis-à-vis the now judicially diminished legislative prerogatives of the Congress, is the defining ingredient in all these federalism, Eleventh Amendment, and commerce power cases. But it is important to emphasize, no matter how critical one might be of the Rehnquist Court’s growing assertions of authority over and against the legislative powers of Congress, that there is a second and vastly different set of post-1988 Rehnquist Court cases that can also be included under the judicial assertiveness or supremacy rubric. Here Casey rather than Lopez is the widely acknowledged starting point, with Romer (and now Lawrence) also standing in the front rank. But this second line of cases also includes United States v. Virginia (1996),≥≥ in which the males-only admissions policies of the Virginia Military Institute were struck down on equal protection grounds, plus arguably Dickerson v. United States (2000),≥∂ in which a widely heralded challenge to the historic precedent of Miranda v. Arizona (1966)≥∑ was forcefully turned aside in an opinion written by a one-time outspoken critic of Miranda, Chief Justice Rehnquist. Casey, Virginia, Romer, and Dickerson, along with Stenberg v. Carhart (2000),≥∏ which reiterated the liberty-based protection of a woman’s right to obtain an abortion set forth in Casey, notwithstanding state efforts to outlaw so-called partial birth abortions, are all sometimes cited to highlight what observers justifiably argue is the Rehnquist Court’s underpublicized and perhaps surprisingly ‘‘liberal’’ record in many of its most politically controversial cases. Lee v. Weisman (1992),≥π a religion case, and now Grutter v. Bollinger (2003) can easily be added to this list, as can Texas v. Johnson (1989), the ruling extending constitutional protection to 60

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the purposeful burning of the flag. But perhaps the most defining aspect of these rulings, as with Lawrence, is not their perceptible ‘‘liberalism’’ but how they too, at least as much as Lopez, Seminole Tribe of Florida, and Garrett, can be seen as the handiwork of a highly self-assured and assertive bench. In almost every instance, the judicial overlap between the majorities in the Lopez line of cases and those in the Casey line consists of Anthony M. Kennedy and occasionally, as in Casey and Romer, Sandra Day O’Connor.≥∫ And with Lawrence, as with Romer before it, Justice Kennedy’s judicial voice aspired to give the Court’s ruling a rhetorical loftiness that few Supreme Court opinions of the last quarter-century, aside from Casey, have sought or attained. The subsequent ruling by the Supreme Judicial Court of Massachusetts in Goodridge dramatically highlighted how the import and influence of Lawrence were cultural as well as substantive. In terms of direct legal impact, its grounding in the due process clause resulted in the immediate voiding of all thirteen remaining state anti-sodomy statutes, rather than just the four ‘‘gay-only’’ ones, including that of Texas, that a more modest equal protection ruling would have addressed. But Justice Kennedy’s opinion was notable, and highly unusual, not simply for the vigor with which it amplified and applied a doctrine of individual liberty grounded in Casey but even more for the harshly dismissive manner in which it expressly overruled Bowers v. Hardwick. ‘‘Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct,’’ Kennedy wrote for the Lawrence majority.≥Ω Yet that conclusion was not a novel one for Kennedy; twenty-three years earlier, when he was a little-known judge on the U.S. Court of Appeals for the Ninth Circuit, Kennedy had stated in an opinion upholding the U.S. Navy’s discharge of a gay man, ‘‘We recognize . . . that there is substantial academic comment which argues that the choice to engage in homosexual action is a personal decision entitled, at least in some instances, to recognition as a fundamental right and to full protection as an aspect of the individual’s right of privacy.’’∂≠ The Lawrence majority acknowledged that Griswold was ‘‘the most pertinent beginning point’’ for its liberty analysis, and after also acknowledging Eisenstadt, Roe, and Carey, it moved rapidly to a blunt reconsideration of Bowers. That opinion, Kennedy wrote, revealed the majority’s ‘‘failure to appreciate the extent of the liberty at stake’’ in gay sexuality. A gay relationship, Kennedy wrote, is ‘‘a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals.’’∂∞ A Revolutionary Year

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Kennedy directly attacked the assertion in Bowers that century upon century of human law had consistently criminalized homosexuality. On the contrary, ‘‘there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter’’; instead what a more thoughtful historical inquiry revealed was ‘‘a general condemnation of nonprocreative sex’’ irrespective of sexual orientation. In other words, ‘‘far from possessing ‘ancient roots,’ ’’ as Bowers had claimed, ‘‘American laws targeting same-sex couples did not develop until the last third of the 20th century.’’∂≤ Only in the 1970s did laws go onto the books in nine states expressly criminalizing gay sex. In stark contrast to those enactments, Kennedy wrote, was the ‘‘emerging awareness’’ visible over the past five decades of American life ‘‘that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex.’’ He pointedly stated that ‘‘this emerging recognition should have been apparent when Bowers was decided,’’ and he cited as evidence a decision by the European Court of Human Rights, Dudgeon v. United Kingdom (1981),∂≥ that had struck down a similar criminal prohibition in Northern Ireland. Kennedy went on to note that Bowers had suffered ‘‘serious erosion’’ in first Casey and then Romer, and then observed that ‘‘precedents both before and after its issuance contradict its central holding.’’ Therefore, the Lawrence majority concluded, ‘‘Bowers was not correct when it was decided, and it is not correct today.’’ Thus, it ‘‘should be and now is overruled.’’∂∂ Kennedy at one point in Lawrence noted how Casey had reaffirmed that ‘‘our laws and traditions afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education.’’ Then Kennedy quoted a well-known passage from Casey, a passage that some Court critics have derided, in which he had written that ‘‘at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’’ Immediately after that quotation, Kennedy stated that ‘‘persons in a homosexual relationship may seek autonomy for these purposes’’—the types of decisions spelled out right before the quotation— ‘‘just as heterosexual persons do.’’∂∑ Toward the end of their opinion, the majority noted that Lawrence ‘‘does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’’ However, ‘‘their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.’’ Thus while the majority’s earlier reference to gay relationships (‘‘whether or not entitled to formal recognition in the law’’) bespoke a studied silence 62

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concerning any future claim to constitutional protection for gay marriage, the reference to homosexuals’ having rights ‘‘just as heterosexual persons do’’ could be read as far more pregnant with meaning.∂∏ In their concluding paragraph, the Lawrence majority pointedly remarked that ‘‘later generations can see that laws once thought necessary and proper in fact serve only to oppress.’’∂π Justice O’Connor voiced a similar observation in her separate concurrence, declaring that ‘‘moral disapproval of a group cannot be a legitimate governmental interest under the Equal Protection Clause.’’ In distinct contrast to the Kennedy majority, however, O’Connor passingly volunteered that ‘‘preserving the traditional institution of marriage’’ did indeed qualify as a ‘‘legitimate state interest.’’∂∫ The degree to which the Lawrence majority implicitly opened the constitutional door to same-sex marriage was illuminated most glaringly by an angry Justice Antonin Scalia, joined in dissent by Chief Justice Rehnquist and Justice Clarence Thomas. Emotional fervor and stark portents about malignant dangers have characterized a large number of Justice Scalia’s dissenting opinions over the past fifteen years, but his dissent in Lawrence was perhaps less deserving of the ‘‘Chicken Little’’ and ‘‘boy who cried wolf’’ jests than some of his other impassioned retorts. Scalia accurately asserted that the manner in which Texas’s sodomy statute criminalized certain sexual acts only if performed with a person of the same gender was ‘‘precisely the same distinction regarding partner that is drawn in state laws prohibiting marriage with someone of the same sex while permitting marriage with someone of the opposite sex.’’ Given the majority’s analysis, laws delimiting marriage exclusively to heterosexual couples were now on ‘‘pretty shaky grounds,’’ for the Lawrence opinion ‘‘dismantles the structure of constitutional law that has permitted a distinction to be made between heterosexual and homosexual unions, insofar as formal recognition in marriage is concerned.’’∂Ω Knowledgeable commentators reacted to the Lawrence ruling with surprising agreement about its likely effects, given the otherwise radical disparity in their professional regard for the majority holding. Jeffrey Rosen opined in the New Republic that ‘‘as a constitutional matter, Lawrence is worse than Roe,’’ a decision that his magazine has repeatedly disparaged for more than thirty years. Rosen expressed amazement that ‘‘a majority of the Rehnquist Court does in fact mean to read the ‘sweet mystery’ passage [from Casey] for all it’s worth’’ and criticized how Lawrence had ‘‘embraced and extended a sweeping and amorphous right to sexual liberty.’’∑≠ Rosen nonetheless found it ‘‘hard to think of a reason for courts to avoid A Revolutionary Year

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extending the Court’s new right to ‘define the meaning’ of intimate relations to include a right of all people to marry, regardless of their sex.’’ He warned that any judicial recognition of gay marriage would create so great a popular backlash that such a court decision actually ‘‘would set back the cause of gay and lesbian equality rather than advancing it.’’ However, Rosen’s prediction that such a ruling was likely or even inevitable was directly echoed even in so resolutely conservative a journal as the National Review.∑∞ Yet Rosen’s expectations concerning the import and impact of Lawrence were directly matched by those who fervently embraced and endorsed the ruling. The editors of the Harvard Law Review, writing in their authoritative annual survey of the Supreme Court’s leading cases, welcomed Lawrence with the same description that Linda Greenhouse had used in the New York Times five months earlier: ‘‘a watershed.’’ Calling the Kennedy opinion ‘‘sweeping in scope,’’ the editors stated that Lawrence ‘‘stands for the proposition that sexual orientation is no longer a permissible ground for discrimination.’’ Given ‘‘the sheer breadth of the right embraced by the Court,’’ the Lawrence opinion ‘‘suggests that remaining forms of government-sanctioned anti-gay discrimination—including laws barring same-sex marriage . . . must either be narrowly tailored to further a compelling government purpose or be invalidated.’’∑≤ Since ‘‘no state interest other than moral disapprobation justifies denying the benefits of marriage to same-sex couples,’’ and since both Lawrence and Romer before it expressly rejected moral disapproval as a legitimate governmental purpose, Lawrence indeed opened the door to same-sex marriage. ‘‘The Lawrence majority could hardly have been clearer in suggesting that its holding should be read as doing far more than simply overruling Bowers,’’ and indeed, the editors concluded, Lawrence ‘‘embraces the notion of a fundamental right to be gay.’’∑≥ It was wholly unsurprising that the first few months’ worth of reactions to Lawrence focused almost exclusively on its further gay rights implications and all but omitted any discussion of what the majority opinion might mean for Fourteenth Amendment substantive due process liberty analysis in other areas of the law. However, the added support that Lawrence provided for the protection of a woman’s right to abortion was extensive and undeniable, and placed Casey in an even more robust posture than had its reiteration in Stenberg in 2000. Even before Lawrence, Casey had seemed constitutionally unassailable to anyone who might fairly consider the remarkable manner in which its controlling opinion bound the Court’s institutional reputation and legitimacy to its reaffirmation of the core of Roe v. Wade, but the dramatic ‘‘portability’’ of the liberty analysis 64

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in Casey to a constitutional question other than abortion greatly magnified the ruling’s precedential scope and vitality. What was less obvious, if not less certain, was that the way Lawrence adopted and applied the due process clause liberty analysis of Casey in such muscular fashion significantly undercut Chief Justice Rehnquist’s dramatically narrower explication of the Fourteenth Amendment’s liberty guarantee in his shaky majority opinion in Washington v. Glucksberg (1997). Then again, that approach had been undercut on the very day it came down: in Glucksberg, Rehnquist rejected any constitutional liberty interest protection for a terminally ill citizen’s desire to hasten his or her own death. But Justice O’Connor, whose support gave the Chief Justice’s opinion its decisive fifth vote, voiced almost explicitly contradictory remarks in her concurring opinion. Rehnquist’s constricted explication of due process liberty was in significant tension with the far more sweeping articulation that O’Connor and Kennedy (who also joined Rehnquist’s opinion in Glucksberg) had, along with Justice David Souter, penned in Casey. Thus Justice Kennedy’s manifesto in Lawrence about the strength and breadth of constitutional liberty not only reaffirmed the Casey analysis but measurably intensified and extended it. Yet the initial impact of Lawrence was felt almost wholly within a gay rights ambit. Two days after the decision, the Supreme Court vacated a seventeen-year prison sentence that Kansas had imposed upon an eighteen-year-old resident of a state institution for performing consensual oral sex with a fourteen-year-old male.∑∂ Had the young man’s partner been female rather than male, the maximum possible sentence would have been fifteen months. Two months later the U.S. Court of Appeals for the Eleventh Circuit confirmed the position of Alabama’s attorney general that his state’s sodomy statute was now null and void because of Lawrence,∑∑ and a month after that the U.S. Court of Appeals for the Armed Forces heard argument in a case that challenged the continuing validity of the military’s criminal sodomy provision in light of Lawrence.∑∏ The resonance of Lawrence with regard to gay marriage was greatly amplified when the Canadian government announced in mid-July that it would embrace, rather than appeal to the Supreme Court of Canada, two rulings by top provincial courts, one in British Columbia and the other in Ontario, that the Canadian Charter of Rights and Freedoms prohibited the discriminatory restriction of marriage to opposite-sex couples only.∑π But two Arizona men who had applied unsuccessfully for a marriage license three days after Lawrence had their resulting constitutional challenge rejected by an intermediate state appeals court. Following the lead of Chief Justice Rehnquist’s narrow-gauge analysis in Glucksberg (1997), the A Revolutionary Year

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Arizona court concluded that ‘‘same-sex marriages are neither deeply rooted in the legal and social history of our Nation or state nor are they implicit in the concept of ordered liberty.’’ Hence ‘‘the right to enter a same-sex marriage is not a fundamental liberty interest protected by due process.’’∑∫ The marriage decision that knowledgeable observers were all eagerly awaiting was that of the Supreme Judicial Court of Massachusetts, which had heard argument in Goodridge v. Department of Public Health in early March 2003.∑Ω Given the court’s non-binding rule of deciding most of its cases within 130 days of argument, journalists kept up a close watch throughout early July,∏≠ but in mid-month the court announced that it would not abide by its deadline.∏∞ Speculation was rampant that the announcement of Lawrence on 26 June might have caused the Massachusetts jurists to revise opinions that were already in preparation, and four more months passed without a ruling.∏≤ Then at 10:00 a.m. on Tuesday, 18 November, the Supreme Judicial Court announced its decision in a 4–3 opinion written by Chief Justice Margaret Marshall. The holding that extended state constitutional protection to same-sex marriage was expressed in the opinion’s very first paragraph; in the second Marshall quoted the Lawrence majority’s reiteration of a sentiment that the high court had first voiced in Casey: ‘‘Our obligation is to define the liberty of all, not to mandate our own moral code.’’ Noting that Lawrence ‘‘left open’’ the question of same-sex marriage as a question of federal law, the Massachusetts majority expressed an observation that closely echoed Justice Kennedy in Lawrence: ‘‘whether and whom to marry, how to express intimacy, and whether and how to establish a family—these are among the most basic of every individual’s liberty and due process rights.’’∏≥ In pointed contrast to the Arizona ruling a month earlier, Chief Justice Marshall stated that ‘‘history cannot and does not foreclose the constitutional question’’ concerning same-sex marriage and that indeed ‘‘history must yield to a more fully developed understanding of the invidious quality of the discrimination’’ that the exclusion of gay people from wedlock perpetrates. Marriage, Marshall noted, ‘‘bestows enormous private and social advantages on those who choose to marry,’’ above and beyond ‘‘the wide range of public benefits reserved only for married couples.’’ Many state laws, she emphasized, continue to impose distinctions between marital and non-marital children, and ‘‘it cannot be rational under our laws . . . to penalize children by depriving them of state benefits because the state disapproves of their parents’ sexual orientation.’’ In short, ‘‘without the right to marry—or more properly, the right to choose to marry— 66

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one is excluded from the full range of human experience and denied full protection of the laws.’’∏∂ The state’s three rationales for its law—encouraging procreation, fostering optimal child-rearing, and conserving public funds—all failed to meet even the judiciary’s least demanding standard of constitutional review, the rational basis test. ‘‘Fertility is not a condition of marriage,’’ Marshall commented; ‘‘it is the exclusive and permanent commitment of the marriage partners to one another, not the begetting of children, that is the sine qua non of civil marriage.’’ There likewise was no rational relationship between heterosexually exclusive marriage and ideal child-rearing or the expenditure of public funds. ‘‘The marriage ban works a deep and scarring hardship on a very real segment of the community for no rational reason.’’ The real basis for the state’s policy, Marshall suggested, is that ‘‘the marriage restriction is rooted in persistent prejudices against persons who are (or who are believed to be) homosexual.’’∏∑ Most persuasively, Chief Justice Marshall’s opinion emphasized the parallels between a prohibition of same-sex marriages and the antimiscegenation laws that had banned interracial unions, at one time in a majority of American states, before the U.S. Supreme Court struck down the dozen or so remaining statutes in 1967 in the aptly named case of Loving v. Virginia.∏∏ ‘‘Recognizing the right of an individual to marry a person of the same sex,’’ Marshall declared, ‘‘will not diminish the validity or dignity of opposite-sex marriage, any more than recognizing the right of an individual to marry a person of a different race devalues the marriage of a person who marries someone of her own race.’’∏π The Goodridge majority tellingly quoted from the U.S. Supreme Court’s ruling in United States v. Virginia (1996) to note that ‘‘the history of constitutional law ‘is the story of the extension of constitutional rights and protections to people once ignored or excluded.’ ’’∏∫ In an additional concurring opinion, Marshall’s colleague Justice John Greaney stressed that ‘‘the right to marry is not a privilege conferred by the state, but a fundamental right that is protected against unwarranted state interference.’’ And Greaney too, like Marshall, reiterated that historical practice does not limit the reach or definition of constitutional rights: ‘‘neither the mantra of tradition, nor individual conviction, can justify the perpetuation of a hierarchy in which couples of the same sex and their families are deemed less worthy of social and legal recognition than couples of the opposite sex and their families.’’∏Ω Each of the three justices in the minority penned a dissent, yet two of the three opinions struck an almost abashed or apologetic tone. Justice Martha Susman wrote that under the majority’s ruling the state must A Revolutionary Year

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‘‘provide the benefits of civil marriage to same-sex couples just as it does to opposite-sex couples,’’ and she volunteered that ‘‘as a matter of social history, today’s opinion may represent a great turning point that many will hail as a tremendous step toward a more just society.’’ Sounding as if she regretted her inability to join Chief Justice Marshall’s ruling, Susman added, ‘‘I fully appreciate the strength of the temptation to find this particular law unconstitutional—there is much to be said for the argument that excluding gay and lesbian couples from the benefits of civil marriage is cruelly unfair and hopelessly outdated.’’π≠ Susman’s colleague Justice Robert Cordy uttered similar remarks, writing that ‘‘although it may be desirable for many reasons to extend to samesex couples the benefits and burdens of civil marriage (and the plaintiffs have made a powerfully reasoned case for that extension), that decision must be made by the legislature, not the court.’’ All three dissenters rested their disagreement on that theme of judicial deference, but Justice Cordy’s final sentence again almost apologized for his dissent: ‘‘While the courageous efforts of many have resulted in increased dignity, rights and respect for gay and lesbian members of our community, the issue presented here is a profound one, deeply rooted in social policy, that must, for now, be the subject of legislative not judicial action.’’π∞ The Goodridge decision generated page-one headlines all across the United States. Constitutional commentators praised Marshall’s majority opinion, with Laurence Tribe commending it as ‘‘an extremely careful, thoughtful, elaborate, eloquent refutation of the . . . arguments of those who think marriage will be in some way threatened by extending its benefits to people of the same sex.’’ Tribe noted that if other states attempted to disregard a marriage license granted to a same-sex couple in Massachusetts, ‘‘that will create a federal constitutional issue, namely is it consistent with equal protection of the laws to make homosexuals who seek to marry into second-class citizens?’’ And, should that question indeed come before the U.S. Supreme Court, Tribe predicted that ‘‘the opinion this Supreme Court rendered in Lawrence v. Texas about equal dignity and respect for homosexuals suggests that after a sufficient breathing space . . . it would be prepared to uphold a decision rather like this and to reach a similar conclusion.’’π≤ Editorial endorsement of the Massachusetts ruling came from both likely and highly unlikely sources. The New York Times praised the decision as ‘‘persuasive,’’π≥ and even the New Republic, which had harshly castigated both Lawrence and Casey, welcomed Goodridge as a ‘‘landmark’’ that reached a conclusion whose correctness the magazine called ‘‘obvious.’’ ‘‘The arguments against equal marriage rights are so weak,’’ 68

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the editors declared, that the state’s defense of its policy ‘‘collapses upon the most casual inspection.’’π∂ Some commentators suggested that the court’s 180-day stay of its judgment, during which it invited the legislature ‘‘to take such action as it may deem appropriate in light of this opinion,’’ could allow the legislature to somehow block the actual issuance of marriage licenses to same-sex couples. Laurence Tribe insisted that the 180-day period was simply ‘‘a courtesy’’ so that the legislature could amend state statutes to comply with the decision. ‘‘It is not a substantive task that has been delegated,’’ he emphasized,π∑ and within three days the Massachusetts Bar Association, the Boston Bar Association, and the Women’s Bar Association of Massachusetts all concurred, stating that Goodridge clearly mandated same-sex marriage and did not offer the legislature any opportunity to craft some substitute provision such as the ‘‘civil unions’’ which Vermont’s legislature created in response to the Vermont Supreme Court’s expressly delegatory ruling in Baker v. State (1999).π∏ Three months later, in early 2004, the Goodridge majority told the state legislature that ‘‘civil unions’’ would unconstitutionally assign same-sex couples to ‘‘second-class status’’ and stated that the stay was solely to give the legislature ‘‘an opportunity to conform the existing statutes’’ to the Goodridge constitutional holding.ππ Ironically, the Supreme Judicial Court’s 180-day stay of its ruling handed down on 18 November created a timetable that would lead to the issuance of the first same-sex marriage licenses in American history on 17 May 2004—the fiftieth anniversary of the Supreme Court’s historic desegregation ruling in Brown v. Board of Education.π∫ And clearly the Marshall opinion’s persuasive articulation of the court’s equality-for-all ruling struck a far more appealing and attractive chord with most Massachusetts citizens than many journalists and interest groups expected. Five days after the decision, both the Boston Globe and the Boston Herald reported the results of separate statewide polls in which respondents were asked about their reactions to Goodridge. The Globe reported that a full 50 percent of those polled supported the court’s decision and only 38 percent opposed it. An even larger majority of 53 percent opposed any legislative effort to amend the Massachusetts Constitution or otherwise attempt to reverse the Goodridge ruling.πΩ The poll reported by the Herald generated almost identical numbers: 49 percent of respondents agreed with Goodridge and 38 percent disagreed.∫≠ The combination of Goodridge and Lawrence, and the far-reaching manner in which Goodridge built and enlarged upon Lawrence, made 2003 the most historic year for landmark civil liberties victories since the Supreme Court decided Roe v. Wade three decades earlier. The voiding in A Revolutionary Year

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Lawrence of Texas’s anti-gay sodomy statute was no Supreme Court surprise, but the manner in which the majority invoked and expanded the due process liberty analysis of Casey represented a striking doctrinal development and one that almost certainly will have important longterm consequences for the Court’s Fourteenth Amendment jurisprudence wholly apart from questions of gay rights. Lawrence v. Texas thus represented as momentous an example of the Rehnquist Court’s judicial self-confidence as Planned Parenthood v. Casey and all the Court’s federalism rulings in the Lopez line of cases put together. Only in time will historians learn for certain to what extent Lawrence affected the decision making of the Supreme Judicial Court of Massachusetts in Goodridge, yet in opening the door for America’s first same-sex marriages Goodridge almost certainly ensures that the U.S. Supreme Court will have more gay-equality cases on its docket in the years ahead than it would otherwise have had. Some states no doubt will refuse to acknowledge the validity of Massachusetts marriage licenses issued to same-sex couples, and those couples will then challenge those refusals in the courts. As discriminatory state action against married same-sex couples begins to be scrutinized in the federal courts, Lawrence will be the most relevant and potent U.S. Supreme Court precedent to be invoked. Goodridge and Lawrence therefore insure that gay equality cases will within several years’ time return to the chambers of the U.S. Supreme Court. And when they do, it is almost certain, as Laurence Tribe shrewdly predicted on the day that Goodridge was decided, that the judicial assertiveness of this Supreme Court, in tandem with the doctrinal innovations it has deployed in Lawrence, Casey, and Romer, will again lead it to forcefully and self-confidently declare that ‘‘a state cannot so deem a class of persons a stranger to its laws.’’∫∞

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CHAPTER FOUR

Although the Supreme Court with its life tenure appointments and its aversion to television cameras seems at first blush far removed from the political process, that superficial image of the Court is misleading. Many of the Court’s decisions provoke profound political reactions—from efforts to amend the U.S. Constitution to political campaigns to elect politicians who will undo the ‘‘damage’’ caused by the Court. For example, the Court’s abortion rights decision in Roe v. Wade in 1973 unleashed a political firestorm that likely contributed to the election of Ronald Reagan in 1980 and helped shape national politics for more than two decades. Court decisions that attempt to resolve contentious cultural debates by constitutional fiat are particularly at risk for political backlash. No Supreme Court decision of the past few years bears greater potential for provoking such a political reaction than the decision this term in Lawrence v. Texas. Yes, the Court’s decisions in the University of Michigan affirmative action cases also drew enormous attention, but those decisions declined to settle that contentious issue by constitutional decision, leaving it to the states to decide for themselves whether they wish to retain racial preferences. Lawrence, on the other hand, overturned several state laws banning homosexual sodomy and, more importantly, bore the seeds of an eventual constitutional attack on the exclusion of homosexuals from the privilege of marriage. Jeffrey Rosen, legal affairs editor of the New Republic and a law professor at George Washington University Law School, probes in this chap-

ter the political reaction to Lawrence in what he describes as ‘‘The Next Culture War.’’ Rosen contends that if ‘‘any single Supreme Court decision could reinvigorate the culture wars, social conservatives believe that the Court [in Lawrence] has just handed it to them on a silver platter.’’ Had the Court limited itself to removing the criminal ban on sodomy, the political response to Lawrence would likely have been more limited. But the inference in Lawrence that the ban on gay marriage will not survive constitutional scrutiny, bolstered by Justice Antonin Scalia’s blistering dissent, in which he accused his colleagues of having ‘‘taken sides in the culture war,’’ has provoked a reaction of a far greater magnitude. The more recent decision by the Supreme Judicial Court of Massachusetts striking down that state’s ban on same-sex marriage has only added fuel to the fire. Polls suggest that a majority of Americans oppose the legalization of same-sex marriage; what is striking about those numbers is that opposition increased in the weeks after the Court announced its decision in Lawrence. Particularly for conservatives, the same sex-marriage issue is of paramount importance. As Rosen reports, many conservatives regard the Lawrence decision as ‘‘America’s moral 9/11’’ portending ‘‘the end of civilization as we know it.’’ Proposed amendments to the U.S. Constitution banning same-sex marriage have been introduced in Congress, and pundits and politicians alike are evaluating the political fallout to come. Moreover, as Rosen notes, ‘‘Lawrence has already turned up the heat over judicial nominations.’’ For fifty years, since the Supreme Court’s landmark decision in Brown v. Board of Education declared school segregation unconstitutional, social reformers of all stripes have increasingly turned to the courts for victories that could not be procured in the political process. But, Rosen argues, those legal victories can sometimes have significant unintended consequences—substantially altering the political culture and delaying reforms that might have been accomplished more quickly had the courts left well enough alone.—the editors

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t the end of July 2003, in front of the federal courthouse in Charlotte, North Carolina, the Reverend Flip Benham summoned his followers to hold the Supreme Court of the United States in contempt of the Court of Jesus Christ. Benham is the head of Operation Rescue, the militant anti-abortion group, and he views the Supreme Court’s recent decision in Lawrence v. Texas,∞ which struck down every sodomy law in America, as a legal and moral catastrophe, no less reprehensible than the Court’s decisions banning school prayer and the posting of the Ten Commandments and allowing abortion. ‘‘These decisions are not binding on our children, they are not binding on our nation, we will not follow them, they are not law, they are an abomination before God,’’ he told me as the rally began. ‘‘We’re going to the Supreme Court to say ‘we will not obey these evil edicts.’ ’’ With his biblical tie and brown shirt, Benham is a kind of walking bellows who speaks in the cadences of a tent revivalist. He looked on benignly as about fifty of his followers milled around the sidewalk in front of the courthouse. A few of them arranged six caskets inscribed with the names of the six most notorious Supreme Court decisions rejecting the position of social conservatives in the moral and political clashes known as the culture wars, beginning with the school prayer decisions in the 1960s and moving on to Roe v. Wade in 1973,≤ the Ten Commandments decision in 1980,≥ and Lawrence v. Texas in 2003. ‘‘And so, my brothers and sisters, we come here as an ecclesiastical

court,’’ Benham brayed into the microphone. ‘‘We’re here today to hold the supreme court of the united states of america in contempt of the court of Almighty god!’’ Behind my right ear, a young convert in a Jewish prayer shawl sounded an earsplitting blast on a ram’s horn shofar. ‘‘Behold the charges to this court!’’ Benham exclaimed. He then distributed to the crowd the six Supreme Court decisions, which he accused of having precipitated the Columbine murders and ‘‘domestic terrorism in the womb.’’ ‘‘Now that the charges have been read, God’s sentence is this!’’ he continued. ‘‘Each of our children will take a page from each of these horrendous decisions, and we’re going to burn them right in front of this court to say they’re not binding on us, and then, with no grave marker to mark them, we’re going to bury them.’’ On cue, small children in anti-abortion T-shirts tore up the computer printouts of each of the six decisions, downloaded from Findlaw.com, and placed the fragments in a large metal urn. Finally, Benham came to Lawrence v. Texas, ‘‘the ultimate abomination . . . Take this nasty, filthy, piece of paper, kids. Now rip it up! It’s not worth the paper it’s written on. It’s a disgrace!’’ As the children tore up the decision, a man spat on the fragments, and a woman declared, ‘‘If I wasn’t a lady, I’d spit on it, too!’’ After a group prayer and some speaking in tongues, Benham held up a Bible over the urn, took a match, and set the mutilated decisions on fire. At this point, uniformed officers from the Charlotte fire department swooped down, opened their ghost-busters-sized fire extinguishers, and put out the tiny flames. ‘‘That’s not gonna work in hell, I tell you!’’ Benham shouted. All of a sudden, Charlotte police officers, backed up by federal marshals, descended from the plaza, pushed aside Benham’s weeping daughter, Abigail, handcuffed his arms behind his back, and led him into the courthouse to be arraigned for ‘‘unlawful burning.’’ ‘‘God bless you, Flip! Thank you, Flip!’’ his supporters cried out as Benham composed his features into a mask of beatific resignation. The shofar wailed. And a haunting song filled the air: ‘‘Oh, Charlotte, You’ve become a Harlot— before Holy God!’’ It is not surprising that Flip Benham and his followers are exercised by the Court’s gay rights decision: resistance to the Court is their reason for being. More striking is the number of social conservative leaders with larger constituencies who view the Lawrence decision not only as a moral affront but also as an unexpected opportunity. Only five years ago, just after the Senate refused to convict President Clinton of high crimes and misdemeanors, Paul Weyrich of the Free Congress Foundation, one of the leading social conservative strategists in America, sent a letter to his supporters announcing, ‘‘I believe we have probably lost the culture war’’ 74

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because ‘‘I no longer believe that there is a moral majority. I do not believe that a majority of Americans actually share our values.’’ As Weyrich conceded with admirable candor, ‘‘Americans have adopted, in large measure, the mtv culture that we so valiantly opposed just a few years ago.’’ Instead of continuing to fight a doomed battle to restore traditional values, Weyrich admonished social conservatives instead to ‘‘tune out’’ of the modern world.∂ After the Lawrence decision, however, social conservatives seemed to be tuning back in. Pat Robertson of the Christian Broadcasting Network exhorted his followers to pray for the retirement of Supreme Court justices.∑ A Gallup poll taken after the decision indicated that only 48 percent of those who attend church every week approve of the Supreme Court, compared with 64 percent of those who attend church less frequently.∏ ‘‘It isn’t so much the facts of the case; it’s the reasoning of Kennedy’s majority opinion that was really very offensive to a lot of people,’’ I was told by Phyllis Schlafly, the president of the Eagle Forum. The defendant in Lawrence was prosecuted for having consensual sex with a man in his own home under a Texas law that forbade sodomy by homosexuals but not heterosexuals. Texas is one of only four states in America that banned sodomy only when committed by gays and lesbians; and the Court could have struck down these four laws as a violation of the constitutional guarantee of equal protection of the laws, as Justice Sandra Day O’Connor prudently recommended.π If the Court had taken this modest approach, most social conservatives concede, there would have been little political reaction: in the summer of ‘‘Queer Eye for the Straight Guy,’’ there is not a large constituency for sodomy laws, even on the right. But instead, Justice Anthony Kennedy’s opinion for the Court struck down all thirteen state laws in America that banned sodomy whether committed by straight or gay people, and it did so in a particularly expansive way that social conservatives are now calling ‘‘America’s moral 9/11.’’ Kennedy based his opinion on the right to privacy and liberty, ‘‘both in its spatial and more transcendent dimensions.’’∫ In an inflammatory sentence that Justice Antonin Scalia ridiculed as the ‘‘sweet-mysteryof-life passage,’’Ω Kennedy reaffirmed the vision of liberty that he had invoked in Planned Parenthood of Southeastern Pennsylvania v. Casey,∞≠ the case that upheld Roe v. Wade in 1992: ‘‘At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.’’∞∞ Taken to its logical conclusion, this sentiment would seem to invalidate all moral restrictions on intimate associations that cause no obvious harm to others, from restrictions on polygamy to restrictions on gay marriage. Although many Americans The Next Culture War

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agree with Kennedy’s sentiment as a political matter, its roots in the Constitution are not self-evident: the Fourth Amendment explicitly protects the privacy of the home against unreasonable searches, but no provision of the Bill of Rights clearly protects the sweeping vision of personal autonomy that Kennedy embraced. And when Kennedy announced that ‘‘liberty presumes an autonomy of self,’’∞≤ he was rejecting the foundation of the social conservatives’ worldview: namely, that that ‘‘liberty . . . supposes the necessity of obedience to some supreme and eternal law,’’ as Pope Leo XIII put it in the Encyclical Libertas. Kennedy’s decision to constitutionalize the moral vision of the social progressives rather than the social conservatives led Scalia to object that ‘‘the Court has taken sides in the culture war.’’∞≥ It is possible, of course, to read Kennedy’s admonition more narrowly. Kennedy said that Lawrence was not a case about ‘‘whether the government must give formal recognition to any relationship that homosexual persons seek to enter.’’∞∂ Perhaps he meant that moral disapproval might not justify the criminalization of private conduct that inflicted no thirdparty harms on the public—such as sodomy or masturbation—but that the state was free to express moral approval or disapproval of certain public relationships (such as polygamous or gay marriages). But what complicates this reading is that Kennedy’s opinion is suffused with the rhetoric of equality rather than privacy.∞∑ He expresses concern that sodomy laws stigmatize or degrade individuals or groups, stressing that ‘‘petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime.’’∞∏ The concern about stigma, usually associated with the equal protection clause rather than the due process clause, makes it harder to read Lawrence narrowly as an opinion about private rather than public relationships. And indeed lower courts have refused to do so. Soon after Lawrence, the Massachusetts Supreme Court invoked Kennedy’s opinion expansively to justify its decision to redefine the common-law meaning of marriage to include same-sex couples. Like Kennedy, the Massachusetts court emphasized the overlap between the due process clause and the equal protection clause, and indeed cited Kennedy’s opinion on behalf of the proposition that ‘‘the Constitution prohibits a State from wielding its formidable power to regulate conduct in a manner that demeans basic human dignity, even though that statutory discrimination may enjoy broad public support.’’∞π Although the Supreme Court in a series of cases from Loving v. Virginia∞∫ to Romer v. Evans∞Ω had made clear that laws intentionally designed to stigmatize or degrade are unconstitutional, even under ra76

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tional basis review, Lawrence might be read to endorse a broader notion of stigma that prohibits social arrangements with stigmatizing effects. Although the contours of the conception of stigma embraced by Lawrence remain to be seen, and the Supreme Court has kept its options open about gay marriage, lower courts inclined to read Lawrence broadly will find much in the decision to encourage them. In the wake of Lawrence and Goodridge, social conservative leaders hope and expect that their supporters will finally be roused to take political action. ‘‘I think the Supreme Court decision will serve to awaken the sleeping giant of the majority of conservative Americans who believe in the traditional institution of marriage to get involved in the culture wars again to preserve traditional marriage and culture in this country,’’ I was told by Mathew D. Staver, head of the Liberty Counsel, a conservative civil liberties group. ‘‘I’m sure it will give us an enormous shot in the arm,’’ agreed Father Richard John Neuhaus, editor of the religious journal First Things. ‘‘People really think that on this one they have a winner.’’ And social conservatives have been pointing to recent polls to make their case. After the Supreme Court decision, the number of Americans who said homosexual relations should be legal fell from 60 percent in May to 48 percent in July, the lowest number since 1996.≤≠ The same Gallup poll found a precipitous drop in the number of Americans who said they would support civil unions for gays and lesbians, from 47 percent in May to 37 percent in July, and those who considered homosexuality ‘‘an acceptable alternative lifestyle’’ fell from 54 percent to 46 percent.≤∞ ‘‘The more that the movement demands the endorsement of the law and the culture, the more resistance there will be,’’ Gary Bauer, president of American Values, told USA Today after the poll.≤≤ The polls, though, may tell a more complicated story. There is clearly an age gap when it comes to gay marriage. A series of polls taken before the Lawrence decision by Karl Bowman of the Center on American Political Culture found that just under 50 percent of respondents under thirtyfive disagreed that homosexual couples should have the right to marry. By contrast, 58 percent of the respondents over sixty-five disagreed. Nevertheless, among those who described themselves as evangelical Christians, 70 percent disagreed that gay and lesbian couples should have the right to marry, as opposed to 61 percent of those who did not identify themselves as evangelical. Since self-identified evangelicals made up only 27 percent of the total number of respondents, their ability to affect the national debate about gay marriage may be limited: while polls in the wake of Lawrence found about a 10 percent decline in support for gay rights, an additional decline after Goodridge was harder to discern. This The Next Culture War

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may be because citizens pay less attention to state court decisions than they do to the Supreme Court, or because the minority of evangelicals had already registered its opposition after Lawrence and the rest of the country was not inclined to change its mind further after Goodridge. Nevertheless, the shift among evangelicals after Lawrence was dramatic enough that Paul Weyrich told me he was having second thoughts about the need for social conservatives to concede defeat in the culture wars. ‘‘I have never seen people so energized and activated, even more so than at the time of Roe v. Wade,’’ he said. ‘‘They look upon this recent Supreme Court decision and what they think will be the aftermath and they . . . just think that if they don’t do something that it’s going to mean the end of civilization as we know it.’’ By putting the question of gay marriage on the national agenda, Weyrich now believes, ‘‘It’s a possibility that Lawrence might reinvigorate the culture wars and give conservatives a new lease on life.’’ ‘‘In that sense,’’ he says, ‘‘Lawrence would be a blessing in disguise for social conservatives.’’ The outcome of the next phase of the culture wars is far from certain. ‘‘Whether the reaction is successful and can cause the defeated army to drag itself out of the hospitals and cemeteries and back on to the battlefield remains to be seen,’’ Weyrich concedes. But if social conservative leaders are able to convert the ambivalence of the country as a whole about gay marriage into active resistance—and there is some evidence to this effect—then Lawrence and the decisions that follow it could provoke a series of political backlashes that might inadvertently set back the cause of gay and lesbian equality rather than advance it. Unfortunately for liberals, the history of the Supreme Court’s interventions in the culture wars seems to be on the conservatives’ side. Although liberals who came of age in the postwar era like to think of the Supreme Court as a heroic check on the tyranny of the majority, this conventional wisdom turns out to be wrong. After the Second World War, the civil rights and women’s rights movements, rather than the Supreme Court, were primarily responsible for the steady expansion of equality in America and the steady assimilation of traditional communities into a new and increasingly libertarian national consensus. Although the Warren Court in Brown v. Board of Education≤≥ declared segregation to be illegal in 1954, meaningful desegregation did not follow until nearly a decade later, when Congress passed the Civil Rights Act of 1964. But although Brown did not trigger immediate social change, it was popular in the country as a whole and provoked resistance mostly in pockets of the South.≤∂ Southern resistance was initially muted because the Court allowed southern courts and legislatures to reject the decision without 78

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being called to task. But several southern states passed laws that contradicted Brown, and this resistance (more than the Court’s decision itself) helped to galvanize the civil rights movement, culminating in the civil rights legislation of the mid-1960s. At the time of Brown, of course, it was a real question whether there was a plausible constitutional theory to back up the decision, and the justices were divided about the constitutionality of segregation until the end. But by the time the civil rights movement had codified the principles of Brown in the Civil Rights Act, the legal academy had come to accept the decision as a powerful application of the anti-caste principle, and this growing consensus about the rightness of the legal reasoning made the result easier for the losers to accept. The pattern set by Brown continued throughout the Warren era as the Court turned its attention to cultural issues. As long as the Court ratified a national consensus after the consensus had crystallized, its rulings were accepted by most of the country without complaint. As Lucas A. Powe Jr. argues in The Warren Court and American Politics, the Court’s decisions, for most of Warren’s tenure, were remarkably popular with a majority of Americans at a time when the country as a whole was becoming more libertarian. They inspired resistance only among small groups of social conservatives, mostly evangelicals in the South, who were fighting an increasingly doomed battle against the liberalizing trends in American culture. For example, the Court’s decision in 1963 to ban the Lord’s Prayer and the reading of Bible verses in school was supported by mainstream Protestants as well as Catholics, who had little affection for a denominational exercise that had spurred the creation of parochial schools during the nineteenth century.≤∑ Although there was strong negative reaction in the South and proposals in Congress to amend the Constitution or limit the Court’s jurisdiction, national opinion generally backed the decision. ‘‘When the Court decision came down on school prayer, I was a reporter at the time,’’ recalls Paul Weyrich. ‘‘I called around to all the different evangelical and Lutheran churches in Wisconsin. I thought there would be moral outrage, and there was none.’’ The court’s decisions liberalizing pornography in the late 1960s provoked a similarly muted reaction. As the pill, the sexual revolution, and the women’s movement were transforming American sexual mores, the Supreme Court could not have stemmed the tide of sexually explicit material even if it had wanted to. Of course, Supreme Court justices are supposed to be guided by principle rather than the polls. When the Court waited thirteen years after Brown v. Board of Education to strike down bans on interracial marriage, out of fear of a political backlash in the South, the justices were legitThe Next Culture War

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imately criticized for letting prudence get the better of the Constitution. But as long as the Court rooted its decisions in clear and convincing constitutional principles, the decisions could eventually be accepted as legitimate even by those who disagreed with the results. Although 72 percent of Americans opposed interracial marriage in a Gallup poll in 1968, the year after the Court finally struck down anti-miscegenation laws, the logic of the Supreme Court decision was constitutionally unassailable: no one could deny that the laws banning interracial marriage were based on the discriminatory belief that blacks were unfit to marry whites. As a result, public opinion slowly shifted. In 1978, 66 percent of Americans disapproved of interracial marriage and by 1997 only 33 percent disapproved.≤∏ Brown was decided on similarly solid constitutional grounds: even in the South, everyone knew that segregated schools were inherently unequal and based on the idea that blacks were an inferior racial caste. The school prayer and obscenity decisions, for their part, were clearly rooted in the First Amendment’s protections for free speech and religious freedom, which social conservatives could embrace in principle, even if they disagreed about the outcome of particular cases. During the 1960s, the American culture wars were triggered not by the Supreme Court but by political clashes between two groups that the sociologist James Davison Hunter has called the cultural progressives and the culturally orthodox. The progressives define moral authority in the spirit of rationality and individual choice, while the orthodox insist on adherence to an external and transcendent authority.≤π Both camps include religious and secular people; but the progressives have increasingly gained the upper hand. For as the expansion of higher education and gender equality made Americans increasingly libertarian in the postwar era, conservatives as well as liberals began to embrace what the sociologist Alan Wolfe has called an ethos of ‘‘moral freedom,’’ based on the laissezfaire belief that individuals should decide for themselves what it means to lead a good life.≤∫ In a world of moral freedom, where the only sin is to judge the choices of others, the greatest threat to social conservatives came from the pressures to assimilate: even within traditional evangelical communities, the younger generation, weaned on mtv, increasingly abandoned traditional attitudes about family life, gun control, and the death penalty, to the point where their attitudes no longer differ from those of their secular counterparts.≤Ω ‘‘There is a distinct possibility,’’ Hunter wrote in 1991 at the end of his authoritative book Culture Wars, ‘‘that orthodox communities may become so assimilated to a progressive political . . . culture that they will not be capable of offering any effective opposition to the worldview that 80

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currently plagues them . . . Nevertheless, this process is very slow and opposition to a clearly defined enemy . . . can thwart the process.’’≥≠ Fortunately for social conservatives, a clearly defined enemy appeared in 1973 that galvanized the movement for a generation: Roe v. Wade. While the Supreme Court in the cases involving school prayer, obscenity, and race and gender discrimination had acted modestly and in line with an increasingly libertarian national consensus, in Roe v. Wade it did something very different. The Court struck down abortion laws in forty-six states, and it did so in a freewheeling way that even some pro-choice scholars and justices found constitutionally questionable. Justice Harry Blackmun’s majority opinion said that the Constitution protected the right to choose first-trimester abortions; but he failed to specify where, in the text or history of the Constitution, this right was located. Blackmun defended his conclusion that the Constitution protects abortions before fetal viability by noting that the viable fetus ‘‘presumably has the capability of meaningful life outside the mother’s womb.’’≥∞ This prompted the pro-choice scholar John Hart Ely to retort that ‘‘The Court’s defense seems to mistake a definition for a syllogism.’’ Roe was unconvincing, wrote Ely in a summary of the scholarly consensus, not because it is ‘‘bad constitutional law’’ but ‘‘rather because it is not constitutional law and gives almost no sense of an obligation to try to be.’’≥≤ Moreover, by striking down so many state abortion laws, rather than simply striking down the draconian Texas law before it, the Court shortcircuited a national debate about abortion before national opinion had a chance to crystallize. As Justice Ruth Bader Ginsburg and other prochoice critics of Roe have argued, national opinion about abortion in the early 1970s was becoming increasingly liberal; and left to their own devices, the state legislatures would have continued to repeal the most extreme laws such as the one in Texas, which banned abortion in nearly all circumstances.≥≥ By cutting off that debate ahead of schedule, the Court made pro-choice advocates complacent and pro-life advocates energized and defiant. In the wake of Roe, as the University of Chicago scholar Gerald Rosenberg notes in The Hollow Hope, there was no rapid or unusual increase in the number of legal abortions, but the legislative tide turned in the conservatives’ favor: while states had been liberalizing their abortion laws before 1973, they increasingly limited access to abortion after Roe came down.≥∂ This shift in the political momentum was spurred by a series of conservative interest groups that arose in response to Roe in the 1970s and 1980s. From the Concerned Women for America to the Moral Majority, these groups shared common goals in the culture war, setting out not only to restrict abortion but also to oppose pornography, The Next Culture War

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gay rights, and the Equal Rights Amendment, and to resurrect school prayer. Above all, these groups sought the appointment of Supreme Court justices who would reverse Roe, their most galling judicial defeat. On this ultimate goal, the conservatives were narrowly disappointed: the Court voted 5–4 in 1992 to reaffirm the core of Roe. But although Roe managed to survive, it has continued to distort and polarize our judicial politics long after there was any threat of its being overturned. The conservative judicial movement that arose in response to Roe led to the appointment of two justices—Antonin Scalia and Clarence Thomas—who still refuse to accept the legitimacy of Roe even after their colleagues have repeatedly reaffirmed it. And although the country as a whole came to accept the Court’s moderate compromise on abortion—in 1996, 64 percent of the respondents in a Gallup poll agreed with the Court that the right to choose abortions should be protected in the first three months of pregnancy while 82 percent agreed that it should be generally illegal in the last three months of pregnancy≥∑ —the Court provoked another political backlash by extending Roe in 2000 to strike down more than thirty socalled partial birth abortion laws. After this decision, social conservatives claimed to detect a shift in public opinion about abortion in their favor and Congress banned partial birth abortions in response. Thirty years after it was decided, furthermore, Roe continues to define the terms of our nomination battles for the federal courts. In the Reagan and both Bush administrations, lower court and Supreme Court nominees were selected largely because of their perceived opposition to Roe, which was seen as a sign of their judicial virtue. The result has been a polarizing gap between the moderation of the country as a whole on abortion and the radical opposition that it continues to inspire among conservative legal élites. Since the two sides in the culture wars are seeking symbolic as well as tangible victories, judicial nomination fights over Roe have become an angry proxy for the political battles that social conservatives increasingly despaired of winning in the legislatures. Enter Lawrence v. Texas. If any single Supreme Court decision could reinvigorate the culture wars, social conservatives believe that the Court has just handed it to them on a silver platter. If the court had simply struck down the four state laws that ban sodomy when committed by gays and lesbians but not straight people, few conservatives would have objected. ‘‘I seriously doubt there is anyone at National Review who would vote for a sodomy law,’’ wrote John Derbyshire in the online version of the conservative magazine soon after the Supreme Court decision.≥∏ Vice President Cheney has an openly gay daughter. And even among evangelical and social conservatives, there is a general sense that the effort to 82

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stigmatize consensual sexual behavior as immoral has been lost among the younger generation. ‘‘I don’t think sodomy laws could be resurrected because even most Christians believe that what is done in the privacy of one’s home is not the government’s business,’’ says Paul Weyrich. ‘‘I’ve had a couple of my own kids say that to me. . . . Even though I’ve argued that private actions should have public consequences, I think that battle is over.’’ But the Supreme Court in Lawrence, like the Supreme Court in Roe v. Wade, did far more than strike down the extreme and discriminatory Texas law before it. Justice Kennedy’s opinion for the Court overruled Bowers v. Hardwick,≥π in which the Court in 1986 held that moral disapproval was a legitimate reason for states to regulate the intimate decisions of gays and lesbians. And in the process, social conservatives believe, he made it more likely that lower courts in Massachusetts and elsewhere will be emboldened to recognize a constitutional right to gay marriage. ‘‘The decision in Massachusetts will be the fuse that lights the fire,’’ said Deal Hudson, editor of Crisis magazine. In preparing to stoke the flames, social conservative leaders are already learning from their errors after Roe v. Wade, when a constitutional amendment to prohibit abortion in almost all circumstances was introduced in the Senate but failed to inspire grassroots support. When Ken Connors of the Family Research Council pushed for an extremely restrictive gay marriage amendment that would have prohibited states from recognizing civil unions even if they preferred to do so, he was forced to resign in the face of opposition from more pragmatic conservative leaders. ‘‘It was my assessment that this amendment couldn’t pass the Senate, and I think it would have permitted the homosexual lobby to really claim that this was blatant discrimination,’’ says Paul Weyrich. Instead, Weyrich successfully lobbied for a more moderate amendment that would prohibit courts from requiring states to extend the benefits of marriage to ‘‘unmarried couples or groups.’’ State legislatures, however, would remain free to recognize gay civil unions if they choose—a canny way of respecting states’ rights without alienating moderates. In a rare press conference at the end of July, President Bush went out of his way to endorse a federal definition of marriage as limited to a man and a woman, and he is facing increasing pressure from social conservatives to support the constitutional amendment, which has been endorsed by the Senate majority leader, Bill Frist. Whether or not the marriage amendment is actually proposed by Congress and ratified by three-quarters of the states— a notoriously difficult political feat—conservatives believe that the amendment will frame the debate about gay rights in a way that can only help The Next Culture War

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them and hurt liberals. If the amendment makes it through Congress, the thinking goes, it will provoke a mini–culture war in each of the fifty state legislatures, an outcome that can only hurt Democrats, who will be forced to choose between alienating their liberal base which favors gay marriage and alienating the moderate majority that opposes it. Even if the amendment fizzles in Congress, social conservatives are counting on other lower court decisions to energize their supporters by extending Lawrence to strike down other restrictions on gays and lesbians, such as their exclusion from the military. ‘‘Anything that is the outgrowth of that decision is going to have the effect of keeping the momentum going,’’ says Weyrich. The outcome of these battles is hard to predict. At the moment, Americans seem to feel differently about gay marriage than about consensual sexual behavior in private. In May 2003, according to the same Gallup poll which indicated that a majority disapproved of sodomy laws, 55 percent of Americans believed that gay marriages ‘‘should not be recognized as valid.’’ And the proportion of Americans who oppose gay civil unions rose from 51 percent in May to 57 percent in July, which social conservatives view as further evidence of a backlash against the Supreme Court.≥∫ These figures are consistent with a long-standing pattern: every time a lower court has recognized a broad right of gay marriage during the past decade, the decision has provoked a political backlash. When the Supreme Court of Hawaii implied in 1993 that gays and lesbians had a constitutional right to marry in that state, there was a dramatic and negative reaction. As Andrew Koppelman of Northwestern Law School notes, thirty-four states passed laws declaring that they would not recognize same-sex marriage, and Congress passed the Defense of Marriage Act, which announced that those laws were constitutional. Eventually, the voters of Hawaii amended their state constitution to prohibit same-sex marriages, just as the voters of Alaska had done after an Alaskan lower court declared a right of samesex marriage. Although two-thirds of Americans now believe that samesex marriage will be legal within the next hundred years, they do not appear ready for courts to enact this social revolution by fiat.≥Ω Of course, as the slow acceptance of interracial marriage shows, attitudes can evolve. Unlike abortion, an issue so heated that those who believe that life begins at conception may never be persuaded to lay down their arms, gay marriage has no immediate or obvious victim. If gay marriages became a reality, the opposition to gay marriage would presumably decline over time; and if the ratings for gay-themed shows on the Bravo channel are a harbinger of anything, perhaps opposition would decline more quickly than conservatives hope. But while the logic of the Supreme Court’s decision about interracial marriage was constitutionally unassail84

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able, the constitutional case for a right to gay marriage is more hotly contested. Many people who oppose gay marriage but support civil unions for gays and lesbians, for example, do not believe that gays and lesbians deserve any less respect than heterosexuals, but do believe that there are differences between gay and straight unions that merit a semantic distinction. The history of the Court’s interventions in the culture wars suggests that judges should only thwart the will of the majority when the principled constitutional arguments for doing so are overwhelmingly clear and convincing, and therefore easily intelligible to those who disagree. Both sides should have learned by now that relying on courts for victories that you are unable to win in the legislatures is not a recipe for enduring success. Regardless of the fate of the gay marriage debate, Lawrence has already turned up the heat over judicial nominations, creating a distraction from the reality that cultural changes in America will make it hard for social conservatives, over the long run, to reverse their losses. ‘‘This will make it all the more important that the president fulfill his promise to appoint justices like Scalia and Thomas,’’ says Phyllis Schlafly. ‘‘We’re tired of being betrayed by Republican presidents.’’ Interest groups on both sides are now spoiling for a battle to the death over the next Supreme Court vacancy, which will inspire political passions vastly out of proportion to the actual judicial stakes. As these interest groups continue to fight their symbolic battles over judicial nominations, the confirmation process will grow ever more polarized, even as the country as a whole becomes more moderate and nonjudgmental. These fractious political sideshows, meanwhile, may lead not to greater equality and acceptance for gays and lesbians but to greater recriminations, suspicion, and strife. The turn away from politics and toward the courts, in short, tends to be a sign of weakness rather than strength. But for both sides in the culture wars, the allure of the courts has always proved too powerful to resist. After Flip Benham was led off in handcuffs for holding the Supreme Court in contempt, one of his followers had the following exchange with the Charlotte police on the courthouse steps. Protester: ‘‘What’s he being arrested for?’’ Policeman: ‘‘It’s illegal to burn anything within the city limits of Charlotte.’’ Protester: ‘‘But the Supreme Court says you can burn the flag. So you’re saying the city of Charlotte trumps the Constitution? I don’t think so. You just bought yourself a very costly lawsuit, my friend!’’ A spokeswoman for Operation Rescue promptly told me that the group would fight all the way to the Supreme Court.

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CHAPTER FIVE

Perhaps the most highly anticipated decisions of the 2002–03 term came in two cases considering the constitutionality of affirmative action plans at the University of Michigan. Interest in these cases was so intense that for only the third time in its history, the Court immediately released audiotapes of the oral arguments, allowing the news media to broadcast the arguments to the nation. In 1978, in the famous case of Regents of the University of California v. Bakke, Justice Lewis Powell wrote a highly influential although solitary opinion in which he concluded that universities had a compelling state interest in promoting a diverse student body, though not in overcoming past societal discrimination against racial minorities. He also concluded that the use of racial ‘‘quotas’’ was not necessary to fulfill the goal of diversity, but that a different type of plan—one in which race was one among many ‘‘plus’’ factors utilized in admissions—would be constitutional. Over the next two decades, the Supreme Court narrowed the use of racial preferences in non-university contexts, but left unanswered whether the framework that Justice Powell articulated in Bakke was the law. In the meantime, lower courts disagreed about the continued relevance of Bakke. Finally, the Supreme Court accepted for review the two University of Michigan affirmative action cases—one involving the law school and the other the university’s undergraduate admissions. In Grutter v. Bollinger, the Court sustained the law school’s racially preferential affirmative action plan, with Justice Sandra Day O’Connor

writing for a 5–4 majority. The Court held for the first time that achieving a diverse student body was a compelling state interest. It also held that the law school’s use of racial preferences as a factor in its admissions process was narrowly tailored to further that interest. But in Gratz v. Bollinger, Justices O’Connor and Stephen Breyer joined the Grutter dissenters to strike down the affirmative action plan used by the undergraduate admissions office. Unlike the law school affirmative action plan, the undergraduate plan assigned a specific number of points to applicants based on their race, which the Court found constitutionally offensive. In effect, the Court chose to leave the question of university affirmative action to the political process. Even before Grutter, three states—California, Florida, and Washington—had already banned the use of racial preferences by their state universities. The political debate over the wisdom of affirmative action will undoubtedly continue. Stuart Taylor, Jr., a journalist who writes for National Journal and Newsweek, provides a sharp critique of Justice O’Connor’s reasoning in her decision for the Court in Grutter and accuses her of misconstruing how affirmative action is actually practiced. In Taylor’s view, O’Connor’s opinion in Grutter was ‘‘neither candid nor intellectually coherent.’’ First, Taylor argues, her assertion that ‘‘we expect 25 years from now . . . racial preferences will no longer be necessary’’ was based on willfully ignoring clear evidence that the enormous racial gaps in academic performance are growing, not shrinking. Second, Taylor claims that the racial preferences in the law school that the Court sustained were actually more substantial than those it struck down at the undergraduate level and that the Court’s endorsement of the law school’s more subtle consideration of race creates a ‘‘constitutional imperative . . . to hide the ball.’’ Third, Taylor argues that although the Court purported to reject racial balancing, in fact the law school’s racial preference program, upon closer inspection, was nothing but a thinly masked program of racial balancing. Fourth, in Taylor’s view the Court’s contention that diversity is a compelling interest because it enhances ‘‘cross-racial understanding’’ is undermined by the realities of voluntary racial separation on university campuses. For Taylor, the ‘‘overuse’’ of affirmative action actually undermines minority interests. Why then did the Court go to such lengths to sustain affirmative action, particularly Justice O’Connor, who had previously found other racial preference programs outside the university context unconstitutional? Taylor offers a provocative answer: Supreme Court justices tend to respond to establishment opinion, and affirmative action is a policy that educational and political élites support—in large part, Taylor claims, out of those élites’ personal self-interest rather than careful thought. As Taylor puts it: 88

‘‘O’Connor surely knew that a vote to strike down preferences . . . would have been so widely denounced and distorted by establishment leaders and the media as to harm both the Court’s stature and her own reputation.’’ In developing this thesis, Taylor contributes to the ongoing debate over the extent to which justices are influenced by élite opinion in their interpretation of constitutional text.—the editors

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n approving racial preferences in admissions at the University of Michigan Law School in Grutter v. Bollinger,∞ Justice Sandra Day O’Connor’s opinion for the Court tacitly endorsed an essentially permanent regime of racial balancing through preferences while purporting to ban both balancing and preferences. At the same time, in striking down the all-too-transparent point system used to award racial preferences by the university’s undergraduate school, in Gratz v. Bollinger,≤ the justices signaled that concealment of the nature and magnitude of racial preferences, which has long been indispensable to their political sustainability, would henceforth be the way for selective universities to insulate their plans from legal challenge as well. Taken together, the decisions reflect the majority’s evident desire to perpetuate the racial preference regime long used by almost all major establishment institutions, while using obfuscation to insulate it from the overwhelming popular disapproval that candor would have provoked.≥

The Impact of Grutter : A Racial Spoils System Forever? In Grutter, Justice O’Connor, who had never before voted to uphold a system of racial preferences, quoted an article from 1977 asserting that ‘‘[i]t would be a sad day indeed, were America to become a quota-ridden society, with each identifiable minority assigned proportional representation in

every desirable walk of life.’’∂ But now she has done more than anyone alive to entrench just such a pervasive racial spoils system. In doing so, she and her four more liberal colleagues have cast aside, perhaps forever, the Reverend Martin Luther King’s dream of an America in which people are judged ‘‘not by the color of their skin but by the content of their character.’’ Justice O’Connor’s majority opinion in Grutter and her concurrence in Gratz are the law of the land because she was the only member of the Grutter majority who also joined Chief Justice William H. Rehnquist’s far less important opinion in Gratz. (Justice Stephen G. Breyer joined O’Connor’s opinions in both cases, but not Rehnquist’s opinion in Gratz.)

the claim that racial academic gaps were shrinking was deceptive Justice O’Connor struggled mightily to reconcile the seeming permanence of the diversity-based preferences that she upheld in Grutter with her own (and the Court’s) long-standing position that ‘‘[e]nshrining a permanent justification for racial preferences would offend’’∑ equal protection, as she put it in Grutter. She resolved this struggle by taking refuge in a statement remarkable both for its mutable notion of equal protection and its willful blindness to inconvenient facts: ‘‘We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.’’∏ What basis was there for this expectation? O’Connor offered only the profoundly misleading assertion that during the twenty-five years since Bakke,π ‘‘the number of minority applicants with high grades and test scores has indeed increased.’’∫ The only documentation she cited was the law school’s speculative assertion at oral argument that more blacks could win admission on their academic merits now than in 1964. Whether this was self-deception or just plain deception, the Grutter majority must have been aware of the overwhelming evidence that the racial academic gap is both enormous and growing. The average black high school senior has weaker reading skills and has learned less about math and geography than the average white or Asian eighth grader, according to National Assessment of Educational Progress (naep) tests of a representative national sample of seventeen-year-olds. (Hispanics do a little better than blacks.)Ω Careful studies show appalling deficiencies in the academic performance even of upper-middle-class black children in top-notch, integrated schools.∞≠ The results are especially dramatic at the top of the academic curve: in 2003, after thirty years of racial preferences, only seventy-two blacks nationwide scored above The Affirmative Action Decisions

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1500 on the sat. That comes to just over one-half of 1 percent of the total of 13,897 students with scores above 1500.∞∞ The justices ignored overwhelming evidence that this gap has been growing for the past fifteen years, reversing the trend of the 1970s and most of the 1980s. For example, in 1978 the average black math score was at the same level as the 13th percentile of all white scores, meaning that 87 percent of whites had higher scores. By 1990, the average black score had moved up to the 24th percentile of white scores. But then it fell back just as dramatically, to the 14th percentile of white scores, by 1999.∞≤ Similarly, the gap between white and black scores on the sat has grown from 189 points in 1988 to 206 in 2003 (a perfect score is 1600), with ‘‘no compelling evidence that any improvement is in the offing.’’∞≥ Do the tests discriminate against blacks? The opposite is true. ‘‘The average rank in class for black students is appreciably lower than the average rank in class for white students within each sat interval. . . . Black students with the same sat scores as whites tend to earn lower grades,’’ and cluster toward the bottom of their classes academically.∞∂ And after four years of college, in 2002 blacks accounted for only 0.65 percent (29 of 4,461) of the applicants to American law schools who had college gpas of at least 3.5 and lsat scores of at least 165, which are below the median scores of students at the top fourteen law schools, according to a brief filed in Grutter by the Law School Admissions Council. If this trend continues, the number of African Americans capable of winning admission to selective schools on their academic merits may be even smaller twenty-five years hence than it is now. The persistence of this large racial gap is among the reasons (others are detailed below) why the racial preference regime approved in Grutter seems destined to become a permanent and ever more pervasive organizing principle of American society.

the disconnect between popular and élite opinion It might seem unlikely at first blush that racial preferences could long survive politically given the electorate’s overwhelming disapproval. While many in the news media portrayed Justice O’Connor’s opinion in Grutter as reflecting a broad national consensus—for example, a front-page headline in the Washington Post read, ‘‘Court Mirrors Public Opinion’’—such assertions were nonsense. Dozens of surveys show that more than two-thirds of Americans, and strong majorities of African Americans in many polls, have consistently opposed racial preferences like those upheld in Grutter. Polls show much greater support for ‘‘affirmative action,’’ but only because the phrase is 92

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ambiguous and misleading, as discussed below. What O’Connor’s opinion mirrored was the views of most leaders of the political, professional, academic, corporate, military, and journalistic establishment. She also adopted—indeed, mandated—their practice of keeping the general public in the dark about the nature and magnitude of the preferences that they use and support. On no other issue have elected officials and leaders of the establishment implemented so pervasively a policy rejected so overwhelmingly by the general public. The eighty-three amicus briefs supporting Michigan’s preferences in Grutter and Gratz were joined by a stunningly broad array of establishment institutions and figures. As detailed by Professor Neal Devins in ‘‘Explaining Grutter v. Bollinger,’’∞∑ they included 124 House members and 13 senators (with no member of Congress on a brief opposing preferences); 23 states and the Virgin Islands (with only Florida opposing preferences); an overwhelming majority of big business, labor, and civil rights groups; 91 colleges and universities (with none opposing preferences); every major educational association; and a group of former highranking officers and civilian leaders of the military. What explains this stark disconnect between establishment leaders and ordinary Americans? Perhaps the leaders better understand the utility of preferences in keeping the racial peace, especially in the military, where resentment by the disproportionately black enlisted men of the overwhelmingly white officer corps became a major problem during and after the Vietnam War. But the personal self-interest of establishment leaders may be the more important explanation. ‘‘Because academic credentials are significantly correlated with parental income, social status, and education,’’ as Judge Danny J. Boggs wrote in dissent from the Sixth Circuit’s decision in May 2002 upholding the law school’s preferences, ‘‘the malign effects of discriminatory policies like the Law School’s will rarely fall upon the children of the educators who craft them or the judges who rule upon them.’’∞∏ Or, he might have added, the leaders of other establishment institutions. Not only do whites and Asians who have reached leadership positions have little to lose from racial preferences, they have much to gain. ‘‘They scramble to show deference to minorities because only deference erects the firewall that protects them from stigmatization as racist,’’ in the words of Shelby Steele.∞π Meanwhile, virtually all black and Hispanic leaders benefit even more directly from racial preferences, which help them win contracts, coveted positions in establishment institutions, and racially gerrymandered election districts, while helping their children win admission to selective colleges. And all the proposed strategies for pursuing diversity without racial preferences would improve the chances The Affirmative Action Decisions

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of working-class black and Hispanic children (among others) at the expense of black and Hispanic leaders’ children, who now reap the vast majority of racial preferences. Polls show far less support for preferences among low-income blacks, who get nothing from them. Why is the Supreme Court so much more responsive to establishment than to popular opinion? The justices are themselves leaders of the establishment, of course. They come from prestigious universities and go to glittering dinner parties. Their closest professional collaborators are their extremely bright young law clerks, recent graduates of élite law schools where diversity is almost religious dogma and the views of ordinary Americans, conservatives, and even centrists are widely scorned. The justices’ reputations are shaped mainly by liberal-leaning mainstream news media, law professors, lawyers’ groups such as the American Bar Association, women’s groups (which often honor the first woman on the Court, Justice O’Connor), and other civil rights groups. They know that opposing racial preferences will get them caricatured as intolerant zealots and supporting preferences will win them praise for enlightenment. In addition, the only justice whose vote was in much doubt, O’Connor, surely knew that a vote to strike down the preferences in Grutter as well as in Gratz would have been so widely denounced and distorted by establishment leaders and the media as to harm both the Court’s stature and her own reputation.

why preferences are probably here to stay despite their unpopularity The question still remains: How can such heavy racial preferences survive politically when the vast majority of Americans oppose them? The most obvious reason is that while the issue is of peripheral concern to most people—less than 20 percent of white voters tell pollsters it would play a significant role in determining their votes in presidential elections—it is the one great passion of powerful special interest groups. These include not only black and Hispanic leaders, liberal activists, their media allies, and universities but also big companies that see preferences as an inoculation against discrimination suits, boycotts, and bad publicity. The pro-preference forces appear likely to gain political strength for the foreseeable future because Hispanic immigrants and their children are accounting for a growing proportion of the electorate. Hispanics whose ancestors never experienced racial discrimination in this country (as well as many whose ancestors did) are reaping an ever-larger share of the racial preferences originally devised as a temporary remedy for descendants of 94

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slaves. But since lopsided majorities even of black and Hispanic voters oppose racial preferences in some major polls—as do even more lopsided majorities of white and Asian voters—deception about the actual operation of such ‘‘affirmative action’’ programs is probably indispensable to their political sustainability. Indeed, the phrase ‘‘affirmative action’’ is itself misleading, although it has such wide currency that even most opponents (unwisely) use it as synonymous with racial preferences. Polls show overwhelming support among black people and substantial support among whites for ‘‘affirmative action’’ despite the overwhelming unpopularity of racial preferences. The most plausible explanation is that many Americans interpret ‘‘affirmative action’’ as including politically popular measures supported even by opponents of racial preferences, such as aggressive enforcement of anti-discrimination laws, recruitment and outreach efforts to promote equality of opportunity, and preferences for promising working-class and disadvantaged students of all races. Such efforts are consistent with the original meaning of ‘‘affirmative action.’’ The mass media routinely obscure the workings of ‘‘affirmative action,’’ typically by downplaying or failing to mention that these programs systematically discriminate against whites and Asians in academic competition against less qualified blacks and Hispanics. A lot of people have been fooled. A Gallup Poll in June 2003, for example, asked: ‘‘If two equally qualified students, one white and one black, applied to a major U.S. college or university, who do you think would have the better chance of being accepted to the college—the white student, the black student, or would they have the same chance?’’ The correct answer would be the black student, and every university official and journalist knows it. But respondents were almost evenly divided, choosing ‘‘black student’’ by only 31 to 29 percent. And ‘‘white student’’ was the (incorrect) choice of black respondents by 67 to 5 percent and Hispanic respondents by 44 to 14 percent, demonstrating a stunning detachment from the reality that, in Steele’s words: ‘‘Today a wealthy [or unwealthy] black will be preferred over the son of a white mailman at all of America’s best universities.’’∞∫ The success of racial-preference advocates in entrenching a system that offends the values of the vast majority of Americans is illustrated by the increasing reluctance even of conservative Republican politicians to oppose preferences. President Bush’s remarkable 180-degree turn to a propreference position is a case in point. While Bush has usually sought refuge in ambiguity, he went on record advocating completely race-blind admissions when he was governor of Texas and said during the presidential campaign in 2000 that he ‘‘opposes . . . racial preferences.’’ But in January 2003, Bush, and his administration’s legal brief, sought to straddle The Affirmative Action Decisions

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the issue, coming very close to calling racial diversity a compelling interest while opposing the preferential regimes in Grutter as well as Gratz, chiefly on the ground that racial diversity could be maintained without preferences. Bush’s equivocal position was a signal to the justices that even a conservative Republican president had found it politically necessary to jump on the racial diversity bandwagon. Next Bush completed his about-face by tacitly jumping on the racial preference bandwagon too: ‘‘I applaud the Supreme Court for recognizing the value of diversity on our nation’s campuses,’’ Bush said within hours of the Grutter decision, sounding as though he had won a great victory. There was no hint of disapproval of the racial preferences that the justices had embraced, and that he had previously opposed.

Justice O’Connor’s Opinions: Hiding the Ball as Constitutional Imperative While candid and intellectually respectable arguments can be made for a permanent regime of racial preferences, Justice O’Connor’s analysis was neither candid nor intellectually coherent. She wished away the growing racial gap in achievement and made other misleading assertions of fact. She wallowed in logical confusion and internal contradictions. These flaws, together with her mandate for universities to conceal the nature and magnitude of their preferences, illustrate the integral role of obfuscation and deception in sustaining the brand of affirmative action that Grutter approved.

preferences upheld, preferences struck down One striking fact went unmentioned in the nine justices’ thirteen separate opinions in the two cases and in most commentaries: the preferences that the Court upheld were stronger than those that it struck down. But it is well documented in the record, highly revealing, and inconsistent with Justice O’Connor’s boilerplate assertion that ‘‘[t]o be narrowly tailored, a race-conscious admissions program must not ‘unduly burden individuals who are not members of the favored racial and ethnic groups.’ ’’∞Ω That assertion suggests that the focus of the narrow-tailoring inquiry in this zero-sum game—which excludes one equally or better qualified Asian or white applicant for every black or Hispanic admitted by virtue of racial preferences—should be the number of whites and Asians excluded. And that is a function of the magnitude of the preferences. To appreciate the extreme magnitude of the preferences that Grutter 96

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upheld, let us start with those that Gratz struck down. The weight given to race by Michigan’s undergraduate school appears to have been fairly typical of selective universities, but unusually easy to measure because Michigan was forced to make public the 150-point ‘‘selection index’’ that it used to rank applicants. The now-defunct selection index awarded 12 points for a perfect sat score of 1600, only 2 points more than it awarded for a mediocre 1010; 20 points for each grade point average unit (that is, 60 points for a gpa of 3.0, 80 points for a gpa of 4.0); and 20 points for being black, Hispanic, or Native American. So at the college, a preferredminority applicant with a B (3.0) average would have had the same score on the selection index as an otherwise indistinguishable Asian or white with an A (4.0) average. The effect was identical to that of a system penalizing whites and Asians by having their A’s counted as B’s, their A minuses as B minuses, and so forth. At the law school, ‘‘race is worth over one full grade point of college average,’’≤≠ according to Judge Boggs’s dissent. Preferred-minority applicants ‘‘with a high C to low B undergraduate average are admitted at the same rate as [white and Asian] applicants with an A average with roughly the same lsat scores,’’≤∞ he added. The Sixth Circuit majority did not dispute this. The law school sought to change the subject by arguing that racial disparities in gpas and lsat scores prove nothing because the school also considered ‘‘soft’’ variables, such as the enthusiasm of recommenders and the quality of the applicant’s essay, undergraduate school, and curriculum. But that fact would diminish the force of Boggs’s analysis only if preferred minorities did much better than Asians and whites on these soft variables, and the law school acknowledged that they did not. Perhaps the law school used somewhat stronger racial preferences because the percentage of well qualified applicants who are black, Hispanic, and Native American declines as the selectivity of the school increases, and Michigan’s law school is rather more selective than its undergraduate school. Indeed, more than 70 percent of the black, Hispanic, and Native American students admitted to the law school in 2000 (for example) would have been rejected by a race-blind process, an expert witness for the law school testified. In any event, the result at the law school has been to give what Judge Ronald Lee Gilman of the Sixth Circuit, in another dissent, called such ‘‘grossly disproportionate weight to race and ethnicity’’ as to amount to a ‘‘two-track system that is functionally equivalent to a quota’’ and that unconstitutionally ‘‘applies one standard for minorities and another for all other students.’’≤≤ This from a judge appointed by President Clinton who also said that the more modest preferences contemplated by Powell in Bakke would be ‘‘clearly constitutional.’’ The Affirmative Action Decisions

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This is the system that O’Connor approved in Grutter as a model for using racial preferences without risk. How can it make sense to strike down one racial preference while upholding an even stronger one? O’Connor did not address the question, or even acknowledge it. But the answer is clear enough. While the law school uses an even more extreme double standard, it is also more opaque and wrapped in layers of obfuscation. The new constitutional imperative is to hide the ball. This point was obvious not only to the four dissenters in Grutter but also to Justices David H. Souter and Ruth Bader Ginsburg, who joined O’Connor’s opinion in Grutter but broke with her in Gratz. ‘‘The college simply does by a numbered scale what the law school accomplishes in its ‘holistic review,’ ’’≤≥ Souter wrote in his dissent in Gratz. ‘‘If honesty is the best policy, surely Michigan’s accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises,’’≤∂ Ginsburg wrote in another dissent. (In fact it was not honesty but a professor’s request under a Michigan freedom-of-information law and then the lawsuits that dragged into the open the nature and magnitude of the undergraduate school’s racial preferences. They had previously been closely guarded secrets, as they are at almost all universities.) O’Connor’s no-quota-here rationale in Grutter goes like this: The law school ‘‘engages in a highly individualized, holistic review of each applicant’s file.’’ It ‘‘awards no mechanical, predetermined diversity ‘bonuses’ based on race or ethnicity.’’ It makes ‘‘a flexible assessment of applicants’ talents, experiences, and potential.’’ It does not ‘‘ ‘insulat[e] the individual from comparison with all other candidates for the available seats.’ ’’≤∑ O’Connor also stressed (in her concurrence in Gratz) that the law school’s individualized review ‘‘include[es] the contribution each individual’s race or ethnic identity will make to the diversity of the student body, taking into account diversity within and among all racial and ethnic groups.’’≤∏ Individualized or no, the record strongly suggests that the law school’s system puts as heavy a racial thumb on the scales as necessary to admit as many preferred-minority students as the admissions officers think can muddle through academically. The school therefore ‘‘makes race a decisive factor for virtually every minimally qualified underrepresented minority applicant,’’≤π to borrow from Rehnquist’s explanation in Gratz (which O’Connor joined) of why the undergraduate school’s system was not ‘‘narrowly tailored.’’ In any event, why should the equal protection rights of the roughly thirty-five Asians and whites who are denied seats on account of their race at the law school each year depend on which process is used to select the thirty-five or so less qualified black, Hispanic, and Native American students who will get those seats? By upholding in 98

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Grutter preferences heavier than the ones she struck down in Gratz, O’Connor has made ‘‘narrow tailoring’’ an idle and meaningless ritual that serves no purpose other than deception.

o’connor tacitly approved outright racial balancing while purporting to reject it Seeking ‘‘ ‘to assure within its student body some specified percentage of a particular group merely because of its race or ethnic origin’ . . . would amount to outright racial balancing, which is patently unconstitutional,’’≤∫ Justice O’Connor declared in Grutter. But she apparently did not mean it. Elsewhere in her opinion, she not only recognized diversity as a compelling interest but also redefined ‘‘diversity’’ to make it synonymous with racial balancing. As Rehnquist demonstrated in dissent, the law school’s talk of diversity and ‘‘critical mass’’ is ‘‘simply a sham’’ to camouflage racial balancing. The premise of Justice Powell’s endorsement of ‘‘narrowly tailored’’ racial preferences in his solitary but seminal Bakke opinion, which O’Connor purported to follow, was that the compelling interest to be furthered was intellectual diversity, not racial diversity as such. Hence Powell’s assertion that ‘‘[p]referring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake. This the Constitution forbids.’’≤Ω But O’Connor abandoned Powell’s premise by holding that the ‘‘unique experience of being a racial minority’’ was all the intellectual diversity one needs to earn a preference.≥≠ She thereby endorsed giving diversity bonuses to all blacks, Hispanics, and Native Americans and presuming every increase in their numbers as furthering intellectual diversity. This mirrors the approach of most selective universities. For all their talk of diversity, their actions show that their goal is racial balancing, period. If intellectual diversity were the goal, they would have preferences for evangelical Christians, Hindus, impecunious whites and Asians, and conservative Republican professors. Each of these groups is more underrepresented on campuses and more likely to add to intellectual, political, and cultural diversity than are the middle-and-upper-class black and Hispanic students who reap the vast majority of the racial preferences. ‘‘[T]o the law school,’’ as Judge Boggs wrote, ‘‘ten under-represented-minority students, each a child of two-parent lawyer families, are considered to be diverse, while children whose parents are Chinese merchants, Japanese farmers, white steel workers, or any combinations of the above are all considered to be part of a homogeneous (and ‘over-represented’) mass.’’≥∞ The Affirmative Action Decisions

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Any doubt that the system O’Connor upheld in Grutter boils down to ‘‘a naked effort to achieve racial balancing,’’ in Rehnquist’s words, is erased by the statistics cited in his dissent and the unintentionally revealing testimony of Dennis Shields, a former admissions director. Shields ‘‘testified that at the height of the admissions season, he would frequently consult the so-called ‘daily reports’ that kept track of the racial and ethnic composition of the class . . . to ensure that a critical mass of underrepresented minority students would be reached,’’≥≤ O’Connor noted. This practice would have been utterly pointless unless the law school was prepared to ‘‘ensure . . . a critical mass’’ by giving more weight to race after checking the numbers. But O’Connor purported to believe the law school’s patently incredible claim that it ‘‘never gave race any more or less weight based on the information contained in these reports.’’≥≥ Rehnquist’s statistics show the law school’s system to be a carefully managed program to ensure representation of selected minority groups ‘‘in proportion to their statistical representation in the applicant pool.’’ In 2000, for example, 7.5 percent of all applicants and 7.3 percent of admitted applicants were black. The numbers for Hispanics were 4.9 and 4.2 percent; for Native Americans 1.0 percent and 1.1 percent. The statistics for the four preceding years showed similarly close correlations. Might this mean only that similar percentages of black, Hispanic, and Native American applicants happen to be qualified for admission? No: other statistics cited by Rehnquist show that the law school systematically prefers blacks over Hispanics with similar or better academic qualifications. ‘‘For example,’’ he noted, ‘‘in 2000, 12 Hispanics who scored between a 159–160 on the lsat and earned a gpa of 3.00 or higher applied for admission and only 2 were admitted. . . . Meanwhile, 12 African-Americans in the same range of qualifications applied for admission and all 12 were admitted.’’≥∂ If ‘‘critical mass’’ were something other than a rough racial quota, and if the law school were seeking a critical mass for each underrepresented group, as it claimed, it would be giving preferences to Hispanics over blacks—who outnumber Hispanics at the law school by two to one—not to blacks over Hispanics. The law school defines critical mass as ‘‘numbers such that underrepresented minority students do not feel isolated or like spokespersons for their race,’’ in O’Connor’s words. What are the magic numbers? ‘‘[T]here is no number, percentage, or range of numbers or percentages that constitute critical mass,’’ O’Connor explained. This is preposterous on its face. It is also reminiscent of Humpty-Dumpty’s assertion that ‘‘when I use a word, it means just what I choose it to mean— neither more nor less.’’

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So Justice O’Connor, saying ‘‘I shall ne’er consent,’’ consented. The question whether this violates the Constitution is addressed below.

Claimed Benefits: Diversity, Social Justice, Ending Caste Structure Justice O’Connor’s central holding was, of course, her endorsement of claims by the law school and its amici that diversity is a compelling state interest because it enhances ‘‘cross-racial understanding’’ and the educational experiences of all students. Only Justices Antonin Scalia and Thomas dissented from this holding; Rehnquist neither endorsed nor challenged it. These diversity benefits are indeed substantial. But they are insufficient either to outweigh the costs of heavy racial preferences or to justify O’Connor’s ‘‘compelling state interest’’ holding. Terrance Sandalow, former dean and emeritus professor of Michigan Law School, has aptly identified both the educational benefits of racial diversity and their limits: ‘‘Contact with students of other races may enrich the educational experience, but it can hardly be regarded, as the most ardent advocates of racesensitive admission policies at times appear to do, as an indispensable element of an undergraduate education. Even the development of a capacity for empathic understanding of ideas and experiences different from one’s own, which I take to be the primary contribution of racial diversity to the intellectual development of students, does not depend upon it. To appreciate that racial diversity may enrich education, but is not indispensable to it, is to open the way for balancing the costs and benefits of programs necessary to achieve it.’’≥∑ To similar effect, Professor Owen M. Fiss of Yale Law School, one of the most incisive and clear-eyed defenders of affirmative action, wrote in 1997 that ‘‘[t]he diversity rationale seems shallow and lacking the compelling quality needed to justify the hardships created by preferential treatment. . . . Even in the university, diversity seems an incomplete justification. . . . Why . . . should we give a plus to blacks but not to members of religious groups that might be underrepresented?’’≥∏ Not only do the costs (detailed below) of using racial preferences to engineer diversity outweigh the claimed educational benefits; they may even negate those benefits, by poisoning the racial climate on campuses. That is the implication of a survey in 1999 of 4,083 students, faculty, and administrators at 140 randomly selected colleges and universities.≥π Flatly contradicting the conventional wisdom about diversity, the survey

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showed that ‘‘[a]s the proportion of black students rose, student satisfaction with their university experience dropped, as did their assessments of the quality of their education and the work ethic of their peers. In addition, the higher the enrollment diversity, the more likely students were to say that they personally experienced discrimination.’’≥∫ Faculty and administrator responses confirmed the same pattern. As the proportion of Asian students rose, on the other hand, the campus climate improved. How to explain such contrasting patterns? In response to another question, 85 percent of the surveyed students agreed strongly (67 percent) or moderately (another 18 percent) that ‘‘no one should be given special preference in jobs or college admissions on the basis of their gender or race.’’ Asians do not get preferences. And as Peter Schuck of Yale Law School has demonstrated, experience casts grave doubt on the notion that preferentially engineered racial diversity fosters racial harmony or stimulates classroom debate.≥Ω Indeed, in the words of the Harvard sociologist Orlando Patterson, a supporter of racial preferences, ‘‘[N]o group of people now seems more committed to segregation than Afro-American students and young professionals.’’∂≠ Aware of the diversity rationale’s weaknesses, many advocates prefer to justify racial preferences as a form of compensatory justice for the evils of slavery and past discrimination and a prophylaxis against continuing discrimination. As Professor Fiss wrote in the same article, however, ‘‘The rationale of compensatory justice has the compelling quality lacking with diversity, but it falters because of the lack of identity between the victims of the wrongs committed and the recipients of the preferential treatment—and between the perpetrators of those wrongs and the people who bear the cost of the remedy. Nor are we told why the compensation should take the form of preferential treatment.’’∂∞ The racial academic gap is probably a long-term legacy of slavery and past discrimination. But dwelling on that does no African American child a bit of good. Nor do erecting a racial grievance industry and maintaining preferences for middle- and upper-class black children offer a shred of hope for getting substantial numbers of poor black and Hispanic children off the treadmill toward bad educations, low-level jobs, or worse. Fiss identified yet another, more powerful justification for preferential affirmative action: ‘‘[W]e should see it as a structural remedy for a structural problem: as a means of eradicating the caste structure that now mars our society and that has its roots in slavery and the segregation of Jim Crow. By giving blacks a greater share of the privileged positions of society, affirmative action improves the relative position of the group that lies at the bottom of the heap. It aims to end the racial ordering of Ameri102

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can society. . . . as a form of distributive, rather than compensatory, justice.’’∂≤ Justice O’Connor suggested a variation on this structural rationale in a brief digression from her diversity discussion in Grutter: ‘‘In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity. All members of our [ ] society must have confidence in the openness and integrity of the educational institutions that provide . . . the training and education necessary to succeed in America.’’∂≥ This goal does seem compelling, if pursued by effective and tolerable means. Breaking down de facto racial stratification and providing hope to young black people who have not yet made it safely into the middle class—in the form of visible evidence that they can get a fair shake if they study and work hard—would be huge benefits. By integrating the selective campuses that serve as gateways to opportunity, racial preferences may have done that, but only to a very limited extent that has diminished over time. Further, although the perception of many underprivileged black children that the doors of opportunity are closed to them is real and important, it is also a myth. The major obstacle to black advancement in America today is not white racism; it is bad education. ‘‘America, while still flawed in its race relations . . . is now the least racist white-majority society in the world; has a better record of legal protection of minorities than any other society, white or black; [and] offers more opportunities to a greater number of black persons than any other society, including all those of Africa.’’ So said the same Orlando Patterson in 1991.∂∂ As if to prove his point, the ceos of Time Warner, American Express, Merrill Lynch, and Fannie Mae are all black, as are the Bush administration’s top two foreign policy officials and education secretary. While racism obviously has not been eradicated in our society, it has been driven to the margins. More to the point, the major reason for the destructive myth that even well-educated black people are unable to get a fair shake is not the racial composition of the Ivy League. It is the drumbeat of publicity that civil rights groups, black politicians, academia, and the mainstream media churn out daily, wildly exaggerating the persistence of white racism. And there is no basis for expecting that the crippling loss of hope among underprivileged black people, which has not been dispelled by thirty years of racial preferences, will be dispelled in another twenty-five years. College admissions preferences have done nothing at all for the poor blacks at the bottom of the heap. How could they, when millions of black children drop out of high school and most of those who graduate have The Affirmative Action Decisions

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learned no more than the average white or Asian eighth grader? Among recipients of racial preferences in college admissions, 86 percent are middle and upper class.∂∑ A great many of these preference recipients may never have suffered serious racial discrimination. Many are more affluent than most of the academically better-qualified Asians and whites passed over on account of their race. Most Hispanic children are descendants not of slaves but of recent immigrants who came to America because they saw it not as a caste-ridden society but as the land of opportunity. Indeed, by directing so much effort, energy, and political capital to preserving preferential treatment for the most fortunate blacks and Hispanics and so little to helping the least fortunate, the advocates of racial preferences share responsibility for our society’s failure to implement effective remedies for the desperate condition of the underclass.

Heavy Costs: Doing Most Black and Hispanic Children More Harm Than Good Some of the largest social costs of racial preferences are so familiar as to require only brief mention: Unfairness. For every black and Hispanic applicant admitted on account of race, one Asian or white with better academic qualifications is unfairly excluded on account of race. This burden falls very disproportionately on Asians, who are considered ‘‘overrepresented’’ at top universities because they outperform all other groups academically, to the point that some colleges appear to keep their Asian numbers down by accepting substantially less qualified whites, as well as far less qualified blacks and Hispanics. It is telling that since racial preferences were banned in California and Texas in 1996, admissions of Asians have surged, while admissions of whites have been relatively flat. Divisiveness. Racial preferences are extremely divisive, and not only because of their unfairness. Preferences leave many whites and Asians who are not directly affected thinking that maybe they are. They also inspire an ugly sense of unearned entitlement among some blacks and Hispanics, who come to see racial double standards as a birthright. And they encourage all Americans to see themselves as members not of a national community but of tribes struggling for racially allocated shares of every pie. Stigma. Racial preferences hurt the best black and Hispanic students, who suffer greatly from the inaccurate and rarely acknowledged but wide104

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spread perception that they must have needed preferences to get in. As Justice O’Connor herself wrote in 1989 in her plurality opinion in City of Richmond v. J.A. Croson Co., unless racial classifications are ‘‘strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to a politics of racial hostility.’’∂∏ Dishonesty. As discussed above, racial preferences survive only by living on lies. Systematic obfuscation by establishment institutions—now including the Supreme Court—of the nature and magnitude of the preferences that virtually all of them use has been and will remain indispensable to their political perpetuation. Such pervasive dishonesty eats away at the health of the body politic in countless ways, both direct and indirect. Harm to ‘‘beneficiaries’’. Beyond that, the costs of systematic racial preferences to black and Hispanic Americans as a group outweigh the benefits, even apart from the effects on white and Asian victims of discrimination. Racial preferences may do more harm than good even to some of the individual recipients, though to what extent is unknowable. These students have been handed a great opportunity, of course, and many or most may benefit. But virtually all of those who would not have been admitted but for racial preferences find themselves competing academically against Asian and white classmates who arrive far better prepared. As a group, blacks and Hispanics have failure and dropout rates several times higher than their white and Asian classmates. Very few do well enough to win admission to élite professional schools on their academic merits. That is why those schools also use racial double standards. A distressing number of the black students whom they admit fail to graduate, compile unimpressive academic records, or flunk their first bar exams or medical boards. So it should not be surprising that black and Hispanic college and graduate students feel stereotyped as incapable of competing on a level academic playing field. Consider this unusually candid depiction of the de facto racial academic hierarchy at Colgate University by Phillip Richards, an associate professor of English (who is black): Perhaps it’s time to stop . . . deceiving minority applicants into thinking that they will achieve the same academic and social success as their white counterparts—or even be held to similar standards. . . . With the exception of a few high-performers—often women from the West Indies or Africa—most black students do not achieve academic distinction. That experience is clearly not unusual. The U.S. Department of Education recently released a report documenting that black

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students arrive on campuses with less preparation for college-level work than other groups, and that almost half of black undergraduates get C’s or lower. . . . Although every professor I know has observed it, the institution has done little to deal openly with the problem within the faculty as a whole. Public discussion focuses on multiculturalism and diversity—not the problem of inadequate black intellectual achievement at a prestigious academic institution.∂π Academically overmatched black and Hispanic students often end up rationalizing their failure to excel by complaining of ‘‘institutional racism’’ by the same universities that gave them racial preferences. ‘‘Forced to compete with the best and brightest white and Asian students, minority students with substantially lower academic skills are bound to resent their competition and eventually lash out at the academic criteria by which they are judged and unfortunately often found wanting.’’∂∫ And whites, terrified of being seen as racist, censor themselves to avoid any open disagreement with grievance-bearing black students and politically correct professors who reinforce their victimology.∂Ω Is this sort of atmosphere really good for preferentially admitted black and Hispanic students? Some educators suggest that many might be better off—happier, better educated, and more successful in the long run—at schools a notch lower on the prestige ladder, where they could be academically competitive. (I have heard the same said privately by a law professor who is a prominent public advocate of racial preferences.) There is some empirical evidence for this proposition. ‘‘Affirmative action is contributing to the number of minority students getting lower grades, which seems to contribute to them selecting non-high-achievement careers,’’ as the researcher Stephen Cole, principal author of a copiously researched book titled Increasing Faculty Diversity (2003), told the Chronicle of Higher Education. Perpetuating the gap. The most severe social cost of racial preferences is probably their role in perpetuating our disastrous failure to educate the vast majority of black and Hispanic children decently during their first eighteen years. By fostering the illusions that preferences benefit lowincome blacks and Hispanics and that respectable numbers of them are well qualified for élite college work, the preferential regime provides excuses to establishment institutions, politicians, civil rights groups, and others for their unwillingness to confront the real cause of continuing racial inequality, which is abysmal education during the first eighteen years, at home as well as at school.

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Attacking the root causes of bad education has never been a priority for liberal black and Hispanic politicians, civil rights groups, or other Democrats (or most Republicans). That would require taking on the teachers’ unions—which double as the most powerful interest group in the Democratic Party and perhaps the most intractable obstacle to serious education reform—and confronting the cultural disengagement of many black families from academic effort. Civil rights groups much prefer to caricature America as pervasively racist and clamor for more racial preferences and for educational policies that have already failed. These include pouring more money into unreformed urban school systems (many of which are already better funded than suburban districts and some of which have been lavishly funded without success) and shrinking class sizes (already relatively small at many urban schools).∑≠ Meanwhile, the racial gap grows, blighting the life prospects of millions of black children. Racial preferences also send a pernicious message to black and Hispanic students: they are not expected to work hard or meet the same academic standards as whites and Asians. ‘‘In this light,’’ John H. McWhorter wrote in Losing the Race: Self-Sabotage in Black America (2000), ‘‘the maintenance of affirmative action hinders the completion of the very task it was designed to accomplish, because it deprives black students of a basic incentive to reach for that highest bar.’’∑∞ Similarly, Justice Thomas raised the possibility in his dissent in Grutter that the racial preference regime might be a disincentive to academic effort, thus helping ‘‘fulfill the bigot’s prophecy about black underperformance—just as it confirms the conspiracy theorist’s belief that ‘institutional racism’ is at fault for every racial disparity in our society.’’∑≤ Even if racial preferences do not aggravate the racial gap in academic performance, they surely do nothing to reduce it— an objective far more vital to the future of millions of black and Hispanic children than the availability of affirmative action tickets to élite universities, which in the end will go to a fortunate, fairly affluent few thousand.

What the Court Should Have Done The best argument by far for upholding racial preferences in university admissions is that the justices should not lightly disregard the nearunanimity on this issue of establishment leaders and the nation’s most selective universities. Further, neither the text of the equal protection clause nor the history of the Fourteenth Amendment provides unambiguous support for the view that the law must be color-blind. On the other hand, the Supreme Court has held repeatedly that governmental preferences for racial minorities must be subjected to strict scruThe Affirmative Action Decisions

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tiny. Stare decisis argues for adhering to that position. So does the rapid breakdown of the old black-white paradigm and of the dominance of white voters, as Hispanics of many varieties, Native Americans, Aleuts, Eskimos, Arabs, and others (sometimes including Asians) clamor for preferences of their own. With women also receiving preferences in many governmental employment and contracting programs, the only people always on the losing end of the race and gender spoils system are non-élite white males—about a third of the electorate. The justices should therefore have applied strict scrutiny in fact as well as in name. They should have struck down the law school’s racial preferences as well as the undergraduate school’s, as invalid absent proof that alternative means of pursuing diversity would not work, unnecessarily weighty in any event, and thus not narrowly tailored. In deference to university administrators and elected officials, the justices should probably have left open the question whether diversity or any other rationale could justify more modest racial preferences. They should also have allowed a year or two for the law school to devise alternatives to its current system, and perhaps even more time than that for any school that can make an extraordinary showing of need; the service academies might qualify, given their legitimate concerns that a plunge in the number of black officers would hurt morale. I would hesitate to advocate such a ruling if it seemed likely to bring about a drastic drop in black or Hispanic enrollments at the most selective schools. But that seems most unlikely, because it is utterly clear that even a flat court-ordered ban on racial preferences (which I do not advocate) would not be rigorously observed and could not be vigorously enforced. The quasi-religious zeal with which university administrators have pursued the goal of maintaining racial balance, combined with their ingenuity at devising facially race-blind proxies for race and subjective criteria to camouflage covert racial preferences, would surely prevent a drastic drop in minority enrollments and might prevent any drop at all. We know this from experience. Within a few years after racial preferences were banned in the late 1990s in California (by a referendum passed in 1996), Texas (by a judicial decision in 1996, now overruled), and Florida (by order of Governor Jeb Bush in 1999), campuses in all three states found other ways to admit roughly as many black and Hispanic students as before. (California’s two most élite campuses have been exceptions.) And while minority enrollments initially plunged after preferences were banned in California and Texas, the pioneering work of administrators in circumventing the bans would have made it easy for others to do the same in a short time. The principal methods of maintaining racial balance in 108

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these three states have been to admit automatically the students with the highest class ranks, even at the weakest schools in the poorest neighborhoods; to deemphasize standardized test scores; and to give more weight to subjective evaluations of individual applicants and how they would contribute to ‘‘diversity,’’ based on their essays, life stories, and mastery of Spanish. One especially creative variation on this theme is the preference of ucla Law School for applicants who express interest in ‘‘critical race studies,’’ a field whose principal contribution to learning appears to be generating grist for the racial grievance mill. Some scholars suggest that the widespread evasion of the preference bans in these three states has invited disrespect for the law and degraded academic quality, by perpetuating the admission of academically unqualified disadvantaged students and deemphasizing the best measures of academic potential in assessing applicants of all races. These scholars see banning or curbing racial preferences as a futile exercise that does more harm than good. This argument is not easily dismissed. But the ultimate question is whether these costs of curbing racial preferences would outweigh the benefits. And the latter would be not be confined to reducing the evils attributed above to racially preferential admissions. One of the greatest benefits would have been to put the Court’s moral authority behind King’s fading dream of an America in which people would not be judged by the color of their skins (or the dna of their ancestors). Another would have been to spur the establishment leaders who so passionately seek racial balance to divert some of the formidable energy, skill, and influence they have so far invested in maintaining racial preferences into two far worthier, far more challenging causes: giving special consideration to promising low-income students of all races and closing the huge gap between black and white academic achievement.

What Policymakers Should Do Now Assuming that racial preferences are here to stay, the best hope for restraining their growth and magnitude might be legislation forcing state universities to make their preferential admissions systems more transparent, by requiring, for example, that they regularly make public such data as the average standardized test scores and average family incomes of each group of preferred-minority students, of whites, and of Asians. Such a proposal could be attached to a pending Senate bill backed by Senator Edward Kennedy to require colleges to disclose information about alumni children whom they admit.∑≥ Why not have full disclosure concerning all special preferences, whether for children of alumni, large donors, or preThe Affirmative Action Decisions

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ferred minorities? Universities would furiously oppose any such law. But affirmative action advocates such as Justice Ginsburg, who praised Michigan for its ‘‘accurately described, fully disclosed college affirmative action program,’’ could hardly object. And full disclosure might dissuade universities from using preferences so unyielding and double standards so blatant as to enrage the electorate. Disclosure requirements might also create pressure for universities to push harder to admit working-class and poor students of all races, who are disproportionately black and Hispanic. Such ‘‘economic preferences’’ pose no serious constitutional problems and enjoy widespread popular support, in marked contrast to racial preferences. The main reason is that economic preferences, if carefully designed, are completely consistent with traditional concepts of academic merit. The hope is that the hard work, grit, and raw talent that enable children born into modest circumstances to make it to the top academically in their neighborhood schools, combined with remedial programs and other state assistance, would enable many of them to catch up with college classmates from more prosperous backgrounds. Many top schools already have economic preferences in theory. But most have invested minimal effort in recruiting the best lowincome students, who might never imagine themselves at an élite college unless recruited. The most ambitious merit-based economic preferences ever attempted are the class-rank systems in Texas, California, and Florida. Critics who dismiss such plans as nothing but thinly disguised racial balancing schemes, as Justice Souter did in Gratz, are quite wrong. To be sure, the political impetus for such class-rank plans comes largely from the expectation that they will facilitate the admission of a disproportionate number of black and Hispanic students. But the class-rank plans have the virtue of doing this not by rewarding middle- and upper-class black and Hispanic students with less than stellar academic records for their skin color, but as a side effect of rewarding for their hard work and academic potential the best students of all races at even the weakest schools, whose relatively low standardized test scores might otherwise disqualify them. Indeed, economic preferences for relatively low-income students who have worked hard and done well in weak schools seem far truer to the original vision of affirmative action than racial preferences do: while draped in the rhetoric of civil rights and fairness, these preferences leapfrog children of black and Hispanic lawyers and doctors ahead of better-qualified children of white and Asian laborers and secretaries. The class-rank plans have one main defect: some of their beneficiaries have been so poorly educated during the first eighteen years of their lives that through no fault of their own they might struggle with academic 110

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work at the university level, even more than many current beneficiaries of racial preferences, who come from more prosperous backgrounds and better schools. For this and other reasons, it would probably make more sense to make economic preferences discretionary rather than automatic, awarding them only to the most promising academic prospects. An important study by the Century Foundation, released in March 2003, suggests that replacing racial preferences with such economic preferences would produce a dramatic increase in economic diversity and only a modest decline in racial diversity, with black and Hispanic students slipping from 12 percent to 10 percent of the student bodies at 146 top universities.∑∂ Economic preferences would also be the most logical offset to the preferences for children of rich donors and alumni (such as George W. Bush) that have been so widely cited as less fair and legitimate than racial preferences. (Colleges are, of course, free to end preferences for the privileged.) Whatever policymakers do about racial and economic preferences, they should see Grutter as a challenge to get serious about fixing the root causes of the disastrously deficient academic performance that leaves the vast majority of Hispanic and (especially) black children incapable of competing for admission to selective universities without the crutch of racial double standards. This will require much more than simply spending more money on inner-city schools. The liberal stronghold of Cambridge, Massachusetts, spends $17,000 per pupil—more than most of the nation’s wealthiest suburban school districts—keeps class sizes very small, buses students to promote racial balance, and has eliminated ability groupings in the name of racial equality. But still, the city’s black and Hispanic students have done very badly on statewide tests—worse than those in nearby communities ‘‘with comparable demographics [that] spend only half as much or less per pupil.’’∑∑ The imperative is to create escape routes from bad public schools, such as charter schools and vouchers for use at private schools, and also to radically reform the ordinary public schools. These objectives are complementary, because competition from charter and voucher schools may be the best hope for reforming other public schools. Genuine reform would mean removing such obstacles to good education as union contracts and civil service rules that make it impossible for principals to get rid of nonperforming teachers, and laws that make it impossible for teachers to prevent unruly students from destroying the learning process. Such reform would require facing down bitter resistance from entrenched bureaucracies, teachers’ unions, and others wedded to the dismal status quo. The black community itself also needs to confront the evidence that The Affirmative Action Decisions

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there has been a pattern of disengagement from academic effort among many black families, as evidenced by (among other things) the lagging academic performance even of affluent black students at good schools. ‘‘Income alone does not explain the racial scoring gap,’’ according to the Journal of Blacks in Higher Education.∑∏ For example, ‘‘Whites from families with incomes below $10,000 had a mean sat test score that was 46 points higher than blacks whose families had incomes of between $80,000 and $100,000. . . . Blacks from families with incomes of more than $100,000 had a mean sat score that was 142 points below the mean score for whites from families at the same income level.’’ In the much-studied, racially integrated, well-funded public schools in affluent Shaker Heights, Ohio, only 4 percent of black students (and more than half of whites) passed with honors Ohio’s statewide proficiency tests in 1999–2000. This despite relatively modest gaps in parental education and income and despite the schools’ energetic efforts to help black students. The now-deceased scholar John U. Ogbu, invited by anguished black parents to study and explain the gap, did so in his last book, Black American Students in an Affluent Suburb: A Study of Academic Disengagement (2003). Many black parents suspected hidden biases against their children. But this was not what Ogbu found. After eight months of interviews, classroom visits, and other research, he wrote that by their own accounts, most black students did not work hard, equating ‘‘good school performance with acting white’’; that many emulated rappers in ghettos; and that many of their hard-working parents paid little attention to their children’s homework, blaming poor academic performance on teachers and the oppressiveness of white America. As long as black people blame contemporary white racism for black academic failure, their children will continue to fail (or barely pass) and finish high school unprepared either for college or for good jobs. As the columnist William Raspberry wrote in the Washington Post in October 2003, ‘‘[T]he academic achievement gap between black and white students . . . has less and less to do with racism and more and more to do with the habits and attitudes we inculcate among our children. . . . ‘‘How do we best use our intellectual, political and moral capital— priming our children for success, or merely supplying them with excuses for failure?’’∑π

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CHAPTER SIX

In the american system of resolving disputes, only the parties directly involved in the dispute appear in court to present evidence and arguments, even though the litigation may have a dramatic effect on nonparties. Indeed, most of the cases that the U.S. Supreme Court chooses to hear have broad ramifications that extend far beyond the parties to the case. How then can other groups and individuals who will be affected by a particular case have their views considered by the Court? In part, the Court deals with this issue by allowing groups and individuals who are not part of the litigation to file amicus curiae (‘‘friend of the court’’) briefs with the Court and on occasion to even participate in oral argument. Indeed, interested non-parties file amicus briefs in most cases that the Court hears. In some cases, like the Court’s landmark affirmative action case involving the University of Michigan and its law school, more than one hundred amicus briefs are filed. Scholars have long debated the influence of amicus briefs on the Court’s deliberations. Some argue that such briefs are largely a waste of time, frequently duplicating the arguments advanced by the parties themselves. Others argue that these briefs, particularly when filed by influential parties like the U.S. government, can and do have a significant impact on the Court’s deliberations. Empirical studies of the Court’s decisions of the past half century reveal that the Court cites amicus briefs in its decisions in about 15 to 20 percent of its cases. Carter Phillips, an attorney with the Washington law firm of Sidley

Austin Brown & Wood and former assistant to the solicitor general, is one of the nation’s preeminent Supreme Court litigators. For more than twenty years, Phillips has regularly argued on behalf of litigants before the Supreme Court; Phillips also frequently files amicus briefs on behalf of non-parties. From his rich perspective as a former Supreme Court law clerk and a longtime Supreme Court litigator, Phillips examines when and how amicus briefs help shape the Court’s decisions. Phillips concludes that amicus briefs are particularly useful in three sets of circumstances: (1) when the amicus possesses considerable expertise on nonlegal information that may influence the Court’s legal conclusions; (2) when the amicus can bring to the Court’s attention potential unintended consequences of a decision; and (3) when amici are of such broad range and status that they demonstrate the profound importance of the case to an array of diverse groups and individuals. Phillips concludes with a consideration of what was probably the most influential amicus brief of the Court’s most recent term and possibly the most influential amicus brief of the past few years: the brief filed in the University of Michigan affirmative action case by several distinguished retired military officers. Though the case had nothing to do with the military—at issue was only the constitutionality of affirmative action at the University of Michigan and its law school—these retired officers understood that a decision adverse to affirmative action could have a profound impact on the military’s training of officers at the service academies and in rotc programs. Phillips argues persuasively that the concerns of the retired officers weighed heavily on the Court’s mind as it considered the constitutionality of admissions practices at the University of Michigan, offering ‘‘a wildly successful example of a brief designed to protect the litigating interest of a third party in future cases.’’—the editors

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Was Affirmative Action Saved by Its Friends? carter g. phillips

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rutter v. Bollinger,∞ the University of Michigan law school affirmative action case, may have been the most important decision in the Supreme Court’s 2002–03 term. By upholding affirmative action in higher education when properly implemented, the decision affects admissions at most public colleges and universities. But of course it also does more: by upholding diversity as a compelling state interest that can be narrowly promoted by certain forms of race-conscious decision making, the decision has broad implications beyond the educational context. The importance of the issue was dramatically reflected in the more than one hundred amicus curiae briefs that were filed in the case. What is equally striking is the apparent impact that those briefs, which came from a noteworthy array of interested entities, may have had on the outcome of the case. In the pivotal portion of the Court’s analysis as to whether diversity is a ‘‘compelling interest,’’ Justice Sandra Day O’Connor’s opinion for the Court noted that ‘‘[t]he Law School’s claim of a compelling interest is further bolstered by its amici.’’≤ At this point the Court cited the brief for the American Educational Research Association et al. as amici curiae for the proposition that student body diversity ‘‘promotes learning outcomes’’ by preparing students to compete in a diverse workforce and society.≥ The Court then shifted its focus from the theoretical to the ‘‘real,’’ by citing the briefs by 3M et al. and General Motors that competition in a global marketplace, which is the future of business, requires ‘‘exposure to

widely diverse people, cultures, ideas and viewpoints.’’∂ The majority then relied upon a brief that I helped to prepare on behalf of ‘‘high-ranking retired officers and civilian leaders of the United States military’’ to demonstrate that diversity is crucial to ‘‘ ‘the military’s ability to fulfill its principal mission to provide national security.’ ’’∑ The Court’s opinion then quotes several times from that brief to show that diversity in the officer ranks is critical because of the diversity in the military’s enlisted corps and because institutions of higher education—both service academies and rotc—are the primary sources of officers. The Court seemingly agreed with the amici that without diversity in those institutions, there cannot be diversity among the military’s leaders. In language suggesting that this argument may have carried decisive weight in justifying diversity as a compelling interest for colleges and universities, the Court announced, ‘‘[w]e agree that ‘[i]t requires only a small step from this analysis to conclude that our country’s other most selective institutions must remain both diverse and selective.’ ’’∏ Given the secret deliberations and opinion-writing process that the Court wisely employs, it is impossible to know precisely what role the amicus briefs played in the ultimate decision in Grutter. We do know that Justice John Paul Stevens relied upon the amicus briefs by both the military and businesses in arguing that the Court’s twenty-five-year-old decision in Bakke was entitled to particular respect given the importance that the briefs filed by those organizations placed on affirmative action.π We also know that the Court focused on some of the amicus briefs during the oral argument, which is quite unusual for amicus briefs unless they have been filed by the solicitor general on behalf of the federal government.∫ This suggests that the justices not only read at least some of those briefs, but also took them very seriously. The striking visibility of the amicus briefs in Grutter at a minimum raises broader questions about the importance of such briefs in other cases that the Court decides.Ω Certainly there are widely divergent views on the utility of such briefs (and at times even their legitimacy). This chapter will not add to that scholarly debate, but instead will offer anecdotal insights gleaned from almost twenty-five years of reading and writing amicus briefs filed in the Supreme Court. In my view these briefs—when properly researched and written—offer the Court invaluable insights that may not be available otherwise, and they provide those insights in a context that allows them to be scrutinized by the litigants and, if necessary, challenged by them. Such briefs can supply non-legal information of the type made famous by the so-called Brandeis Brief.∞≠ The Brandeis Brief refers to the amicus curiae brief that was filed in 116

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Muller v. Oregon∞∞ on behalf of an Oregon women’s organization in defense of the state’s statute limiting the number of hours per day that a woman could work. The principal author of the brief was Louis D. Brandeis, who later became an associate justice of the Supreme Court. The brief cited and relied upon extensive behavioral science evidence to demonstrate the adverse effects of long working hours on women. It is generally accepted as the first example of a brief bringing to the Court’s attention materials not contained in the record of a case and attempting to show the real-world importance of the legal issue the Court was deciding. Briefs of this kind can also make a position appear more persuasive by showing that it is supported by an unusual coalition of groups. Sometimes they merely provide a useful warning about how far the Court should go in deciding a particular issue, and explain why the Court should save for another day a question that does not need to be resolved until it is squarely framed. In my experience these objectives more than justify the practice of amicus briefs, and all are reflected in the brief for the retired military officers filed in the Grutter case. I realize that in some ways, I am challenging a straw man. No one is seriously arguing that the amicus practice should be flatly discontinued. But in supporting the core thesis that the practice should be continued, I am in fact arguing the broader proposition that the practice should be recognized as an extremely valuable one for the Court, and thus a practice that should be strongly encouraged. At the end of the day, the use of amicus briefs is not going to end. They are as much a part of Supreme Court practice as oral arguments. In fact, amicus briefs may affect the outcome of cases more often than oral arguments do. The military officers’ brief in Grutter illustrates how one brief can clearly make a difference.

Amicus Curiae Practice before the Supreme Court The Supreme Court’s Rule 37 states: ‘‘An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its filing is not favored.’’∞≤ Although not completely clear, this language seems to invite entities with interests in cases before the Court to participate as amici so long as they exercise some measure of restraint. In reality, there is very little evidence that amici pay much heed to the second sentence in Rule 37. Many organizations can and do use their participation in Supreme Court cases as a basis for soliciting funds from members or potential supporters. Some of those groups make such curSaved by Its Friends?

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sory arguments that their briefs are more ‘‘burden’’ to the Court than ‘‘help.’’ For this reason, there are some who criticize the amicus practice. Judge Richard Posner has been particularly provocative in his comments: ‘‘The vast majority of amicus briefs . . . duplicate the arguments made in the litigants’ briefs, in effect merely extending the length of the litigant’s brief. Such amicus briefs should not be allowed. They are an abuse.’’∞≥ The point echoes remarks from another product of the University of Chicago, Professor Philip Kurland, who wrote: ‘‘[Amici] seldom offer insights or arguments not already available to those to whom they are submitted. More often than not, they are expressions of votes rather than reasons.’’∞∂ Professor Kurland’s observation tracks what some academics ‘‘have long perceived,’’ which is that there is ‘‘an analogy between interest groups lobbying legislatures and interest groups seeking to influence judicial decisions through the filing of amicus briefs.’’∞∑ Justice Antonin Scalia obviously found some truth to this suggestion when in Jaffee v. Redmond,∞∏ a case involving the existence and scope of the psychotherapist-patient privilege, he pointed out: ‘‘In its consideration of this case, the Court was the beneficiary of no fewer than 14 amicus briefs supporting the respondents. . . . Not a single brief was filed in support of the petitioner. That is no surprise. There is no self-interested organization out there devoted to pursuit of the truth in the federal courts.’’∞π The only empirical evidence available concerning the impact of amicus briefs on the Court comes from studies of how often the briefs are cited by the Court. In one such study covering the period from 1969 to 1981, Karen O’Connor and Lee Epstein found that there was at least one citation to an amicus brief in 18 percent of all decisions.∞∫ Another study, by Joseph Kearney and Thomas Merrill,∞Ω broadened the inquiry to include all opinions for the period 1946 to 1995, and found that 15 percent of the opinions cited an amicus brief by name. These are not overwhelming numbers, but they demonstrate a consistent and significant role for such briefs. Unfortunately, they tell us little or nothing about the effect the briefs had on the justices’ thinking. The citations may reflect nothing more than the inability of a law clerk to find a better source than a brief to support a proposition or, worse, his or her unwillingness to find a better source. Because I am a practitioner and not an academic, I tend to discount at least one theoretical purpose for all amicus briefs, whether well written or not, which is to inform the Court in which direction the political winds may be blowing.≤≠ Thus, for instance, one inference to draw from a case like Jaffee is that the Court reached a conclusion consistent with the uniform view of political interest groups and thus that the very presence 118

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of those briefs in some way made a difference. I am skeptical about this theory because I do not perceive that the justices count political heads that way in deciding cases. In saying this, I am not suggesting they are apolitical: they read the newspapers; they are not immune to public reaction. I just do not generally believe that amicus campaigns really influence the Court in such a bluntly political manner. If they did, then I would have expected the Court to adopt stricter limits on punitive damages under the due process clause, for example, because from Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc. to State Farm Mutual Automobile Insurance Co. v. Campbell, the briefs on the side of limiting punitive damages were legion, but the Court proceeded in a very incremental fashion.≤∞ Having said this, I have to confess that my views may be influenced by wishful thinking. I very much want to believe that the vast majority of decisions by the Supreme Court are reached on the basis of the correct legal rule, not the politically popular position. But I think it is probably naïve to assume that almost one hundred briefs on one side of a deeply divisive political issue, like affirmative action, did not have an effect on the views of individual justices even before they opened the briefs to read them. But for less controversial issues, I remain quite confident that the Court is more influenced by the quality of the arguments and information provided in each amicus brief than by the sheer number of them. Thus organizations that file briefs merely to be counted would do better to expend their resources elsewhere. When amicus briefs are properly researched and written, however, I am firmly convinced that they are generally very helpful. My experience teaches me that they make a difference in how the Court decides cases— sometimes in outcomes and sometimes just in terms of the breadth of the ruling—and thus that the amicus practice is worth preserving and, I would argue, worth encouraging.

When Are Amicus Briefs Valuable? A Trip down Memory Lane My perspective on amicus briefs in the Supreme Court comes from one year as a law clerk and twenty-one years of practicing before that Court. During those years I have probably been involved in helping to prepare amicus briefs in more than 150 cases. Am I confident that they had a positive impact on the Court? Am I even certain that some of the Justices may have considered them more of a help than a burden? Not in every case. Nonetheless, there are some cases in which I am almost certain that Saved by Its Friends?

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the briefs I helped to prepare had a positive effect on the Court and its deliberations. Although the analysis is hardly scientific, it is possible to examine a few of those briefs and try to derive some meaningful insights into the amicus process generally. Before I launch into a discussion of briefs I have worked on, I should start by paying homage to one of the earliest amicus briefs to have influenced my own thinking about the role they play. When I clerked for Chief Justice Warren Burger during the 1978 term, I worked on a number of cases in which amicus briefs had been filed. I had clerked the year before on the U.S. Court of Appeals for the Seventh Circuit, but I could count on one hand the number of cases in which such briefs were filed during that year. None of those briefs even sticks out in my mind. But in the Supreme Court the situation was very different; there seemed to be amicus briefs filed in almost every case. One in particular still affects how I perceive amicus briefs and their role when properly prepared. I was assisting the Chief Justice in Addington v. Texas,≤≤ which involved the proper standard of proof—preponderance of the evidence, clear and convincing proof, or proof beyond a reasonable doubt—that is constitutionally required for involuntary civil commitment to a state mental hospital. As was often true during that term, the briefs of the parties were not especially helpful, but there was an amicus brief filed by the American Psychiatric Association in which Joel Klein (later of Microsoft fame as the head of the Antitrust Division of the Justice Department) was counsel of record. He was granted leave to participate in the oral argument.≤≥ The parties battled over whether the standard of proof should be either ‘‘preponderance of the evidence’’ (the State’s view) or ‘‘beyond a reasonable doubt’’ (the respondent’s). Klein’s amicus brief argued in favor of an intermediate standard of review—‘‘clear and convincing’’—and did so largely by explaining that beyond a reasonable doubt as a practical matter was an impossible standard given the complexities of psychiatric diagnosis and prediction. The brief also explained why the preponderance standard was inadequate given the circumstances that often trigger the State’s attempt to confine someone involuntarily in a mental hospital and the significant deprivation of liberty experienced by the patient. Thus, the brief argued forcefully that an intermediate position was the proper way to reconcile the competing interests. The apa’s brief had a profound impact on me and did as much to inform my judgment about amicus briefs as anything I read during that term or have read since. As a law clerk I had almost no meaningful practical experience to rely upon in evaluating this case (or most other cases). To be sure, the Chief Justice did, but it would be naïve to think that his experi120

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ences could remotely help me get a real ‘‘feel’’ for the problem rather than consider the matter as largely an abstract and academic exercise. The apa’s amicus brief helped me to understand the diagnostic process that psychiatrists employ and to appreciate the nature of the hearings that take place during the commitment process and why physicians necessarily have an exceedingly difficult time testifying about the risk that patients might pose to themselves or others. The brief also revealed that the civil commitment process was more informal than I might have guessed and that testifying witnesses often had to make very difficult judgment calls on the basis of only the most limited information. Whether any of this information assisted the Chief Justice in deciding the case or shaped the way the ultimate opinion was delivered would be pure conjecture; I simply do not remember any conversations with my boss pointing one way or the other. I do know that the brief deeply and positively affected my own thinking, and I am sure it affected the memorandum I wrote to the Chief about how I would decide the case.

Three Types of Amicus Briefs That Affect the Court Brandeis Briefs. I fast forward to 1986 when I was a very young partner at my law firm and was working with Ben Heineman (who is now the general counsel of General Electric). We had been retained to represent the American Medical Association in preparing an amicus brief in School Board of Nassau County, Florida v. Arline,≤∂ which involved a schoolteacher suspended from her teaching responsibilities after being diagnosed with tuberculosis. The Court had to decide whether tuberculosis was a disability within the meaning of the Rehabilitation Act of 1973, and if so what response the school board was lawfully permitted to take in the face of the risk that the disease might spread. These were issues of unusual importance because of public anxiety about aids. Ms. Arline was not infected with the aids virus, however; she had tuberculosis. It occurred to me that I had no better understanding of tuberculosis and the risks it poses than I had had of the psychiatry that was at issue in the civil commitment process. Accordingly, I assumed that at least the law clerks and maybe even the Justices would also be relatively ignorant about the disease and the risks it posed. Half of the ama’s brief was devoted to a very detailed discussion of the causes of tuberculosis, the risks of contagion, what reasonable methods are available to minimize those risks, and what treatments are available. It seemed unlikely that the Court would have ready access to the American Review of Respiratory Saved by Its Friends?

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Disease, the American Journal of Epidemiology, or Dorland’s Illustrated Medical Dictionary, to name just a few of the numerous medical journals and texts regarding tuberculosis that the brief cited. Based on that very extensive description of the nature of tuberculosis, the ama brief argued forcefully that whether someone with a disease like tuberculosis could be considered ‘‘handicapped’’ within the meaning of the Rehabilitation Act should not be decided on a categorical basis. Instead, ‘‘the trier of fact [should] make findings based on reasonable medical judgments regarding the nature, degree and duration of the impairment.’’≤∑ Thus, the brief contended that the lack of evidence and findings concerning the nature of Ms. Arline’s particular situation required that the case be remanded for a particularized inquiry ‘‘about (a) the nature of the risk (how the disease is transmitted), (b) the duration of the risk (how long is the carrier infectious), (c) the severity of the risk (what is the potential harm to third parties) and (d) the probabilities the disease will be transmitted and will cause varying degrees of harm.’’≤∏ Did the brief have a measurable impact on the Court’s thinking? The best evidence is the Court’s opinion. It held that ‘‘an individualized inquiry’’ was required, and thus remanded for a factual inquiry as to whether Ms. Arline was ‘‘otherwise qualified’’ to be a schoolteacher in light of her tuberculosis. In making that determination, the Court ‘‘agree[d] with amicus American Medical Association that this inquiry should include’’ every one of the factors the ama identified in its proposed analysis which the Court quoted in its entirety.≤π Accordingly, the Court adopted verbatim the ama’s formulation of the proper approach to use in deciding the issue of ‘‘otherwise qualified’’ within the meaning of the Rehabilitation Act. Why seven justices felt comfortable embracing the approach of the ama is a question that only they can answer. And the majority certainly did not devote any serious attention to the medical issues posed by tuberculosis or even cite the exotic materials presented in the brief. Nonetheless, I am firmly convinced that the medical information the ama supplied positively and significantly influenced the Court’s response to the legal problems created by a schoolteacher with tuberculosis, and that the Court’s comfort with the amicus’s presentation of otherwise unavailable information at least caused members of the Court to read that brief with particular care and thereby refined the legal standard they adopted. The ama’s brief in Arline was in many ways a modern-day Brandeis brief. It went well outside the record in the case to demonstrate what the social consequences might be of ruling categorically in favor of the school board or in favor of the teacher. To be sure, the briefs are shorter today 122

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than they were in Brandeis’s time: thirty-page limits were adopted in 1980, and therefore briefs must be more focused in how they present information from sources beyond those normally cited. But the concept is the same: to provide real-world insights into the oftentimes abstract legal issue the Court is being asked to decide. In my mind, this is the highest and best use of such briefs and by itself more than justifies retention of the amicus practice. ‘‘Whatever You Do, Just Don’t Hurt Me’’ Briefs. The next type of brief has a dramatically narrower focus than the Brandeis brief. It is designed less to aid the Court in deciding the particular case before it and more to protect the interests of third parties. In this regard, it is critical to understand the fundamental difference between the function of the Supreme Court and that of most other appellate courts. The typical appeal is intended to determine whether there has been an error in the proceedings in the lower courts. This is why appellate courts are often referred to as ‘‘courts of error.’’ The Supreme Court by contrast is generally understood to be a ‘‘court of laws,’’ which means it is less concerned with making certain that lower courts proceeded properly than in issuing statements of law applicable beyond the specific case that the Court is hearing. Thus frequently, although not always, the Court pronounces broad rules of law which control not only the immediate dispute but also many other disputes that raise similar issues. For this reason many litigants unsurprisingly worry that the Court might sweep too broadly in a ruling and thereby jeopardize their rights without their having a full opportunity to be heard on their particular facts. Even Judge Posner has acknowledged that there is a role for amicus briefs ‘‘when the amicus has an interest in some other case that may be affected by the decision in the present case.’’≤∫ There are any number of amicus briefs that fall into the category of protecting the immediate interests of a third party, but my favorite among the ones I have helped prepare was for the Government of the Cayman Islands in Doe v. United States.≤Ω The sole issue in Doe was whether a compelled signature on a form authorizing release of confidential information held by a foreign bank violates the privilege against self-incrimination found in the Fifth Amendment to the U.S. Constitution. It is reasonable to wonder what possible interest the Cayman Islands would have in the proper interpretation of the Constitution. The amicus brief did not take long to get to the point of explaining that interest. On page one, the brief explained that its ‘‘limited purpose’’ was to bring to the Supreme ‘‘Court’s attention the serious issues of international comity and conflict of laws between sovSaved by Its Friends?

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ereign nations that arise from a United States court order compelling a person to authorize foreign banks to disclose records of his or her accounts.’’ Given the importance of those issues to the Cayman Islands, where banking has long been a significant part of the economy, the brief implored ‘‘this Court [to] refrain from deciding or commenting upon those issues until the Court has before it an appropriate case with an adequate record upon which to render a reasoned decision.’’≥≠ It is easy to identify the impact that the brief had on this narrow portion of the Court’s deliberations. While the Court decided that the order compelling the signature did not violate the Fifth Amendment, it dealt expressly with the Caymans’ amicus brief in a footnote at the end of the opinion. The Court recognized the domestic interest of the Cayman Islands in the practice of court-ordered signatures for release of certain information and acknowledged that under Cayman law ‘‘a compelled consent . . . is not sufficient to authorize the release of confidential financial records.’’ The Court acknowledged that Cayman law had ‘‘no bearing on the constitutional issue in this case.’’ But obviously because of the brief filed by the Government of the Cayman Islands, the Court was ‘‘not unaware of the international comity questions implicated by the Government’s attempts to overcome protections afforded by the laws of another nation.’’ Accordingly, the Court expressly declined ‘‘to address those questions here.’’≥∞ It is quite clear that this footnote would not exist but for the brief of the Cayman Islands. The only reason the Court was ‘‘not unaware’’ of the international implications of an overbroad decision or opinion was that there had been a single brief (and it was the only amicus brief filed in the case) that highlighted the problem. Also, it seems quite likely that the Court was influenced by an argument being presented on behalf of a foreign sovereign and perhaps also by the presence of a former solicitor general, Rex Lee, as counsel of record for the Cayman Islands. Regardless, the brief plainly demonstrates how a third party can protect its interests in a case where the Court might inadvertently opine on the question before it in a way that would foreclose future arguments about the correct rule of law. It is undoubtedly important for the Court to understand the implications of a relatively broad holding or even of dictum, and neither of the parties to a case is likely to assist the Court in that regard because the focus of each is generally on winning the case on any available theory. Indeed, it is conceivable that the United States in the Doe case would have had a law enforcement interest in a broader ruling that resolved the conflicts of law issue left open by the Court for another day; by no means would the United States have had any reason to identify the interests of 124

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foreign sovereigns that might be implicated by an opinion broadly compelling the acquisition of records whenever a court issued an order to a foreign bank. In any event, it seems difficult to argue with the importance of this type of brief in aiding the Court’s decision-making process.≥≤ Strange bedfellows briefs. In this last category, the justices need not look beyond the cover of the brief to know that there is something remarkable about the case. The most striking illustration of this kind of brief, in which groups traditionally opposed join forces because they have a common interest implicated by a particular legal issue, was one prepared for the Chamber of Commerce of the United States, the afl-cio, the American Medical Association, the National Association for the Advancement of Colored People, the National Association of Manufacturers of the United States of America, the Alliance for Justice, the Chemical Manufacturers Association, and the Sierra Club. That brief was filed in International Union v. Brock,≥≥ a case involving the seemingly mundane question of whether a labor union had standing to bring a lawsuit under the Trade Act of 1974≥∂ to protect workers laid off because of foreign competition, and if so whether the union was required to join, or bring into the lawsuit as a defendant, the state agency that administers the unemployment benefits provided for by the Act. Standing is a doctrine regulating federal court jurisdiction that requires the party seeking to bring an action in federal court to show that there has been injury in fact, and that the injury is redressable by the court through the asserted litigation.≥∑ At first blush, it is hard to see why such an issue would generate any amicus interest. Yet the solicitor general, representing the secretary of labor, did not simply defend the judgment below on the basis of a conventional argument about standing but instead urged the Supreme Court to reconsider the so-called associational standing doctrine, which had been unanimously approved by the Court less than ten years earlier in Hunt v. Washington State Apple Advertising Commission.≥∏ In Hunt the Court held: ‘‘[A]n association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit.’’≥π The brief for the United States asked the Court to reconsider the wisdom of allowing organizations to sue on their members’ behalf instead of requiring such litigation to proceed exclusively as a class action under Rule 23 of the Federal Rules of Civil Procedure. It thus should come as no surprise that the groups listed above joined forces, urging the Court in no uncerSaved by Its Friends?

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tain terms to reject ‘‘the government’s attack on the Court’s clear and repeated holdings recognizing associational standing.’’≥∫ Their primary argument was that the doctrine of stare decisis strongly protected the Court’s previous rulings upholding associational standing and that there was no sufficient showing to justify overruling a previous holding of the Supreme Court. One interesting sidelight to the case is that the amicus brief was filed out of time. Under the Court’s rules,≥Ω amicus briefs are due on the same day as the brief filed by the party they are supporting. Thus, the organizations’ amicus brief should have been filed when the union filed and long before the United States did. Of course, it was completely unexpected that the associational standing doctrine would be challenged in this litigation. Accordingly, the organizations filed a motion for leave to file their brief and attached the brief to the motion (which is standard practice). The motion was granted.∂≠ Did the brief have an impact? The Court in its opinion did not cite or quote the organizations’ amicus brief. On the other hand, in recognizing the benefits of the associational standing doctrine, the Court relied upon a relatively obscure law review note in the University of Illinois Law Forum∂∞ and an even more obscure opinion from the U.S. District Court for the Southern District of New York.∂≤ Both sources were cited in the amicus brief, and only there. It is possible the Court stumbled upon them independently, but that seems unlikely. In the end the Court concluded that ‘‘the Secretary . . . has fallen far short of meeting the heavy burden of persuading us to abandon settled principles of associational standing.’’∂≥ In so holding, the Court cited Vasquez v. Hillery,∂∂ which was then the most recent exposition of the doctrine of stare decisis. Although the decision was 5–4 on the narrow question posed, no one on the Court questioned the associational standing doctrine, and it is difficult to believe that the wide range of organizations that came to the doctrine’s defense did not at least give the Court pause in deciding the wisdom of reconsidering it. In sum, I cannot accept the proposition that the Court is ill served by having available to it views from a cross-section of interested parties. The submission of amicus briefs does not amount to a referendum on a legal rule in which the Court is asked to count hands; rather, it presents the considered judgment of groups directly affected by the Court’s ruling and shows that their protest is not necessarily ideological. The interest of the amici in a case usually goes to the very core of their existence, and the Court should not lightly set aside their concerns.

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The Role of the Retired Officers’ Amicus Brief in Grutter This chapter began with a discussion of some of the amicus briefs filed in the Grutter case, and it is probably worth returning to those briefs and evaluating at least one of them against the criteria for usefulness identified in the previous section. The officers’ brief arguably fell under each of the three categories of briefs outlined above, which may be why it received significant attention from both the Court and the media. In the Brandeis-brief category, the officers’ brief provided significant historical data about the problems of nondiversity in the officer corps, particularly during the Korean and Vietnam wars. It also demonstrated the vital role that affirmative action played in increasing diversity among officers, a diversity that could not have been achieved by ordinary recruiting techniques. The brief supplied the Court with a large number of nonlegal citations to help explain the unique challenges facing the military in attempting to create and maintain a diverse officer corps. The ‘‘other authorities’’ section alone of the brief’s Table of Authorities covered more than five pages. Thus, the brief clearly was designed to enable the Court to evaluate whether diversity is a compelling governmental interest in a much broader context than the case itself presented. To be sure, other briefs also provided broader information about the importance of diversity in the educational setting and elsewhere. But the effect of diversity on the military, and the close relationship between the military’s needs and the ability of higher education to provide an adequate pool of qualified officers was a point that no one else could make as effectively as a large number of retired officers who had held prestigious positions. Would the Court have focused on the military without an amicus brief? It seems unlikely, because the University of Michigan would have had neither the space in its brief nor access to the information that would have made it possible to present those arguments. The officers’ brief also argued at least implicitly that the Court should be careful not to adopt a rule of law that would outlaw affirmative action for the military academies and the rotc programs. Thus, while the brief’s primary aim was to secure a broad ruling in favor of permitting raceconscious efforts by the University of Michigan to achieve diversity, the participants also believed that even if both programs at Michigan were declared unconstitutional and diversity were deemed not compelling in the educational setting, it remained critical that the military be shielded from having its own affirmative action programs declared unconstitu-

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tional. This created the most complicated strategic problem in preparing that brief: how best to assist Michigan in winning its case while maintaining a plausible basis for upholding affirmative action for the military in the event Michigan lost. I suppose my own worst fear was that the Court would write an opinion striking down Michigan’s programs on the basis that diversity is not a compelling interest in the educational setting but including a footnote, something like the one in the Doe case involving the Cayman Islands, leaving open the possibility that diversity could be a compelling interest in some other context and then citing to the retired officers’ brief. The Court has long recognized that the Constitution operates differently in the military setting,∂∑ which made the risk of such an outcome not trivial. Indeed, I would venture to guess that those who supported the petitioners’ side of the case dearly hoped for that result. As the Court’s opinion reveals, a majority appears to have accepted the close link between the military’s needs and the availability of a diverse pool of participants in colleges and professional schools. In that way the Court did much more than merely protect the military’s interests in future litigation: it adopted a rule that seems pretty clearly to protect the military’s efforts to promote diversity so long as the means are reasonably tailored to that objective. Thus, the brief was a wildly successful example of a brief designed to protect the litigating interests of a third party in future cases. On the strange bedfellows front, it is significant that the brief was filed by a bipartisan group of distinguished military officers. Ordinarily, military officers are not thought of in terms of ideology, but nonetheless it seemed important to be clear that the military as a whole, not just military leaders in one or two administrations, saw diversity as critical to its mission. Thus, the list of officers joining the brief took up four pages, including household names such as General Wesley Clark and General Norman Schwarzkopf as well as the chairmen of the Joint Chiefs of Staff from 1985 to 2001. The list was designed to show that although military leaders might disagree about a host of issues concerning how best to prepare the military to serve its national mission, there was a broad consensus that affirmative action was critical to achieving it. Thus, the brief did make strange bedfellows∂∏ and in that way ensured that it would garner greater attention from the Court. I do not believe it is possible to justify the Supreme Court’s long-standing practice of accepting and relying upon amicus briefs based on a single case study. Indeed, anyone opposed to the Court’s ruling in Grutter might very well argue on the basis of that outcome alone that such briefs should be 128

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banned. That would be quite shortsighted and no one to my knowledge has made such a suggestion. But I do think that the briefs in the case, and in particular the retired officers’ brief, reinforce what I have believed for twenty-five years, which is that amicus briefs can and often do help the Court decide cases. If the Court were to change its role from a ‘‘court of laws’’ to a ‘‘court of errors,’’ then it probably would make sense to consider cutting back on amicus participation because the Court’s focus certainly would be on the particular facts before it. But as long as the Court properly views its role as announcing broad declarations of federal law that will significantly affect the litigating and programmatic interests of hundreds or thousands of groups and millions of people, then it should solicit or at least be willing to entertain broader views than most single litigants can or are willing to provide. As for those briefs that do not provide new or useful insights, the justices already have the ultimate control. They can simply disregard any brief that is not helpful to their deliberations. Given the limited costs to the Court of the amicus process and the enormous benefit that it offers to the justices and their law clerks, there frankly is no serious reason to do anything but encourage it. From the practitioner’s point of view, it is true that a case like Grutter does not come along every year, and not every brief will affect either the outcome or the theory of a case. But it is also true that each brief carries with it an enormous opportunity to shape the Court’s understanding of a particular problem or area of the law. Of course the lawyer has an obvious duty to comply with Rule 37 and not burden the Court needlessly. But what makes writing each amicus brief a special experience is knowing that the contents of the brief are being presented directly to the nine most powerful members of our profession: that basic fact should be more than enough to resist the temptation to file something less accurately described as an amicus brief than a pamphlet. With effort, and maybe some luck, it is possible to look back and say: ‘‘that amicus brief made a difference.’’ I think I can say that with both confidence and pride about the retired officers’ brief in Grutter.

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CHAPTER SEVEN

One of the central conflicts in the United States for more than two centuries has been the proper division of power between the federal government and the states. At the Constitutional Convention of 1787, the Framers devoted considerable attention to the question of how to strengthen the national government without unduly impinging upon the powers of the states or the rights of the people. The Bill of Rights was added to the Constitution in 1791 specifically because many eighteenthcentury Americans were not satisfied that the powers of the federal government were sufficiently circumscribed. The pendulum did swing in the other direction after the Civil War, when the Fourteenth Amendment was added to the Constitution in part to give Congress the power to prevent state governments from unduly restricting the rights of the people. The concern for protecting the states from overreaching by the federal government has been one of the central features of the jurisprudence of the Supreme Court for more than a decade. Indeed, for many observers the protection of federalist principles has been the most striking feature of the Rehnquist Court. This embrace of federalism has manifested itself in a variety of different contexts. Beginning in 1995, the Court has on a few occasions struck down laws that it held went beyond Congress’s power to regulate interstate commerce—in decisions that cut against the grain of more than fifty years of precedent since the New Deal. In another line of cases, the Court has held that congressional legislation compelling state governments to adopt certain laws or to engage in specified regulatory ac-

tivity violates the Tenth Amendment (which provides, somewhat cryptically, that the ‘‘powers not delegated to the United States by the Constitution . . . are reserved to the States’’). Similarly, the Court has held in a series of decisions that Congress is limited in its ability to authorize suits for monetary damages against state governments because the authorizing legislation infringes the sovereign immunity of the states. Finally, the Court has restricted the ability of Congress to enact legislation that attempts to define constitutional rights more broadly than the Court has done. Part of what is striking about these decisions is the deep division they have produced on the Court. Most of these federalism decisions have been decided by the narrowest of margins: five votes to four. Although the Court’s federalism decisions at first blush do not have the ‘‘headline’’ appeal of cases involving, say, freedom of speech or freedom of religion, they nevertheless have profound practical ramifications for determining which level of government—state or federal—possesses certain regulatory authority. But how deep is the Rehnquist Court’s commitment to federalism? The 2002–03 term suggested that there are limits to the Court’s embrace of federalism. For example, in the case of Nevada Department of Human Resources v. Hibbs the Court refused to extend its earlier precedents and decided that Congress did have the power to subject state governments to lawsuits for monetary damages in a case involving the Family and Medical Leave Act. Was Hibbs an aberration, or is federalism less of a central concern to the Rehnquist Court than many observers have believed? Ramesh Ponnuru, a senior editor at the National Review, probes the Rehnquist Court’s federalism jurisprudence and its various inconsistencies. Ponnuru concludes that a reluctance to ‘‘go too far politically’’ has significantly restrained the Court’s willingness to extend its federalism jurisprudence. According to Ponnuru, the Court is unwilling to disturb the fundamental elements of either the New Deal or the civil rights revolution even if some of its federalism precedents might point in that direction. Ponnuru also argues that the Court misunderstands federalism, refusing to impose limits on state governments that are as important to the constitutional design as are limits on federal power. He concludes that the Court has a deeper commitment to judicial supremacy than to principles of federalism: what many have characterized as a federalist revolution ‘‘may in reality be a separation-of-powers revolution.’’ So, do the Court’s federalism decisions of the past decade, hailed by many observers as a sea change in constitutional law, suggest ‘‘a revival of the federalism contemplated by the Founders?’’ For Ponnuru, the answer is a decisive no.—the editors 132

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peaking soon after the end of the 2002 Supreme Court term, Justice Ruth Bader Ginsburg said, ‘‘Federalism this term was the dog that did not bark.’’∞ The expression traces back to the Sherlock Holmes story ‘‘The Adventure of Silver Blaze,’’ in which the dog’s silence provides evidence about a theft. Have the justices carted off the Rehnquist Court’s federalism revolution while we were not looking? The states did not fare well in the Court’s last term. The case most widely taken as a defeat was Nevada Department of Human Resources v. Hibbs,≤ in which a six-justice majority led by Chief Justice William Rehnquist ruled that Congress had the power to subject state governments to lawsuits under the Family and Medical Leave Act. The states might have thought this would be an easy win, based on previous Court rulings restricting the ability of Congress to authorize lawsuits against state governments. The majority found, however, that the Family and Medical Leave Act was meant to combat an ‘‘invalid gender stereotype’’ (specifically, the view that mothers are more likely than fathers to stay home to take care of their children, which we all know is a ludicrous folk belief based on no underlying reality). As such, the act fell within the scope of Congress’s power, under section 5 of the Fourteenth Amendment, to enforce the egalitarian requirements of that amendment on the states. This reasoning would doubtless have come as a surprise to most of the congressmen and senators who voted for the act, who thought they were merely mandating a popular benefit rather than striking a blow for feminism.

Franchise Tax Board of California v. Hyatt≥ was another prominent federalism case that went badly for the states. Hyatt had left California for the friendlier tax climate of Nevada. The California tax authorities pursued him there, allegedly committing torts against Hyatt in both states. Hyatt sued, and the Nevada Supreme Court found that the suit should proceed under Nevada law. California, backed by most state attorneys general, protested that Nevada’s courts had to give weight to California law. The U.S. Supreme Court turned back the attorneys general, affirming the Nevada court’s decision. State Farm Mutual Automobile Insurance Co. v. Campbell∂ was another win for centralized federal power, in which the Supreme Court restricted state courts’ ability to impose punitive damages. Hillside Dairy v. Lyons∑ reaffirmed the ‘‘dormant commerce clause’’: state governments may be barred from interfering with interstate commerce even when Congress has not explicitly acted to bar them. In Pierce County v. Guillen,∏ Congress was allowed to order state courts (as well as federal courts) not to accept certain kinds of evidence. This order was designed to restrain litigation that would adversely affect interstate commerce, and was thus held to be a legitimate exercise of Congress’s commerce-clause powers. In American Insurance Association v. Garamendi,π the Court held that a presidential agreement with a foreign country could preempt state law— even if the agreement itself does not say that it preempts state law, and even if there is no formal agreement at all. There were a few cases on the other side of the ledger. The Court’s decisions regarding affirmative action granted some autonomy to the states in setting the admissions policies at state universities: the Court neither required nor prohibited preferential affirmative action.∫ In Pharmaceutical Research and Manufacturers of America (prma) v. Walsh,Ω the Court upheld a Maine program that pressured drug makers to hold down prices. Kentucky Association of Health Plans v. Miller∞≠ read federal law to allow states more freedom to regulate health insurance. In Sprietsma v. Mercury Marine,∞∞ the Court rejected a claim that federal regulation preempted state lawsuits. As barks go, these were rather quiet. It would go too far to say that the 2002 term means the end of the federalist revolution. The near-landmark decisions associated with that revolution have neither been overruled nor rendered dead letters; the Court has left itself the freedom to invalidate future congressional acts for trampling on the states. The Court has not retreated entirely from the ‘‘clear statement’’ rule announced a decade ago: to preempt state law, Congress has to say clearly that that is what it is doing. It could even be argued that the 2002 term represented a continuation, or rather a consol134

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idation, of the federalist revolution: by signaling that this revolution would not go too far, the swing justices were trying to get the nationalist judges to make their peace with it.∞≤ But perhaps the federalist revolution is neither ending nor being consolidated. There is a third alternative: there never was a federalist revolution—or, at least, the revolution was never what it was cracked up to be.

The Revolution’s Victories The so-called federalist revolution arose in reaction to an earlier judicial revolution: the Supreme Court’s repudiation after 1937 of prior doctrines that limited the scope of Congress’s power to regulate commerce among the states and that protected economic rights against both federal and state regulation. The Court got out of the business of enforcing federalism, although it always allowed that some federal assault on the states could theoretically go too far for it to tolerate. The arguments of Herbert Wechsler∞≥ and Jesse Choper∞∂ became influential: the Supreme Court should not police the boundaries of federalism, they said, because the states were perfectly capable of defending themselves through the (nonjudicial) political process. The Founders had expected federal power over the states to be limited chiefly by that process, rather than by the courts. The courts’ main work should be to protect constitutional rights that could not be expected to protect themselves in the political process: above all, the rights of ‘‘discrete and insular minorities.’’∞∑ These views drew criticism, however, especially from conservatives. John Yoo, among others, argued that the political process would not suffice to protect federalism, and that the Framers of the Constitution carved out no exception to judicial review for federalism cases.∞∏ Federalism needed ‘‘judicial safeguards’’ in addition to Wechsler’s ‘‘political safeguards.’’ Conservatives began to build the case, and to effect the preconditions, for more aggressive judicial enforcement of federalism. The people of America no longer had the deep attachment to their states on which the Founders could rely to keep federalism going. The courts would therefore have to do more to save the Founders’ design. It is hard to overstate the importance of federalism to the conservative legal establishment that has arisen over the last quarter-century. That establishment’s chief institutional expression, a network of conservative lawyers and law students, is called the Federalist Society. The name harks back to Alexander Hamilton and James Madison, of course, but it also highlights the centrality of a The Court’s Faux Federalism

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limited federal government to the political philosophy that the society believes itself to share with both men. Republican appointees to the Supreme Court in the 1970s and 1980s showed an interest in reviving federalism. But it was not until the 1990s that a renewed federalism became apparent in the Court’s decisions. The revolution, if that is what it has been, proceeded on four fronts: 1. The federalist Court tightened its interpretation of the commerce clause. In United States v. Lopez (1995),∞π the Court held that the federal Gun Free School Zones Act was not a legitimate exercise of Congress’s power to regulate commerce among the states. Just where Congress crossed the line, in the Court’s view, is somewhat murky. Chief Justice William Rehnquist’s opinion for the Court maintains that what Congress regulates under the commerce clause has to be economic in nature and to substantially affect interstate commerce; criminalizing the possession of guns on school property fails the test. The concurrence by Justices Sandra Day O’Connor and Anthony Kennedy suggests, rather oddly, that congressional regulation of ‘‘traditional state concerns’’ is particularly suspect under the clause. It also suggests (as Rehnquist’s decision does less explicitly) that states have a special claim to be permitted to act as ‘‘laboratories for experimentation’’ when there is near universal agreement among the states and the federal government on an end but not on the means to achieve it. The Court noted reassuringly that more than forty states criminalized guns in schools. It also left open to Congress alternative methods of legislating as it wished, such as by attaching conditions to federal funding. United States v. Morrison,∞∫ decided in 2000, clarified that the Court had not been kidding in Lopez. The Court struck down provisions of the Violence Against Women Act that allowed the victims of gender-motivated violence to sue the perpetrators in federal court. Morrison firmed up the commerce-clause test: now there was a presumption that the clause does not authorize congressional regulation of non-economic matters. Nor was the Court willing to defer to congressional ‘‘findings’’ that violence against women does indeed affect interstate commerce. The ‘‘traditional state concerns’’ language dropped out. 2. The federalist Court tightened its interpretation of section 5 of the Fourteenth Amendment. That is the section authorizing Congress to ‘‘enforce’’ the amendment’s earlier requirements that states offer all persons the equal protection of the laws, due process, and the privileges and immunities of citizenship. In City of Boerne v. Flores (1997),∞Ω the Court ruled that section 5 did not authorize Congress to force the states to do

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anything more than the Court had found the Fourteenth Amendment to require from them. The Court had previously held that states could enforce laws of general applicability even when those laws imposed special burdens on believers in particular religions (as a prohibition on drugs affected people whose church used peyote for ritual purposes). The Fourteenth Amendment did not require states to accommodate these believers. In Boerne, the Court held that Congress could not require such an imposition either—especially when the congressional enactment would intrude on ‘‘the States’ traditional prerogatives.’’ (Note the parallel to Lopez.)≤≠ States were free to offer accommodations or not, as they chose. Morrison also rejected a section 5 justification for the Violence Against Women Act. It firmed up Boerne just as it did Lopez, with traditional state prerogatives taking up less of the analysis. Both lines of cases suggested that the Court would be more aggressive than in the past in finding some laws to go beyond the enumerated powers of Congress. 3. The federalist Court restricted the federal government’s ability to ‘‘commandeer’’ state officials. Again there were two key cases, the second bolder than the first: New York v. United States (1992)≤∞ and Printz v. United States (1997).≤≤ New York invalidated, as a violation of the Tenth Amendment, a federal law that forced states either to dispose of radioactive waste in the manner prescribed by Congress or to ‘‘take title’’ of, and assume liability for, that waste. It did not, however, forbid Congress to attach conditions to federal spending that would achieve the same result. Nor did it forbid the regulation of state governments as part of a general regulation of, say, employers; the holding applied only to the regulation of states in their capacity as states. Printz concludes that the Constitution places limits on the congressional commandeering of state and local law enforcement authorities as well as of state legislatures. Justice Scalia, writing for the Court, argued that such commandeering undermines political accountability and thus the constitutional structure; that it reduces the president’s law enforcement authority; and that it is neither ‘‘necessary’’ nor ‘‘proper’’ to perform any of Congress’s constitutional duties. Justice O’Connor’s concurrence did not join these arguments, instead resting on the Tenth Amendment. 4. The federalist Court widened the states’ ‘‘sovereign immunity.’’ It placed tighter limits, that is, on the ability of Congress to authorize private lawsuits against states in federal court. The key case here is Seminole Tribe v. Florida,≤≥ decided in 1996. The Rehnquist Court’s sovereign immunity doctrine is based on the Eleventh Amendment or, more precisely, on a point of constitutional structure which that amendment partially em-

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bodies and which is inferred from it. Congress can authorize lawsuits against states, however, if it both acts pursuant to the Fourteenth Amendment (which has to trump the Eleventh, having been ratified later) and declares with unmistakable clarity that it intends to abrogate the states’ sovereign immunity. The rules are looser for lawsuits in federal court seeking injunctive relief from state officials, as opposed to lawsuits against the state itself. But Seminole Tribe and subsequent cases limit this exception too. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank (1999)≤∂ and Kimel v. Florida Board of Regents (2000)≤∑ further strengthened sovereign immunity. Alden v. Maine (1999)≤∏ extended the principle to limit the ability of Congress to authorize lawsuits against states in state courts. Federal Maritime Commission v. South Carolina State Ports Authority (2002)≤π limited the ability of Congress to authorize a federal agency (rather than a court) to adjudicate claims made by a private party against a state. ‘‘The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities,’’≤∫ said the Court, and submitting to proceedings before a federal agency can hardly said to be more dignifying than going to court. The sovereign immunity decisions can fairly be said to represent the most aggressive federalist campaign the Rehnquist Court has waged—especially given their extra-textual basis. All four sets of cases provoked strong reactions: in the dissents of justices, in the law reviews, and even in the media. A sitting federal judge, John Noonan, wrote a book denouncing the Court’s revival of federalism.≤Ω Indeed, even attempts to move the Court in a more federalist direction that failed—even federalist dissents, in other words—were bitterly condemned. The four dissenters in U.S. Term Limits v. Thornton (1995)≥≠ argued that the state legislatures or referenda could impose term limits on the state’s delegations to the U.S. Congress. While the states could not, of course, override the qualifications for national office set forth in the Constitution, they could add their own qualifications, although these might be subject to a congressional veto. The majority opinion, written by Justice Kennedy (himself, interestingly, a sometime federalist revolutionary), suggested that the dissenters were a threat to American nationhood because they would affirm the theory that ‘‘the sole political identity of an American is with the State of his or her residence.’’≥∞ Linda Greenhouse, one of the nation’s premier Court reporters, wrote in the New York Times, ‘‘it is only a slight exaggeration to say that . . . the Court [is] a single vote shy of reinstalling the Articles of Confederation.’’≥≤ 138

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Hitting a Wall For all the fears that the Court’s federalist turn inspired, there was a natural limit to how far it could go. Three constraints were bound to affect the Court eventually. In 2002–03, the Court ran into all three of them. The first constraint is a straightforward political one: the Court cannot implement a federalism agenda that is seen as rolling back either the New Deal or civil rights in any serious way. Moreover, the Court has no interest in doing so—perhaps in part because key justices do not want their federalist turn to be interpreted as an attack on the New Deal or civil rights. Obviously, however, this limit means that a vast range of federal action will be untouched by the Court’s federalism. The Court is not going to get back into the business of distinguishing between intrastate and interstate commerce, and invalidating congressional regulation of the former; it left that field for good in the 1930s. It is not going to distinguish ‘‘commerce among the states’’ from manufacture. Most federal economic regulation will be upheld. This limit on federalism often plays out in judicial silences. If the Supreme Court were to follow the logic of the boldest federalist opinions of the last ten years—for example Justice Thomas’s concurrence in Lopez, or the Court’s holding in Printz—much of modern government would have to be held unconstitutional. (This implication is, of course, what accounts for how critics of the federalism cases have received them.) But the dissenters generally cannot bring themselves to admit that the Constitution of modern ‘‘constitutional law’’ is quite different from the Constitution of the Founders, and the federalist judges cannot admit that their views pose a radical threat to modern government. So the issue is not joined. In Printz, Justice Scalia and the dissenters engage in a historical debate that on both sides studiously avoids mentioning that the Founders would never have imagined a federal government as large and multifarious in its operations as ours. Justice Thomas’s argument for a tight reading of enumerated powers in Lopez is not answered by the majority. Nor is Thomas willing to follow his premises to their conclusions: he denies the need for any ‘‘wholesale abandonment’’ of the Court’s post–New Deal commerce clause jurisprudence.≥≥ This reluctance to go too far politically may explain why the Court did what it did in Hibbs. Morrison implicated civil rights at least as much as Hibbs did, but only in a symbolic way. Hibbs involved an intersection of an alleged civil rights concern and a federally mandated economic benefit. That may have been too much for the Court to threaten. If the distinction between Hibbs and Morrison is hard to ascertain, however, it is less diffi-

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cult to see what separates it from the other sovereign immunity cases. The Court is willing to protect states from lawsuits in federal court—unless those lawsuits allege particular kinds of state discrimination. Specifically, lawsuits are allowed to combat discrimination against groups that the Court itself has identified as ‘‘suspect classes’’: women, racial minorities, and (weirdly enough) railroads. When states enact laws that discriminate against these classes, the Court subjects those laws to ‘‘strict scrutiny’’ and will generally invalidate them. Evidently, the Court will also subject lawsuits concerning state discrimination against other classes—such as the old and the disabled—to what might be called a kind of strict scrutiny. In Kimel v. Florida Board of Regents (2000),≥∂ states were held to be immune from lawsuits under the Age Discrimination in Employment Act even when Congress was found to have sought to abrogate their immunity. In Board of Trustees of the University of Alabama v. Garrett (2001),≥∑ states received immunity from Americans with Disabilities Act lawsuits too. The rule that women and racial minorities can sue and other groups cannot is, in my view, the most plausible reading of Hibbs. The second constraint is the Court’s own confusion about what federalism is. The Court’s federalism cases are replete with references to the ‘‘dignity,’’ ‘‘status,’’ and ‘‘interests’’ of states. The states are, in this view, an interest group with a special claim on kind treatment from the federal government. But this is not the only way to conceive of federalism. Federalism could be about dividing governmental responsibilities and ensuring political accountability, and there is much in the writing of the Founders to indicate that these imperatives were on their minds.≥∏ Insisting on a federalism of this sort could—would—place limits on state governments and lead to results that they would find most undignified. You could call it a federalism for citizens rather than states. Or, perhaps, a libertarian federalism. For that matter, you could call it a constitutional federalism. The word ‘‘federalism’’ does not appear in the Constitution. Neither does the Constitution include any provision that supplies a simple principle for deciding federalism cases. But there are several provisions that address the relations of the states to the federal government, and to one another. Some of these provisions protect the states from the federal government: the Tenth Amendment, most obviously. But others protect the state governments from one another. Take the compact clause: ‘‘No state shall, without the consent of Congress . . . enter into any Agreement or Compact with another State.’’≥π State governments can cooperate to advance their joint interests, and serve the common good of the nation. But the Founders evidently thought 140

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it possible that groups of states could try to exploit other states. The Constitution could not lay out in detail which compacts would fall on which side of the line. So it set a rule: compacts among the states are guilty until proven innocent—forbidden, that is, until a national majority has blessed them. The Supreme Court has turned the compact clause into an inkblot. In 1978 the Court held that state agreements require constitutional consent only if they undermine the supremacy of the federal government.≥∫ The burden would seem therefore now to lie with opponents of a compact. They have to assemble a national majority to block it. National antitobacco legislation died in the Senate in 1998. But the ‘‘Master Settlement Agreement’’ between the states and the largest tobacco companies was able to take effect even though Congress had not approved it. Some states were reluctant to go along, but they were made an offer they could not refuse: holding out meant that their citizens would pay the higher cigarette prices the agreement mandated, but receive none of the agreement’s benefits. A few tobacco companies, trial lawyers, and state attorneys general were able to set national policy. The Rehnquist Court has shown no interest in reviving the compact clause. Nor has it shown any interest in reinvigorating another protection against interstate exploitation: the full faith and credit clause. We are all familiar with the current dispensation. An Alabama plaintiff can sue an Ohio company in an Alabama court, before an Alabama judge and jury, so long as the company has at least ‘‘minimum contacts’’ with Alabama. The court can decide to apply Alabama law, because the Alabama government has an ‘‘interest’’: it is the forum state. If Alabama’s laws are better for plaintiffs than Ohio’s, over time Ohio will find its liability rules becoming irrelevant. Alabama will be able, effectively, to create national rules for product liability. Welcome to the liability explosion. The full faith and credit clause cannot dictate choice-of-law rules. But presumably a command for equal respect of other states’ laws excludes the possibility of giving no respect at all. It should restrict the extraterritorial reach of state law. In Hyatt, the command would have suggested that Nevada law apply to the torts allegedly committed in Nevada, and California law to the torts alleged in California.≥Ω Instead, the Court unanimously held that Nevada’s courts need not give credit to California law, even when California protested that Nevada was thus interfering with its performance of the ‘‘core sovereign function’’ of tax collection. This is not to say that the Rehnquist Court will do nothing about the liability explosion. It will fail to impose some of the restraints that are found in the actual Constitution. It is willing, however, to impose reThe Court’s Faux Federalism

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straints that are foreign to the Constitution. Hence the strained due process holding of State Farm v. Campbell: when compensatory damages are substantial, state punitive damages may not exceed them; the ratio of punitive to compensatory damages may not exceed single digits in other cases; and multiple-digit ratios may be permissible in sufficiently egregious cases. Michael Greve has aptly described this as a ‘‘corporate trimester’’ scheme.∂≠ The Court is also willing to apply the ‘‘dormant commerce clause’’ to restrict the states. It is willing to hold in some cases, that is, that the power of Congress to regulate commerce among the states implies the inability of state governments to regulate interstate commerce even where Congress has not acted. This doctrine too serves as a substitute for provisions that are in the Constitution but that the Court declines to apply: the full faith and credit clause, the import-export clause, a privileges and immunities clause read to cover corporations.∂∞ Will the Court’s made-up substitutes for constitutional provisions that constrain the states survive? The three most ‘‘federalist’’ justices—Rehnquist, Scalia, and Thomas—have denounced the dormant commerce clause as an unconstitutional infringement of states’ rights. (Note the contrast to their position on the sovereign immunity cases: they are willing to entertain constitutional inferences that cut in favor of state governments, but not those that cut against them.) Justice Thomas dissented in part from Hillside Dairy for that reason. Scalia and Thomas also dissented from the rather contrived restriction on states in State Farm. Indeed, Scalia and Thomas voted consistently in 2002–03 against federal preemption of state laws, in State Farm, Garamendi, and prma. They are, evidently, prostate before they are pro-business. Justices Ginsburg and Stevens were generally with them (Ginsburg in State Farm, both in the other two cases). O’Connor, Kennedy, and Breyer were by contrast the most likely to preempt. It is possible to see the anti-preemption side slowly moving into the majority. Justices Ginsburg and Stevens will vote against constraints on governmental economic activism; Justices Scalia and Thomas will vote for states’ rights. Justices on the other side will retire; they are, on average, older. The economy may suffer as a result, but the justices will rightly reject that consideration as a basis for constitutional decision. Thus will the Constitution become a ‘‘trial lawyers’ bill of rights.’’∂≤ The point is this: If the Supreme Court wanted to get into the business of enforcing a truly constitutional federalism, it would have to keep the federal government from intruding on concerns proper to the states and to keep the states from infringing one another’s rights or trespassing on legitimately federal concerns. The Court would have to revisit not only the 142

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post–New Deal assumption of congressional omnipotence in economic matters, but also some of the New Deal decisions that liberated states.∂≥ Put another way, ‘‘nationalism’’ is not always in conflict with federalism, properly understood. Nationalist wins could have been federalist wins too in State Farm, prma, and Hillside Dairy. Today’s Supreme Court is not willing to police the boundaries of federalism in both directions. Its ‘‘federalists’’ are willing to impose modest restraints on Congress. Neither its ‘‘federalists’’ nor its anti-federalists are willing to restore constitutional restraints on the states’ treatment of one another. Finally, the federalist turn faces a third powerful constraint: the Court’s unwillingness to police the boundaries of federalism against itself. We forget, sometimes, when we speak of the Supreme Court’s restricting or expanding what government can do, that the Court is itself part of the federal government. For the Supreme Court to protect the states from the federal government, it must not only restrain Congress (and the president). It must restrain itself. It must reduce its own power. This it has shown no interest in doing. As has often been noted, none of the landmark Warren and Burger Court individual rights cases, most of which undermined state autonomy, have been overturned. What may be more important is the reason for the Court’s reluctance to revisit these issues. There is some evidence that the Court is motivated by a concern for its own institutional authority as much as for legal stability. The Court has said as much in one high-profile case, Planned Parenthood v. Casey (1992),∂∂ the case reaffirming the ‘‘central holding’’ of Roe v. Wade (1973).∂∑ The Casey Court begins by noting the scandal of disagreement: ‘‘Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, Roe v. Wade, that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.’’∂∏ The Court goes on to argue that circumstances have not changed enough since 1973 to justify overruling the case. If the Court overruled Roe, it would appear to be doing so simply because it no longer agreed with it. Or worse: Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry.

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It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution. . . . [W]hen the Court [acts] in this way, its decision requires an equally rare precedential force to counter the inevitable efforts to overturn it and to thwart its implementation. . . . [O]nly the most convincing justification under accepted standards of precedent could suffice to demonstrate that a later decision overruling the first was anything but a surrender to political pressure and an unjustified repudiation of the principle on which the Court staked its authority in the first instance. So to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.∂π The Court would also undermine its legitimacy by breaking its promise to supporters of Roe. These supporters may have faced ‘‘criticism,’’ ‘‘ostracism,’’ or ‘‘violence.’’ They may have ‘‘struggle[d] to accept’’ the ruling even though they oppose abortion. ‘‘[N]o Court that broke its faith with the people could sensibly expect credit for principle in the decision by which it did that. . . . Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court, but for the sake of the Nation to which it is responsible.’’∂∫ The Casey Court offers this argument for reaffirming the ‘‘core holding’’ of Roe even while hinting that some members of the plurality would not have decided Roe the same way as an original matter. Roe had to be reaffirmed even if it was not in the Constitution, because ‘‘overruling under fire’’ would damage the Court’s ability to ‘‘speak before all others’’ for our ‘‘constitutional ideals.’’∂Ω Roe itself suggests that the Court is not institutionally suited to be an agent of decentralization. Congress would never have swept away the laws of all fifty states in order to take one side of a heated national debate. There may be a tropism in modern constitutional law toward closure: toward judicial declarations that the Constitution imposes definitive answers on more and more policy questions rather than leave them up for

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grabs. But Casey goes further: it shows us that the Court is both willing to make a fairly broad assertion of its own supremacy and intolerant of conflicting views. The Court is not, after all, saying merely that future legislative attempts to restrict the ‘‘core’’ right to abortion—whatever the Court decides that core to be in any given case—will be struck down. The plain meaning of its words about ending national division is that the antiabortion movement should cease to exist. Its members are to put down their placards and go away. An intolerance for national division, for conflict, is not the most promising frame of mind for the agents of a federalist revolution to have. Nor is the sense that our national identity is as fragile as the Casey plurality believes it to be. To the extent that Roe itself generated fierce political conflict, the Court has started an ‘‘implosive cycle’’: the Court’s centralizing moves produce conflict, which then justifies further assertions of the Court’s national authority.∑≠ A kind of intolerance is also on display in Romer v. Evans (1996),∑∞ in which the Court invalidated a state constitutional amendment, approved by the voters, that prohibited homosexuals from claiming discrimination. People who agree with that decision may well protest that the majority was fighting a manifestation of intolerance. I am sure that the majority did understand itself in that fashion. For the purpose of my argument it makes no difference whether the amendment in question was intolerant, or whether a majority of its supporters were motivated by intolerance, or even whether the Court was right to strike it down. My points here are that the decision both undermined state autonomy and displayed a counter-intolerance. Writing for the Court, Justice Kennedy begins by saying that the amendment ‘‘defies . . . conventional [judicial] inquiry’’ and that it is ‘‘exceptional,’’ ‘‘peculiar,’’ ‘‘inexplicable,’’ ‘‘unprecedented in our jurisprudence,’’ and ‘‘not within our constitutional tradition.’’∑≤ He goes on to assert that the amendment’s rationale was ‘‘animosity’’ toward homosexuals. Since the law bears no rational relationship to a legitimate purpose, it must go. As Robert Nagel summarizes, ‘‘The Court’s exposition, then, is a fairly exact rhetorical expression of the psychological impulse of intolerance. The opinion conceives what is unusual to be foreign; it understands what is foreign to be evil; it sees what is evil to be threatening; it suppresses what is threatening.’’∑≥ That impulse seems to be pervasive in constitutional law, where the rational-basis test, or something like it, pops up again and again.∑∂ It is so familiar that people rarely reflect on how remarkable it is. The hundreds of state laws that have run afoul of it have not been judged merely to have The Court’s Faux Federalism

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violated some constitutional provision. The Court has judged, rather, that their purposes are ‘‘illegitimate’’ or that they are ‘‘irrational.’’ Perhaps the rational-basis test is justified; most legal scholars seem to think so. But a Supreme Court that routinely finds state legislatures to have acted irrationally, and adopts a posture of suspicion toward state electorates, is unlikely to cede much power to them. Recall that one of the Court’s considerations, in striking down the Gun-Free Schools Act in Lopez, was that there was already a broad national consensus against guns in the schools. What disagreement remained concerned means rather than ends. When the country is emotionally divided on an issue, on the other hand, as in Casey and Romer, the Court will move to end that division. Moral federalism, that is, must be tamed. The legal conservatives who have cheered the Rehnquist Court’s supposed federalism tend to put cases such as Casey in a different mental category from the federalism cases. But this is a mistake. Restrictions on moral federalism remove the political basis for any contemplated federalist ‘‘revolution.’’ The reason for this is that moral federalism is the only kind of federalism that might have some robustness. For many reasons, the decline in the cost of transportation and communication not least among them, modern citizens are less attached to their states than they were at the time of the founding. The issues that lawyers today tend to have in mind when they think about ‘‘federalism’’— such issues as statutory preemption and sovereign immunity—are of interest chiefly to lawyers, and together they produce a federalism that is chiefly the property of lawyers. But people do care about moral issues. Indeed, the last two decades have seen considerable political migration within the United States that is related to these issues. Conservatives have moved from California to Colorado, and liberals from New Hampshire to Vermont, partly because they feel that the culture of their new state is more in accordance with their values. This migration has helped to produce the famous blue state, red state map, in which cultural divisions and political ones literally map each other. An end to nationalized moral decision making by the Court would have a real constituency. (It could also be powerfully attractive to people who do not have strong views on moral issues, but who think that state-by-state resolutions of these issues would make more people happy.) It is the very robustness of moral federalism, however, that leads the Court to suppress it. Moral issues call forth emotions (animosity, for example) and divisions that the Court finds either intolerable or threatening to national unity. The great federalist case of the 2002 term was thus not Hibbs but Law146

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rence v. Texas.∑∑ State laws against sodomy were dying off, as they should have been. But the Court was not willing to wait. Instead, it issued an expansive ruling about liberty ‘‘in its spatial and more transcendent dimensions.’’∑∏ Nobody was sure what to make of that phrase, or agreed on the implications of the ruling for other policy issues. But it is clear that the decision was not good news for social conservatives, even those who held no brief for sodomy laws themselves. Once again, the Court has taken sides in the culture wars—and taken the same side.

Behind the Court’s Federalism The Rehnquist Court’s continued expansion of its power over the states puts its restrictions on congressional action in a new light. Perhaps both lines of cases are expressions of the same impulse: an impulse toward selfaggrandizement. The Court tells the states what to do, and Congress too. What looks like a federalist revolution, in other words, may be in reality a separation-of-powers revolution. The judiciary is the third branch of the federal government that the Constitution mentions, but it is now to be ‘‘first among [nominal] equals.’’∑π Look again at Boerne v. Flores. The Court limited congressional power over the states. But this result was incidental to the thrust of the decision, which is that Congress has no independent interpretive power over the Fourteenth Amendment and is obligated to follow the Court’s interpretations. A brief history, told backwards: The case struck down the Religious Freedom Restoration Act, which was itself a response to a decision by the Supreme Court in 1990. That decision reversed earlier rulings by the Court, reducing the demands on government with respect to religious freedom. If the Court were to revert to its pre-1990 understanding of religious freedom, the states would be obligated to follow the old rule, and Congress would be allowed to impose remedial laws for violations of that rule. The point of the decision was to protect the supremacy of the Court’s doctrine, not the freedom of the states. Hibbs emerges in a new light too. Again, the Court tied congressional power to authorize federal suits against the states to its own interpretation of the Fourteenth Amendment. The racial preference cases have a judicial supremacist dimension that has largely been overlooked. The Court gave state universities permission to admit students in a race-conscious fashion, although with some restrictions. That can be seen as a federalist move. But Congress has already acted to restrict the universities’ freedom. The Civil Rights Act of 1964 requires that no person ‘‘shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be The Court’s Faux Federalism

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subjected to discrimination under any program or activity receiving Federal financial assistance.’’∑∫ Justice Lewis Powell, in Regents of University of California v. Bakke (1978),∑Ω dispensed with this provision by ruling that that the act was a congressional attempt to enforce the Fourteenth Amendment and that it could therefore not be construed to prohibit anything that the Court itself did not think the Fourteenth Amendment prohibited. Since Powell did not think racial preferences ran afoul of the amendment, preferences were therefore legal under the act. What Congress was enacting, in other words, was whatever the justices decided the Fourteenth Amendment meant. (Never mind that the provision makes sense as an exercise of the spending clause even if Powell’s view of congressional power under the Fourteenth Amendment were sound.) In the Court’s decisions from 2002 on racial preferences, the Civil Rights Act is breezily dismissed with a reference to Powell’s opinion. The Court’s institutional concerns also lead it toward judicial supremacy and away from federalism. Recall that the Court wants its federalism decisions to be politically defensible and is unwilling to call either the New Deal or the civil rights revolution into question. Assume that the Supreme Court ought to be enforcing all provisions of the Constitution that are violated, both the individual rights provisions (however one defines them) and the structural restraints on federal power. A concern for political plausibility will systematically lead to greater enforcement of individual rights than of federalism, for a simple reason. State and local government edicts will be the primary violators of individual rights; they are relatively powerless against the Court; they therefore do not pose much of a political threat. Judicial enforcement of restraints on Congress can result in more serious congressional counter-action. The Court’s tropism will be to undermine moral federalism but not to vindicate limits on congressional power. And as we have seen, imposing limits on state governments consistent with a sound understanding of federalism is not on the Court’s agenda.

An Impossible Project Two decades ago, it was widely assumed, in what we may call the constitutional law community, that states are able to protect their interests in the political process and that federalism therefore does not need judicial protection. One underappreciated weakness of that theory is that the states’ interests are not equivalent to federalism. (The Rehnquist Court’s federalism jettisons the theory’s conclusion but retains that assumption, which is one of its weaknesses.) The conservative critics of that theory estab148

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lished that the political process was insufficient to protect the states, let alone federalism. It does not follow from that proposition that judicial enforcement of federalism is therefore warranted. It certainly does not follow that the federal courts can be transformed into guardians of federalism. The Supreme Court may very well impose more marginal restrictions on congressional power against the states in the 2003 term and in terms to come. (It will always be possible to distinguish away Hibbs when the Court has the inclination to do so. The Court can just manipulate the level of deference to Congress to reach the desired result.) The sovereign immunity doctrine may expand. But after two decades, we have an answer to one question. Is the Supreme Court likely to lead a revival of the federalism contemplated by the Founders? The answer is no. That dog will not bark again.

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CHAPTER EIGHT

Every schoolchild learns that Americans enjoy ‘‘freedom of speech’’ and that such freedom is one of the fundamental features of our democracy. Commitments to freedom of speech become strained, however, when the speech turns hateful—such as when Nazis proclaim their religious hatred on the streets of Skokie, Illinois, or Klansmen preach their racial bile in the rural reaches of the South. The U.S. Supreme Court has interpreted the free speech protection of the First Amendment to include hateful speech, so long as that speech does not constitute a threat, an effort to intimidate, or a clear incitement to violence. But determining on which side of the constitutional line particular speech happens to fall is sometimes quite difficult. Against this constitutional backdrop, the Commonwealth of Virginia enacted a statute that prohibited cross burning. The context of the legislation was clear. For more than a century, the Ku Klux Klan had used cross burning as a central symbol of its message of racial hatred and racial intimidation. Cognizant of that ugly history, Virginia sought to ban cross burnings throughout the state. The Virginia legislature was aware that it could criminalize threats or intimidation, but not hateful speech that fell short of being a threat, and framed its cross-burning statute accordingly. Specifically, the statute made it a felony to burn a cross ‘‘with the intent of intimidating any person or group of persons.’’ In an effort to bolster the statute’s reach, the legislature added another important provision: the burning of a cross ‘‘shall be prima facie evidence of an intent to intimi-

date’’—meaning that a jury could infer simply from the burning of the cross that the cross burner intended to intimidate another person. Given the Supreme Court’s careful distinction between threats and intimidation (which can be prohibited) and ‘‘mere’’ speech (which generally cannot be), could Virginia simply conclude up front that cross burning necessarily encompassed an intent to intimidate? Or was that aspect of the statute unconstitutionally ‘‘overbroad’’ by prohibiting some speech that did not encompass intimidation? And could Virginia single out cross burning as a type of symbolic expression without offending First Amendment prohibitions of viewpoint discrimination? Rod Smolla, dean of the University of Richmond School of Law and one of the nation’s foremost experts on the First Amendment, agreed to help the American Civil Liberties Union represent a Klansman accused of violating Virginia’s cross-burning statute. In this chapter, Smolla traces the course of the litigation from the initial trial to the U.S. Supreme Court and describes the legal strategy he developed to attack the Virginia statute. Smolla relates that in one of the most extraordinary moments at oral argument of the past several years, his case took an unexpected turn. Justice Clarence Thomas, the Court’s lone African American and a justice who rarely speaks at oral argument, transformed the debate by passionately reminding the Court of the ugly history of cross burning and how it was used ‘‘to terrorize a population.’’ Confronted with this extraordinary display, Smolla describes his efforts to move the argument back to a consideration of cross burning as protected symbolic speech. In the end, seven justices agreed that the Virginia statute violated the First Amendment, although they disagreed as to their reasons. Along the way, the Court reaffirmed that the First Amendment does indeed protect hateful speech.—the editors

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Cross Burning: Virginia v. Black rod smolla

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y first encounter with Virginia’s cross-burning law was in a meeting of the Virginia aclu Legal Panel. I sat in a group of about a dozen other volunteer lawyers listening as potential cases were presented to the panel for review. We were told the story of a Ku Klux Klan leader who had been arrested for burning a cross during a Ku Klux Klan rally conducted on a backwoods farm in southwestern Virginia, with the permission of a landowner. A copy of the Virginia cross-burning statute was distributed for us to read: It shall be unlawful for any person or persons, with the intent of intimidating any person or group of persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony. Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.∞ I spoke up, urging the Virginia aclu to take the case. Another member of the panel, a charismatic and highly successful criminal defense lawyer in Richmond named David Baugh, who happened to be African American, went me one further. He volunteered to defend the Klansman. David had just made a powerful argument for suing police departments that engaged in racial profiling at traffic stops, in a campaign against a crime that he described as ‘‘driving while Black.’’ Now he was willing to defend a Ku

Kluxer. We joked with David about his altruism. Why did he think a Ku Klux Klan leader would ever let an African American lawyer represent him? ‘‘We probably need to let him know up front that his aclu lawyer is Black,’’ another panel member suggested. ‘‘Not fair to sandbag the guy.’’ We agreed that if he refused to be represented by a black lawyer, we would tell him we were unable to represent him. Well hell, I thought to myself, if David was willing to volunteer to represent an unsavory client to defend a constitutional principle, so would I. Okay, I told the group, if David wanted a partner, I would team with him. ‘‘David can handle the trial, and I’ll handle the appeal.’’ David chided me on this, asking me why I thought we’d even need an appeal, because he did not plan to lose the trial. ‘‘Actually,’’ I said, ‘‘we shouldn’t even need a trial. We should be able to get this case tossed on a motion. I can imagine how the argument in front of the judge will go. If I dip two sticks in kerosene and light them, setting them afire, and hold the sticks out away from my body pointing in opposite directions, I do not violate the statute. If I hold the sticks in the air, parallel to one another, I do not violate the statute. But if I move those two sticks in my hands, traversing a horizontal stick with a vertical forming the symbol of a cross, I am suddenly presumed a felon. That violates the First Amendment. It’s just that simple.’’ But it wasn’t just that simple. What initially struck me, sitting in that room, as an open-and-shut case, a straightforward First Amendment violation that would be quickly resolved without ever reaching trial, turned out to be anything but open-and-shut, straightforward, or quick. Yet it sure was interesting. The trial judge rejected our argument that the statute was unconstitutional on its face, and the case went to trial. The trial was short but powerful. The defendant was a man named Barry Elton Black. Black was a leader of the Ku Klux Klan who organized and led a Klan rally on private property in Cana, Virginia, on 22 August 1998. The rally was conducted with the permission of the landowner, who was present during the rally. The evidence presented by the Commonwealth of Virginia consisted of the testimony of three witnesses and a handful of photographs depicting the property and placement of the cross. Sheriff H. Warren Manning of Carroll County testified that when he came to work at 6:30 in the evening on 22 August, he found a message stating that the Klan was going to conduct a rally in Cana. The sheriff asked another officer, First Sergeant Richard C. Clark Jr., to join him at the scene of the rally. When Sheriff Manning arrived, he observed a sign erected on a four-by-eight sheet of plywood that read ‘‘kkk Rally.’’ The sign also had the word ‘‘private’’ on it. Wanting to get the attention of the participants, Sheriff Manning parked 154

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his police vehicle on the highway near the open field and briefly turned on his blue flashing lights and siren. The sheriff testified, ‘‘I wanted to make sure that everything was legit, and I wanted to get their attention.’’ Upon seeing the sheriff’s vehicle, three members of the Klan walked over to talk to him. The sheriff asked them, ‘‘Was this a legit kkk rally?’’ They replied that it was. (I was never sure what exactly the sheriff meant by a ‘‘legit’’ Klan rally, as opposed to an ‘‘illegit’’ one. I did find out later that the sheriff had never previously encountered the Klan or a Klan event. Maybe the whole ugly spectacle threw him for a loop.) The Klan members informed the sheriff that the rally would last another hour to an hour and a half, and the sheriff informed them that he would stay nearby to make sure that everything was ‘‘law-abiding.’’ (This detail has always struck me as excellent police work. Again, I would later find out more: after the case was over, the sheriff explained that he was concerned as much about the reaction of other people against the Klan as he was with the possibility that the Klan members themselves might do more than just raise hell and actually start something violent.) Sheriff Manning and Sergeant Clark stayed to observe the rally. A number of cars drove by the rally on the state road; at least one slowed down to ask the officers what was going on. Although the officers were able to observe marching and chanting, from their vantage point they could not hear anything said by participants in the rally. After approximately fortyfive minutes to an hour, the two officers observed Klan members lighting the cross. By every account, it was an imposing fire. At this point, Sheriff Manning had seen enough. He instructed Sergeant Clark to contact an officer at the sheriff’s office headquarters and ask the officer to look up the state law on cross burning. While the sheriff knew that Virginia did have a law, he was not familiar with exactly what it said. A sheriff’s officer called back and advised the sheriff and Sergeant Clark that there was a violation of the section of the code prohibiting the burning of a cross. Over the radio, the text of the cross-burning law was read to Sergeant Clark, who repeated it to the sheriff. The law seemed pretty easy to understand. In Virginia, it is a crime to burn a cross. The sheriff informed Sergeant Clark that they would need to enter the rally and speak to those responsible for the cross burning, stating that they needed to ‘‘explain to them that they cannot do this in the State of Virginia.’’ The sheriff and Sergeant Clark approached the cross-burning scene and asked those participating who was responsible. Barry Black stepped forward and explained that he was the head of the rally and the person responsible. The sheriff then explained, ‘‘There’s a law in the State of Virginia that you cannot burn a cross, and I’ll have to place you under arrest Cross Burning

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for this.’’ The sheriff testified that there were no overtly threatening gestures or signs made by members of the Klan at the rally, that no weapons were observed, and that he did not perceive any threat of imminent bodily injury from the act of the burning of the cross or feel that he was going to be attacked. Sergeant Clark’s testimony tracked the testimony of Sheriff Manning. The sergeant added that when taken into custody, Barry Black asked the sergeant, ‘‘When is the white man going to stand up to the blacks and Mexicans in this area?’’ Sergeant Clark also testified that Black said he had been led to believe that ‘‘Blacks and Mexicans were walking up and down the sidewalk with white women holding hands and taking all the jobs.’’ Sergeant Clark had replied to this statement with the wry observation that there ‘‘weren’t any sidewalks in Cana, Virginia.’’ When David Baugh asked Sergeant Clark if he was familiar with the Klan ritual of burning crosses, Sergeant Clark stated that he ‘‘was surprised to see it in Carroll County.’’ When Baugh asked pointedly if he felt ‘‘threatened by their actions,’’ Sergeant Clark answered simply that he felt ‘‘moral outrage.’’ When Baugh asked if Clark felt threatened for his personal safety, he admitted that he did not. The third witness called by the Commonwealth was Rebecca Sechrist. She testified: ‘‘They were real, they were real, talked a lot about blacks— and I don’t call them the word they called it, they called it, it started with an N and I don’t, I don’t use that word, I’m sorry—but they talked real bad about the blacks and the Mexicans and they talked about how, one guy got up and said that he would love to take a .30 / .30 and just random shoot the blacks and the Mexicans back from where they come from and talked about President Clinton and Hillary Clinton and about the government funding money for the, for the people that can’t afford housing and stuff and if they, their tax, how their tax paying goes to keep the black people up and stuff like that.’’ The jury found Black guilty and sentenced him to a $2,500 fine. So the trial was lost, contrary to what David and I had expected. The judge seemed unmoved by our First Amendment claims, and the jury seemed unmoved by any sympathy toward Barry Elton Black. We filed our appeal. Unbeknown to us, at roughly the same time as these events another set of cross-burning prosecutions were under way at the opposite end of the state, arising from an incident in Virginia Beach in 1998. Richard J. Elliott and Jonathan O’Mara were on trial for a very different kind of cross burning. James Jubilee, an African American, was a neighbor of Elliott. Jubilee complained to Elliott about the discharge of firearms in Elliott’s backyard. After discussing Jubilee’s complaint with O’Mara and a third person, 156

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David Targee, at a party at Targee’s home, Elliott, O’Mara, and Targee hastily constructed a small wooden cross in Targee’s garage. They went to Jubilee’s home, planted the cross in his backyard, and lit the cross. Jubilee found the charred remains of the cross when he awoke the following morning. No one in the Jubilee family actually witnessed the burning of the cross. Pursuant to a plea agreement, O’Mara pleaded guilty to attempted cross burning and conspiracy to commit cross burning. He was sentenced to ninety days in jail and a $2,500 fine on each charge, with part of the time and fines suspended. Under the plea agreement, O’Mara retained the right to appeal the constitutionality of Virginia’s cross-burning law. Elliott was also charged with attempted cross burning and conspiracy to commit cross burning. Upon his plea of not guilty, a jury found him guilty of attempted cross burning, but not guilty of conspiracy. Elliott was sentenced to ninety days in jail and fined $2,500. O’Mara and Elliott were represented by experienced and very able defense attorneys, Kevin Martingayle and James O. Broccoletti. O’Mara and Elliott appealed their convictions to the Virginia Court of Appeals, the intermediate appellate court in Virginia, at roughly the same time that David Baugh and I presented our appeal to the same court on behalf of Barry Elton Black. O’Mara’s and Elliott’s appeals were heard by a three-judge panel, while our appeal on behalf of Black was heard by a different three-judge panel sitting in Salem, near Roanoke, in the western part of the state. I thought our argument before the court went well. Although an advocate never knows for sure what the judges may be thinking, from the tenor of the questions I received and the reception that my arguments seemed to garner, I walked away from the argument with an instinct that Black’s conviction would be overturned. Wrong again. The Court of Appeals in O’Mara’s and Elliott’s cases affirmed their convictions before the judges hearing Black’s case issued a ruling. This meant that the panel of judges hearing Black’s case was bound by the results in O’Mara’s and Elliott’s. The Court of Appeals thus affirmed Black’s conviction, stating simply, ‘‘For the reasons stated in O’Mara v. Commonwealth, we affirm the judgment of the trial court.’’ For the first time, the two cross-burning cases became legally intertwined. They were to stay that way. The Supreme Court of Virginia heard oral arguments in the Black, O’Mara, and Elliott cases on the same day, 10 September 2001. I represented Black, and Kevin Martingayle and James Broccoletti represented Elliott and O’Mara. All three defendants made the same principal arguments: that the Virginia law was unconstitutional ‘‘viewpoint discriminaCross Burning

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tion,’’ that the law failed to incorporate First Amendment standards governing incitement to violence, and that the law’s prima facie evidence provision created an unconstitutional presumption that chilled freedom of speech. The arguments were animated and intense. The justices on the Virginia Supreme Court seemed especially interested in the connection between hateful speech and hateful violence. My central theme was that the First Amendment does not permit society to equate the two, and that as hateful and repulsive as cross burning might be, it was in the end merely an expression of hatred, not an act of violence or an intrinsic incitement or threat, and therefore had to be protected under the First Amendment. None of us could have known, of course, that the very next day, 11 September 2001, the terrorist attacks on the World Trade Center and the Pentagon would transform our national consciousness. The attacks appeared to be a quintessential example of how hateful speech could evolve into hateful violence on a massive scale. I felt at the time, and I still feel, that the events of that day, along with other events in our history and culture, strongly influenced the ultimate resolution of the case. The Supreme Court of Virginia issued its opinion in November of 2001. By a 4–3 vote, the Court struck down Virginia’s cross-burning law. In a majority opinion that combined the Black, Elliott, and O’Mara cases in one joint ruling, Justice Donald Lemons accepted the core of our argument, that the Virginia law was tainted by ‘‘viewpoint discrimination.’’ He also accepted one of our secondary arguments, that the law’s prima facie evidence provision rendered the law overly broad, chilling the exercise of free speech rights by making any act of cross burning, even one that was not intended as an act of intimidation, presumptively illegal. Justice Leroy Hassell, now the chief justice of Virginia, wrote a strong dissent. Among Justice Hassell’s arguments was that cross burning was really nothing more than a vehicle of domestic terrorism. For the first time in the case, our free speech arguments had found a sympathetic judicial forum. What had always seemed to me a straightforward application of the First Amendment had finally achieved fruition. We had won, I thought. The case was over. Wrong again. The Commonwealth of Virginia sought review in the Supreme Court of the United States. The petition gathered support from a number of other states and from the solicitor general’s office representing the United States. To my surprise, the Court granted review. All bets were off. Kevin Martingayle, James Broccoletti, and I petitioned the Court for the right to divide our argument between the two cross-burning incidents, on the 158

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theory that O’Mara’s and Elliott’s cases were sufficiently different from Black’s to justify separate advocates. The Court denied the motion, however, and it was agreed among us that I would undertake to draft our joint brief and to present the oral argument on behalf of all three defendants. In both the U.S. Supreme Court and the Supreme Court of Virginia, our attack on the Virginia law relied heavily on a Supreme Court precedent from 1992, entitled R.A.V. v. City of St. Paul.≤ In R.A.V. the Court struck down an ordinance enacted by the city of St. Paul, Minnesota, that provided: ‘‘Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.’’≥ The Court held that the ‘‘ordinance goes even beyond mere content discrimination, to actual viewpoint discrimination.’’∂ It was my strategy to convince the U.S. Supreme Court that Justice Lemons and the Supreme Court of Virginia were correct in holding that the Virginia cross-burning law suffered from the same constitutional infirmities as the law struck down in R.A.V. Of all the objects in the world that might be set on fire, Virginia’s law selected a burning cross for unique treatment. At the highest level of abstraction, a cross is an object or symbol of a particular shape: a vertical pole traversed by a horizontal bar. There is nothing peculiarly potent or dangerous about this geometric configuration. It is not the fire that burns hotter when flaming sticks are crossed, I argued, but the passions that the fire inflames. Virginia, of course, saw things differently. In its view, viewpoint and content discrimination exist only in laws that single out an identifiable perspective on the ideological or political spectrum. Virginia thus viewed the Court’s condemnation of content-based and viewpoint-based discrimination in R.A.V. as residing exclusively in the language of the St. Paul ordinance requiring that the symbolic speech (such as burning a cross) be of the type ‘‘which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.’’ To counter this claim, we argued that content and viewpoint discrimination may reside in laws that target a specific symbol, such as the cross, or a specific expressive ritual, such as the burning of a cross. To deny that a law targeting a symbol may be content- or viewpointbased is to deny the central role that symbols play in human communication, we maintained, and the central place of symbolic speech in First Amendment jurisprudence. Cross Burning

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Certain symbols—the American flag, the Star of David, the cross, the swastika—exude powerful magnetic charges, positive and negative, and are often invoked to express beliefs and emotions high and low, sublime and base, from patriotism, faith, or love to dissent, bigotry, or hate. Symbolic expression is often combined with group expression such as sit-ins, meetings, marches, or rallies. Symbolic expression may be relatively simple and passive, such as the wearing of a black armband to protest the war in Vietnam. Quite often, however, symbolic expression is far more incendiary and graphic. Symbolic expression may involve either the consecration or the desecration of a symbol. A flag may be proudly waved or angrily defiled, a cross may be reverently worshiped or wrathfully burned. The destruction or defilement of a symbol is often the method through which a speaker communicates the intensity of the message, which may frequently be a message defiant of authority or disrespectful of mainstream values and sensibilities. Cross burning is a shorthand, we maintained, as all symbolic speech is a shorthand, speaking heart to heart and mind to mind. The central principle animating the First Amendment is that the government may not censor speech on the basis of viewpoint, and this principle is as important in the context of symbols as it is in the context of language. Cross burning, like flag burning, is undoubtedly offensive and disturbing to most citizens. But this offensiveness is not unique to the graphic use of symbols. Many ideas are also offensive to most citizens. The Constitution protects not only the analytic vocabulary of the mind but the inarticulate speech of the heart. For its part, Virginia insisted that cross burning was unique. Given the unique history of cross burning, particularly its appropriation by the Ku Klux Klan, cross burning was routinely understood as an illegal threat of violence. I did not contest the claim that cross burning could be a form of threat, nor did I contest that it had often been used as a form of threat by the Ku Klux Klan. What I did contest was the assertion that it was always such a threat. As I saw it, Virginia seemed to believe that it could browse the universe of symbols, passing laws targeting those it did not like. Yet a burning cross, I maintained, could not be made a form of expressive contraband. The state could not by fiat brand this one symbol as taboo, eliminating its use in social discourse. The government may no more single out a burning cross for especially disfavorable legal treatment, I argued, than it could single out a burned or mutilated American flag, or the likeness of Osama bin Laden, or a swastika. To go down the road suggested by Virginia would be perilous business, I claimed, for if the government were permitted to select one symbol for banishment from public discourse, 160

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there would be few limiting principles to prevent it from selecting others. It is but a short step from the banning of offending symbols such as burning crosses or flags to the banning of offending words. A word is, after all, but a symbol itself, in the words of Justice Oliver Wendell Holmes, ‘‘the skin of a living thought.’’∑ The strongest argument made by Virginia was that the Virginia law required an intent to intimidate. Since there is no First Amendment right to threaten or intimidate another person, the highly seductive argument went, it followed that there could be no First Amendment right to burn a cross with the intent of intimidating another. As support for this argument, Virginia pointed to a passage in the R.A.V. opinion in which the Court had endorsed the notion that federal statutes criminalizing threats against the president did not violate the First Amendment. In a remarkable passage, Virginia in its brief actually placed in bold typeface the ‘‘message’’ that it claimed was communicated by cross burning: We may kill you, or hurt you badly. Believe it. We have already come to your home, and we have done this hateful and dangerous thing in front of you. So, we don’t just talk. We act. Next time we may torch your home. Or bomb your car. Or shoot into your windows. No one stopped us when we burned the cross. No one will stop us next time either. Fear us. Virginia then argued that because this message, apparently endemic to cross burning, was ‘‘especially virulent,’’ it was validly outside the scope of the Court’s ruling in R.A.V. I knew that if we lost the case, it would be this line of argument that would cause us to lose it. We had three principal counters to this line of attack. First, we claimed, the First Amendment doctrine forbidding viewpoint discrimination applied even to laws that are grounded in otherwise illegal action, such as laws criminalizing threats or intimidation. A law banning fighting words is permissible, but not a law banning ‘‘racist fighting words.’’ A law banning intimidation is permissible, but not a law banning ‘‘intimidationthrough-cross-burning.’’ Try as it might, we argued, the state simply could not read the burning cross out of its cross-burning law. Even cross-burning laws that were otherwise constitutional violated the First Amendment— simply and completely because they were cross-burning laws. Any suggestion that cross burning is intrinsically intimidating, we insisted, was a play on words. It may well be that most Americans of good will are repulsed by the sight of a burning cross, as they are repulsed by the sight of a burning flag. In a general sense, many persons might describe their emotions prompted by the sight of a burning cross (or other rituals of the Ku Cross Burning

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Klux Klan or similar groups) as filling them with ‘‘fear’’ or ‘‘loathing.’’ Many might say that they feel ‘‘intimidated’’ or ‘‘scared’’ by such rituals, as did Mrs. Sechrist, a witness who testified in Black’s trial. Members of groups that have been the special target of the Klan’s bigotry or violence may well feel these emotions with special poignancy and intensity. Yet this is not the kind of disturbance from which citizens in this society may demand the law’s shelter. Our second strategy was to drive home the point that neutral laws were perfectly capable of handling society’s interests in preventing criminal acts such as threats or intimidation. I wanted to make sure that the Court did not think we were in denial. We did not dispute the reality that cross burning had long been a well-recognized ritual of the Ku Klux Klan, a symbol with intense political and religious resonance, often communicating hatred. Nor did we dispute that the Klan and others at times engaged in cross burning as a prelude to violence or as a form of threat. What I vigorously maintained, however, was that the laws ‘‘already on the books,’’ as well as other laws that might be added—laws that did not target any specific symbol or set of words or ideas—were perfectly up to the task of dealing with such evil. Indeed, I pointed out, Virginia had itself recently enacted a content-neutral alternative to its cross-burning statute, a law that avoided any mention of cross burning but merely prohibited intimidation effectuated through the burning of ‘‘an object.’’ There were no valid governmental interests underlying cross-burning statutes, I maintained, that could not be vindicated through such content-neutral criminal laws. Indeed, hate crime laws, singling out for special punishment conduct undertaken out of biased motivation, are constitutional, because they do not target expression but motivation. The cross is a communicative symbol, highly charged with religious, historical, social, and political meanings. The burning of a cross, like the burning of the flag, or the effigy of a political leader, intentionally plays on those religious, historical, social, and political meanings to add emotional and psychological intensity to the message, a message likely to be seen by many onlookers as perversion, blasphemy, or sacrilege. Admittedly, it may also be seen, in a given time and place, as a true threat. It could plausibly be maintained, we argued, that every act of cross burning is a threat. To put the point another way, compare a law targeting threats against the president with a law targeting threats accomplished through cross burning. The two are not equivalent. The law targeting threats against the president creates a subclass within the broad category of threats geared to the identity of the intended victim—the president—and grounded in the policy judgment that such a threat is especially dangerous 162

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and damaging to the polity. The presidential threat law contains no additional and gratuitous reference to any particular symbol or message; it bans all threats directed at one identified victim. Indeed, the law does not target expression as such, but merely targets the conduct of threatening a specific target, the president. Our third strategy was to attack the Achilles heel of the Virginia law, the prima facie evidence provision. The core flaw of the provision, we maintained, was that it short-circuited the central First Amendment distinction between violent expression and violent action, effectively extracting the teeth from the required intent to intimidate, transforming the intent element into a ‘‘now you see it now you don’t’’ requirement. Under the Virginia statute, law enforcement officers, prosecutors, trial judges, and juries were instructed that nothing beyond the mere burning of the cross was required to sustain an arrest, prosecution, or conviction. This contravened the First Amendment in a deeply offensive way, we maintained, permitting the government to ‘‘brand’’ certain speech as presumptively taboo in public discourse, attaching legal penalties to its mere utterance or display. It was raining heavily in Washington on the morning of the oral argument. As the cab brought members of my family and me to the courthouse, we were heard on National Public Radio in a report by Nina Totenberg, previewing the case. She had interviewed me days before, and as the cab pulled up to the Court building, I heard myself expounding on the radio. I remember wondering if any of the Justices listened to Nina and npr. There were other reports on the news that day. The Supreme Court had just announced that it would hear the two University of Michigan affirmative action cases, Grutter v. Bollinger∏ and Gratz v. Bollinger,π and the day of the argument the world was imploding around Senator Trent Lott, who had offended a large part of the nation by loose remarks made at a tribute to Senator Strom Thurmond in which Lott suggested that Thurmond’s segregationist Dixiecrat campaign for president had been a righteous cause. The history of American race relations present and past permeated the day’s news. So did the haunting wisdom of William Faulkner, that the past is never dead—it isn’t even past. From my perspective, the oral argument began well enough. The justices hammered William Hurd, Virginia’s solicitor, questioning him sharply about the operation of the prima facie evidence provision. They also zeroed in on the jury instruction in the Black case, in which the trial judge had told jurors that they could infer an intent to intimidate from the mere act of cross burning. When Hurd finished, Michael Dreeben from the solicitor general’s office argued on behalf of the United States, which had been Cross Burning

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granted ten minutes of time in support of Virginia. Dreeben focused on federal statutes that were used to prosecute cross burning. I felt that his argument actually helped our side more than Virginia’s because the federal statutes were content-neutral. If the federal statutes were working, why was it necessary to go beyond them, engaging the Virginia approach which singled out a particular symbol? Dreeben had about a minute to go in his argument, a minute before I was scheduled to step to the podium, and I was feeling good. Then it happened. Dreeben was describing cross burning as a form of threat, when suddenly, from nowhere, Justice Thomas spoke. In a deep, booming voice, shaking with emotion, Thomas criticized Dreeben for talking about cross burning as a form of threat. For a split-second, I thought he was making a point for my side, but only for a split-second. Thomas was frustrated with Dreeben not because he thought Dreeben was overstating the meaning of cross burning, but rather because he was understating it. To describe the Klan’s use of the burning cross as a form of threat was to trivialize the matter. As Justice Thomas saw it, cross burning is nothing less than the embodiment of the Klan’s reign of terror: Now, it’s my understanding that we had almost 100 years of lynching and activity in the South by the Knights of Camellia and—and the Ku Klux Klan, and this was a reign of terror and the cross was a symbol of that reign of terror. . . . Well, my fear is, Mr. Dreeben, that you’re actually understating the symbolism on—of and the effect of the cross, the burning cross. I—I indicated, I think, in the Ohio case that the cross was not a religious symbol and that it has—it was intended to have a virulent effect. And I—I think that what you’re attempting to do is to fit this into our jurisprudence rather than stating more clearly what the cross was intended to accomplish and, indeed, that it is unlike any symbol in our society. . . . And I—I just—my fear is that the—there was no other purpose to the cross. There was no communication of a particular message. It was intended to cause fear . . . and to terrorize a population. In all my life as an advocate and observer of legal proceedings, I have never seen the mood in a courtroom change so suddenly and dramatically. The impact of Justice Thomas’s remarks was palpable and physical. Justice Breyer, who sat next to Thomas on the bench, drew closer to him, putting an arm on his back in a gesture of collegial respect and good will. Justice Scalia, who sat on the opposite side of Thomas but nearly facing him (because of the curvature of the bench), seemed to viscerally connect with his fellow justice, nodding in agreement as he spoke. By my preliminary 164

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reckoning, Justices Scalia and Thomas had been the two surest votes for our side. Scalia was the author of R.A.V., our strongest precedent. Thomas had joined in the R.A.V. opinion. Thomas had also written an opinion on cross burning that explained how the Klan had used it as a political and social symbol of racial supremacy. These were the last two justices whom I would have expected to be against us. Suddenly, in the space of a minute, they seemed the two justices most hostile to our position. It was time for me to start. In the few seconds that it took to rise from my seat and walk a few feet to the podium, I had to make an advocate’s instant decision. Should I open by returning to the prima facie evidence provision, the ground on which it appeared Hurd and Dreeben had been hit hard, shifting focus away from what Justice Thomas had said? Or should I pick up matters where Justice Thomas had left them? Thomas had reached down into the emotional soul of the case. He had spoken with extraordinary passion, and his words had obviously affected everyone in the room, particularly his eight fellow justices. For me it was an easy choice. Thomas had taken us to the core. It would have been phony and false not to go there with him and engage his point. I opened my argument by looking squarely and respectfully at Justice Thomas, and then the rest of the Court. I made no attempt to deny the awful legacy of the Ku Klux Klan, and the many evil connotations that most Americans of good will associate with cross burning. Even so, I insisted, cross burning is a form of symbolic expression protected by the First Amendment. Thirty minutes then whizzed by in about thirty seconds. I later looked at the transcript and counted something like seventy questions. They were all, essentially, variations on one theme: given the accuracy of Justice Thomas’s history, why should cross burning be protected under the First Amendment? At one point in the argument, I tried to conjure the hypothetical demonstration that I had imagined, years before, the day I first encountered the case at that aclu meeting in Richmond. What was the difference, I asked rhetorically, between burning a torch and burning a cross? ‘‘One hundred years of history!’’ snapped Justice Kennedy. The courtroom erupted in appreciative laughter. I nodded in respectful assent. ‘‘Exactly, Justice Kennedy,’’ I said, ‘‘and that one hundred years of history is on the side of freedom of speech.’’ I was in the middle of teaching my first-year class in constitutional law at the University of Richmond School of Law when the Supreme Court rendered its decision in Virginia v. Black.∫ I learned of the Court’s ruling when a student approached me after class asking if I had seen the news reports. Cross Burning

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‘‘No,’’ I said, caught off guard. ‘‘Did my side win or lose?’’ ‘‘I don’t know,’’ the student replied. ‘‘I can’t tell.’’ After several readings, I couldn’t tell either. In a plurality opinion written by Justice O’Connor and joined by Chief Justice Rehnquist, Justice Stevens, and Justice Breyer, the Court affirmed the ruling of the Virginia Supreme Court holding that Barry Elton Black’s conviction violated the First Amendment. The plurality did not find convincing our sweeping attack on the Virginia law, however, instead basing its ruling on the unconstitutionality of the prima facie evidence provision. The plurality also held that a state could enact a cross-burning statute that would be consistent with the First Amendment, if it were limited to cross burning as a threat or act of intimidation and if it contained no prima facie evidence provision like that in the Virginia statute. As I read the plurality opinion, I saw the influence of Justice Thomas’s remarks on the case. Thomas, as it turns out, was a lone dissenter. But even though Justice Thomas did not prevail according to a simple head count or even as a matter of formal legal doctrine, in spirit I believe that he largely did. In his passionate remarks from the bench, Justice Thomas had not talked about anything in the judicial record or in the received body of First Amendment law. He had talked entirely about history. In the end, that was mostly what the plurality opinion of Justice O’Connor talked about. It was all about history. The plurality opinion thus began its discussion with an extended review of the history of cross burning in America and its association with the Ku Klux Klan. Cross burning, the Court noted, originated in the fourteenth century as a means for Scottish tribes to signal each other. Sir Walter Scott used cross burnings for dramatic effect in The Lady of the Lake, where the burning cross signified both a summons and a call to arms. In America, however, cross burning is ‘‘inextricably intertwined with the history of the Ku Klux Klan.’’ The first Ku Klux Klan began in Pulaski, Tennessee, in the spring of 1866. Although the Ku Klux Klan started as a social club, it soon changed into something far different. The ‘‘first Klan’’ fought Reconstruction and the corresponding drive to allow freed blacks to participate in the political process. Soon the Klan imposed ‘‘a veritable reign of terror’’ throughout the South. The original Klan, however, did not engage in cross burning. Justice O’Connor’s plurality opinion observed the brutality of the Klan and its use of tactics such as whipping, threatening to burn people at the stake, and murder. The Klan visited its viciousness on a wide range of victims, including African Americans, Jews, Catholics, southern whites who disagreed with the Klan, and ‘‘carpetbagger’’ northern whites. 166

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Nearly from its inception, the violence of the Ku Klux Klan drew government attention and fomented legislative responses. President Grant sent a message to Congress indicating that the Klan’s reign of terror in the southern states had rendered life and property insecure. Congress passed what became known as the Ku Klux Klan Act.Ω President Grant used his new powers to move against the Klan. By the end of Reconstruction in 1877, the ‘‘first Klan’’ had been effectively wiped out. The second appearance of the Klan had its origins in the publication of Thomas Dixon’s book The Clansman: An Historical Romance of the Ku Klux Klan (1905).∞≠ The Clansman was a sympathetic portrait of the first Klan, a portrait that made Klansmen look like heroes who saved the South from black people and the perceived ‘‘horrors’’ of Reconstruction. Even though the first Klan never actually practiced cross burning, Dixon in his book depicted the first Klan burning crosses to celebrate the execution of former slaves. This depiction began the association of the Klan with cross burning. D. W. Griffith’s movie The Birth of a Nation (1915) was based on Dixon’s book. Cross burning, a powerful visual image, took on a central role. There were cross-burning scenes in the movie, and a publicity poster for The Birth of a Nation depicted a hooded Klansman riding a hooded horse, his left hand holding the reins and his right hand holding a burning cross above his head. With the release of The Birth of a Nation the Klan was reborn. The second Klan, following the mythology of the movie, became heavily associated with cross burning. As the plurality in Virginia v. Black saw it, the second Klan used cross burnings ‘‘to communicate both threats of violence and messages of shared ideology.’’ The second Klan’s first initiation ceremony occurred near Atlanta. A forty-foot cross was burned on Stone Mountain, as Klan members took their oaths of loyalty. The second Klan was not much different in its hateful racist ideology from the first. White supremacy was the core belief. The second Klan was also horribly violent. A newspaper in New York in 1921 documented 152 acts of Klan violence, including 4 murders, 41 floggings, and 27 tar-andfeatherings. Threats and intimidation are a large part of this history. Crosses were burned to silence opponents, to frighten away blacks, Jews, Catholics, and labor unions, and to deter integration, housing projects, and any other social policies loathed by Klan members. The actions of the Klan continued after the Second World War. The desegregation decision of the Supreme Court in Brown v. Board of Education∞∞ and the civil rights movement of the 1950s and 1960s saw the Klan’s opposition to racial equality escalate and precipitated more Klan violence, including bombings, beatings, shootings, stabbings, and mutilations. It was against this Cross Burning

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national backdrop, the plurality in Black observed, that Virginia enacted its original version of its cross-burning statute in the 1950s. The plurality opinion in Black also appeared to recognize that the crossburning ritual has a meaning that is not only directed externally, to those outside the Klan, but also internally, to other Klan members, as a symbol of identity and shared beliefs. Indeed, the Klan has often published newsletters and magazines under the name The Fiery Cross, and posters advertising a Klan rally often featured a Klan member holding a cross. A cross burning will often start with a prayer by the ‘‘Klavern’’ minister, followed by the singing of a hymn such as Onward Christian Soldiers or The Old Rugged Cross, or, as in the rally in the Black case, Amazing Grace. Thus for Klan members the burning cross was often a sign of celebration and ceremony. The plurality in Black noted, for example, that during a joint Nazi-Klan rally in 1940, the proceeding concluded with the wedding of two Klan members who were married in full Klan regalia beneath a blazing cross. Often the cross-burning ritual is also a form of political protest. In addition, the Klan has used cross burning as a recruiting tool at rallies. In 1960 the Klan became a presidential campaign issue in the third debate between Richard Nixon and John Kennedy, with both candidates renouncing the Klan. The Klan reiterated its support for Nixon by burning crosses. The plurality in Black thus concluded by noting that ‘‘a burning cross has remained a symbol of Klan ideology and of Klan unity.’’∞≤ The plurality in Black also noted that cross burning, whether engaged in for political expression or to express intimidation, is widely perceived as a symbol of hatred, at times conveying intimidation and nothing else: ‘‘when a cross burning is directed at a particular person not affiliated with the Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a fear of bodily harm.’’∞≥ With this discussion of the nature and history of cross burning as its predicate, the plurality in Black turned to the First Amendment issues. ‘‘The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting.’’ Thus, the plurality observed, ‘‘the First Amendment ‘ordinarily’ denies a State ‘the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.’ ’’∞∂ So too, the plurality conceded, the First Amendment protects symbolic speech. The plurality held, however, that the First Amendment is not absolute: ‘‘we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.’’ Thus, the plu-

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rality reasoned, ‘‘[t]he First Amendment permits ‘restrictions upon the content of speech in a few limited areas, which are ‘‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’’ ’ ’’ Thus ‘‘a State may punish those words ‘which by their very utterance inflict injury or tend to incite an immediate breach of the peace.’ ’’ The Court, the plurality noted, had ‘‘consequently held that fighting words—‘those personally abusive epithets which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently likely to provoke violent reaction’—are generally proscribable under the First Amendment.’’∞∑ Similarly, the plurality asserted, under the Brandenburg v. Ohio standard, ‘‘the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’’∞∏ Most importantly, the plurality held, the First Amendment permits the government to ban a ‘‘true threat.’’ ‘‘True threats’’ are statements through which ‘‘the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.’’ In a key passage, the plurality elaborated: ‘‘The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats ‘protect[s] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘from the possibility that the threatened violence will occur.’ Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death. Respondents do not contest that some cross burnings fit within this meaning of intimidating speech, and rightly so. As noted in Part II, supra, the history of cross burning in this country shows that cross burning is often intimidating, intended to create a pervasive fear in victims that they are a target of violence.’’∞π Having established that sometimes cross burnings are true threats and sometimes not, the plurality then turned to the meaning of R.A.V. The plurality refused to accept the broad reading of R.A.V. that I had advanced and that had been accepted by the Virginia Supreme Court. In a passage that seemed to trim the sails of R.A.V., the plurality expanded: ‘‘We did not hold in R.A.V. that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech. Rather, we specifically stated that some types of content discrimination did

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not violate the First Amendment.’’∞∫ Under R.A.V., the plurality reasoned, it would be constitutional to ban only a particular type of threat, such as a threat against the president. So too, the plurality reasoned, under R.A.V. ‘‘a State may ‘choose to prohibit only that obscenity which is the most patently offensive in its prurience—i.e., that which involves the most lascivious displays of sexual activity.’ ’’ Consequently, the plurality claimed, while the holding of R.A.V. does not permit a state to ban only obscenity based on ‘‘offensive political messages,’’ or ‘‘only those threats against the President that mention his policy on aid to inner cities,’’ the First Amendment permits content discrimination ‘‘based on the very reasons why the particular class of speech at issue . . . is proscribable.’’∞Ω The plurality thus saw the Virginia cross-burning law as different in kind from the R.A.V. ordinance. Virginia’s statute, the plurality held, does not run afoul of the First Amendment insofar as it bans cross burning with intent to intimidate. Unlike the statute at issue in R.A.V., the plurality reasoned, ‘‘the Virginia statute does not single out for opprobrium only that speech directed toward ‘one of the specified disfavored topics.’ ’’ ‘‘It does not matter whether an individual burns a cross with intent to intimidate because of the victim’s race, gender, or religion, or because of the victim’s ‘political affiliation, union membership, or homosexuality.’ ’’≤≠ The plurality thus accepted the argument that the First Amendment allows Virginia to treat cross burning as an especially virulent form of intimidation. In the plurality’s view, it would be possible under the First Amendment for a state to pass some kind of cross-burning law; however, the law that Virginia passed was not constitutional because of the provision stating that ‘‘[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons.’’ This, the plurality held, was beyond what the Constitution would allow, at least if it would permit a jury to find the intent to intimidate with no actual evidence of such intent beyond the burning cross itself. The plurality held that if this was the meaning of the prima facie evidence provision, it was unconstitutional. Because in Black’s case the jury had actually been instructed that it could find the evidence of intent to intimidate from the act of cross burning alone, Black’s conviction was an unconstitutional violation of the First Amendment.≤∞ However, in neither Elliott’s case nor O’Mara’s had such an instruction been given. The plurality held that because the role of the prima facie evidence provision in these cases was thus more ambiguous, their convictions had to be remanded for reconsideration by the Supreme Court of Virginia, to determine the meaning of the prima facie evidence provision and whether it was severable from the rest of the statute. 170

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The plurality concluded: ‘‘The act of burning a cross may mean that a person is engaging in constitutionally proscribable intimidation, or it may mean only that the person is engaged in core political speech. The prima facie evidence provision blurs the line between these meanings.’’ ‘‘As the history of cross burning indicates,’’ the plurality elaborated, ‘‘a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself.’’ Among other contexts, ‘‘cross burnings have appeared in movies such as Mississippi Burning and in plays such as the stage adaptation of Sir Walter Scott’s The Lady of the Lake.’’≤≤ Because the prima facie provision of the Virginia law made no effort to distinguish among these different types of cross burnings, the plurality held, because it did not distinguish between a cross burning done with the purpose of creating anger or resentment and a cross burning done with the purpose of threatening or intimidating a victim, or distinguish between a cross burning at a public rally and a cross burning on a neighbor’s lawn, it violated the First Amendment. The Virginia statute did ‘‘not treat the cross burning directed at an individual differently from the cross burning directed at a group of like-minded believers.’’ The Virginia law, the plurality observed, allows a jury to treat ‘‘a cross burning on the property of another with the owner’s acquiescence in the same manner as a cross burning on the property of another without the owner’s permission.’’≤≥ In an important victory for freedom of speech, the plurality admonished: It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not sufficient to ban all cross burnings. As Gerald Gunther has stated, ‘‘The lesson I have drawn from my childhood in Nazi Germany and my happier adult life in this country is the need to walk the sometimes difficult path of denouncing the bigot’s hateful ideas with all my power, yet at the same time challenging any community’s attempt to suppress hateful ideas by force of law.’’ Casper, Gerry, 55 Stan. L. Rev. 647, 649 (2002) (internal quotation marks omitted). The prima facie evidence provision in this case ignores all of the contextual factors that are necessary to decide whether a particular cross burning is intended to intimidate. The First Amendment does not permit such a shortcut.≤∂ Justice Souter, in an opinion joined by Justices Kennedy and Ginsburg, saw things differently. Those three justices would have affirmed the decision of the Supreme Court of Virginia as to all three defendants, accepting Cross Burning

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the arguments we advanced, the arguments so well articulated by Justice Donald Lemons in the Supreme Court of Virginia. Justices Scalia and Thomas, defecting from their positions in R.A.V., would have gone well beyond the plurality. Echoing the ‘‘reign of terror’’ theme of his remarks during oral argument, Justice Thomas would have been willing to allow a state to attack all cross burnings, and to permit a state to employ a prima facie evidence provision, and would have affirmed all three convictions.≤∑ Justice Scalia wrote primarily to express the view that the prima facie evidence provision was probably a mere permissible inference of the sort that in his view would not violate the First Amendment. So who won and who lost? I had a difficult time, when it was all over, even thinking of the case in those terms. It was not about winning and losing. One of my clients, Barry Elton Black, had been cleared. His conviction had been reversed on First Amendment grounds with seven justices (everyone but Justices Thomas and Scalia) agreeing with at least one of the arguments we had advanced, that at a minimum the conviction was void because of the unconstitutionality of the prima facie evidence provision. Three justices would have gone all the way, accepting the more sweeping First Amendment claims we had made. Yet two of my other clients, Elliott and O’Mara, were still in the soup. Their cases were remanded and their fates left in doubt. Because I believed then and believe now that the statute under which they were convicted cannot be squared with First Amendment principles, I felt that the Court’s decision as to them was wrong, and I regretted that as an advocate I had not been able to persuade a clean majority to strike down the entire Virginia statute. A learned colleague from another law school called me a few weeks after the decision to discuss the case. He had been conversing with a number of people who had witnessed the oral argument, and their consensus after reading the opinion was, he said, ‘‘Justice Thomas hijacked your case.’’ I laughed at this and expressed agreement at the time, but on a sober second thought I no longer see things that way. I don’t think that Justice Thomas hijacked the case. He just caused it to change course. I believe he spoke from the heart, and in some basic elemental way he spoke the country’s heart, even mine in a way. In my head he was dead wrong, but in my heart I must say I understand. The fact is that legal disputes are not just about logic and legal doctrine and precedent. We all know they are more than that. We teach that lesson, but it is one that we often still forget. To the average people who read the headlines the next day, the result in Virginia v. Black probably made a lot of simple common sense. Those folks do not know or care about legal 172

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constructs like ‘‘viewpoint discrimination’’ or ‘‘content-neutrality.’’ They get the distinction, on a gut level, between a bunch of Klan crazies marching around on a farm burning crosses and chanting, and two people burning a cross in someone’s back yard. I still believe that the ‘‘better result’’ from a perspective of ‘‘legal purity’’ would have been to strike down the Virginia law, forcing the state to prosecute acts of cross burning under neutral threat laws, but the legal system is not so pure, and who would really want it so? It is human enterprise, an amalgam of logic, principle, doctrine, philosophy, morals, emotion, experience, and history. In this case, it is history. The same friend asked me, in light of the whole intense experience, if I would ever want to do it again. I smiled longingly. ‘‘Are you kidding me?’’ I said. ‘‘I wish I were arguing again tomorrow.’’

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CHAPTER NINE

Given the small number of cases that the U.S. Supreme Court actually decides each year (about eighty), it is striking that so many involve the constitutionality of criminal convictions in state courts. There is a reason for this: one of the hallmarks of the American constitutional system is that those charged with criminal conduct enjoy a variety of protections, such as the right against self-incrimination, the right to be assisted by counsel, and the right to be free of cruel and unusual punishment. These protections serve as an important counterweight to public demands that criminal behavior be sanctioned swiftly and firmly. During the 1990s the legislatures of several states, including California, expressed their frustration with repeat criminal offenders by enacting what became known as ‘‘three strikes and you’re out’’ laws. Under these laws, third-time felony offenders can receive extraordinarily long sentences, even if their third felony offense is relatively minor. In 1995 Leandro Andrade shoplifted $153 worth of videotapes from two K-Mart stores in California. Ordinarily, Andrade’s shoplifting would have been regarded as the crime of petty theft, a misdemeanor, punishable by a fine or by a jail sentence of six months or less. But Andrade’s case was more complicated. Twelve years earlier, Andrade had committed three residential burglaries for which he had served two and a half years in prison. As a result two things happened when Andrade was prosecuted for shoplifting at K-Mart. First, Andrade was prosecuted not for petty theft but rather petty theft with a prior conviction for a property offense—

which in California is a felony punishable by three years in prison. Second, because of Andrade’s prior burglary convictions, his shoplifting constituted his ‘‘third strike’’ felony, throwing him into an entirely different sentencing structure. Upon being convicted of the two shoplifting offenses, Andrade received a life sentence with no possibility of parole for fifty years. The U.S. Supreme Court ultimately agreed to hear Andrade’s appeal, to decide whether his fifty-year sentence for shoplifting $153 worth of videotapes violated the ban on ‘‘cruel and unusual punishment’’ found in the Eighth Amendment to the U.S. Constitution. Erwin Chemerinsky, a law professor at the University of Southern California who is also one of the most distinguished constitutional law scholars and civil liberties litigators in the United States, was appointed to represent Andrade. Chemerinsky successfully argued in the U.S. Court of Appeals for the Ninth Circuit that Andrade’s sentence constituted cruel and unusual punishment, but the State of California appealed that decision to the U.S. Supreme Court. In this chapter, Chemerinsky describes the process of taking Andrade’s case to the Supreme Court, where he knew that the Court’s decision would depend on the votes, as in many cases, of Justices Sandra Day O’Connor and Anthony Kennedy. Chemerinsky considers Andrade’s case in the context of the Court’s precedents and concludes that his extraordinarily lengthy sentence did violate the Eighth Amendment’s ban on cruel and unusual punishment. At the end of the day, however, the ‘‘swing justices’’—O’Connor and Kennedy—did not agree. Hence, in yet another 5–4 decision, the Court, with Justice O’Connor writing, sustained the constitutionality of Andrade’s conviction and thereby further narrowed the scope of the protection afforded by the Eighth Amendment.—the editors

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n 4 November 1995, Leandro Andrade, a nine-year army veteran and father of three, was caught shoplifting five children’s videotapes (Snow White, Casper, The Fox and the Hound, The Pebble and the Penguin, and Batman Forever), worth a total of $84.70, from a K-Mart store in Ontario, California. Two weeks later, on 18 November, Andrade went to a different K-Mart store, in Montclair, California, and was caught shoplifting four children’s videotapes (Free Willy 2, Cinderella, Santa Clause, and Little Women) worth $68.84. Under California law, each of these incidents would generally be regarded as petty theft, a misdemeanor punishable by a fine or a jail sentence of six months or less.∞ California law, however, provides that ‘‘petty theft with a prior conviction for a property offense’’ is a felony.≤ Because Andrade had at least two prior convictions, albeit for the nonviolent crime of burglary, his two arrests for shoplifting were prosecuted as the felony ‘‘petty theft with a prior.’’ While Andrade was in the Army during the 1970s and early 1980s, he became a drug addict. When he got out of the Army he committed a series of relatively minor property crimes. His most serious offenses were in 1983, twelve years before he was caught shoplifting from K-Mart, when he committed three residential burglaries on the same day. During each burglary, Andrade was unarmed and no one was at home. Convicted of burglary, Andrade received a prison sentence of two and a half years, which he served. Because of those three residential burglaries in 1983, Andrade’s

stealing of the videotapes in 1995 was charged as a crime of ‘‘petty theft with a prior.’’ Ironically, if Andrade’s prior crimes had been rape or murder, his maximum sentence for shoplifting would have been one year in jail; ‘‘petty theft with a prior’’ requires that the previous conviction be for a property offense. The crime of petty theft with a prior in California is punishable by three years in prison, while under California law two counts of petty theft with a prior are punishable by a maximum of three years and eight months in prison. Three years and eight months in prison would have been a significant sentence for stealing $153 worth of videotapes. But of course the story does not end there. In 1994 California adopted a law popularly called ‘‘three strikes and you’re out.’’≥ The three-strikes law in California requires that the first two felonies be serious or violent felonies. California law is explicit as to which crimes fit into the categories of ‘‘serious’’ felonies and ‘‘violent’’ felonies. Burglary is deemed a serious felony under California law. But under the California three-strikes law, the third strike can be any felony. It need not be a serious or violent felony. Because Andrade was convicted of two counts of petty theft with a prior, he was sentenced under the California three-strikes law to two sentences of twenty-five years to life, to run consecutively. His sentence, properly phrased, is an indeterminate life sentence with no possibility of parole for fifty years. An indeterminate life sentence simply means that a person has been sentenced to prison for the rest of his or her life with no date at which the person has a right to be released. Andrade was convicted in 1996 when he was thirty-seven years old. By the time he is eligible for parole in the year 2046, he will be eighty-seven years old. Andrade’s case is not unique. There are 344 inmates in California serving sentences of at least twenty-five years to life for shoplifting under the state’s three-strikes law. The California Court of Appeal affirmed Andrade’s conviction, finding that the sentence did not violate the Eighth Amendment’s prohibition of cruel and unusual punishment. The California Supreme Court denied review. Andrade then filed a timely habeas corpus petition in the U.S. District Court for the Central District of California. The district court denied the habeas petition, and Andrade appealed to the U.S. Court of Appeals for the Ninth Circuit. I was appointed to represent Andrade in the Ninth Circuit. The Ninth Circuit asks attorneys to accept pro bono appointments to represent indigents in cases that it believes will benefit from the presence of counsel. From the day I received the call asking if I would take the case, I thought

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that it was a terrific vehicle for challenging the absurd injustice of sentencing shoplifters to life in prison. But I also immediately saw the danger: if the courts did not find Andrade’s sentence unconstitutional, then it was hard to imagine how any punishment would be. I argued Andrade’s case to the Ninth Circuit in May 2001. In November the court held that Andrade’s sentence was cruel and unusual punishment.∂ I was elated at the decision, as were the families of people all over the state who were serving life sentences for minor crimes. I received dozens of cards, letters, and phone calls from those with a loved one who could benefit from the Ninth Circuit’s decision in Andrade. The State of California sought review in the U.S. Supreme Court. On 1 April 2002 the Court announced that it would hear the case. For the seven months before I argued the case on 5 November, it was constantly on my mind. I spent weeks writing the brief and made countless revisions in response to superb suggestions that I received from many lawyers. I also took part in three moot courts: at William and Mary Law School as part of its Supreme Court Preview program; at Duke Law School, where I was a visiting professor in the fall 2002 semester; and at U.S.C. Law School. It was important to me that the moot courts be open to students so that they could benefit from watching the preparation for a Supreme Court argument. In the weeks before 5 November I constantly thought about the questions I was likely to receive from the justices and how I would respond. I flew to Washington on the evening of 4 November. On the morning of the argument, I walked to the Supreme Court with two terrific lawyers and dear friends whom I had asked to sit with me at counsel table, Mark Rosenbaum and Paul Hoffman. Andrade was the second case to be heard that day. The first, which also involved a challenge to California’s three-strikes law, was that of Gary Ewing, who stole three golf clubs worth $1,200 from a golf pro shop. (I am not a golfer and was astounded to find out that golf clubs could be worth that much.) Ewing put the clubs down his pants and tried to walk out of the store. He was caught and charged with grand theft and because of his prior convictions was sentenced to life in prison with no possibility of parole for twenty-five years. The hardest part of my day in the Supreme Court was listening to the hour of oral arguments in Ewing. I had prepared answers to the questions being asked of the attorneys in that case and was anxious to get my turn. Ultimately, both cases presented the same basic question: when is a sentence in a criminal case so excessive as to constitute cruel and unusual punishment?

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Was Andrade’s Sentence Cruel and Unusual Punishment? Every state has some form of recidivist, or repeat offender, sentencing law. Judges have long imposed harsher sentences on repeat offenders than firsttime offenders. No one denies that this is constitutional. In the early 1990s, though, a movement swept the country to enact much more strict recidivist sentencing laws. These laws took on the name ‘‘three strikes and you’re out.’’ Twenty-six states across the country have some form of three-strikes law. All these statutes provide that after three felony convictions the offender be sentenced to life in prison. In many ways California’s is the harshest of all these laws. Several provisions of the law, as interpreted by the California courts, led to Andrade’s being sentenced to fifty years to life for stealing $153 worth of videotapes. First, although only ‘‘serious’’ or ‘‘violent’’ felonies, as defined by the California Penal Code,∑ qualify as the first two strikes, any felony, including petty theft with a prior, may serve as a third strike and be the basis for a life sentence. Prior strikes need not be violent offenses as long as they are deemed ‘‘serious,’’ and Andrade’s burglary convictions met this requirement.∏ Under the California three-strikes law, Andrade would have been subject to an indeterminate life sentence for any act of petty theft, even shoplifting a candy bar. Second, Andrade was considered to have two prior strikes, even though both his burglary convictions occurred in the same trial on the same day.π Third, it is irrelevant under the law that Andrade’s prior convictions occurred in 1983, twelve years before his arrests for shoplifting. There is no ‘‘washout’’ period after which prior qualifying convictions will no longer be considered ‘‘strikes.’’∫ Fourth, defendants who are convicted of multiple felonies must serve consecutive sentences for the new offenses.Ω Thus, Andrade received two sentences of twenty-five years to life in prison, to run consecutively. Finally, each sentence is deemed an indeterminate life sentence, with no possibility of parole until at least twenty-five years have been served.∞≠ For reasons I confess I never understood, the prosecutor decided to seek the maximum sentence, fifty years to life, and the judge imposed the maximum sentence. The prosecutor in California has enormous discretion. Andrade could have been tried for one or two counts of misdemeanor petty theft; one or two counts of petty theft with a prior without invoking the three-strikes law; or one or two counts of petty theft with a prior under the three-strikes law. The prosecutor in Andrade’s case went for the largest possible sentence. In California, geography is crucial in determining how the three-strikes

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law is applied. In Los Angeles or San Francisco, petty theft with a prior is virtually never prosecuted as a third strike, but in places like San Bernardino County it is regularly treated by judges and prosecutors as a basis for life sentences. One study found that ‘‘California counties have radically different rates of sentencing under ‘Three Strikes.’ The sentencing rate ranged from 0.3 per 1,000 violent crime arrests in San Francisco, to 3.6 in both Sacramento and Los Angeles. Data revealed that the highest sentencing counties invoke the law at rates 3 to 12 times higher than the lowest counties.’’∞∞ The study shows a vast difference among prosecutors in the state as to when they will invoke the three-strikes law. Another study concluded: ‘‘Different sentencing structures across the state, therefore, create vast disparities in the treatment of equally culpable minor criminals.’’∞≤ If Andrade had committed his thefts in Los Angeles or San Francisco, instead of San Bernardino, he would never have been prosecuted under the three-strikes law or sentenced to life in prison. The U.S. Supreme Court has long held that criminal sentences must be ‘‘proportionate.’’ Almost a century ago, in Weems v. United States,∞≥ the Court held that the Eighth Amendment prohibits ‘‘greatly disproportioned’’ sentences and articulated the ‘‘precept of justice that punishment for crime should be graduated and proportioned to the offense.’’ On other occasions too the Court has declared sentences unconstitutional for being ‘‘grossly disproportionate.’’ In 1983 in Solem v. Helm,∞∂ the Court held that it was grossly disproportionate to sentence a person to life imprisonment for passing a bad check for $100 because of six prior nonviolent offenses. Justice Powell, writing for the Court, observed that ‘‘the Court has continued to recognize that the Eighth Amendment prohibits grossly disproportionate punishments.’’∞∑ More recently, in 1991, seven justices in Harmelin v. Michigan∞∏ endorsed the principle that grossly disproportionate sentences are unconstitutional. The Supreme Court has repeatedly stated that proportionality is to be determined by ‘‘objective factors to the maximum possible extent.’’∞π In Solem v. Helm,∞∫ the Court stated what the inquiry should include: ‘‘[A] court’s proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions.’’∞Ω In Harmelin v. Michigan, Justice Kennedy’s concurring opinion agreed with the holding in Solem that a grossly disproportionate sentence of imprisonment violates the Eighth Amendment.≤≠ Justice Kennedy also agreed with the three-part test set forth in Solem. Justice Kennedy stated, though, that courts need not Cruel and Unusual

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examine the second and third factors mentioned in Solem—the intrajurisdictional and inter-jurisdictional reviews—unless a ‘‘threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality.’’≤∞ Under these well-established criteria, Andrade’s sentence was grossly disproportionate to the offense. First, the offense was minor—shoplifting a small amount of merchandise that was recovered before Andrade left the store—but the punishment was extreme: a sentence of fifty years to life in prison. Andrade’s crimes were very similar to that committed by Jerry Helm. In Helm’s case, Solem v. Helm, the Court found that a life sentence for ‘‘uttering a no account check’’ worth about $100 violated the Eighth Amendment. The Court concluded that Helm’s crime, like that committed by Andrade, ‘‘involved neither violence nor [the] threat of violence to any person’’ and a ‘‘relatively small amount of money.’’≤≤ Both passing a bad check and shoplifting are viewed by society as among the less serious offenses. Furthermore, as the Court of Appeals explained, ‘‘[b]y classifying such conduct as a misdemeanor, the California legislature has indicated that petty theft is regarded as a relatively minor offense.’’≤≥ In addition to the gravity of the offense and the harshness of the sentence, the U.S. Supreme Court requires a consideration of the sentences imposed on other criminals in the same jurisdiction. Under California law, Andrade’s shoplifting crimes constitute petty theft—theft of goods or money worth less than $400—which is a misdemeanor punishable by a fine or a jail sentence of six months or less. The penalty for two counts of petty theft, punishable by a maximum of one year in jail, is vastly different from a sentence of fifty years to life in prison. The gross disproportionality of Andrade’s sentence is revealed by comparing, as required by Solem and Harmelin, his sentence to that imposed by the same jurisdiction for other crimes. As the U.S. Court of Appeals noted, ‘‘Andrade’s indeterminate sentence of fifty years to life is exceeded in California only by first-degree murder and a select few violent crimes.’’≤∂ For example, voluntary manslaughter is punishable in California by up to eleven years in prison, rape by up to eight years in prison, second-degree murder by fifteen years to life in prison, and sexual assault on a minor by up to eight years in prison. Finally, in evaluating gross disproportionality, as Solem and Harmelin require, courts are to consider the sentences imposed in other jurisdictions. As Justice John Paul Stevens noted, California is the ‘‘only state in the country in which a misdemeanor could receive such a severe sentence.’’≤∑ And as Justice Stephen Breyer noted in dissent in the companion case, Ewing v. California,≤∏ before California’s three-strikes

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law no one in the history of the country had ever received a life sentence for shoplifting. An indeterminate life sentence, with no possibility of parole for fifty years, is obviously not proportionate to the crimes for which Andrade was convicted: stealing $153 worth of videotapes. In Solem, the Court held that ‘‘[w]e must focus on the principal felony—the felony that triggers the life sentence—since Helm already has paid the penalty for his prior offenses.’’≤π Andrade’s prior offenses were nonviolent. The sole prior offenses used to trigger the three-strikes law, and the indeterminate life sentence, were three burglary convictions from the same day in 1983. Although a state may punish recidivists more harshly, an indeterminate life sentence, with no possibility of parole for fifty years, is cruel and unusual punishment when imposed in circumstances such as these. The Supreme Court has recognized that generally the government may punish recidivist conduct harshly.≤∫ But there are several reasons why this power does not justify the sentence imposed here. In Rummel v. Estelle, the Court upheld a life sentence, with possible parole, for stealing approximately $100 worth of tools and expressed the need for great deference to legislative choices regarding punishments for recidivists. But the Court stated: ‘‘This is not to say that a proportionality principle would not come into play in [an] extreme example . . . , if a legislature made overtime parking a felony punishable by life imprisonment.’’≤Ω Yet that is exactly what California does by ‘‘double counting’’ the prior offenses. Under California law, Andrade’s conduct would generally be regarded as the crime of petty theft, a misdemeanor, punishable by a fine or a jail sentence of six months or less.≥≠ Because of his prior offenses, Andrade’s misdemeanor conduct, petty theft, is converted by statute into a felony, ‘‘petty theft with a prior conviction.’’≥∞ Then that felony is used to impose a sentence of twenty-five years to life in prison on each count. In other words, the prior offenses are used twice: first to convert a misdemeanor into a felony and then to impose a life sentence based on the commission of a felony. Moreover, the Supreme Court has never approved such harsh sentences for misdemeanor conduct, even when the offender is a recidivist. The distinction between misdemeanors and felonies is deeply embedded in the law. The Supreme Court recently recognized the fundamental historical difference between felony and misdemeanor conduct. In Apprendi v. New Jersey,≥≤ the Court observed that ‘‘[t]he common law of punishment for misdemeanors—those ‘smaller faults, and omissions of less consequence’ ’’ did not include prison sentences. The Court stated that ‘‘[a]ctual sentences of imprisonment for such offenses, however, were rare at com-

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mon law until the late 18th century, for ‘the idea of prison as a punishment would have seemed an absurd expense.’ ’’≥≥ In Rummel v. Estelle, in which the Court made a judgment as to what constitutes permissible punishment, it repeatedly emphasized that the conduct at issue was felonious.≥∂ In fact, the Court stressed the ‘‘line dividing felony theft from petty larceny.’’≥∑ Rummel involved felony theft, while Andrade involved what California deems petty theft. Justice Stevens recently explained the importance of this distinction: ‘‘While this Court has traditionally accorded to state legislatures considerable (but not unlimited) deference to determine the length of sentences ‘for crimes concededly classified and classifiable as felonies,’ petty theft does not appear to fall into that category.’’≥∏ Indeed, Justice Stevens asserted that punishing petty theft with a prior conviction by imposing a life sentence is closely analogous to the punishment declared unconstitutional in Solem: ‘‘[P]etty theft has many characteristics in common with the crime for which we invalidated a life sentence in Solem, uttering a ‘no account’ check for $100. ‘It involves neither violence nor (the) threat of violence to any person’; the amount of money involved is relatively small; and the State treats the crime as a felony (here, only under some circumstances) pursuant to a unique quirk in state law.’’≥π Although a state may impose harsher punishments on recidivists, Andrade could not be punished now for his earlier offenses. That would unquestionably violate the Constitution’s prohibition on double jeopardy.≥∫ Nor can a defendant be punished for the ‘‘status’’ of being a felon.≥Ω Therefore, the punishment must be proportionate to the offense being prosecuted at present, while taking into account the defendant’s criminal record.∂≠ As the Court declared in Solem v. Helm: ‘‘In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.’’∂∞ An indeterminate life sentence, with no possibility of parole for fifty years, is obviously not proportionate to the crimes for which Andrade was convicted: stealing $153 worth of videotapes. In Solem, the Court said that ‘‘[w]e must focus on the principal felony—the felony that triggers the life sentence—since Helm already has paid the penalty for his prior offenses. But we recognize, of course, that Helm’s prior convictions are relevant to the sentencing decision.’’∂≤ Andrade’s prior offenses were for non-violent offenses. The sole prior offenses used to trigger the threestrikes law, and the indeterminate life sentence, were three burglary convictions from the same day in 1983. Although a state may punish recidivists more harshly, an indeterminate life sentence, with no possibility of

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parole for fifty years, is cruel and unusual punishment when imposed in circumstances such as these. It might be contended that the three-strikes law is justified to decrease crime. Careful studies of the effects of the three-strikes law, however, have found no such effect on crime in California. One empirical study of ‘‘the relationship between Three Strikes and the recent decline of crime in California’’ concluded, ‘‘there is no evidence that Three Strikes played an important role in the drop in the crime rate.’’∂≥ The most extensive study of the effects of the three-strikes law, by three prominent professors, also concluded that the ‘‘decline in crime observed after the effective date of the Three Strikes law was not the result of the statute.’’∂∂ This conclusion is supported by another empirical study which found that ‘‘[c]ounties that vigorously and strictly enforce the Three Strikes law did not experience a decline in any crime category relative to the more lenient counties.’’∂∑ Analysts at rand compared crime rates between states with and without three-strikes laws and found that laws had no independent effect on the crime rate.∂∏ Moreover, even if three-strikes laws generally have some benefit, there is no benefit to imposing an indeterminate life sentence, with no possibility of parole for fifty years, on a person for shoplifting.

Before the Supreme Court On 5 November 2002, I stood before the justices to argue Andrade’s case. I had done everything I could think of to prepare. I had participated in three moot courts, where lawyers peppered me with questions to help me anticipate what the justices were likely to ask. I had spent countless hours rereading the cases and the briefs and planning responses to questions. As I argued on Andrade’s behalf, I was very consciously aware of what was at stake: if I won, Leandro Andrade was sure to be a free man within weeks of the decision; but if I lost, he would spend the rest of his life in prison for shoplifting. If I won, 360 others serving life sentences for shoplifting likely would be released; if I lost, there would be little to give them hope. If Andrade’s sentence was not grossly disproportionate under the Eighth Amendment, it is hard to imagine any sentence which would be. After the argument was over, I felt that I would have tremendously enjoyed the experience had it not been for the immensity of what was at stake. As is often the case, I found it impossible to figure out the likely decision from the justices’ questions. Based on their earlier opinions, I saw little chance that Chief Justice Rehnquist, Justice Scalia, or Justice Thomas

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would vote in favor of Andrade. But after considering the opinions of the other justices, especially their dissents in cases involving California’s three-strikes law where the Court had denied review, I thought there was an excellent chance that Justices Stevens, Souter, Ginsburg, and Breyer would vote for my side. That meant, of course, that the case came down to Justices O’Connor and Kennedy, as is true right now in most major cases before the Supreme Court. Justice O’Connor asked me no questions at oral argument. She asked the state’s lawyer, Doug Danzig, where he would draw the line past which a sentence was grossly disproportionate and then, dissatisfied with his answer, repeated the question with some anger in her voice. Justice Kennedy too asked few questions. The Supreme Court does not inform anyone when a particular decision is going to be announced, although it is possible to find out the days on which some decisions will be. A friend, David Pike, who covers the Supreme Court for the Los Angeles Daily Journal, kindly offered to call me as soon as the Court announced the ruling in Andrade. My guess, and it was just a guess based on the Court’s calendar, was that the ruling would come down on one of four days: 25 February, 26 February, 4 March, or 5 March. On each of the nights before those days, I found it hard to sleep. That is unusual for me; I slept fine the night before the Supreme Court argument. But anticipating the decision and what it would mean was hard to bear. The Court announces its decisions at 10:00 a.m., Eastern time, at the start of its sessions. At 7:00 a.m. Pacific time on those days, I anxiously waited for the phone to ring. I figured if I did not hear anything by 7:15 a.m. it meant no decision; it usually takes the Court about fifteen minutes to announce its rulings. On 25 February, 26 February, and 4 March no phone call came. The last day that I expected a decision to come down, 5 March, was the Court’s last day in session for almost a month. If the decision was not announced that day, there would be no ruling for several more weeks. At 7:00 a.m., as I was getting my younger children ready for school, I listened for the phone. By 7:25, when it was time to take my eight-year-old son to the school bus, I was convinced that the decision had not come that day. Just to be sure, I listened carefully to the headlines on the 7:30 news on the radio; when no mention was made of Supreme Court decisions, I relaxed and walked my son from the car to the bus stop. Just as my son was boarding the bus, the cell phone in my pocket rang. David Pike immediately said, ‘‘Bad news, you lost 5–4. O’Connor wrote

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the opinion.’’ We spoke for a few more minutes. As I drove to my office, I felt numb. I called my wife to tell her of the decision and then called my oldest son, who was in college in Colorado. Both, along with my other two sons, had been at the Supreme Court with me in November. By the time I got to my office, the sense of loss began to hit me. I immediately accessed and printed the decision. As I read it, I felt outrage that a majority of the Court saw no problem with imposing a life sentence for shoplifting and profound sadness at what the decision meant for Andrade and others in his situation. There were dozens and dozens of media calls. The first came from a friend who works at a local news radio station. I was literally in tears as I tried to do the interview. I tried unsuccessfully to call Andrade in prison and then to reach family members of a few other inmates whom I had been representing who were serving life sentences for shoplifting under California’s three-strikes law. The mother of one of my clients, a man who received a life sentence for stealing a $128 television set, asked what could be done next. I was at a loss to think of anything. In Ewing v. California∂π and Lockyer v. Andrade,∂∫ the Supreme Court in two 5–4 decisions rejected the defendants’ Eighth Amendment arguments and upheld the application of California’s three-strikes law. Both opinions were written by Justice Sandra Day O’Connor and joined by Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. In Ewing, the Court found that states may impose a life sentence on recidivists, even if the last crime triggering the punishment is shoplifting. In upholding Ewing’s sentence, Justice O’Connor’s plurality opinion stressed that ‘‘[t]hough three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding.’’∂Ω After emphasizing the need for deference to the legislature, Justice O’Connor considered the first part of the test from Solem and Harmelin. She said that in weighing the gravity of the offense and the harshness of the punishment, ‘‘we must place on the scales not only [the offender’s] current felony, but also his long history of felony recidivism.’’∑≠ This marked quite a different approach from that taken in Solem v. Helm, in which the Court stated: ‘‘In sum, we hold as a matter of principle that a criminal sentence must be proportionate to the crime for which the defendant has been convicted.’’∑∞ By requiring consideration of a defendant’s entire criminal record in evaluating the constitutionality of a recidivist sentence, the Court made it much harder to argue that a punishment is grossly excessive. In the companion Ewing case, the Court concluded that because of the defen-

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dant’s criminal record, ‘‘Ewing’s sentence of twenty-five years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment’s prohibition on cruel and unusual punishments.’’∑≤ The Court came to this conclusion even though, as Justice Breyer pointed out in his dissent, no one in the country would have received a sentence like Ewing’s before the three-strikes law. Justices Scalia and Thomas wrote separate opinions concurring in the judgment in which they argued that no sentence should ever be found to be cruel and unusual punishment. They concluded that only an impermissible type of punishment, and not the length of a sentence, can violate the Eighth Amendment. In Lockyer v. Andrade, the Court focused on the availability of relief through a writ of habeas corpus. The Antiterrorism and Effective Death Penalty Act (1996) significantly narrowed the availability of habeas corpus relief to state prisoners. The Act modified 28 U.S.C. § 2254(d) to provide that a federal court may grant habeas corpus only if a state court decision is ‘‘contrary to’’ or an ‘‘unreasonable application of clearly established Federal law, as determined by the United States Supreme Court.’’ In Lockyer v. Andrade, the Supreme Court held that Andrade was not entitled to habeas corpus relief because first, there was no clearly established law; and second, the state court decision was not contrary to or an unreasonable application of federal law. The Court’s conclusion that there was no clearly established law is surprising because it did not explain why the three-part test from Solem and Harmelin does not meet this requirement. On many occasions, the Supreme Court has approvingly cited this test.∑≥ Moreover, Justice O’Connor’s opinion stated that the ‘‘only relevant clearly established law . . . is the gross disproportionality principle.’’∑∂ However, Justice O’Connor never explains why a life sentence with no possibility of parole for fifty years fails to meet this standard. Justice O’Connor’s opinion will make it much harder for habeas petitioners to gain relief, because it sets such a difficult and indeed ambiguous standard for when there is clearly established federal law. The Court was equally vague in ruling that the state court decision was not ‘‘contrary to’’ or an ‘‘unreasonable application’’ of clearly established federal law. The Supreme Court has held that a state court decision is ‘‘contrary to’’ federal law ‘‘if the state court applies a different rule that contradicts the governing law set forth in our cases,’’ or if it ‘‘confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent.’’∑∑ The 188

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Court rejected the argument that the California Court of Appeal acted contrary to federal law by failing to apply the three-part test prescribed by Solem and Harmelin. Under § 2254(d) of the U.S. Code, a federal court also can grant habeas corpus if the state court ‘‘decides a case differently than we have done on a materially indistinguishable set of facts.’’ The factual similarities between Lockyer v. Andrade and Solem v. Helm are striking. Both Andrade and Helm were in their mid-thirties when sentenced to life in prison. Both had received their first felony convictions approximately fifteen years earlier, each for residential burglary. Both had purely nonviolent criminal records, having committed principally financial and property crimes. Both received a life sentence under state recidivist statutes for minor offenses: Helm for uttering a no-account check worth approximately $100, Andrade for shoplifting $153 worth of videotapes. Justice O’Connor said that the difference between Lockyer v. Andrade and Solem v. Helm was that Andrade was eligible for parole in fifty years, whereas Helm was sentenced to life in prison without the possibility of parole. Justice O’Connor thus concluded that Andrade was similar to Rummel v. Estelle,∑∏ in which the defendant was sentenced to life in prison for misappropriating approximately $100 worth of property but was eligible for parole in twelve years. Justice O’Connor’s analysis means that a sentence is immune from Eighth Amendment attack so long as there is the theoretical possibility of parole at some point. Realistically, an indeterminate life sentence with no possibility of parole for fifty years is the same as a life sentence with no chance of parole. But after Justice O’Connor’s opinion, a state can immunize its sentences from Eighth Amendment analysis just by setting parole in seventy-five or even one hundred years. Federal courts can also grant habeas corpus if a state court decision is an ‘‘unreasonable application’’ of clearly established federal law. The U.S. Court of Appeals for the Ninth Circuit held that this standard is met if the state court commits ‘‘clear error.’’ Justice O’Connor, however, wrote that this standard ‘‘fails to give proper deference to state courts’’: ‘‘[i]t is not enough that a federal habeas court, in its ‘independent review of the legal question’ is left with a ‘firm conviction’ that the state court was ‘erroneous.’ ’’∑π But Justice O’Connor never explains why a ‘‘clear error’’ by a state court is not sufficient to be an ‘‘unreasonable application’’ of federal law. Nor does she explain the standard that courts should use for making this determination in the future. In this way, Lockyer v. Andrade is likely to create much confusion in the law of habeas corpus and impose a significant new obstacle for state prisoners seeking remedies for constitutional violations. Cruel and Unusual

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Over the days that followed the Supreme Court’s decision, I had the constant feeling of sadness and loss not unlike when someone close dies. I still feel devastated by the decision. If one justice in the majority had voted differently, Leandro Andrade would be a free man today. He has already served seven years for stealing those videotapes. Now he must go forty-three more years before he is even eligible for parole at the age of eighty-six.

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CHAPTER TEN

Of the three branches of government, the judiciary is the least transparent. c-span has brought the deliberations of Congress into the living rooms of America. The president frequently and skillfully uses televised speeches and press conferences to communicate directly with the public. On the other hand, the activities of the U.S. Supreme Court are mysterious to most Americans. Though the Court has a press office, it performs a limited role. Unlike, for example, its counterpart in Canada, the Supreme Court press office does not conduct press conferences explaining the salient points of the Court’s decisions. Moreover, rarely do the justices give interviews and almost never on camera. While Americans are accustomed to watching Congress debate the wisdom of armed conflict in the Middle East or the merits of Medicare reform, the Supreme Court steadfastly refuses to allow cameras in its courtroom. Televised news stories describing important Supreme Court arguments invariably feature only artists’ sketches of the advocates and justices, as photographs are strictly forbidden. Chief Justice William Rehnquist was introduced to many Americans for the first time during the televised impeachment trial of President Clinton in 1999, even though by that point Rehnquist had served on the Court for more than a quarter-century. But during its 2002–03 term, the Court gave evidence of a new openness. No, cameras will not be in the Supreme Court anytime soon, but the Court began to open itself to greater scrutiny in other ways. On 6 July

2003, Justices Sandra Day O’Connor and Stephen Breyer consented to a remarkable open-ended interview on national television that provided viewers across the nation with an unprecedented look at the Court and how it functions. Months earlier, in the landmark case involving affirmative action at the University of Michigan and its law school, the Court consented to the early release of audiotapes of oral argument; c-span and other media outlets broadcast those tapes to a national audience within hours. Other than the extraordinary cases of Bush v. Palm Beach County Canvassing Board and Bush v. Gore that decided the presidential election of 2000, this quick release of the audiotapes was unprecedented. Also during the 2002–03 term, the Court dropped its long-standing policy against note taking by public spectators in the courtroom, a practice that had inhibited the work of historians, lawyers, and law students who regularly come to see the Court in action. Why these changes at the Court? Tony Mauro, a longtime Supreme Court journalist who now writes for Legal Times, suggests in this chapter that social and political forces explain the Supreme Court’s increasing openness. In part, the Internet and other technological advances have made our public institutions more accessible. Furthermore, ‘‘in the wake of the bruising battle over Bush v. Gore,’’ the justices may have ‘‘felt they needed to do some repair work on their public image.’’ In this regard, Mauro emphasizes how political pressure contributed to another development at the Court in the past year: the dramatic increase in the number of minority lawyers hired to serve as law clerks to the justices. Since the late 1990s the Court had been subject to increasing criticism in the news media and in Congress for its failure to hire many minorities to fill the extraordinarily prestigious post of Supreme Court law clerk. For Mauro, the sharp upturn in the number of minority law clerks during the 2002–03 term was not coincidental. Mauro concludes his chapter by arguing that ‘‘by turning its face more readily to the public,’’ the Court is helping ‘‘to give the public greater understanding and appreciation of the Court’s essential role in society.’’ —the editors

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n writings and speeches, Supreme Court justices are fond of saying that the Court speaks only through its opinions. The late Justice Lewis F. Powell Jr., for example, often rejected the widely held view that the Supreme Court is a secretive institution. He pointed mainly to the fact that the Court’s oral arguments and decisions are public, as if nothing else that happened at the Court mattered.∞ Justice Powell was of course correct in boasting that the key components of the Court’s formal decision making are public—something that cannot always be said of either the executive or the legislative branch. But the Court is an institution with more than four hundred employees, only nine of whom wear robes to work. It does many other things besides issue rulings. It speaks to the public in other media and in other forms that are not as widely known as the rulings. The 2002–03 term, more than most, was full of meaningful messages from the Court to the public that cannot be found in the U.S. Reports. Taken together, these developments yield a fuller picture of the Supreme Court at the beginning of the twentyfirst century—a picture of a Court that is turning its face, slowly but surely, toward the public. After lagging behind and standing apart from the information age and all the bright lights and public attention that go with it, the Supreme Court is interacting with and responding to the public in a variety of new ways. A Supreme Court reality show is still in the far and imagined future—as is camera access to the Court’s oral

argument—but a more modest informational glasnost is taking hold inside the marble palace. In this context, one of the key moments of the term came not when the Court handed down its landmark rulings Grutter v. Bollinger≤ and Lawrence v. Texas,≥ but on the morning of 6 July 2003. It was a Sunday, and anyone who turned on the abc News show ‘‘This Week with George Stephanopoulos’’ that day expecting to see the usual lineup of pundits and politicians was in for a surprise. Not one but two Supreme Court justices were guests on the show, submitting to an openended broadcast interview. Justices Sandra Day O’Connor and Stephen Breyer answered questions in what was generally considered an unprecedented event. Supreme Court justices have rarely done broadcast interviews—or interviews in the print media, for that matter—eschewing the limelight whenever possible. So what were two justices doing on television? The explanation had to do with a significant event two days before: the opening in Philadelphia of the National Constitution Center, an interactive museum and center dedicated to celebrating the U.S. Constitution. Justice O’Connor was due to christen the building on its opening day, and Justices Breyer and Antonin Scalia were also in attendance. abc News devoted considerable time and resources to covering the opening, so it approached the three justices for possible separate interviews. (Scalia, not surprisingly, declined.) O’Connor and Breyer agreed, and Breyer suggested that they sit down together with Stephanopoulos. A lively conversation ensued, on topics ranging from how the Court arrives at its decisions to how the justices wish to be remembered. Without a trace of irony, for example, O’Connor parroted her mentor Justice Powell’s view of how public the Supreme Court really is—even as she was, by appearing on television, acknowledging that the public needs to know more. ‘‘We are the most open branch of the three branches of government in this sense,’’ O’Connor said. ‘‘We fully explain everything we’re thinking and doing in written opinions for the world to see. That doesn’t happen in the other branches of government.’’∂ Stephanopoulos later said that the public reaction to his interview with the justices was surprisingly positive. ‘‘I’ve never had a more powerful reaction to an interview. . . . People were very interested to learn how the Court works.’’∑ But he did not expect such interviews to become routine. His clear impression was that Breyer and O’Connor consented to the discussion as a way to give the new National Constitution Center something of a publicity boost. But it was difficult to watch the interview and not conclude that the justices were also giving the Court itself a boost, whether by design or by accident. The two justices, who readily said that they did not 194

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agree on all matters before the Court, were explaining the Court to the public, emphasizing its collegiality, and describing its careful efforts to reach the right conclusion for the benefit of the public. Far from being unapproachable, robed legal titans, they came across as personable, agreeable public servants. That, in itself, was a significant message, as important as the Court’s decisions themselves. At a hearing in April 2003, Justice Anthony Kennedy reported to a House Subcommittee that the Supreme Court’s web site was being visited more than seventy thousand times daily. ‘‘My conjecture is that we are the most open court in the world,’’ Kennedy said. ‘‘And we are very, very proud of that.’’∏ Surely that boast is not correct—at least not yet. Many courts, at both the state and federal levels, go to considerably further lengths to make oral argument transcripts, audio and video, as well as case information, easily available to the public. At the Supreme Court, the transcripts of routine oral arguments are not available until seven to ten days after they occur, and they never identify which justices ask which questions. But that Kennedy laid claim to the title of openness—and did so with pride—spoke volumes in itself. The Supreme Court’s evolution as a more public institution is under way. Those who study and track the work of the Supreme Court would do well to expand the scope of their scrutiny beyond the opinions handed down from on high. In ways big and small, the nation’s highest court is seeking and using new paths to its public.

Justices Take to the Airwaves If the court is evolving in its interactions with the public, that may be in part because many of its individual justices have become more mediasavvy than their predecessors ever were. O’Connor, for example, has become a somewhat familiar figure on broadcast media in her own right. She has become an accomplished promoter of books with which she is associated: a children’s book about her written in 1999 by another author with the help of O’Connor’s granddaughter; a memoir of her youth written with her brother Alan Day; and a book of essays on the American legal system published in 2003.π With the publication of each, O’Connor without any apparent hesitation followed the media path trodden by popular modern authors by sitting down for numerous broadcast and print media interviews. To a lesser degree, Chief Justice William H. Rehnquist has done the same thing after publication of his well-received recent books: a revised edition in 2001 of his work The Supreme Court (1987), and his increasingly relevant book on civil liberties in wartime, All the Laws but One Glasnost at the Supreme Court

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(1998). Rehnquist, unlike O’Connor, confined his media appearances to noncommercial networks, sitting for interviews with Brian Lamb on c-span and Charlie Rose on pbs. Justice Clarence Thomas may be the next justice in the media spotlight. He has signed a contract to write his memoirs with Harper Collins, receiving a reported advance against royalties of $1.5 million. It is not yet certain whether Thomas, who in public appearances speaks freely about his upbringing in Pin Point, Georgia, as well as his confirmation ordeal in 1991, will be any more forthcoming in his book or in the media appearances that will inevitably accompany publication of the book, expected sometime in 2004. In addition to their book-related appearances, several justices have become familiar faces on c-span, the public affairs network. Though reticent on the bench, Justice Thomas routinely allows c-span to record his often highly personal public talks. For several years the justices’ annual hat-in-hand appearance before a House Budget Subcommittee has been aired, providing the public with a rare glimpse of the interaction of two branches of government. The texts of selected speeches by justices— including the Chief Justice’s annual report—can be found on the Court’s web site. To varying degrees all the justices, except for Justice Scalia, allow their off-bench speeches to be taped and aired. Scalia made headlines in March 2003 when he refused to allow c-span to attend a speech he was giving before the City Club of Cleveland. News stories reported the irony that Scalia was speaking before the group to receive its free speech award.

The Speed of Sound Scalia may be in the distinct minority in his attitude toward broadcast media in his off-bench appearances, but when it comes to the Court’s formal proceedings, he is in the mainstream. Whether because of their fondness for anonymity or their distaste for inaccurate sound bites, the Court continues to show absolutely no interest in allowing the video broadcast of its hearings. In their interview with Stephanopoulos, for example, Breyer and O’Connor seemed to rule out cameras in the Court for the foreseeable future. ‘‘The real problem is that our oral proceedings are two percent of our decision-making process,’’ said Breyer. ‘‘By and large when [viewers] look at television, unlike the written word, no one explains to them in depth the significance of what’s going on.’’∫ Short of television cameras, however, signs emerged during the 2002–03 term of greater receptivity toward audio and radio coverage of Court proceedings. For only the third time in its history, the Court on 1 April 2003 expanded 196

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the reach of oral arguments to millions by allowing the quick release of the audiotapes of the arguments in Grutter v. BollingerΩ and Gratz v. Bollinger,∞≠ the consecutively argued and anxiously awaited affirmative action cases. Soon after the cases were argued, the tape of the Court session was broadcast by c-span and other news and public affairs outlets. Why is this unusual, and how did it come about? As Justice Powell correctly noted, Supreme Court oral arguments have throughout history been open to the general public, but only to the several hundred who can attend in person.∞∞ Access becomes more limited when a high-profile case is to be argued, as lawyers representing interested parties and others, ranging from members of Congress to family members of the attorneys, fill up the limited number of seats in the majestic Supreme Court chamber. In recent years, the Court has alleviated the problem somewhat by feeding the audio portion of arguments into the nearby lawyers’ lounge, which can accommodate upwards of fifty members of the Supreme Court bar. That move was significant because it marked the first time that any members of the public—in this case, members of the Supreme Court bar—could listen to oral arguments in real time outside the four walls of the Court chamber. But efforts to extend that precedent in other ways and to other venues have met with only limited success. Until 1998 reporters could not simultaneously hear the Court’s opinion announcements and receive the corresponding opinion texts. On days when the Court sits for oral arguments and for the release of opinions, the Court begins its sessions with the author of an opinion announcing, in summary fashion, the holding of the Court. At that moment, one floor below, staff members of the public information office release the printed full-text version of the opinion to waiting journalists. Reporters who covered the Court on these days thus faced an unappetizing choice. The first option was to sit in the courtroom and observe the announcements in person, to capture nuance and the occasional vigorously read dissent, and then proceed downstairs to obtain the text. The other was to forgo the announcements and the nuance, and wait in the public information office downstairs for the printed opinions to be released. Many journalists reluctantly chose the latter because of deadline pressure. In 1998 the Court agreed to a modest request from the news media to begin piping the audio of the justices’ announcements into the public information office. As a result, reporters are now able to hear the announcements on a speaker and read the opinion texts at the same time, thereby saving steps and precious minutes. But reporters are strictly instructed not to tape-record or broadcast these piped-in announcements. And the moment the opinion announcements end and oral arguments Glasnost at the Supreme Court

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begin, the transmission from inside the Court stops. Only opinion announcements, not oral arguments, can be heard in the public information office. So even with these small steps, the reality remains: reporters and nonlawyer members of the public who want to hear oral arguments on the day they occur must still do so by being inside the Court chamber. On the occasion of the presidential election cases of 2000, Bush v. Palm Beach County Canvassing Board∞≤ and Bush v. Gore,∞≥ the Court for the first and second time broke that iron rule and made a slight concession to public interest. While rejecting the requests of media organizations for live broadcast coverage, the Court responded favorably to a more modest request by c-span. The Court agreed to release, for public and broadcast use, audiotapes of the oral arguments as soon as possible after the arguments were over. The Court apparently felt that this was not a real change in policy, but rather an acceleration of what it was already doing.∞∂ The Court released audiotapes of oral arguments on both 1 December, for Bush v. Palm Beach County Canvassing Board, and 11 December, for the fateful arguments in Bush v. Gore. The result was, for many members of the public nationwide, an eye-opening if somewhat old-fashioned peek into the Supreme Court. Television cable and broadcast channels that aired the audiotapes were reduced to showing stock photographs of the justices and lawyers as their words were aired. Nevertheless, the availability of audiotapes was widely hailed as a positive step that helped the public understand the complex and fast-moving events of the election controversy. Justices themselves have indicated that they were satisfied with the experiment in quick, if not simultaneous, access. But in various contacts between journalists, justices, and Court officials, the cautionary advice from inside the Court building was this: do not expect that the experiment will be repeated routinely or anytime soon. For more than two years, in fact, the Court did not consent to the release of audiotapes for any more oral arguments. The affirmative action cases from the last term presented the Court with another obvious candidate for early release of audiotapes. While perhaps not as momentous as the Florida election cases, the affirmative action cases attracted enormous public interest. Groups supporting and opposing affirmative action demonstrated outside the Court, and more than one hundred amicus curiae briefs were filed. c-span, as it had with the election cases, asked the Court to expedite release of the audiotapes. One indication that the Justices found the experiment successful in the affirmative action cases is that five months later they authorized the quick release of audiotapes in a campaign finance case, McConnell v. FEC.∞∑ But given the Court’s reluctance to change too quickly, it still seems likely 198

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that the release of audiotapes will be an exception that will arise only once every term or so.∞∏ The current court persists in its reluctance to expand broadcast access—by radio or television—beyond taking these modest steps, and even the change represented by its handling of the affirmative action cases should not be read as a hint of greater access to come. Another little-noticed development at the Supreme Court this past term also relates to oral arguments and how they are observed. With no warning or fanfare, the Court dropped its long-standing policy against note-taking by public spectators in the Court chamber during public sessions. Beginning roughly in November 2002, Court police officers no longer enforced this baffling rule. Law school students, historians, and casual visitors all may now record what they see in the Court, at least with pen and paper. When the policy against note-taking was first promulgated or enforced—and why—are lost in the mists of Court history and folklore. But there is some documentary evidence of the policy. In a letter to his fellow justices in September 1988, Justice Harry A. Blackmun raised questions about it, as he often did about the details of Court life and procedures.∞π The letter was among the documents found in Justice Thurgood Marshall’s papers, which were released soon after Marshall’s death in 1993. Blackmun also shared with his brethren a letter on the subject from Kenneth Conlon, then chief of the Supreme Court Police, who at Blackmun’s request had looked into the rule as well as another that bothered Blackmun: the rule against spectators leaning their arms or elbows on adjacent chairs or railings. From his observation during arguments, Blackmun said, enforcement of the rules was ‘‘embarrassing and sometimes humiliating to the spectator and is distasteful for the enforcing officer.’’∞∫ Blackmun also commented that ‘‘[t]he note-taking proscription is of particular concern for visiting law school student groups that are there for instruction purposes primarily.’’∞Ω Blackmun further wrote, ‘‘I wonder if perhaps we go too far in our quest for ‘decorum.’ ’’≤≠ To his credit, Conlon acknowledged that he could not explain the note-taking rule, which had ‘‘changed back and forth over the years from being permitted and not being permitted.’’≤∞ As for the offense of leaning on one’s elbows, Conlon offered the explanation that it ‘‘could interfere with other spectators and, perhaps, lead to slouching, sleeping and other unacceptable behavior.’’≤≤ Conlon also said candidly, ‘‘Without stretching these points, there is also consensus that the two issues, whether permitted or not, are not significant security considerations.’’≤≥ Marshall’s files do not contain any further correspondence on the issue, but the policy has generated some public comment over the years. An opinion column in the Washington Post railed against the note-taking Glasnost at the Supreme Court

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policy in 1997. Pointing out that some people (accredited Supreme Court journalists and members of the Supreme Court bar) are allowed to take notes while other spectators are not, the author stated: ‘‘The ‘rule’ runs counter to every American constitutional principle of free speech, equal protection and due process. . . . Citizen note-taking is permitted in countless appellate courtrooms from the U.S. District Court of Appeals for the District to the Supreme Court of Oregon to the Canadian Supreme Court. Why, then, not in our nation’s highest court?’’≤∂ That question, along with Justice Blackmun’s concerns with the policy, went unanswered until the 2002–03 term. The Court, and not just the Chief Justice, apparently decided at one of its private conferences to change the rule. The change itself might have remained private, since neither the Court nor its public information office announced it. The explanation for the silence was that since the rule was unwritten in the first place, a change in the rule did not need to be formally promulgated. The change was first brought to public attention by a ‘‘blog’’ that publishes comments on Supreme Court matters. In an entry on 25 April 2003, Ted Metzler, then a law student, recounted attending a recent oral argument at the Court. ‘‘The officer told us we could bring in a notebook and pen and we all looked at each other,’’≤∑ Metzler wrote. Court officials then confirmed the new policy, which allows note-taking unless it for some reason disrupts the working of the Court. (The rule against leaning on one’s elbows, commented on in 1988 by Justice Blackmun, remains in effect.) The change on note taking got scant coverage in the news media, and readers of this chapter might think that inattention is well deserved. True, it is not an earth-shattering matter either way. But as one of the many nonjurisprudential ways in which the Court interacts with the public, the change in policy does send a significant message, as does the Court’s release of oral argument audiotapes. It is a message of recognition and acceptance that the public has a role to play at oral arguments. Justices often stress that they are informed and persuaded by oral arguments. In one commentary on oral arguments, Chief Justice William Rehnquist writes that the oral advocate is presenting his or her case to ‘‘nine flesh and blood men and women,’’≤∏ making no mention of the hundreds of others who are also in attendance—or the millions who now, electronically, have been able to hear the arguments in the cases discussed above. The Court’s new policies in this area signify at least a tacit recognition that oral arguments are also meant to be heard—and annotated—by the public. To my journalist’s mind, that is a very positive step. This past term also marked the beginning of the first significant renova200

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tion of the Supreme Court building since its initial construction was completed in 1935. To the average visitor, the building appears to have aged well and retains the majesty of the original design by Cass Gilbert. At a groundbreaking ceremony for the project, Chief Justice Rehnquist said, ‘‘The building has been kept in excellent repair and looks as beautiful as the day I first saw it in February of 1952. But after nearly seventy years, it is overdue for a renovation.’’≤π Noting that the original construction of the building cost under $10 million—and was accomplished under the budget allotted, Rehnquist expressed the hope that ‘‘we will again be returning funds to the Treasury.’’≤∫ One notable aspect of the modernization project is that the Court has gone to unusual lengths to inform the public about it. The Court public information office staged a briefing on the project for reporters and has set up a special page on the Court’s web site for information on the project and updates on various street and sidewalk closings necessitated by the work.≤Ω Additionally, in April, Court officials made a presentation detailing the project at a meeting of the Capitol Hill Restoration Society, the main neighborhood association representing nearby residents. Society officials were favorably impressed by the presentation. Once again, this effort to reach out to the public communicates something that the Court’s opinions could not: that the Supreme Court feels some sense of accountability in how it spends taxpayers’ money, and in how it interacts with its neighbors.

Law Clerks and Diversity On a matter of considerably more public concern, the Court also reached a milestone in the October 2002 term. Nine of the thirty-five law clerks hired by the Court’s justices for the term were African American, Hispanic, or Asian-American—the highest number of minority law clerks in the Court’s history. This number is dramatically higher than the total as recent as five terms ago, when the dearth of minorities as law clerks was first brought to public attention in articles I wrote while covering the Supreme Court for USA Today.≥≠ The main point of the articles was to alert the public to the considerable power and influence wielded within the Court by these law clerks—hired for a single term and most no more than a year out of law school. But we also sought to find out who these clerks, largely unknown to the public, were. We undertook the first ever ‘‘census’’ of all the clerks hired by the current justices. The resulting numbers turned out to be the aspect of the stories that gained the most attention. The demographic survey revealed Glasnost at the Supreme Court

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that only seven among the 394 clerks hired during the tenure of all nine sitting Justices were African Americans, four were Hispanics, and eighteen were Asian-Americans. No Native American had ever served as a law clerk. Only one-fourth were women. And four Justices, including Chief Justice William Rehnquist, had to that point never hired an African American as a law clerk. The next term, only one minority—a Hispanic—was among the ranks of the clerks. These numbers proved deeply offensive to the leadership of civil rights organizations. While the Court had, through its rulings, played a crucial role in promoting racial equality in public schools, public accommodations, and the workplace over the decades, its own hiring practices showed an insensitivity that shocked some. ‘‘If the chief justice can’t find a single black law clerk in more than a quarter of a century, that speaks volumes about his soul,’’≥∞ the civil rights scholar Roger Wilkins said. Court critics also pointed out that a Supreme Court clerkship is an instant ticket to the upper echelons of the legal profession. (Two of the current justices, Rehnquist and Breyer, had been law clerks themselves.) The statistics meant that minorities were simply not in line to grab that ticket. The initial reaction to the controversy among the justices and other defenders of the Court was to minimize the importance of the issue or to assign blame elsewhere. According to this line of reasoning, inadequacies in public school and undergraduate education have meant that fewer minorities apply to and thrive in the highly competitive élite law schools from which most law clerks are drawn. Justices themselves struck these themes when questioned by members of Congress. Every year since the articles and the demonstration in 1998, the issue of minority law clerks has been raised at the Court’s annual budget hearings before Congress. ‘‘[W]e are creatures of our feeder systems,’’≥≤ Justice David Souter told House members at the Court’s budget hearing in 1999. But at the same hearing, Souter predicted that attention to the issue would create incentives and pressure within the system to increase the number of minority law clerks. ‘‘[W]e are going to see the fruits of some pushing,’’≥≥ Souter said. It has taken some time, and the number of minority law clerks has fluctuated in years since, but it now appears that Souter was correct. Law professors say anecdotally that those who oversee the feeder system have in fact become more sensitized, and more minorities have entered the pipeline and become law clerks.≥∂ The justices themselves have also softened their stance on the subject. At the judicial conference of the U.S. Court of Appeals for the Eleventh Circuit in 2001, Justice Anthony Kennedy was asked about the issue. He answered that fewer minorities attend 202

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top law schools and some, because of inadequate public education, do not have the in-depth knowledge of history needed for the job. He said he has encouraged some potential applicants to work at law firms for a year or two to sharpen their legal skills and backgrounds. ‘‘We have a special obligation to find the minority applicants,’’≥∑ Kennedy said, adding that ‘‘[t]he Court was well-served by the debate.’’≥∏ Justice Clarence Thomas, also speaking at the conference, added, ‘‘I do think the debate has been a good one.’’≥π To some, it was especially significant that the record number of minority law clerks was achieved during a term when the issue of affirmative action in law schools was before the Court in Grutter v. Bollinger. In a commentary published before the ruling came down, Debra Strauss, adjunct law professor at Pace University and author of a book on judicial clerkships, drew a direct connection between the two occurrences. She asked: ‘‘[W]hat would happen if, in the wake of the Michigan admissions cases, affirmative action were to be downplayed or even deplored? Would the latest gains in the diversity of the Court’s law clerk staff become just so much legal history? Or would the Court simply continue its present hiring policy? As the Justices begin to deliberate on the Michigan cases they might bear in mind that what they do may come home to haunt—or help—themselves.’’≥∫ As it turned out, the Court upheld the University of Michigan Law School program in Grutter, while striking down the more rigidly raceconscious undergraduate program at issue in Gratz. In her opinion for the majority in Grutter, Justice Sandra Day O’Connor stressed the important role that selective law schools play in filling the leadership ranks of American society—and the concomitant need for minorities to be represented in those law schools. ‘‘[U]niversities, and in particular, law schools, represent the training ground for a large number of our Nation’s leaders,’’≥Ω O’Connor wrote. She continued: ‘‘Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.’’∂≠ O’Connor could have added that the same handful of schools accounts for the vast majority of the Court’s own law clerks as well. According to the original survey in USA Today in 1998, nearly 40 percent of the Court’s law clerks got their law degrees at Harvard or Yale, and most of the rest Glasnost at the Supreme Court

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were from a handful of other top law schools.∂∞ In short, it could be said that to imagine the impact of their decision in the affirmative action cases, the justices needed to look no further than their own chambers. Whether that close proximity had any impact on the outcome is difficult to say. So what are we to make of the Supreme Court’s increased hiring of minority law clerks this past term? In the end, it is probably as much a result of changes further down the law clerk pipeline as it is of any conscious moves by the Court itself—though both factors probably played a role. Looked at another way, it may be that the Court’s new hiring practices and its decision to allow the broadcast of oral arguments in the affirmative action case make the Court’s ultimate decision less surprising. In other words, a Court that responds to public pressure to hire more minorities on its own staff and to broadcast its deliberations on the affirmative action issue was probably not likely to have put an end to affirmative action for society at large. But again, in terms of how the Court’s actions outside its opinion making communicate important messages to the public, this message is especially fraught with meaning. It says that the Court can, in its own way, respond to the tenor of the times and to public pressure concerning its own practices and operation. It also says that many of the justices have, either through special effort or through changes in their applicant pool, been able to benefit from greater diversity in their own workplace. And these increasingly diverse clerks are not just routine co-workers; to hear the justices and their clerks tell it, clerks become part of justices’ extended families, maintaining lifelong connections after their service. Justices sometimes speak of their professional isolation from the rest of the world, the result of their exalted status as well as ethical concerns. Having a more multicultural group of law clerks become part of their everyday circle of professional and personal contacts alters the justices’ outlook on their work and, perhaps, their outlook on the world.

Adjusting the Calendar The Court also sent an important signal to the public in the most unlikely of places last term: its argument calendar. By statute, the Supreme Court begins its term on the legendary first Monday in October. But as a result of two actions taken by the Court during the 2002–03 term, that requirement was fulfilled in an unusual way at the beginning of the 2003–04 term. The first change came with the announcement in January 2003 that

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while the upcoming term would begin on Monday, 6 October 2003, as required, no oral arguments would be held that day. The reason for not scheduling oral arguments, specifically referred to in the Court’s announcement, was ‘‘so that Yom Kippur may be observed.’’∂≤ As with most things the Supreme Court does, this announcement was not without relevant precedent. First of all, even though the law requires the Court to begin its work on the first Monday in October, it was not until 1975 that the Court began hearing arguments on that day. Secondly, the conflict between the Court’s argument schedule and the Jewish holy day had arisen before. In 1995 Yom Kippur also fell on a Supreme Court argument day in early October. After arguments were initially scheduled for that day, the hearings were abruptly canceled, without public explanation. It was noted then that the Court for the first time in history had two Jewish justices—Ruth Bader Ginsburg and Stephen Breyer—and that they may have exerted pressure to have the hearings canceled.∂≥ By one published account at the time, the Chief Justice initially balked, advising that any justice who felt the need not to attend could listen to tapes of the oral arguments at a later date. But Rehnquist was also due to be absent from the Court because of back surgery during that period. So the Court, faced with the likely absence of three of nine Justices that day, canceled the arguments. But because of the coincidence of Rehnquist’s surgery, it could not be said definitively that Yom Kippur was the main or only reason for the cancellation. The announcement from the Court this time explicitly cited Yom Kippur as the reason for the cancellation of arguments. Here the message of the Court’s action may be read in tandem with the Court’s jurisprudence. The Court has increasingly, though not always, ruled in favor of government policies or laws that accommodate religious practices or expressions. Now the Court, in dealing with the religious needs of its own members and of the public, is willing to accommodate those needs in its scheduling. The other calendar-related action by the Court during the 2002–03 term is also noteworthy, though more ministerial. For the first time in recent memory, the Court scheduled oral arguments for a case—actually a dozen consolidated cases—in September, not waiting for the opening of the term in October. The cases, argued on 8 September, involved the various challenges to the Bipartisan Campaign Reform Act, also known as McCain-Feingold. By the law’s own text, the Supreme Court was directed ‘‘to advance on the docket and to expedite to the greatest possible extent the disposition of the action and appeal.’’∂∂ The extent to which Congress

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can force the Court to do anything regarding its scheduling of cases has never been tested. But the Court generally does heed these statutory exhortations. The urgency for the Court to expedite its consideration seemed particularly great in the cases brought against the campaign reform law. If the cases had been scheduled according to the Court’s ordinary pace, they might have been heard in late fall of 2003, with a decision unlikely before the presidential election of 2004 was well under way. The three-judge panel that handled the appeals, as also required by law, took a long time to fashion its ruling, issuing it on 1 May 2003, more than a year after the appeals were first filed.∂∑ The panel’s delay dashed any hopes that the Supreme Court would hear and decide the cases during its normal sitting schedule, which ends in late June. The Supreme Court noted probable jurisdiction in the cases on 5 June 2003, and set the arguments for 8 September—meaning that the cases were argued, strictly speaking, during the 2002–03 term. That term ended when the 2003–04 term began on 6 October. Arguments in some of the Court’s most historic cases have interrupted the Supreme Court’s summer recess before: Ex parte Quirin,∂∏ the German saboteur case, was argued in late July 1942, and United States v. Nixon,∂π the Watergate tapes case, was argued in late July 1974. But the last case argued in September appears to be Cooper v. Aaron,∂∫ the Little Rock school desegregation case, argued on 11 September 1958, in advance of the start of school four days hence. The Court’s ruling ordering the desegregated schools to open came down the next day, 12 September. After four hours of oral argument on the campaign finance laws, reviewing a lower court ruling that spanned more than sixteen hundred pages, the Supreme Court unsurprisingly did not issue its ruling the next day, as it had in 1958. The Court’s ruling—all 298 pages of it—was handed down on 10 December 2003. By a 5–4 vote, the Court upheld all but a few minor provisions of the campaign finance law. To some who read the main majority opinion, the decision echoed the Court’s ruling in the affirmative action case Grutter v. Bollinger in ways that are relevant to the theme of this chapter. Just as the Court in Grutter seemed persuaded in part by the impressive array of amicus curiae briefs in favor of affirmative action,∂Ω the majority in McConnell seemed swayed in part by a broad consensus among the public that political campaigns had got out of hand. Just as the Court, and especially Justice O’Connor, may not have wanted to appear too much out of step with major institutions on the subject of affirmative action, so too it may have endeavored mightily to follow the lead of other institutions on campaign finance. Whether this responsiveness is a good

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development for a Court that is designed to withstand and even defy popular fancy is a matter of lively debate. In 1994, when I worked for USA Today, a national newspaper with a significant orientation toward sports coverage, I was asked by my editors to interview Justice David Souter about his reputed lifelong loyalty to the Boston Red Sox. I knew that justices rarely agreed to interviews, and I had a small stack of rejection letters from justices to prove it. But I figured that if Souter would agree to any interview at all, an interview about the Red Sox would appeal to him the most. So I wrote him a note, and got a polite reply. ‘‘Thanks for your invitation to comment on the Red Sox,’’∑≠ Souter wrote, ‘‘but please include me out. When it comes to extra-judicial controversy, I’m risk averse.’’ I was not surprised. Today, Justice Souter’s reply would probably be the same. Though as an attorney general and supreme court justice in New Hampshire Souter had considerable exposure to the public and the media, he has proven to be one of the most publicity-averse justices in recent memory. Other justices are similarly reticent, as demonstrated by Justice Scalia when he turned down George Stephanopoulos’s interview request. But the Court as an institution has come a considerable distance in recent years toward taking a different approach in its interaction with the public. In ways big and small—from the quick release of oral argument audiotapes to creating a web page on its renovation project—the Court is slowly coming out of its self-created shell. When it hires a record number of minority law clerks and cancels arguments for Yom Kippur, it is recognizing the diverse demands of its public and its own members, as other institutions of government do. Why is the Court moving in this direction? As suggested above, it may be that in an era where information, delivered quickly and ubiquitously, is the coin of the realm, the Supreme Court could no longer withstand the pressure to be more public. It may also be that in the wake of the bruising battle over Bush v. Gore, the justices felt they needed to do some repair work on their public image. Though public opinion polls indicate that the Court’s popularity dropped only slightly if at all after the Florida election case, the justices at a human level may have felt that small adjustments in policy aimed at greater transparency and even accountability would be worthwhile. There are some who believe that in becoming more public and perhaps more like the other branches of government, the Court will lose its exalted position in the public’s esteem. ‘‘Although the Supreme Court of the

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United States is by no means a royal institution, its success in maintaining respect is nonetheless almost magical,’’∑∞ the political scientist Barbara Perry wrote in 1999. ‘‘To spoil the magic by exposing it to excess ‘daylight’ might rob the nation and indeed the world of a stable and enduring emblem of the rule of law.’’ In cataloguing these developments of the past term, I hope to have demonstrated that by turning its face more readily to the public, the Court is gradually moving away from that romanticized fantasy of an invisible, Olympian institution. That gradual shift is not only an inevitable but a humanizing and altogether positive development for the Court, one that cannot but give the public a greater understanding and appreciation of the Court’s essential role in society.

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Notes

Introduction 1

Charles Lane, ‘‘Civil Liberties Were Term’s Big Winner,’’ Washington Post, 29 June 2003, § A, p. 1.

2

Rodney A. Smolla, Introduction, ‘‘Personality and Process,’’ A Year in the Life of the Supreme Court (Durham: Duke University Press, 1995), 1.

3 4

Id. Suzanna Sherry, ‘‘Irresponsibility Breeds Contempt,’’ 6 Green Bag 2d 47, 47 (2002) (describing Court critics).

5

Cass R. Sunstein, ‘‘Tilting the Scales Rightward,’’ New York Times, 26 April 2001, § A, p. 23.

6

Charles Lane, ‘‘Laying Down the Law: Justices Ruled with Confidence: From Bush v. Gore Onward, Activism Marked Past Term,’’ Washington Post, 1 July 2001, § A, p. 6 (quoting Dellinger).

7 8

Charles E. Schumer, ‘‘Judging by Ideology,’’ New York Times, 26 June 2001, § A, p. 19. Congressional Record, 107th Cong., 1st sess., daily ed., 28 February 2001, 147 no. 25: S1671–72 (statement of Sen. Leahy).

9

Lino A. Graglia, ‘‘The Myth of a Conservative Supreme Court: The October 2000 Term,’’ 26 Harvard Journal of Law and Public Policy 281, 282 (2003).

10 11

Sherry, ‘‘Irresponsibility Breeds Contempt,’’ 47. Tony Mauro examines changes in the Court’s practices in his chapter ‘‘Glasnost at the Supreme Court.’’

12 13

David Cole, ‘‘Court-Watching,’’ Nation, 21 July 2003, 4. Marcia Coyle, ‘‘In Rulings on Gay Rights and Affirmative Action, the Court Caught Up with Social Trends,’’ National Law Journal, 4 August 2003, S1 (quoting Greve).

14

Linda Greenhouse, ‘‘In a Momentous Term, Justices Remake the Law, and the Court,’’ New York Times, 1 July 2003, § A, p. 1; Tony Mauro, ‘‘It’s a Mad, Mad, Mad, Mad Court: Justices

Upended Expectations in 2002–2003 Term,’’ Texas Lawyer, 7 July 2003, 12; David G. Savage, ‘‘Justices Take a Turn to the Left,’’ Los Angeles Times, 29 June 2003, § 1, p. 1; Jan Crawford Greenburg, ‘‘High Court Rulings Stun the Right,’’ Sun-Sentinel, 29 June 2003, § A, p. 4. 15

Max Lerner, ‘‘Constitution and Courts as Symbols,’’ 46 Yale Law Journal 1290, 1314 (1937); William H. Rehnquist, ‘‘Constitutional Law and Public Opinion,’’ 20 Suffolk University Law Review 751, 768 (1986).

16

Robert A. Dahl, ‘‘Decision-Making in a Democracy: The Supreme Court as National Policy-Maker,’’ 6 Journal of Public Law 279, 287 (1957).

17

Owen J. Roberts, The Court and the Constitution: The Oliver Wendell Holmes Lectures (Cambridge: Harvard University Press, 1951), 61.

18

Michael J. Klarman, ‘‘What’s So Great about Constitutionalism?,’’ 93 Northwestern University Law Review 145, 189 (1998).

19

In this volume, chapters by Stuart Taylor and Carter Phillips about the Court’s approval of affirmative action in higher education call attention to the important role that élite opinion plays in both the briefs filed before the Court and the Court’s decisions. See Stuart Taylor Jr., ‘‘The Affirmative Action Decisions’’; Carter G. Phillips, ‘‘Was Affirmative Action Saved by Its Friends?’’

20 21

Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lee v. Weisman, 505 U.S. 577 (1992). Stephen J. Wermiel, ‘‘Confirming the Constitution: The Role of the Senate Judiciary Committee,’’ 56 Law and Contemporary Problems 121, 121–22 (autumn 1993).

22 23

410 U.S. 113 (1973). Thomas W. Merrill, ‘‘The Making of the Second Rehnquist Court: A Preliminary Analysis,’’ 47 St. Louis University Law Journal 569, 630–31 (2003).

24

Planned Parenthood v. Casey, 505 U.S. 833, 867 (1992).

25

531 U.S. 98 (2000).

26

Lawmakers, moreover, do not think that the Court’s revival of federalism stands in the way of their pursuing legislative initiatives that matter to them. This point is made in Ramesh Ponnuru’s contribution to this book, ‘‘The Court’s Faux Federalism.’’

27

Congressional Record, 105th Cong., 2d sess., daily ed., 28 January 1998, 144 no. 2:E48 (statement of Rep. Hamilton).

28

Jeffrey Rosen, ‘‘Sister Act,’’ New Republic, 16 June 2003, 14; see also Linda Greenhouse, ‘‘Steady Rationale at Court despite Apparent Bend,’’ New York Times, 29 May 2003, § A, p. 22.

29

538 U.S. 721 (2003).

30

123 S. Ct. 2472 (2003).

31

Id. at 2475.

32

David Garrow takes up the ‘‘judicial supremacy’’ question in his chapter on Lawrence, ‘‘A Revolutionary Year.’’ Jeff Rosen considers the related question of whether Lawrence will prompt an anti-gay backlash. See Jeffrey Rosen, ‘‘The Next Culture War.’’

33

The critical role of the swing justice is explored in Dahlia Lithwick’s chapter, ‘‘A High Court of One.’’ These statistics are drawn from that chapter.

34

Edward Walsh, ‘‘Court Change Elevates Biden’s Profile,’’ Washington Post, 12 July 1987, § A, p. 7 (quoting Biden).

35

David Savage explores Kennedy’s role in Lawrence against the backdrop of his other rulings and his personal background in his chapter ‘‘Anthony M. Kennedy and the Road Not Taken.’’ For additional discussion of Lawrence, see Garrow, ‘‘A Revolutionary Year.’’

36

538 U.S. 63 (2003). Erwin Chemerinsky, who represented Andrade, assesses this opinion in his chapter ‘‘Cruel and Unusual.’’

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Notes

37 38

123 S. Ct. 2325 (2003). Stuart Taylor assesses O’Connor’s opinion in his chapter ‘‘The Affirmative Action Decisions.’’ For a discussion of how an amicus curiae brief by retired military officers may have affected O’Connor’s thinking, see Phillips, ‘‘Was Affirmative Action Saved by Its Friends?’’

39

538 U.S. 721 (2003).

40

Hibbs is discussed in Ramesh Ponnuru’s chapter ‘‘The Court’s Faux Federalism.’’

41

538 U.S. 343 (2003).

42

Id. Thomas’s comment was made at oral arguments. See Smolla’s chapter, ‘‘Cross Burning.’’

43

See Smolla, ‘‘Cross Burning,’’ 164.

A High Court of One 1

Anonymous, Stanford Law Review, June 1949, cited in Janet Blasecki, ‘‘Justice Lewis F. Powell: Swing Voter or Staunch Conservative?’’ 52 Journal of Politics 530–47 (1990).

2

Grutter v. Bollinger, 123 S. Ct. 2325 (2003); Gratz v. Bollinger, 123 S. Ct. 2411 (2003).

3

Lawrence v. Texas, 123 S. Ct. 2472 (2003).

4

Lockyer v. Andrade, 538 U.S. 63 (2003); Ewing v. California, 538 U.S. 11 (2003).

5

United States v. American Library Association, 539 U.S. 194 (2003).

6

Stogner v. California, 539 U.S. 607 (2003).

7

Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003).

8

Wiggins v. Smith, 539 U.S. 510 (2003).

9

Virginia v. Black, 538 U.S. 343 (2003).

10

Erwin Chemerinsky, ‘‘Justice O’Connor and Federalism,’’ 32 McGeorge Law Review 877 (2001).

11

Id.

12

George Weigel, ‘‘Has the Supreme Court Gone Too Far? A Symposium,’’ Commentary, 1 October 2003, 25.

13 14

Jonathan Turley, ‘‘Unpacking the Court,’’ Recorder, 15 August 2003, 5. Ramesh Ponnuru, ‘‘Sandra’s Day: Why the Rehnquist Court Has Been the O’Connor Court, and How to Replace Her (Should It Come to That),’’ National Review, 30 June 2003, 35.

15

Blasecki, ‘‘Justice Lewis F. Powell,’’ 530.

16

438 U.S. 265 (1978).

17

478 U.S. 186 (1986).

18

See, e.g., Blasecki, ‘‘Justice Lewis F. Powell,’’ 530.

19

David M. O’Brien, Storm Center: The Supreme Court in American Politics (New York: W. W. Norton, 1999), 305.

20

Quoted in Alpheus Thomas Mason, The Supreme Court from Taft to Warren (Baton Rouge: Louisiana State University Press, 1958), 101.

21

Id. at 112.

22

505 U.S. 833 (1992).

23

Id.

24

Sandra Day O’Connor, The Majesty of the Law (New York: Random House, 2003), 117.

25

Id. at 150.

26

Lawrence Baum, The Supreme Court (Washington: Congressional Quarterly Press, 1995).

27

O’Connor, The Majesty of the Law, 116.

Notes

211

28

Id.

29

O’Brien, Storm Center, 315.

30

Id. at 302.

31

Lee Epstein and Jack Knight, The Choices Justices Make (Washington: Congressional Quarterly Press, 1998).

32 33

Id. Edward Lazarus, Closed Chambers: The First Eyewitness Account of the Epic Struggles inside the Supreme Court (New York: Times, 1998), 515.

34

See, e.g., Howard Gillman, ‘‘What’s Law Got to Do with It? Judicial Behavioralists Test the ‘Legal Model’ of Judicial Decision Making,’’ 26 Law and Social Inquiry 465 (2001); Harold J. Spaeth and Jeffrey A. Segal, Majority Rule or Minority Will: Adherence to Precedent on the U.S. Supreme Court (Cambridge: Cambridge University Press, 1999).

35

Thomas Merrill, ‘‘The Making of the Second Rehnquist Court: A Preliminary Analysis,’’ 47 St. Louis University Law Journal 569 (2003).

36

Linda Greenhouse, ‘‘Name Calling in the Supreme Court: When the Justices Vent Their Spleen, Is There a Social Cost?,’’ New York Times, 28 July 1989.

37

O’Connor, The Majesty of the Law, 133.

38

Id. at 135.

39

Richard Brust, ‘‘The Man in the Middle: Justice Kennedy’s Opinion in the Gay Rights Case Underlines His Growing Influence,’’ 89 ABA Journal 24 (2003).

40

Id.

41

Linda Greenhouse, ‘‘Evolving Opinions: Heartfelt Words from the Rehnquist Court,’’ New York Times, 6 July 2003.

42

Edward Lazarus, ‘‘The Pivotal Role of Justice Anthony Kennedy: Why the Supreme Court’s Romantic May Only Become More Influential over Time,’’ findlaw.com, 7 August 2003.

43

505 U.S. 833 (1992).

44

Deborah Rhode, ‘‘Letting the Law Catch Up,’’ 44 Stanford Law Review 1259 (1992).

Kennedy and the Road Not Taken 1

Grutter v. Bollinger, 123 S. Ct. 2325 (2003).

2

123 S. Ct. 2472 (2003).

3

Oral argument transcript, 26 March 2003.

4

Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984). See also Joyce Murdoch and Deb Price, Courting Justice: Gay Men and Lesbians v. the Supreme Court (New York: Basic Books, 2001), 281–82.

5

Bowers v. Hardwick, 478 U.S. 186, 197 (1986).

6

Id. at 194.

7

Olmstead v. United States, 277 U.S. 438, 478 (1928).

8

478 U.S. at 215.

9

See Murdoch and Price, Courting Justice, 493–94.

10

‘‘Civil Rights: A Challenge,’’ New Republic, 31 August 1963, 21.

11

Ethan Bronner, Battle for Justice: How the Bork Nomination Shook America (New York: W. W. Norton, 1989), 87.

12 13

Interview with Justice Kennedy in his chambers, February 1991. See Beller v. Middendorf, 632 F.2d 788, 792 (9th Cir. 1980); Murdoch and Price, Courting Justice, 377–78.

14

Thomas C. Goldstein, ‘‘Statistics for the Oct. 2002 Term,’’ 72 U.S. Law Week 3080 (2002).

212

Notes

15

Eugene Volokh, ‘‘How the Justices Voted in Free Speech Cases,’’ 48 ucla Law Review 1191 (2001).

16

Jeffrey Rosen, ‘‘The Agonizer,’’ New Yorker, 11 November 1996, 82.

17

Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) 52.

18

Romer v. Evans, 517 U.S. 620 (1996).

19

123 S. Ct. at 2488 (O’Connor concurring).

20

Wallace v. Jaffree, 472 U.S. 38, 107–8 (1985).

21

410 U.S. 113 (1973).

22

Lazarus, Closed Chambers, 399–400.

23

Webster v. Reproductive Health Services, 492 U.S. 490 (1989).

24

505 U.S. 577 (1992).

25

Lee v. Weisman, 505 U.S. 577, 587, 589 (1992).

26

Texas v. Johnson, 491 U.S. 397 (1989).

27

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

28

Robert H. Bork, Coercing Virtue: The Worldwide Rule of Judges (Washington: AEI Press, 2003), 1. See also The Tempting of America: The Political Seduction of the Law (Washington: AEI Press, 1989); Slouching toward Gomorrah: Modern Liberalism and American Decline (New York: Regan, 1996).

29

Lee v. Weisman, 505 U.S. at 632.

30

Everson v. Board of Education, 330 U.S. 1, 15–16 (1947).

31

See County of Allegheny v. aclu, 492 U.S. 573 (1989); Stone v. Graham, 449 U.S. 39 (1980) (Rehnquist, J., dissenting); Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000); City of Elkhart v. Books, cert. denied, 532 U.S. 1058 (2001) (Rehnquist, C.J., joined by Scalia and Thomas, JJ., dissenting); Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 536 U.S. 639 (2002).

32

Rosenberger v. University of Virginia, 515 U.S. 819 (1995).

33

Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000).

34

U.S. Term Limits v. Thornton, 514 U.S. 779, 838 (1995).

35

Id. at 846.

36

Id. at 847.

37

Id. at 845.

38

Lawrence v. Texas, 123 S. Ct. at 2491.

39

Griswold v. Connecticut, 381 U.S. 479 (1965).

40

410 U.S. 113 (1973).

41

531 U.S. 98 (2000).

42

Lawrence v. Texas, 123 S. Ct. at 2481.

43

Troxel v. Granville, 530 U.S. 57 (2000).

44

Id. at 91.

45

See Printz v. United States, 521 U.S. 898 (1997) (striking down the Brady Act’s requirement that county sheriffs conduct background checks of those who want to buy a handgun).

46

Richmond v. J. A. Croson Co., 488 U.S. 469 (1989); Shaw v. Reno, 509 U.S. 630 (1993); Shaw v. Hunt, 517 U.S. 899 (1996); Grutter v. Bollinger, 123 S. Ct. 2325 (2003).

47

United States v. Virginia, 518 U.S. 515 (1996).

48

Id. at 567.

49

Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001).

50

Kimel v. Florida Board of Regents, 528 U.S. 62 (2000).

51

Grutter v. Bollinger, 123 S. Ct. at 2374 (Kennedy, J., dissenting).

52

123 S. Ct. at 2484.

Notes

213

A Revolutionary Year 1

123 S. Ct. 2325 (2003).

2

123 S. Ct. 2472 (2003).

3

Linda Greenhouse, ‘‘In a Momentous Term, Justices Remake the Law, and the Court,’’ New York Times, 1 July 2003, § A, p. 1; David J. Garrow, ‘‘Sodomy Case Has Far-Reaching Importance,’’ Chicago Tribune, 27 June 2003, 27. See also Vincent G. Samar, ‘‘A Closer Look at Lawrence v. Texas,’’ In These Times, 1 July 2003, 17 (also calling the decision ‘‘stunning’’); Chris Bull, ‘‘Justice Served,’’ Advocate, 19 August 2003, 35.

4

478 U.S. 186 (1986).

5

505 U.S. 833 (1992).

6

410 U.S. 113 (1973).

7

521 U.S. 702 (1997).

8

Lawrence J. Vilardo and Howard W. Gutman, ‘‘With Justice from One: An Interview with Hon. Irving L. Goldberg,’’ 17 Litigation 16, 22 (1991).

9

Joan Biskupic, ‘‘Decision Represents an Enormous Turn in the Law,’’ USA Today, 27 June 2003, § A, p. 5.

10 11

798 N.E.2d 941 (Mass. 2003). As Professor Tribe expressed it on the day that Goodridge was announced, absent Lawrence ‘‘the odds that this cautious, basically conservative state court would have decided the case this way would have been considerably less.’’ Linda Greenhouse, ‘‘Supreme Court Paved Way for Marriage Ruling with Sodomy Law Decision,’’ New York Times, 19 November 2003, § A, p. 19. See also Matthew Kelly, ‘‘Journalist: High Court May Head to Center,’’ Dartmouth, 21 November 2003, 1 (quoting Greenhouse herself as stating that Lawrence ‘‘gave the [Massachusetts] state [court] courage and cover’’); David von Drehle, ‘‘Same Sex Unions Move Center Stage,’’ Washington Post, 23 November 2003, § A, p. 1.

12

367 U.S. 497 (1961).

13

381 U.S. 479 (1965).

14

410 U.S. 179 (1973).

15

405 U.S. 438 (1972).

16

431 U.S. 678 (1977).

17

David J. Garrow, Liberty and Sexuality: The Right to Privacy and the Making of Roe v. Wade, rev. ed. (Berkeley: University of California Press, 1998), 644–50.

18

492 U.S. 490 (1989).

19

517 U.S. 620 (1996).

20

128 F.3d 289 (6th Cir. 1997), rehearing en banc denied, 1998 wl 101701, cert. denied, 525 U.S. 943 (1998).

21 22

517 U.S. at 635. Linda Greenhouse, ‘‘A Telling Court Opinion,’’ New York Times, 1 July 1992, § A, p. 1 (quoting Tribe as saying that the opinion in Casey by the ‘‘trio’’ of O’Connor, Kennedy, and Souter ‘‘puts the right to abortion on a firmer jurisprudential foundation than ever before’’).

23

Jeffrey Rosen, ‘‘Pride and Prejudice,’’ New Republic, 10–17 July 2000, 16.

24

491 U.S. 397 (1989).

25

505 U.S. 144 (1992).

26

5 U.S. 137 (1803).

27

358 U.S. 1 (1958).

214

Notes

28 29

347 U.S. 483 (1954). Eugene W. Hickok and Gary L. McDowell, Justice vs. Law (New York: Free Press, 1993), 165–68.

30

514 U.S. 549 (1995).

31

517 U.S. 44 (1996).

32

531 U.S. 356 (2001).

33

518 U.S. 515 (1996).

34

530 U.S. 428 (2000).

35

384 U.S. 436 (1966).

36

530 U.S. 914 (2000).

37

505 U.S. 577 (1992).

38

Stenberg is an exception, for Justice Kennedy joined Rehnquist, Scalia, and Thomas in dissent, while Justice O’Connor supplied the decisive fifth vote for Justice Stephen Breyer’s majority opinion.

39

123 S. Ct. at 2476.

40

Beller v. Middendorf, 632 F.2d 788, 809 (9th Cir. 1980).

41

123 S. Ct. at 2478.

42

Id. at 2479.

43

45 Eur. Ct. H.R. (1981) 52.

44

123 S. Ct. at 2484.

45

Id. at 2481–82.

46

Id. at 2482–84.

47

Id. at 2484.

48

Id. at 2486, 2488 (O’Connor, J., concurring).

49

Id. at 2495–98 (Scalia, J., dissenting).

50

Jeffrey Rosen, ‘‘Kennedy Curse,’’ New Republic, 21 July 2003, 15. In his chapter in this book, Rosen describes Justice Kennedy’s passage on the ‘‘mystery of human life’’ as ‘‘inflammatory.’’

51

See Ramesh Ponnuru, ‘‘Coming Out Ahead: Why Gay Marriage Is on the Way,’’ National Review, 28 July 2003, 24.

52

‘‘The Supreme Court, 2002 Term: Leading Cases: Constitutional Law,’’ 117 Harvard Law Review 297, 298 (2003).

53

Id. at 303, 304, 306.

54

123 S. Ct. 2638 (2003). But see State v. Limon, 83 P.3d 229 (Kan. Ct. App. 2004).

55

Doe v. Pryor, 344 F.3d 1282 (11th Cir. 2003). But see Lofton v. Secretary of Department of Children and Family Services, 358 F.3d 804 (11th Cir., 2004). See also Tony Mauro, ‘‘Rocky Path for Gay Rights Cases despite Lawrence,’’ Legal Times, 9 February 2004, 1.

56

Marcia Coyle, ‘‘Gay Rights Ruling Gets Test in Military,’’ National Law Journal, 13 October 2003, 1 (reporting on United States v. Marcum, No. 02-0944/af).

57

Tom Cohen, ‘‘Canada Aims to Legalize Gay Marriage,’’ Chicago Tribune, 18 July 2003, § 1, p. 6. See Halpern v. Toronto, 172 O.A.C. 276 (2003); egale Canada, Inc. v. Canada, 13 B.C.L.R. 4th 1 (2003), and 15 B.C.L.R. 4th 226 (2003).

58 59

Standhardt v. Superior Court, 77 P.3d 451, 459, 460 (Ariz. Ct. App. 2003). Kathleen Burge, ‘‘sjc Peppers Lawyers on Same-Sex Marriage,’’ Boston Globe, 5 March 2003, § A, p. 1.

60 See, e.g., Shelley Emling, ‘‘Court to Decide on Gay Marriage,’’ Atlanta Journal-Constitution, 9 July 2003, § A, p. 3.

Notes

215

61

Kathleen Burge, ‘‘sjc Puts Off a Decision on Gay Marriage,’’ Boston Globe, 15 July 2003, § A, p. 1.

62

Yvonne Abraham, ‘‘10 Years’ Work Led to Historic Win in Court,’’ Boston Globe, 23 November 2003, § A, p. 1.

63

798 N.E.2d at 959.

64

Id. at 953, 958, 954, 963, 964, 957.

65

Id. at 961, 968.

66

388 U.S. 1 (1967).

67

798 N.E.2d at 965.

68

Id. at 966.

69

Id. at 970, 973 (Greaney, J., concurring).

70

Id. at 979, 892 (Susman, J., dissenting).

71

Id. at 983, 1005 (Cordy, J., dissenting).

72

Laurence Tribe on ‘‘Morning Edition,’’ National Public Radio, 18 November 2003.

73

‘‘A Victory for Gay Marriage,’’ New York Times, 20 November 2003, § A, p. 32.

74

‘‘Mass Appeal,’’ New Republic, 1–8 December 2003, 9. But see Jeffrey Rosen, ‘‘Immodest Proposal: Massachusetts Gets It Wrong on Gay Marriage,’’ New Republic, 22 December 2003, 19 (criticizing Goodridge as both ‘‘constitutionally unconvincing’’ and ‘‘politically naive’’).

75 76

Laurence Tribe on ‘‘Morning Edition,’’ National Public Radio, 18 November 2003. Raphael Lewis, ‘‘Romney, ag Take Heat on Marriage Issue; Gay Rights Ruling Is Clear, Law Groups Say,’’ Boston Globe, 22 November 2003, § B, p. 1; Baker v. State, 744 A.2d 864 (1999).

77 78

Opinions of the Justices to the Senate, 802 N.E.2d 565, 568, 570 (3 February 2004). David J. Garrow, ‘‘First Blacks, Now Gays, Gain Rights,’’ Newsday, 21 November 2003, § A, p. 41.

79

Frank Phillips and Rick Klein, ‘‘50% in Poll Back sjc Ruling on Gay Marriage,’’ Boston Globe, 23 November 2003, § A, p. 1.

80

David R. Guarino, ‘‘Poll Finds Massive Backing for Gay Unions,’’ Boston Herald, 23 November 2003, 7.

81

Romer v. Evans, 517 U.S. 620, 635 (1996).

The Next Culture War 1

123 S. Ct. 2472 (2003).

2

410 U.S. 113 (1973).

3

Stone v. Graham, 449 U.S. 39 (1980).

4

Paul Weyrich, ‘‘Did Conservatives Lose the Culture War?’’ Milwaukee Journal Sentinel, 28 February 1999, 1.

5

‘‘Evangelist Calls for New Court,’’ New York Times, 16 July 2003, § A, p. 12.

6

Jeffrey M. Jones, ‘‘Nearly 6 in 10 Approve of Supreme Court,’’ Gallup Poll News Service, 17 July 2003.

7

Lawrence v. Texas, 123 S. Ct. 2472, 2484 (2003) (O’Connor, J., concurring).

8

Id. at 2475.

9

Id. at 2489.

10 11

505 U.S. 833 (1992). 123 S. Ct. at 2481 (citing Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 851 (1992)).

216 Notes

12

Id. at 2475.

13

Id. at 2497.

14

Id. at 2484.

15

See Robert C. Post, ‘‘The Supreme Court, 2002 Term: Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law,’’ 117 Harvard Law Review 4, 98 (2003).

16

Lawrence v. Texas, 123 S. Ct. at 2484.

17

Goodridge v. Department of Public Health, 798 N.E.2d 941 (2003).

18

388 U.S. 1 (1967).

19

517 U.S. 620 (1996).

20

Susan Page, ‘‘Poll Shows Backlash on Gay Issues,’’ USA Today, 28 July 2003.

21

Richard Morin and Alan Cooperman, ‘‘Majority against Blessing Gay Unions: 60% in Poll Oppose Episcopal Decision,’’ Washington Post, 14 August 2003, § A, p. 1.

22

Page, ‘‘Poll Shows Backlash on Gay Issues.’’

23

347 U.S. 483 (1954).

24

See Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? (Chicago: University of Chicago Press, 1991), 42–71.

25

Lucas A. Powe Jr., The Warren Court and American Politics (Cambridge: Belknap, 2000), 361–62.

26

Andrew Koppelman, The Gay Rights Question in Contemporary American Law (Chicago: University of Chicago Press, 2002), 151.

27

James Davison Hunter, Culture Wars: The Struggle to Define America (New York: Basic Books, 1991).

28

See generally Alan Wolfe, Moral Freedom: The Impossible Idea That Defines the Way We Live Now (New York: W. W. Norton, 2001).

29

Hunter, Culture Wars, 305.

30

Id. at 306.

31

410 U.S. at 163.

32

John Hart Ely, ‘‘The Wages of Crying Wolf: A Comment on Roe v. Wade,’’ 82 Yale Law Journal 920, 947 (1973).

33

See Ruth Bader Ginsburg, ‘‘Speaking in a Judicial Voice,’’ 67 nyu Law Review 1185 (1992).

34

See Rosenberg, The Hollow Hope, 185–89.

35

Everett Carll Ladd and Karlyn H. Bowman, Public Opinion about Abortion: Twenty-five Years after Roe v. Wade (Washington: AEI Press, 1997), 33.

36

John Derbyshire, ‘‘Confessions of a Metropolitan Conservative,’’ National Review Online, 8 May 2003.

37

478 U.S. 186 (1986).

38

Page, ‘‘Poll Shows Backlash on Gay Issues.’’

39

Koppelman, The Gay Rights Question in Contemporary American Law, 149–50.

The Affirmative Action Decisions 1

123 S. Ct. 2325 (2003).

2

123 S. Ct. 2411 (2003).

3

This chapter will generally speak of ‘‘racial preferences,’’ which identifies with precision the programs at issue here, instead of the pejorative ‘‘quotas’’ or the benign-sounding ‘‘affirmative action.’’ While the latter phrase is more widely used, it is ambiguous and misleading, as is explained on page 95.

4

123 S. Ct. at 2346 (quoting Nathanson and Bartnik, ‘‘The Constitutionality of Preferential

Notes

217

Treatment for Minority Applicants to Professional Schools,’’ 58 Chicago Bar Record 282, 293 (1977). 5

123 S. Ct. 2325, 2346 (2003).

6

Id. at 2347.

7

Regents of University of California v. Bakke, 438 U.S. 265 (1978).

8

123 S. Ct. at 2346–47.

9

Abigail Thernstrom and Stephan Thernstrom, No Excuses: Closing the Racial Gap in Learning (New York: Simon & Schuster, 2003), 12–17.

10

Id. at 121–24; John U. Ogbu, Black American Students in an Affluent Suburb: A Study of Academic Disengagement (Mahwah, N.J.: Lawrence Erlbaum Associates, 2003).

11

Michael Dobbs, ‘‘At Colleges, an Affirmative Reaction,’’ Washington Post, 15 November 2003, § A, pp. 1, 11.

12

Thernstrom and Thernstrom, No Excuses, 17–22.

13

‘‘The Expanding Racial Scoring Gap between Black and White sat Test Takers,’’ Journal of Blacks in Higher Education, 23 October 2002, 15; ‘‘College Testing Groups Release 2003 Scores,’’ Black Issues in Higher Education, 11 September 2003, 18.

14

William G. Bowen and Derek Bok, The Shape of the River (Princeton: Princeton University Press, 1998), 77, 72–86. This book defending racial preferences is based on the authors’ privileged access to a vast database on affirmative action programs at twenty-eight highly selective universities. See also Stephan Thernstrom and Abigail Thernstrom, ‘‘Reflections on the Shape of the River,’’ 46 ucla Law Review 1583 (1999), a masterly dissection showing how the data in the book often undermine its conclusions.

15

Neal Devins, ‘‘Explaining Grutter v. Bollinger,’’ 152 University of Pennsylvania Law Review 347, 366–69 (2003).

16

Grutter v. Bollinger, 288 F.3d 732, 810 (6th Cir. 2002).

17

Shelby Steele, ‘‘A Victory for White Guilt,’’ Wall Street Journal, 26 June 2003, § A, p. 16.

18

Shelby Steele, ‘‘Yo, Howard,’’ Wall Street Journal, 13 November 2003, § A, p. 18.

19

123 S. Ct. at 2345 (quoting Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 630 (1990)).

20

Grutter v. Bollinger, 288 F.3d 732, 796 (6th Cir. 2002) (emphasis added).

21

Id.

22

Id. at 817.

23

123 S. Ct. at 2441 (Souter, J., dissenting).

24

Id. at 2446 (Ginsburg, J., dissenting).

25

123 S. Ct. at 2331.

26

123 S. Ct. at 2431 (O’Connor, J. concurring).

27

Id. at 2416.

28

123 S. Ct. at 2340.

29

438 U.S. 265, 307 (1978).

30

123 S. Ct. at 2341.

31

288 F.3d 732, 792 (6th Cir. 2002).

32

123 S. Ct. 2325, 2333 (2003).

33

Id. at 2343.

34

Id. at 2368.

35

Terrance Sandalow, ‘‘Identity and Equality: Minority Preferences Reconsidered,’’ 97 Michigan Law Review 1874, 1907 (1999).

36

Owen M. Fiss, ‘‘Affirmative Action: Beyond Diversity,’’ Washington Post, 7 May 1997, § A, p. 21.

218

Notes

37

Stanley Rothman, Seymour Martin Lipset, and Neil Nevitte, ‘‘Racial Diversity Reconsidered,’’ Public Interest, spring 2003.

38

Id.

39

Peter H. Schuck, Diversity in America (Cambridge: Harvard University Press, 2003), 160–

40

Orlando Patterson, The Ordeal of Integration: Progress and Resentment in America’s

69. ‘‘Racial’’ Crisis (Washington: Civitas/Counterpoint, 1998), 157. 41

Fiss, ‘‘Affirmative Action.’’

42

Id.

43

123 S. Ct. at 2341.

44

Orlando Patterson, ‘‘Race, Gender and Liberal Fallacies,’’ New York Times, 20 October 1991, § 4, p. 15.

45

Bowen and Bok, The Shape of the River, 49, 341.

46

488 U.S. 469, 493 (1989).

47

Philip Richards, ‘‘Prestigious Colleges Ignore the Inadequate Intellectual Achievement of Black Students,’’ Chronicle of Higher Education, 13 September 2002, 11.

48

Peter Berkowitz, ‘‘Dubious Diversity: The Corrupting Influence of the Supreme Court’s Favorite Doctrine,’’ Weekly Standard, 7–14 July 2003.

49

E.g., Jonathan Kay, ‘‘The Scandal of ‘Diversity,’ ’’ Commentary, June 2003, 41, 43.

50

Thernstrom and Thernstrom, No Excuses, 151–68.

51

John H. McWhorter, Losing the Race: Self-Sabotage in Black America (New York: Free Press, 2000).

52 53

123 S. Ct. at 2365. See Josh Gerstein, ‘‘The Senate and Alumni Admissions,’’ New York Sun, 6 November 2003, 9.

54

Center for Community College Policy, Closing the College Participation Gap (2003).

55

Thernstrom and Thernstrom, No Excuses, 165–66.

56

‘‘The Expanding Racial Scoring Gap between Black and White sat Test Takers,’’ Journal of Blacks in Higher Education, 23 October 2002, 15.

57

William Raspberry, ‘‘An Attitude Gap,’’ Washington Post, 13 October 2003, § A, p. 19.

Saved by Its Friends? 1

123 S. Ct. 2325 (2003).

2

123 S. Ct. at 2340.

3

Id.

4

Id.

5

Id. (quoting Consolidated Brief of Lt. Gen. Julius W. Becton Jr. et al., as amici curiae, at 5, Grutter v. Bollinger, 123 S. Ct. 2325 (2003) (Nos. 02-241, 02-516)—‘‘Becton Br.’’).

6 7

Id. (quoting Becton Br. at 29). Justice John Paul Stevens, Remarks at the 4th Annual Justice John Paul Stevens Awards (18 September 2003), video available at http://www.c-span.org.

8 9

Transcript at 740, 12, 15, 18, 19, 22. My focus in this chapter is on amicus briefs filed after the Court has granted certiorari or noted probable jurisdiction. These are briefs filed when the Court is deciding a case on the merits. Amicus briefs also are filed at the petition for certiorari stage (generally in support of the petition). In some ways those briefs can be even more important than briefs at the

Notes

219

merits stage because they may persuade the Court to grant certiorari in a particular case. Given that the Court only hears approximately eighty cases out of approximately eight thousand petitions, the impact of amici at the certiorari stage can be critical in shaping the Court’s docket. Also, unlike cases heard on the merits that often attract numerous amicus filings, relatively few petitions come with amicus support, which tends to make those filings more noticeable. 10

See generally Lucius J. Barker, ‘‘Third Parties in Litigation: A Systematic View of the Judicial Function,’’ 29 Journal of Politics 41, 54 (1967).

11

208 U.S. 412 (1908).

12

Sup. Ct. R. 37.1.

13

Ryan v. Commodity Futures Trading Commission, 125 F.3d 1062, 1063 (7th Cir. 1997).

14

Philip B. Kurland and Dennis J. Hutchinson, ‘‘With Friends Like These . . . ,’’ 70 ABA Journal 16, 16 (1984).

15

Joseph D. Kearney and Thomas W. Merrill, ‘‘The Influence of Amicus Curiae Briefs on the Supreme Court,’’ 148 University of Pennsylvania Law Review 743, 783 (2000).

16

518 U.S. 1 (1996).

17

Id. at 35–36 (Scalia, J., dissenting) (emphasis omitted).

18

Karen O’Connor and Lee Epstein, ‘‘Court Rules and Workload: A Case Study of Rules Governing Amicus Participation,’’ 8 Justice System 35, 42 (1983).

19

Kearney and Merrill, ‘‘The Influence of Amicus Curiae Briefs on the Supreme Court,’’ 758.

20

Id. at 780–81.

21

Browning-Ferris Industries, 492 U.S. 257 (1989); State Farm, 538 U.S. 408 (2003).

22

441 U.S. 418 (1979).

23

This is a practice that has changed over time. During the 1978 term in at least a few cases that I recall, private amici were permitted to participate in oral argument. Today, it is unheard of for a private party to participate in oral argument as an amicus. The solicitor general’s requests to participate on behalf of the United States are routinely granted. And sometime during the past five years, the Court has adopted the practice of granting similar requests by states. This reflects, I assume, the Court’s recognition that the states have sovereign interests akin to those of the United States. It seems quite unlikely that the Court will return to the practice of allowing private amici to participate in oral argument any time soon.

24 25

480 U.S. 273 (1987). Brief of the American Medical Association as Amicus Curiae at 16, School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987) (No. 85-1277).

26

Id. at 19.

27

480 U.S. at 288.

28

Ryan, 125 F.3d at 1063.

29

487 U.S. 201 (1988).

30

Brief of the Government of the Cayman Islands as Amicus Curiae at 1, 2, Doe v. United States, 487 U.S. 201 (1988) (No. 86-1753).

31 32

Doe v. United States, 487 U.S. at 218 n. 16. It is interesting that in the fifteen years since the Doe opinion was released, the issue identified by the Cayman Islands and reserved by the United States has never made its way to the Supreme Court. This is probably because the Cayman government and the United States have worked cooperatively to avoid serious conflicts. Thus, it seems clear that the Court’s studied unwillingness to intrude into the area of international comity was a wise one.

220

Notes

33

477 U.S. 274 (1986).

34

19 U.S.C. § 2101.

35

Id. at 281–82.

36

432 U.S. 333 (1977).

37

Id. at 343.

38

Brief of the Chamber of Commerce et al. as Amici Curiae at 26, International Union v. Brock, 427 U.S. 277 (1986) (No. 84-1777).

39

Sup. Ct. R. 37.2.

40

475 U.S. 1093 (1985).

41

Note, ‘‘From Net to Sword: Organizational Representatives Litigating Their Members’ Claims,’’ 1974 University of Illinois Law Forum 663, 669.

42

Harlem Valley Transportation Association v. Stafford, 360 F. Supp. 1057, 1065 (S.D.N.Y. 1973).

43

International Union, 477 U.S. at 290.

44

474 U.S. 254, 265–66 (1986)

45

See, e.g., Rostker v. Goldberg, 453 U.S. 57 (1981).

46

In that regard, the entire array of briefs in support of the University of Michigan and its law school served the objective of demonstrating one overarching fact: groups that one intuitively might expect to be hostile to affirmative action in fact support it and can join with groups with which they often disagree to defend diversity. These groups did not all join a single brief, which is why scores of briefs were filed, but they certainly succeeded in conveying the sense of a broad consensus in favor of affirmative action.

The Court’s Faux Federalism 1

Gina Holland, ‘‘Justice Ruth Bader Ginsburg Predicts Stormy Times at Supreme Court,’’ Associated Press, 12 June 2003.

2

538 U.S. 721 (2003).

3

538 U.S. 488 (2003).

4

538 U.S. 408 (2003).

5

539 U.S. 59.

6

537 U.S. 129 (2003).

7

539 U.S. 396.

8

Grutter v. Bollinger, 123 S. Ct. 2325 (2003); Gratz v. Bollinger, 123 S. Ct. 2411 (2003).

9

538 U.S. 644 (2003).

10

538 U.S. 329 (2003).

11

537 U.S. 51 (2002).

12

This is the view of Adrian Vermeule, a professor at the University of Chicago Law School, as expressed at a forum of the American Enterprise Institute on 27 June 2003.

13

Herbert Wechsler, ‘‘The Political Safeguards of Federalism,’’ 54 Columbia Law Review 543 (1954).

14

Jesse Choper, Judicial Review and the National Political Process (Chicago: University of Chicago Press, 1980).

15 16

United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938). John C. Yoo, ‘‘The Judicial Safeguards of Federalism,’’ 70 Southern California Law Review 1311 (1997).

17

514 U.S. 549 (1995).

18

529 U.S. 598 (2000).

Notes

221

19 20

521 U.S. 507 (1997). A parallel suggested by Michael Greve, Real Federalism: Why It Matters, How It Could Happen (Washington: AEI Press, 1999), chapter 2.

21

505 U.S. 144 (1992).

22

521 U.S. 898 (1997).

23

517 U.S. 44 (1996).

24

527 U.S. 666 (1999).

25

528 U.S. 62 (2000).

26

527 U.S. 706 (1999).

27

535 U.S. 743 (2002).

28

Id. at 760.

29

See John T. Noonan Jr., Narrowing the Nation’s Power: The Supreme Court Sides with the States (Berkeley: University of California Press, 2002).

30

514 U.S. 779 (1995).

31

Id. at 840.

32

Linda Greenhouse, ‘‘Focus on Federal Power,’’ New York Times, 24 May 1995, § A, p. 1. See Robert F. Nagel, The Implosion of American Federalism (New York: Oxford University Press, 2001), chapter 5, pp. 69–83, for an analysis of the Term Limits dissent and the reaction to it.

33

Greve, Real Federalism, 29, 54, 170 n. 23.

34

528 U.S. 62 (2000).

35

531 U.S. 356 (2001).

36

In this respect, the usually hyperbolic charge that today’s ‘‘federalist’’ Court is closer in spirit to the anti-Federalists of the 1780s than to the Federalists contains some truth. See Federalist Papers No. 45, in which Madison writes: ‘‘Was . . . the American Revolution effected, was the American Confederacy formed, was the precious blood of thousands spilt, and the hard-earned substance of millions lavished, not that the people of America should enjoy peace, liberty, and safety, but that the governments of individual states, that particular municipal establishments, might enjoy a certain extent of power and be arrayed with certain dignities and attributes of sovereignty?’’

37

Art. I, Sec. 10.

38

U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978).

39 It would, in other words, have overturned Hall v. Nevada (1979). See Michael S. Greve, ‘‘Choice and the Constitution,’’ which mentions some of the practical difficulties this sort of resolution would entail: http://www.aei.org/publications/pubID.16024/pub detail.asp. 40 41

AEI forum, see note 12. Greve, ‘‘Commerce and the Constitution,’’ argues along these lines: www.aei.org/publications/pubID.57/pub

detail.asp.

42

Greve’s phrase at the AEI forum, see n. 12.

43

E.g., Erie Railroad v. Tompkins, 304 U.S. 64 (1938).

44

505 U.S. 833 (1992).

45

410 U.S. 113 (1973).

46

505 U.S. at 843 (citation omitted).

47

Id. at 866–87.

48

Id. at 868.

49

Id. at 867–68.

50

Nagel, The Implosion of American Federalism, chapter 7, p. 109.

222

Notes

51

517 U.S. 620 (1996).

52

Id. at 632–33.

53

Nagel, The Implosion of American Federalism, chapter 8, p. 114.

54

Nagel, Constitutional Cultures: The Mentality and Consequences of Judicial Review (Berkeley: University of California Press, 1993), chapter 6, p. 106.

55

123 S. Ct. 2472 (2003).

56

Id. at 2475.

57

I am alluding to the title of a recent book: Kenneth Starr, First among Equals: The Supreme Court in American Life (New York: Warner, 2003).

58

42 U.S.C. § 2000d.

59

438 U.S. 265 (1978).

Cross Burning 1

Va. Code Ann. § 18.2-423 (Michie 1996).

2

505 U.S. 377 (1992).

3

St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minnesota, Legislative Code § 292.02 (1990).

4 5

505 U.S. at 391. See Towne v. Eisner, 245 U.S. 418, 425 (1918) (Holmes, J.) (‘‘A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.’’).

6

123 S. Ct. 2325 (2003).

7

123 S. Ct. 2411 (2003).

8

Virginia v. Black, 538 U.S. 343.

9

See ‘‘An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes,’’ 17 Stat. 13 (now codified at 42 U.S.C. §§ 1983, 1985, 1986).

10

Virginia v. Black, 538 U.S. at 353.

11

347 U.S. 483 (1954).

12

Virginia v. Black, 538 U.S. at 357.

13

Id. at 357.

14

Id. at 358.

15

Id. at 359.

16

Id.

17

Id. at 360.

18

Id. at 361.

19

Id. at 362.

20

Id.

21

Id. at 364 (‘‘The prima facie evidence provision, as interpreted by the jury instruction, renders the statute unconstitutional. Because this jury instruction is the Model Jury Instruction, and because the Supreme Court of Virginia had the opportunity to expressly disavow the jury instruction, the jury instruction’s construction of the prima facie provision ‘is a ruling on a question of state law that is as binding on us as though the precise words had been written into’ the statute’’), citing Terminiello v. Chicago, 337 U.S. 1, 4, 69 S. Ct. 894, 93 L. Ed. 1131 (1949) (striking down an ambiguous statute on facial grounds based upon the instruction given to the jury); New York v. Ferber, 458 U.S. 747, 768 n. 21,

Notes

223

102 S. Ct. 3348, 73 L.Ed.2d 1113 (1982) (noting that Terminiello involved a facial challenge to the statute); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 965 n. 13, 104 S. Ct. 2839, 81 L.Ed.2d 786 (1984); Note, ‘‘The First Amendment Overbreadth Doctrine,’’ 83 Harvard Law Review 844, 845–46 n. 8 (1970); Henry Paul Monaghan, ‘‘Overbreadth,’’ 1981 Supreme Court Review 1, 10–12; G. Robert Blakey and Brian J. Murray, ‘‘Threats, Free Speech, and the Jurisprudence of the Federal Criminal Law,’’ 2002 BYU Law Review 829, 883 n. 133. 22

Virginia v. Black, 538 U.S. at 366.

23

Id.

24

Id. at 366–67.

25

Virginia v. Black, 538 U.S. at 388 (Thomas, J., dissenting).

Cruel and Unusual 1

California Penal Code Ann. § 490 (West Supp. 1998).

2

California Penal Code Ann. § 666.

3

California’s ‘‘Three Strikes’’ law was initially adopted by the California legislature as a statute, Stats. 1994, ch. 12, § 1, and then approved by the voters as an initiative. Proposition 184, § 1, approved by voters, Gen. Elec. (8 November 1994).

4

Andrade v. Attorney General of State of California, 270 F.3d 743 (9th Cir. 2001).

5

California Penal Code §§ 1192.70, 667.50.

6

California Penal Code, §§ 1192.7(c)(18), 460(a).

7

See, e.g., People v. Askey, 56 Cal. Rptr. 2d 782, 785 (Ct. App. 1996).

8

See, e.g., People v. Martinez, 84 Cal. Rptr. 2d 638, 646 n. 9 (Ct. App. 1999).

9

California Penal Code §§ 667(c)(6), 1170.12(a)(6).

10 11

In re Cervera, 16 P.3d 176, 181 (Cal. 2001). Center on Juvenile and Criminal Justice, ‘‘Striking Out: The Failure of California’s ‘Three Strikes and You’re Out’ Law,’’ http://www.cjcj.org/pubs/threestrikes/strikingout.html (1999).

12

Joshua E. Bowers, Note, ‘‘ ‘The Integrity of the Game Is Everything’: The Problem of Geographic Disparity in Three Strikes,’’ 76 nyu Law Review 1164, 1179 (2001).

13

217 U.S. 349, 367 (1910).

14

463 U.S. 277 (1983).

15 Id. at 288 (citations omitted). 16 17

501 U.S. 957 (1991). Rummel v. Estelle, 445 U.S. 263, 274–75 (1980); Atkins v. Virginia, 536 U.S. 304, 312 (2002).

18

463 U.S. at 292.

19

Id.

20

501 U.S. at 1001.

21

Id. at 1005.

22

463 U.S. at 296. The similarities between Solem v. Helm and Andrade’s case are notable: both Helm and Andrade were in their late thirties at the time of conviction for their principal crimes; each had received his first felony conviction approximately fourteen years earlier, for residential burglary; each had a history of nonviolent offenses, principally property crimes; and each was sentenced to life in prison for a minor offense.

23

Andrade v. Attorney General, 270 F.3d 743, 759–60 (2001).

24

Id. at 761.

224

Notes

25

Riggs v. California, 525 U.S. 1114 (1999) (Stevens, J., opinion respecting the denial of the petition for a writ of certiorari).

26

538 U.S. 11 (2003).

27

463 U.S. at 296 n. 21.

28

See, e.g., Rummel v. Estelle, 445 U.S. at 278.

29

445 U.S. at 274 n. 11.

30

California Penal Code Ann. § 490 (West Supp. 1998).

31

California Penal Code Ann. § 666.

32

530 U.S. 466 (2000).

33

Id. at 480 n. 7 (citations omitted).

34

See 445 U.S. at 274, 278, 284.

35

Id. at 284.

36

Riggs v. California, 525 U.S. at 1114 (Stevens, J., opinion respecting the denial of the petition for a writ of certiorari).

37

Id. at 1114 (citations omitted).

38 See, e.g., North Carolina v. Pearce, 395 U.S. 711, 717–18 (1969); Ex parte Lange, 85 U.S. 163, 172 (1874) (double jeopardy is violated if there is subsequent punishment for the same offense). 39

See, e.g., Powell v. Texas, 392 U.S. 514 (1968); Robinson v. California, 370 U.S. 660 (1962) (status cannot constitutionally be made a crime).

40

Witte v. United States, 515 U.S. 389, 400 (1995) (‘‘the enhanced punishment imposed for the [present] offense is not to be viewed as . . . [an] additional penalty for the earlier crimes, but instead as a stiffened penalty for the latest crime, which is considered to be an aggravated offense because a repeated one.’’)

41

463 U.S. at 290.

42

Id. at 296 n. 21.

43

Linda S. Beres and Thomas D. Griffith, ‘‘Did ‘Three Strikes’ Cause the Recent Drop in California Crime? An Analysis of the California Attorney General’s Report,’’ 32 Loyola of Los Angeles Law Review 101, 102 (1998).

44

Franklin E. Zimring, Gordon Hawkins, and Sam Kamin, Punishment and Democracy: Three Strikes and You’re Out in California (New York: Oxford University Press, 2001), 101.

45

Mike Males and Dan Macallair, ‘‘Striking Out: The Failure of California’s ‘Three Strikes and You’re Out Law,’ ’’ 11 Stanford Law and Policy Review 65, 66–67 (1999).

46

Susan Turner, Peter Greenwood, Elsa Chen, and Terry Fain, ‘‘The Impact of Truth-inSentencing and Three Strikes Legislation: Prison Populations, State Budgets, and Crime Rates,’’ 11 Stanford Law and Policy Review 11, 75 (1999).

47

538 U.S. 11 (2003).

48

538 U.S. 63 (2003).

49

Ewing, 538 U.S. at 24.

50

Id. at 28.

51

463 U.S. 277, 290 (1983).

52

Ewing, 538 U.S. at 30–31.

53

See, e.g., Cooper Industries v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001); United States v. Bajakajian, 524 U.S. 321 (1998).

54

Lockyer, 538 U.S. at 73.

55

Williams v. Taylor, 529 U.S. 362, 405–6 (2000).

56

445 U.S. 263 (1980).

57

Lockyer, 538 U.S. at 75.

Notes

225

Glasnost at the Supreme Court 1

See, e.g., Lewis F. Powell Jr., ‘‘What Really Goes On at the Supreme Court,’’ in Mark W. Cannon and David M. O’Brien, eds., Views from the Bench: The Judiciary and Constitutional Politics (Chatham, N.J.: Chatham House, 1985), 71, 71–73.

2

123 S. Ct. 2325 (2003).

3

123 S. Ct. 2472 (2003).

4

‘‘This Week with George Stephanopoulos,’’ 6 July 2003 (TV broadcast, transcript available in LEXIS, News & Business library, abc news file).

5

Tony Mauro, ‘‘Courtside: Double Play,’’ Legal Times, 14 July 2003, 10, 11 (internal quotations omitted).

6

H.R. Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies of the Committee on Appropriations, Hearings on the FY 2004 Supreme Court Budget Request, 108th Cong. (9 April 2003).

7

Lisa Tucker McElroy, Meet My Grandmother: She’s a Supreme Court Justice (Brookfield, Conn.: Millbrook Press, 1999); Sandra Day O’Connor and Alan H. Day, Lazy B: Growing Up on a Cattle Ranch in the American Southwest (New York: Random House, 2002); Sandra Day O’Connor, The Majesty of the Law (New York: Random House, 2003).

8

‘‘This Week with George Stephanopoulos,’’ 6 July 2003.

9

123 S. Ct. 2325 (2003).

10

123 S. Ct. 2411 (2003).

11

By one count, the Court chamber contains a total of 355 seats to be divided among lawyers, the public, and the news media. David M. O’Brien, Storm Center: The Supreme Court in American Politics, 5th ed. (New York: W. W. Norton, 2000), 253.

12

531 U.S. 70 (2000).

13

531 U.S. 98 (2000).

14

Under a long-standing arrangement with the National Archives, the Court has turned over the tapes for public use at the end of each term—a schedule that makes them of very limited use to journalists, who are usually not inclined to wait so long for access.

15

McConnell v. Federal Election Commission, 124 S. Ct. 619 (2003). See ‘‘Make It Official,’’ Washington Post, 3 September 2003, § A, p. 16.

16

Even after the affirmative action arguments, Justice Anthony Kennedy, speaking at a subcommittee hearing of the House Appropriations Committee on the Court’s budget on 9 April 2003, said, ‘‘I don’t think it’s going to be a common practice.’’ H.R. Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies of the Committee on Appropriations, Hearings on the FY 2004 Supreme Court Budget Request, 108th Cong. 19 (9 April 2003).

17

Letter from Harry A. Blackmun, Associate Justice, Supreme Court, to William H. Rehnquist, Chief Justice, Supreme Court, ‘‘Courtroom Rules,’’ 30 September 1988.

18

Id.

19

Id.

20

Id.

21

Memo from Kenneth Conlon, Police Chief, Supreme Court, to Harry A. Blackmun, Associate Justice, Supreme Court, ‘‘Court Decorum,’’ 30 September 1988.

22

Id.

23

Id.

24

Ronald K. L. Collins and David M. O’Brien, ‘‘At the Whim of the Court,’’ Washington Post, 18 August 1997, § A, p. 19.

226

Notes

25

See Tony Mauro, ‘‘Courtside: Nota Bene,’’ Legal Times, 5 May 2003, 10.

26

O’Brien, Storm Center, 259 (quoting William H. Rehnquist, ‘‘Oral Advocacy: A Disappearing Art,’’ speech delivered at Mercer University School of Law, 20 October 1983 (internal quotations omitted).

27

U.S. Government, Supreme Court, Remarks of the Chief Justice: Groundbreaking Ceremony: Modernization of the Supreme Court Building »http://www.supremecourtus.gov/ publicinfo/modernization/project

updates/groundbreaking06

17

2003.htm… (17 June

2003). 28

Id.

29

See U.S. Government, Supreme Court, the Supreme Court Building Modernization Project »http://www.supremecourtus.gov/publicinfo/modernization/home.htm… (last updated 3 September 2003).

30

See Tony Mauro, ‘‘The Hidden Power behind the Supreme Court: Justices Give Pivotal Role to Novice Lawyers,’’ USA Today, 13 March 1998, § A, p. 1.

31

Tony Mauro, ‘‘Activists Protest Court’s Lack of Minority Clerks,’’ USA Today, 6 October 1998, § A, p. 10 (internal quotations omitted).

32

H.R. Subcommittee on Commerce, Justice, and State, the Judiciary, and Related Agencies of the Committee on Appropriations, Hearing on Appropriations for the Supreme Court, 106th Cong. 28 (10 March 1999).

33

Id.

34

Tony Mauro, ‘‘Courtside: Clerks: Minority Ranks Rise,’’ Legal Times, 16 October 2000, 10.

35

Tony Mauro, ‘‘Courtside: Justices Double-Team Circuit,’’ Legal Times, 21 May 2001, 8.

36

Id. (internal quotations omitted).

37

Id. at 10 (internal quotations omitted).

38

Debra Strauss, ‘‘Diversity Begins at Home: Supreme Court Clerkships and Affirmative Action’’ »http://www.jurist.law.pitt.edu/forum/forumnew105.php… (4 April 2003).

39

Grutter, 123 S. Ct. at 2341.

40

Id. (citation omitted).

41

Tony Mauro, ‘‘Corps of Clerks Lacking in Diversity,’’ USA Today, 13 March 1998, § A, p. 12.

42

Memorandum from Kathy Arberg, Office of Public Information, Supreme Court, ‘‘Court Calendar for October Term 2003’’ (17 January 2003).

43

Timothy M. Phelps, ‘‘Jewish Justices’ Dilemma: Rehnquist Refused to Change Calendar for Yom Kippur,’’ Newsday, 15 October 1995, § A, p. 5.

44

Pub. L. No. 107-155, § 403, 116 Stat. 81, 114 (2002).

45

McConnell v. Federal Election Commission, 251 F. Supp. 2d 176 (D.D.C. 2003).

46

317 U.S. 1 (1942).

47

418 U.S. 683 (1974).

48

358 U.S. 1 (1958).

49

See the chapter by Carter Phillips, ‘‘Was Affirmative Action Saved by Its Friends?’’

50

Tony Mauro, ‘‘Courtside: Would the Court Go to Bat for Baseball?,’’ Legal Times, 29 August 1994, 8 (internal quotations omitted).

51

Barbara A. Perry, The Priestly Tribe: The Supreme Court’s Image in the American Mind (Westport, Conn.: Praeger, 1999), 155.

Notes

227

Table of Cases

Addington v. Texas, 441 U.S. 418 (1978), 120 Alden v. Maine, 527 U.S. 706 (1999), 138 American Insurance Association v. Garamendi, 539 U.S. 396 (2003), 134, 142 Andrade v. Attorney General of State of California, 270 F.3d 743 (9th Cir. 2001), 179 Apprendi v. New Jersey, 530 U.S. 466 (2000), 183 Atkins v. Virginia, 536 U.S. 304 (2002), 181 Baker v. State, 744 A.2d 864 (1999), 69 Beller v. Middendorf, 632 F.2d 788 (9th Cir. 1980), 38, 61 Black v. Commonwealth, 262 Va. 764 (2001), 157 Board of Trustees of the University of Alabama v. Garrett, 531 U.S. 356 (2001), 53, 60–61, 140 Bowers v. Hardwick, 478 U.S. 186 (1986), 17, 33, 36–38, 41–43, 57–59, 61–62, 83 Brandenburg v. Ohio, 395 U.S. 444 (1969), 169 Brown v. Board of Education, 347 U.S. 483 (1954), 5, 53, 59, 69, 72, 78–79, 80, 167 Browning-Ferris Industries of Vermont, Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989), 119

Bush v. Gore, 531 U.S. 98 (2000), 5, 28, 50– 51, 192, 198, 207 Bush v. Palm Beach County Canvassing Board, 531 U.S. 70 (2000), 198 Carey v. Population Services International, 431 U.S. 678 (1977), 58, 61 City of Boerne v. Flores, 521 U.S. 507 (1997), 136–37, 147 City of Elkhart v. Books, cert. denied, 532 U.S. 1058 (2001), 48 Commonwealth v. Black, 262 Va. 764 (2001), 157 Cooper Industries v. Leatherman Tool Group, Inc., 532 U.S. 424 (2001), 188 Cooper v. Aaron, 358 U.S. 1 (1958), 59, 206 County of Allegheny v. ACLU, 492 U.S. 573 (1989), 48 Dickerson v. United States, 530 U.S. 428 (2000), 60 Doe v Pryor, 344 F.3d 1282 (11th Cir. 2003), 65 Doe v. Bolton, 410 U.S. 179 (1973), 58 Doe v. United States, 487 U.S. 201 (1988), 123–24, 128 Dronenburg v. Zech, 741 F.2d 1388 (D.C. Cir. 1984), 36 Dudeon v. United Kingdom, 45 Eur. Ct. H.R. (1981) 62

EGALE Canada, Inc v. Canada, 13 B.C.L.R. 4th 1 (2003) and 15 B.C.L.R. 4th 226 (2003),

International Union v. Brock, 477 U.S. 274 (1986), 125–26 Jaffee v. Redmond, 518 U.S. 1 (1996), 118

65 Eisenstadt v. Baird, 405 U.S. 438 (1972), 58, 61 Elliott v. Commonwealth, 267 Va. 464 (2004), 157 Equality Foundation of Greater Cincinnati v. City of Cincinnati, 128 F.3d 289 (6th Cir. 1997), 59 Erie Railroad v. Tompkins, 304 U.S. 64 (1938), 143 Everson v. Board of Education, 330 U.S. 1 (1947), 48 Ewing v. California, 538 U.S. 11 (2003), 14, 182, 187–88

Kentucky Association of Health Plans v. Miller, 538 U.S. 329 (2003), 134 Kimel v. Florida Board of Regents, 528 U.S. 62 (2000), 53, 138, 140 Lawrence v. Texas, 539 U.S. 558 (2003), 6, 7, 14, 17, 29, 33–35, 37, 41–43, 50, 54–59, 60– 66, 68–69, 70–78, 82–85, 146–47, 194 Lee v. Weisman, 505 U.S. 577 (1992), 5, 34, 44, 48, 60 Limon v. Kansas, 123 S. Ct. 2638 (2003), 65 Lockyer v. Andrade, 538 U.S. 63 (2003), 8, 14, 184, 186–89

Ex parte Lange, 85 U.S. 163 (1874), 184

Lofton v. Secretary of Department of Chil-

Ex parte Quirin, 317 U.S. 1 (1942), 206

dren and Family Services, 358 F.3d 804

Federal Maritime Commission v. South Car-

(11th Cir. 2004), 65

olina State Ports Authority, 535 U.S. 743

Loving v. Virginia, 388 U.S. 1 (1967), 67, 76

(2002), 138

Marbury v. Madison, 5 U.S. 137 (1803), 59

Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 666 (1999), 138 Franchise Tax Board of California v. Hyatt, 538 U.S. 488 (2003), 134, 141 Goodridge v. Department of Public Health,

McConnell v. Federal Election Commission, 124 S. Ct. 619 (2003), 198 McConnell v. Federal Election Commission, 251 F. Supp. 2d 176 (D.D.C 2003), 206 Metro Broadcasting, Inc v. FCC, 497 U.S. 547 (1990), 96

798 N.E.2d 941 (Mass. 2003), 58, 61, 66–

Miranda v. Arizona, 384 U.S. 436 (1966), 60

69, 70, 76–78

Mitchell v. Helms, 530 U.S. 793 (2000), 48

Gratz v. Bollinger, 539 U.S. 244 (2003), 14, 88, 90–91, 93–94, 96–99, 110, 134, 163, 197 Griswold v. Connecticut, 381 U.S. 479 (1965), 50, 58–59, 61 Grutter v. Bollinger, 288 F.3d 732 (6th Cir. 2002), 93, 97, 99 Grutter v. Bollinger, 539 U.S. 306 (2003), 8, 14, 33, 35, 52–53, 57, 60, 87–88, 90–94, 96, 98–99, 100, 103, 107, 111, 115–17, 127, 129, 134, 163, 194, 197, 203, 206 Halpern v. Toronto, 172 O.A.C. 276 (2003), 65 Harlem Valley Transportation Association v. Stafford, 360 F. Supp. 1057 (1973), 126 Harmelin v. Michigan, 501 U.S. 957 (1991), 181–82, 187–89 Hillside Dairy v. Lyons, 539 U.S. 59 (2003), 134, 143 Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333 (1977), 125 In re Cervera, 16 P.3d 176 (Cal. 2001), 180

230

Table of Cases

Muller v. Oregon, 208 U.S. 412 (1908), 117 Nevada Department of Human Resources v. Hibbs, 538 U.S. 721 (2003), 6, 8, 14, 132– 33, 139, 140, 146–47, 149 New York v. Ferber, 458 U.S. 747 (1982), 170 New York v. United States, 505 U.S. 144 (1992), 59, 60, 137 North Carolina v. Pearce, 395 U.S. 711 (1969), 184 O’Mara v. Commonwealth, 33 Va. App. 525 (2000), 157 Olmstead v. United States, 277 U.S. 438 (1928), 36 People v. Askey, 56 Cal. Rptr 2d 782 (Ct. App. 1996), 180 People v. Martinez, 84 Cal. Rptr. 2d 638 (Ct. App. 1999), 180 Pharmaceutical Research and Manufacturers of America v. Walsh, 538 U.S. 644 (2003), 134, 142–43

Pierce County v. Guillen, 537 U.S. 129 (2003), 134 Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), 5, 18, 19, 28, 34, 46, 56–59, 60–66, 68, 70, 75, 143–46

Standhardt v. Superior Court, 77 P.3d 451 (2003), 66 State Farm Mutual Automobile Insurance Co. v. Campbell, 538 U.S. 408 (2003), 119, 134, 142–43 State v. Limon, 83 P.3d 229 (2004), 65

Plessy v. Ferguson, 163 U.S. 537 (1896), 42

Stenberg v. Carhart, 530 U.S. 914 (2000), 60, 64

Poe v. Ullman, 367 U.S. 497 (1961), 58

Stogner v. California, 539 U.S. 607 (2003), 14

Powell v. Texas, 392 U.S. 514 (1968), 184

Stone v. Graham, 449 U.S. 39 (1980), 48, 73

Printz v. United States, 521 U.S. 898 (1997),

Terminiello v. Chicago, 337 U.S. 1 (1949), 170

51, 137, 139 R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), 159, 161, 165, 169, 170, 172 Regents of University of California v. Bakke, 438 U.S. 265 (1978), 17, 35, 87, 91, 97, 99, 116, 148 Richmond v. J.A. Croson Co., 488 U.S. 469 (1989), 52, 105 Riggs v. California, 525 U.S. 1114 (1999), 182–84 Robinson v. California, 370 U.S. 660 (1962), 184 Roe v. Wade, 410 U.S. 113 (1973), 5, 18, 44– 45, 50, 57–59, 61, 63–64, 69, 71, 73, 75, 78, 81–83, 143–45 Romer v. Evans, 517 U.S. 620 (1996), 42–43, 59, 60–62, 70, 76, 145–46 Rosenberger v. University of Virginia, 515 U.S. 819 (1995), 49 Rostker v. Goldberg, 453 U.S. 57 (1981), 128 Rummel v. Estelle, 445 U.S. 263 (1980), 181, 183–84, 189 Ryan v. Commodity Futures Trading Commission, 125 F.3d 1062 (7th Cir. 1997), 118 Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), 48–49 School Board of Nassau County, Florida v. Arline, 480 U.S. 273 (1987), 121–22 Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984), 170 Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), 60–61, 137–38

Texas v. Johnson, 491 U.S. 397 (1989), 45, 59, 60 Towne v. Eisner, 245 U.S. 418 (1918), 161 Troxel v. Granville, 530 U.S. 57 (2000), 51 U.S. Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978), 141 U.S. Term Limits v. Thornton, 514 U.S. 779 (1995), 49, 50, 138 United States v. American Library Association, 539 U.S. 194 (2003), 14 United States v. Bajakajian, 524 U.S. 321 (1998), 188 United States v. Lopez, 514 U.S. 549 (1995), 60–61, 136–37, 139, 146 United States v. Marcum, No. 02-0944/AF (2003), 65 United States v. Morrison, 529 U.S. 598 (2000), 136, 139 United States v. Nixon, 418 U.S. 683 (1974), 206 United States v. Virginia, 518 U.S. 515 (1996), 52, 60, 67 Vasquez v. Hillery, 474 U.S. 254 (1986), 126 Virginia v. Black, 538 U.S. 343 (2003), 8, 14, 165, 167–69, 170–72 Wallace v. Jaffree, 472 U.S. 38 (1985), 44 Washington v. Glucksberg, 521 U.S. 702 (1997), 56, 58, 65 Webster v. Reproductive Health Services, 492 U.S. 490 (1989), 44, 59 Weems v. United States, 217 U.S. 349 (1910), 181

Shaw v. Hunt, 517 U.S. 899 (1996), 52

Wiggins v. Smith, 539 U.S. 510 (2003), 14

Shaw v. Reno, 509 U.S. 630 (1993), 52

Williams v. Taylor, 529 U.S. 362 (2000), 188

Solem v. Helm, 463 U.S. 277 (1983), 181–84,

Witte v. United States, 515 U.S. 389 (1995),

187–89 Sprietsma v. Mercury Marine, 537 U.S. 51 (2002), 134

184 Zelman v. Simmons-Harris, 536 U.S. 639 (2002), 48

Table of Cases

231

Index

abc News, 194

American Express, 103

Abortion, 5, 7, 11, 14, 17, 26, 28, 30–31, 34,

American Federation of Labor–Congress of

39, 43–47, 50–51, 56–57, 60, 64–65, 71,

Industrial Organizations (afl-cio), 125–26

73–74, 81–82, 84, 143–45; ‘‘partial-birth,’’

American Journal of Epidemiology, 122

60, 82

American Medical Association, 121–22,

Academies, military, 114, 116, 127 aclu (American Civil Liberties Union), 152– 53, 165 Affirmative action, 1–4, 15, 27, 33, 35, 52–

125–26 American Psychiatric Association, 120–21 American Review of Respiratory Disease, 121–22

53, 71, 106–07, 119, 134, 197–99, 204, 206;

American Values (group), 77

justifications for, 101–03; in the military,

Americans with Disabilities Act, 140

116, 127–28; as misleading term, 92–93,

Amicus curiae briefs, 20, 113–29, 143, 198,

95; quotas and, 53, 87, 90, 97–98, 100; in

206

university admissions, 8, 11, 14, 17, 20,

Andrade, Leandro, 175–80, 183–87, 189–90

87–88, 96, 98, 110, 113–15, 134, 163, 192,

Antiterrorism and Effective Death Penalty

203 afl-cio (American Federation of Labor–

Act, 188 Anti-tobacco legislation, 141

Congress of Industrial Organizations),

Articles of Confederation, 138

125–26

Assisted suicide, 56, 59, 65

Age Discrimination in Employment Act, 140

Associational standing, 125–26

Alliance for Justice, 125–26 All the Laws but One (Rehnquist), 195

Bauer, Gary, 77

American Bar Association, 94

Baugh, David, 153

American Civil Liberties Union (aclu), 152–

Benham, Flip, 73–74, 85

53, 165 American Educational Research Association, 115

Bible, 79 Biden, Joseph, 7 Bill of Rights, 131

Bipartisan Campaign Reform Act, 205 Birth of a Nation, The (Griffith), 167 Black, Barry Elton, 154–57, 159, 166, 170,

Canadian Charter of Rights and Freedoms, 65 Canadian Supreme Court, 200 Capitol Hill Restoration Society, 201

172 Black, Hugo, 48–49

Cardozo, Benjamin, 17–18

Black American Students in an Affluent

Catholics, 34, 37, 46, 79

Suburb (Ogbu), 112 Blackmun, Harry A.: Bowers v. Hardwick

Cayman Islands, 123–25, 128 Center for Individual Rights, 3

and, 36; courtroom rules and, 199–200; in-

Center on American Political Culture, 77

creasing liberalism of, 25, 28; Planned Par-

Centrism, 11–12, 14–17, 20, 22, 24, 26, 31,

enthood of Southeastern Pa. v. Casey and, 44; Roe v. Wade and, 81 Blackstone, Sir William, 36 Boggs, Danny J., 93, 97, 99

94 Century Foundation, 111 Chamber of Commerce of the United States, 125–26

Bork, Robert, 5, 7, 17, 36–39, 47, 54

Charlotte (North Carolina), 73–74, 85

Boston Bar Association, 69

Charter schools, 111

Boston Globe, 69

Chemerinsky, Erwin, 2, 176

Boston Herald, 69

Chemical Manufacturers Association, 125–26

Bowers, Michael, 36–37

Cheney, Dick, 82

Bowman, Karl, 77

Chicago Tribune, 4

Brandeis, Louis D., 17–19, 36, 117, 123

Choices Justices Make, The (Epstein and

Brandeis brief, 116–17, 121–23, 127

Knight), 24

Bravo (tv channel), 84

Choper, Jesse, 135

Brennan, William, 19, 26, 40; influence of,

Christian Broadcasting Network, 75

21–22; replacement of, 44

Chronicle of Higher Education, 106

Brennan Court, 22

Civil commitment, involuntary, 120–21

Breyer, Stephen G., 7, 8, 13, 40, 192, 194, 196,

Civil rights, 38–39, 78–79, 107, 132, 139,

202, 205; affirmative action and, 88, 91;

147–48, 167, 195, 202; Civil Rights Act of

Ewing v. California and, 182; federal pre-

1964, 38, 78–79, 147–48

emption and, 142; Lawrence v. Texas and,

Clansman, The (Dixon), 167

36, 43; Lockyer v. Andrade and, 186; sepa-

Clark, Wesley, 128

ration of church and state and, 49; Virginia

Class actions, 125

v. Black and, 164, 166;

Clinton, Hillary, 156

Broccoletti, James, 157–58

Clinton, William, 2, 40, 74, 97, 156, 191

Buchanan, Patrick, 47

Closed Chambers (Lazarus), 25, 28

Burger, Warren, 120; Addington v. Texas and,

Cole, David, 3

120–21; Bowers v. Hardwick and, 36, 42

Cole, Stephen, 106

Burger Court, 5, 58, 143

‘‘Commandeering,’’ 137

Bush, George H. W., 7, 44, 82

Commerce, 131, 135, 139; Commerce

Bush, George W., 3, 82–83, 95–96, 111

Clause, 60, 134, 136, 142

Bush, Jeb, 108

Compact Clause, 140–41

Butler, Pierce, 17

Concerned Women for America, 81 Congressional Record, 5

c-span, 191–92, 196–98

Conlon, Kenneth, 199

California Court of Appeal, 178

Connors, Ken, 83

California Supreme Court, 178

Conservative bloc, 6–7, 13, 15–16

Campaign finance reform, 11, 206; McCain-

Conservatives, 3, 5–7, 11–12, 16, 20–21, 27,

Feingold Act, 205

234

Index

29, 31, 34, 38–50, 60, 72, 74–85, 95–96

Constituency, 146

Family and Medical Leave Act, 14, 132–33

Constitutional Convention, 131

Family Research Council, 83

Constitutional structure, 137

Fannie Mae, 103

Cordy, Robert, 68

Federal agencies, 138

‘‘Court-packing’’ scheme, 18–19

Federalism, 3, 8, 49, 60, 70, 131–40, 143,

Crisis, 83

145–49; federalist revolution, 132, 134–36,

Cross burning, 2, 8, 14, 151–73

138, 145–47; Federalist Society, 135; fed-

Culture wars, 8, 72–74, 76–78, 80–82, 84– 85, 147 Culture Wars (Hunter), 80

eral spending, 137; ‘‘moral federalism,’’ 146 Federal Rules of Civil Procedure, 125 Feminism, 133 Fiery Cross, 168

Daily Journal, 186

Fifth Amendment, 59, 123

Danzig, Doug, 186

First Amendment, 40, 44, 48–49, 80, 151–52,

Day, Alan, 195

154, 156–61, 163, 165, 166, 168–72; con-

Declaration of Independence, 37, 50–51

tent discrimination, 159, 169–70; fighting

Defense of Marriage Act, 84

words, 161, 169; obscenity, 170; offensive

Dellinger, Walter, 2–3

speech, 160–61; symbolic expression, 152,

Derbyshire, John, 82

159–60; viewpoint discrimination, 152,

Devins, Neal, 93

157, 159–61, 173

Didion, Joan, 28

First Things, 77

Discrimination, 8, 105, 140; against

Fiss, Owen M., 101–02

homosexuals, 6, 64, 144; against racial mi-

Flag burning, 45, 61, 160–62

norities, 94–95, 102, 104, 140; against

Founders, 135, 139–40, 149

women, 140

Four Horsemen, 17

Dixon, Thomas, 167 Dorland’s Illustrated Medical Dictionary, 122

Fourteenth Amendment, 39, 51, 131, 137– 38, 147–48; Due Process, 42, 57, 59, 61–62, 64, 136, 141, 200; Equal Protection, 7, 33,

Double jeopardy, 184

36–37, 41, 43, 50–53, 59–70, 75–76, 78,

Douglas, William O., 50

80–83, 136, 200; Section 5, 133, 136–37;

Dreeben, Michael, 163–65 Due Process, 42, 57, 59, 61–62, 64, 136, 141, 200 Duke Law School, 179

suspect classes, 140 Fourth Amendment, 76 Framers, 29, 49, 54, 135 Frankfurter, Felix, 18, 23 Free Congress Foundation, 74

Eagle Forum, 75

Freedom of Information Act, 98

Eighth Amendment, 176, 178, 181, 182, 185,

Frist, Bill, 83

187–89; double jeopardy, 184; proportion-

Full Faith and Credit Clause, 141–42

ate sentencing, 181–88

Fundamental rights, 50–51, 59, 62, 64–67

Eleventh Amendment, 60, 137–38 Elliot, Richard J., 156–57, 159, 170, 172

Gallup Poll, 75, 84, 95

Ely, John Hart, 81

Garner, Tyron, 41

Enumerated powers, 137

Garrow, David, 2, 55–56

Epstein, Lee, 24–25, 118

Gay rights. See Homosexuality

Equal Protection, 7, 33, 36–37, 41, 43, 50–53,

Gender, 133, 136, 159, 170; stereotypes and, 133

59–70, 75–76, 78, 80–83, 136, 200

General Electric, 121

Equal Rights Amendment, 82

General Motors, 115

European Court of Human Rights, 42, 62

George Washington University Law School, 71

Evangelicals, 48, 73–74, 77–79, 82, 85

Gerrymandering, 30, 93

Index

235

Gilbert, Cass, 201

Ideologues, 14, 16, 22, 26, 29

Gilman, Ronald Lee, 97

Import-Export Clause, 142

Ginsburg, Douglas, 38–39

Increasing Faculty Diversity (Cole), 106

Ginsburg, Ruth Bader, 7, 13, 205; abortion

Individual rights, 143, 148

and, 81; affirmative action and, 98, 110;

Interest groups, 118

federalism and, 133, 142; Lawrence v.

Internet, 192

Texas and, 43; Lockyer v. Andrade and, 186; separation of church and state and, 49; Virginia v. Black and, 171

Jefferson, Thomas, 44, 48 Journal of Blacks in Higher Education, 112

Goldberg, Irving L., 58

Jubilee, James, 156

Grant, Ulysses S., 167

Judicial activism, 1–5, 142

Greaney, John, 67

Judicial assertiveness, 57–61

Greenhouse, Linda, 28, 57, 64, 138

Judicial supremacy, 4, 6, 59–60, 148

Greve, Michael, 3–4, 142 Griffith, D. W., 167

Kearney, Joseph, 118

Gun Free School Zones Act, 136, 146

Kennedy, Anthony M., 28, 34–35, 38–40, 42,

Gunther, Gerald, 171

44, 46–47, 50–54, 195; abortion and, 28, amicus briefs and, 26; Commerce Clause

Habeas corpus, 178, 188–89

and, 136; Ewing v. California and Lockyer

Hamilton, Alexander, 135

v. Andrade and, 187; federalism voting

Hamilton, Lee, 6

bloc and, 60; federal preemption and, 142;

Hardwick, Michael, 36

flag burning and, 28, 45; gay rights and, 7–

Harlan, John Marshall (the first), 42

8, 26, 28, 33–34, 37, 41–43, 55, 57–58, 61–

Harlan, John Marshall (the second), 45; Poe v.Ullman and, 58

65, 75–76; Harmelin v. Michigan and, 181–82; Lockyer v. Andrade and, 176; mi-

Harvard Law Review, 64

nority law clerks and, 202–03; Planned

Harvard University, 203; Harvard Law

Parenthood of Southeastern Pa. v. Casey

School, 34, 38, 43, 46, 53, 58

and, 18, 45–46; Romer v. Evans and, 59,

Hassell, Leroy, 158

145; separation of church and state and,

Hate crimes, 162

48–49; as ‘‘swing’’ justice, 1, 7–8, 11–22,

Hate speech, 1; cross burning, 2, 8, 14, 151–

24–31, 40, 186; U.S. Term Limits, Inc. v. Thornton and, 138; Virginia v. Black and,

73 Health insurance, 134

165, 171

Heineman, Ben, 121

Kennedy, Edward, 109

Helm, Jerry, 182–84, 189

Kennedy, John F., 168

Hoffman, Paul, 179

King, Martin Luther, Jr., 91, 109

Hollow Hope, The (Rosenberg), 81

Klein, Joel, 120

Holmes, Oliver Wendell, 19, 161

Knight, Jack, 24–25

Homosexuality, 1, 6, 8, 14, 28, 31, 34–35, 37–

Knights of Camellia, 164

38, 42–43, 46–47, 50, 59, 145, 170; adop-

Koppelman, Andrew, 84

tion, 37; marriage, 6, 8, 48, 55–56, 58, 62–

Ku Klux Klan, 2, 151, 153–56, 160–62, 164–

72, 75–78, 83–85; sodomy, 3, 6, 14–15, 26, 33, 36, 41–42, 55–62, 65, 70–76, 82–84,

68, 171, 173; Ku Klux Klan Act, 167 Kurland, Philip, 118

147 Hudson, Deal, 83

Lamb, Brian, 196

Hughes, Charles Evans, 17–19

Law School Admissions Council, 92

Hunter, James Davison, 80

Lawrence, John Geddes, 41

Hurd, William, 163, 165

Lazarus, Edward, 25, 28

236

Index

Leahy, Patrick, 3

Nation, 3

Lee, Rex, 124

National Assessment of Educational Prog-

Legal Times, 2, 4, 192 Lemons, Donald, 158–59, 172 Leo XIII, Pope, 76 Liability explosion, 141 Liberal bloc, 7, 13, 16, 17, 34 Liberals, 2–3, 7, 12, 16, 20, 31, 40, 44, 49–50, 52, 60–61, 78–81, 84–85, 94

ress, 91 National Association for the Advancement of Colored People (naacp), 125–26 National Association of Manufacturers, 125– 26 National consensus, 146 National Constitution Center, 194

Libertas, 76

Nationalism, 135, 143

Liberty and Sexuality (Garrow), 55

National Journal, 2, 88

Liberty Counsel, 77

National Public Radio, 163

Lithwick, Dalia, 2, 11–12

National Review, 64, 82, 132

Lord’s Prayer, 79

Nazis, 159, 168

Los Angeles Times, 2, 4, 33–34

Necessary and Proper Clause, 137

Losing the Race (McWhorter), 107

Neuhaus, Richard John, 77

Lott, Trent, 163

Nevada Supreme Court, 134 New Deal, 4, 131–32, 139, 143, 148

Madison, James, 48, 135

New Republic, 2, 38, 63, 68–69, 71

Majesty of the Law, The (O’Connor), 19, 27

Newsweek, 1, 2, 88

Maltz, Earl, 28

New Yorker, 18, 40

Marriage: interracial, 67, 80; same-sex, 6, 8,

New York Times, 2, 4, 57, 64, 68, 138

48, 55–56, 58, 62–72, 75–78, 83–85

Nixon, Richard, 168

Marshall, John, 22–23

Noonan, John, 138

Marshall, Margaret, 66–69

Novak, Robert, 28

Marshall, Thurgood, 27, 29, 40, 44, 53, 199 Marshall Court, 23

Obscenity, 80–81

Martingayle, Kevin, 157–58

O’Connor, Karen, 118

Massachusetts Bar Association, 69

O’Connor, Sandra Day, 1, 7–8, 11–31, 34,

Mauro, Tony, 2, 192

39–40, 50–51, 61, 87–94, 96, 98–101, 103,

McGeorge Law School, 39

105, 115, 192, 194–96; affirmative action

McReynolds, James, 17

and, 8, 35, 87–94, 96, 98–101, 103, 105,

McWhorter, John H, 107

115, 203, 206; Ewing v. California and

Media, 138, 192–93, 198, 200

Lockyer v. Andrade and, 187; federalism

Medicare, 191

voting bloc and, 60; federal preemption

Meese, Edwin, 37–39

and, 142; Lawrence v. Texas and, 43, 57,

Merrill, Thomas, 118

59, 63, 75; Lockyer v. Andrade and, 8, 188–

Merrill Lynch, 103

89; Planned Parenthood of Southeastern

Metzler, Ted, 200

Pa. v. Casey and, 18, 44–46; as Reagan ap-

Microsoft, 120

pointee, 34; separation of church and state

Middle East, 191

and, 48–49; as ‘‘swing’’ justice, 1, 7–8, 11–

Military academies, 114, 116, 127

31, 40, 176, 186; United States v. Lopez

Minorities, 135, 140, 192, 201–04, 207

and, 136; Virginia v. Black and, 166; Wash-

Moral Majority, 81

ington v. Glucksberg and, 65 ‘‘O’Connor Court,’’ 15, 22

naacp (National Association for the Advancement of Colored People), 125–26 Nagel, Robert, 145

Ogbu, John U., 112 O’Mara, Jonathan, 156–57, 159, 170, 172 Operation Rescue, 73, 85

Index

237

Pace University, 203

Andrade and, 187; federalism voting bloc

Patterson, Orlando, 102, 103

and, 60; Lawrence v. Texas and, 37, 63;

pbs (Public Broadcasting System), 196

Lockyer v. Andrade and, 185; minority law

Phillips, Carter, 2, 113–14

clerks and, 202; Nevada Department of

Pike, David, 186

Human Resources v. Hibbs and, 8, 133;

Political migration, 146

separation of church and state and, 43–44,

Ponnuru, Ramesh, 15, 132

48–49; United States v. Lopez and, 136;

Pornography, 47, 80–81

Virginia v. Black and, 166; Washington v.

Posner, Richard, 118, 123

Glucksberg and, 58, 65

Powe, Lucas A., Jr., 79 Powell, Lewis F., Jr., 12, 30; affirmative action and, 53; court publicity and, 193–94,

Rehnquist Court, 1–8, 14, 16, 22–23, 30, 56, 59–60, 63, 131–34, 138–39, 141–42, 146– 48, 191–93, 196, 200–201, 204–06

197; Regents of the University of Califor-

Religion, 137, 147, 159, 162, 164, 170, 205

nia v. Bakke and, 87, 97, 99, 148; retire-

Religious Freedom Restoration Act, 147

ment of, 7, 38; Solem v. Helm and, 181; as

Reserve Officers Training Corps (rotc), 114,

‘‘swing’’ justice, 16–17, 19 Prayer in schools, 5, 11, 34, 43–44, 46, 48–49, 73, 79–82

116, 127 Richards, Phillip, 105–06 Roberts, Owen, 4

Preemption, 134, 142, 146

Robertson, Pat, 75

Preferences, economic, 110–11

Roosevelt, Franklin Delano, 4, 17–19

Presidential election of 2000, 11

Rose, Charlie, 196

Privileges and Immunities Clause, 136, 142

Rosen, Jeffrey, 2, 59, 63–64, 71–72

Protestants, 79

Rosenbaum, Mark, 179

Public Broadcasting System (pbs), 196

Rosenberg, Gerald, 81

Punitive damages, 119

Rosenthal, Charles, 36 rotc (Reserve Officers Training Corps), 114,

Queer Eye for the Straight Guy, 75 Race, 7, 17, 96, 98, 100, 102, 110, 151–54,

116, 127 Sacramento (California), 37–39, 53

156, 159–67, 170, 201–02; racial academic

Sandalow, Terrance, 101

gap, 88, 91–92, 96; racial balancing, 88, 90,

Savage, David, 2, 33–34

99–100; racial equality, 202; racial prefer-

Scalia, Antonin, 7, 11, 13, 15, 19, 27–28, 34,

ences, 14, 30, 87–99, 101–11, 147–48

39–41, 44, 46–53, 85, 101, 118, 194, 196,

Racism, 93, 103, 106–07, 112

207; abortion and, 82; affirmative action

rand Corporation, 185

and, 27, 53, 101; Commerce Clause and,

Raspberry, William, 112

142; Ewing v. California and Lockyer v.

Rational basis review, 145–46

Andrade and, 187–88; federalism voting

Reagan, Nancy, 38

bloc and, 60; influence of, 21; Lawrence v.

Reagan, Ronald, 7, 11, 34, 37–40, 43–44, 46–

Texas and, 63, 72, 75–76; Lockyer v. An-

47, 71, 82 Recidivist laws, 180, 183–84, 187, 189 Regulatory authority, 132

drade and, 185; Printz v. United States and, 137, 139; as Reagan appointee, 34; Virginia v. Black and, 164–65, 172

Rehabilitation Act of 1973, 121–22

Schlafly, Phyllis, 85

Rehnquist, William H., 4, 7, 13, 39, 91, 191,

School prayer, 5, 11, 34, 43–44, 46, 48–49,

195–96, 200–201, 205; abortion and, 44–

73, 79–82

45; affirmative action and, 91, 98–101; as

Schuck, Peter, 102

Chief Justice, 8; Commerce Clause and,

Schwarzkopf, Norman, 128

142; Ewing v. California and Lockyer v.

Segregation, 163; school desegregation, 206

238

Index

Self-incrimination, 59, 123

Supreme Court Preview, 179

Separation of church and state, 43–44, 48–49

Supreme Judicial Court of Massachusetts,

Separation of powers, 132, 147

56, 58, 61, 66–69, 72, 76, 83

September 11, 2001, 72, 75, 158

Susman, Martha, 67–68

Shields, Dennis, 100

Sutherland, George, 17

Sierra Club, 125–26

‘‘Swing’’ justices, 1, 7, 11–26, 28–31, 94, 135

Skokie (Illinois), 151 Slate, 2, 11

Taft, William Howard, 19, 23

Slavery, 167

Targee, David, 157

Slouching toward Gomorrah (Bork), 47

Taxation, 134, 156, 201

Smolla, Rod, 2, 8, 152

Taylor, Stuart, Jr., 2, 89–90

Souter, David H., 7, 13, 20, 40–41, 43–44,

Tempting of America, The (Bork), 47

207; abortion and, 45–46; affirmative ac-

Ten Commandments, 43–44, 48, 73

tion and, 20, 98, 110; Lawrence v. Texas

Tenth Amendment, 132, 137, 140

and, 43; Lockyer v. Andrade and, 186; mi-

Terrorism, 158

nority law clerks and, 202; Planned Par-

Texas Homosexual Conduct Act, 35

enthood of Southeastern Pa. v. Casey and,

Thomas, Clarence, 7, 13, 28, 39–40, 196;

18, 65; separation of church and state and,

abortion and, 44–45, 82; affirmative action

49; Virginia v. Black and, 171

and, 53, 101, 107; Commerce Clause and,

South, 166–67

142; confirmation of, 5; as conservative

Sovereign immunity, 132, 137–38, 140, 142,

justice, 85; dissents and, 21; Ewing v. Cal-

146, 149

ifornia and Lockyer v. Andrade and, 187–

Spending Clause, 148

88; federalism voting bloc and, 60; Law-

Stanford Law Review, 13

rence v. Texas and, 63; Lockyer v. Andrade

Stanford University, 53

and, 185; minority law clerks and, 203;

Stare decisis, 28, 108, 126

Planned Parenthood of Southeastern Pa. v.

Staver, Mathew D., 77

Casey and, 18, 65; separation of church

State courts, 134, 138, 175, 188–89

and state and, 49; United States v. Lopez

States’ rights, 49, 60, 131, 133, 136–37, 142– 43, 145, 182, 184

and, 139; Virginia v. Black and, 8, 152, 164–66, 172

Steele, Shelby, 93, 95

3M Corporation, 115

Stephanopoulos, George, 194, 196, 207

‘‘Three strikes’’ laws, 2, 8, 175, 178, 183,

Stevens, John Paul, 7, 13, 41, 116; affirmative

185–88

action and, 116; Bowers v. Hardwick and,

Thurmond, Strom, 163

36; federal preemption and, 142; Lawrence

Time Warner, 103

v. Texas and, 43; Lockyer v. Andrade and,

Totenberg, Nina, 163

182, 184, 186; Planned Parenthood of

Trade Act of 1974, 125

Southeastern Pa. v. Casey and, 44; separa-

Tribe, Laurence, 21, 28, 38, 43, 58–59, 68–70

tion of church and state and, 49; Virginia v.

Turley, Jonathan, 15

Black and, 166 Stewart, Potter, 17

ucla Law School, 109

Stone, Harlan Fiske, 17–18

Unanimity, 12, 19, 22–23

Strauss, Debra, 203

University of Illinois Law Forum, 126

Strict scrutiny, 107–08, 140

University of Michigan, 3, 8, 14, 17, 27, 33,

Sunstein, Cass, 2 Supreme Court, The (Rehnquist), 195 Supreme Court of Oregon, 200 Supreme Court of Virginia, 157–59, 169–71

53, 71, 87, 90, 93, 97, 110, 113–15, 127–28, 134, 163, 192, 203 University of Southern California, 176; U.S.C Law School, 179

Index

239

University of Virginia, 48

Virginia Military Institute, 52, 60

U.S. Court of Appeals for the Armed Forces,

Volokh, Eugene, 39 Voucher programs, 11, 111

65 U.S. Court of Appeals for the District of Columbia, 200 U.S. Court of Appeals for the Fifth Circuit, 58

Warren, Earl, 3 Warren Court, 5, 15, 22, 31, 34, 50, 78–79, 143

U.S. Court of Appeals for the Sixth Circuit, 59, 93, 97 U.S. Court of Appeals for the Seventh Circuit, 120 U.S. Court of Appeals for the Ninth Circuit, 61, 176, 178–79, 189 U.S. Court of Appeals for the Eleventh Circuit, 65, 202 U.S. District Court for the Central District of California, 178, 182 U.S. District Court for the Southern District of New York, 126 U.S. Reports, 193

Washington, George, 48 Washington Monument, 39 Washington Post, 92, 112, 199 Wechsler, Herbert, 135 Weyrich, Paul, 74–75, 78–79, 83–84 White, Byron, 43; abortion and, 44; Bowers v. Hardwick and, 36–37, 41 Wiegel, George, 15 Wilkins, Roger, 202 William & Mary Law School, 179 Wolfe, Alan, 80 Women’s Bar Association of Massachusetts, 69

usa Today, 201, 203, 207 Yale University, 203; Yale Law School, 38 Van DeVanter, Willis, 17 Violence Against Women Act, 136–37 Virginia Court of Appeals, 157

240

Index

Year in the Life of the Supreme Court, A (Barrett), 2, 9 Yoo, John, 135

Notes on the Contributors

Erwin Chemerinsky is the Alston & Bird Professor of Law at Duke Law School. He is the author of many articles and several books on constitutional law, including Constitutional Law: Principles and Policies (2d ed. 2002), a one-volume treatise on constitutional law. He frequently argues appellate cases in the Supreme Court, including Lockyer v. Andrade, the focus of his chapter in this book. Neal Devins is the Goodrich Professor of Law and director of the Institute of Bill of Rights Law at the William and Mary Law School. He is also a professor of government at the College of William and Mary. His most recent books are The Democratic Constitution and Political Dynamics of Constitutional Law (4th ed.) (both with Louis Fisher). Davison M. Douglas is the Arthur B. Hanson Professor of Law and former director of the Institute of Bill of Rights Law at the William and Mary School of Law. His most recent book is Jim Crow Moves North: The Battle over Northern School Segregation, 1865–1954. David J. Garrow is Presidential Distinguished Professor at Emory University. He is the author of Bearing the Cross: Martin Luther King, Jr. and the Southern Christian Leadership Conference, which received a Pulitzer Prize in 1987, and Liberty and Sexuality: The Right to Privacy and the

Making of Roe v.Wade (1994). He also co-edited The Forgotten Memoir of John Knox: A Year in the Life of a Supreme Court Clerk in FDR’s Washington (2002). Dahlia Lithwick is a senior editor at Slate. A graduate of Stanford Law School, she writes the Supreme Court Dispatches, for which she received an Online Journalism Award in 2001. Her work has appeared in the New York Times, the New Republic, Commentary, the Washington Post, and the American Lawyer. She is co-author of Me vs. Everybody (Workman, 2003). Tony Mauro has covered the Supreme Court for twenty-four years, first for USA Today and the Gannett News Service and now for American Lawyer Media and Legal Times. He is the author of Illustrated Great Decisions of the Supreme Court (Congressional Quarterly Press, 2000). Carter Phillips is the managing partner of the Washington office of Sidley Austin Brown & Wood. He first appeared in the Supreme Court in 1981 and has argued more than forty cases since then. He received his B.A. summa cum laude from the Ohio State University in 1973, an M.A. from Northwestern University in 1973, and a J.D. magna cum laude from Northwestern University in 1977. Ramesh Ponnuru is a senior editor at National Review, where he writes often about the courts. He lives with his wife April Ponnuru in Washington. Jeffrey Rosen teaches law at George Washington University and is legal affairs editor of the New Republic. His most recent book is The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age. David G. Savage is the Supreme Court correspondent for the Los Angeles Times. He joined the paper as an education writer in 1981 and moved to its Washington bureau in 1986. He is the author of Turning Right: The Making of the Rehnquist Supreme Court (1992). Rod Smolla is the dean of the University of Richmond School of Law. He was previously the Arthur B. Hanson Professor of Law and director of the Institute of Bill of Rights Law at the College of William and Mary School of Law. He writes and speaks extensively on constitutional law and is also active in constitutional litigation. His book Free Speech in an Open So242

Notes on the Contributors

ciety (Alfred A. Knopf, 1992) won the William O. Douglas Award as the year’s best monograph on freedom of expression. Stuart Taylor Jr. is a weekly columnist for the National Journal and a contributing editor for Newsweek, focusing on legal, political, and policy issues. Some of his columns are republished by Legal Times and its affiliates. He has appeared numerous times on all major broadcast networks. A graduate of Harvard Law School, Taylor was a legal affairs reporter from 1980 to 1985 and Supreme Court reporter from 1985 to 1988 for the New York Times.

Notes on the Contributors

243

Library of Congress Cataloging-in-Publication Data A year at the Supreme Court / Neal Devins and Davison M. Douglas, eds. p. cm. — (Constitutional conflicts) Includes bibliographical references and index. isbn 0-8223-3437-2 (cloth : alk. paper) isbn 0-8223-3448-8 (pbk. : alk. paper) 1. United States. Supreme Court—History—21st century. 2. Law—United States—History—21st century. I. Devins, Neal E. II. Douglas, Davison M. III. Series. kf8742.y428 2004

347.73%26%09%—dc22

2004008668