the breakfast table The Supreme Court Breakfast Table By Emily Bazelon, Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick

Ricci shouldn't have happened this way.
Updated Monday, June 29, 2009, at 7:22 PM ET
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From: Walter Dellinger
To: Linda Greenhouse and Dahlia Lithwick
Subject: Harmonic Convergence at the High Court
Posted Sunday, June 21, 2009, at 9:51 PM ET
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Dear Dahlia and Linda,

This is harmonic convergence week for the Supreme Court. The planets have aligned so that the end of the 2008 term comes just as we approach the confirmation hearings for a new justice. The last time this happened was when Justice Breyer's nomination was pending in June 1994. But this time feels different. The issues raised by the significant cases remaining on the court's docket seem particularly to resonate with the issues being debated in connection with the nomination of Judge Sonia Sotomayor.

The most important cases naturally gravitate to the end of the term because justices drafting the majority and dissenting opinions in those cases apparently feel compelled to keep revising and rewriting in response to one another's revised counterarguments up until the final days of the term. (This explains why some of the most interesting points are often in footnotes, the preferred venue for last-minute volleys.) This year there will be another dimension to the final opinions: Some will probably become fodder for the forthcoming Senate confirmation debate across First Street, Northeast.

Four remaining cases that may become part of the Sotomayor debate are Stafford United School District v. Redding (the school strip-search case); Citizens United v. Federal Election Commission (a challenge to a part of the campaign finance-laws); North Austin Municipal Utility District v. Holder (the Voting Rights Act case); and Ricci v. DiStefano (the New Haven firefighters case).

The Redding case poses a challenge to those senators who want to press Judge Sotomayor to swear under oath that in reaching decisions she will "simply apply the law" and solemnly promise never to be influenced by her life experiences, common sense, or any other nonmechanical factor. The case involves Savana Redding, a 13-year-old girl strip-searched by school officials who suspected she might possess prescription ibuprofen. Did this violate her constitutional rights? The relevant constitutional text says: "The right of the people to be secure in their persons … against unreasonable searches and seizures, shall not be violated." You can stare at that text for hours, hold it up to the light, even study it under a microscope, and it still won't tell you which searches are or are not "reasonable." Precedent is helpful but not dispositive: Prior cases say that school searches cannot be "excessively intrusive." In making that determination, it is surely useful for a judge to have some ability to understand how intrusive a "pull up your bra and pull out your panties" search might seem to a 13-year-old girl. (Some dare call this quality "empathy.") It may also be relevant, of course, to have some sense, as well, of the challenges facing school officials and the potential systemic value of bright-line administrative rules (like zero tolerance for drug possession). The key point is that all of the justices, no matter how they vote, will necessarily consult factors that are not purely and simply "legal." Senators who urge upon prospective justices an entirely mechanical balls-and-strikes application of law will be hard-pressed to explain how they could decide a case like Redding by legal logic alone.

In addition to using the confirmation hearings to root out closet empathizers, many senators will be vocal in their insistence on keeping any lurking "judicial activists" off the Supreme Court. Is that rhetoric outdated? Isn't the notion that political liberals favor, and political conservatives oppose, judicial activism an anachronism? In contrast to the eras of Brown v. Board of Education and Roe v. Wade, we are now in a time in which it seems that it's most often conservatives who are urging strong federal judicial intervention to set aside decisions made by state and local governments and by the people's representatives in Congress. In recent Supreme Court terms, political conservatives have wanted the court to take strong action to set aside local gun regulations, local school-board pupil-assignment plans, state awards of punitive damages, and local decisions on what kind of "public purpose" justifies taking property.

So it is again this term. In three of the most significant cases to be decided this week, it is the justices thought of as conservative who are most likely to use the power of judicial review to strike down decisions made by Congress on campaign-finance regulation and voting rights and to set aside the judgments made by local officials on promotion of firefighters. Some of these decisions may well be correct. (The campaign-finance law provisions used to limit distribution of a documentary critical of Hillary Clinton, for example, seem, to me, incompatible with the First Amendment.) The point is that far more often than not these days (gay-marriage litigation excepted), it is conservatives who favor aggressive judicial review. The rhetoric on the Senate floor seems not to have caught up with the reality of the court's docket.

The case that raises the question of the role of the judiciary most sharply is NAMUD, the Voting Rights Act case, because it involves assessment by the justices of considerations that seem quintessentially legislative in nature. And the case that may produce the most discussion in the Sotomayor debate is Ricci, the New Haven firefighter case in which Sotomayor joined the opinion that is being reviewed and assessed by her prospective new Supreme Court colleagues. Both NAMUD and Ricci involve race, an issue that seems to have become more complex, not less, in the age of Obama. There is so much to be said about each of these cases that I hope neither is decided until later in the week so I can get all your views before the opinions are announced.

So we will have a lot to talk about. Linda, do you have any thoughts on what's been interesting so far this term that you could share before we plunge into the maw of the final week?

Regards,
Walter


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: A Breathtakingly Polarized Court
Posted Monday, June 22, 2009, at 9:31 AM ET
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First, Dahlia and Walter, let me say how tickled I am to be joining you in this conversation, after years of eavesdropping on it as a reader. I feel that I'm stepping through the looking glass into a world where I can say what I really think! And, just as an aside, I hope that Judge Sotomayor's ability to say what she thinks didn't end with her nomination to the Supreme Court. Rather, I hope she takes a cue from the amazing interview that Justice Ginsburg gave to Joan Biskupic last month in USA Today. In that interview, Justice Ginsburg spoke candidly about her reaction to the Redding case that Walter mentioned—the strip-search of the 13-year-old girl. Noting that her male colleagues had seemed to make light of the incident during oral argument, Justice Ginsburg told Joan Biskupic: "Maybe a 13-year-old boy in a locker room doesn't have that same feeling about his body. But a girl who's just at the age where she is developing, whether she has developed a lot ... or ... has not developed at all (might be) embarrassed about that." Justice Ginsburg also observed that "there are perceptions that we have because we are women" and that these different perceptions can sometimes lead to different outcomes. Justice Ginsburg also complained about another case that was pending at the time of the interview, AT&T Corp. v. Hulteen, a case about the lasting effects of long-ago and now-illegal job discrimination against pregnant workers. It was apparent that she had lost the argument and was steamed about her colleagues' failure to understand, as she was to put it two weeks later in her dissenting opinion, that "certain attitudes about pregnancy and childbirth, throughout human history, have sustained pervasive, often law-sanctioned, restrictions on a woman's place among paid workers and active citizens." Only Justice Breyer joined her dissent from the majority opinion by Justice Souter. Justice Ginsburg's candor both on and off the bench is not only highly refreshing, but enhances public understanding of the court.

Walter, let me accept your invitation by offering some observations about the term so far. Two things jump out from even a casual look at the raw numbers. One is how extremely polarized the court is now: With 65 decisions so far, 18 have been decided by 5-4 votes, and of those 18, 15 have followed the pattern of the same four on one side (Scalia, Thomas, Roberts, Alito) and the same four on the other side (Stevens, Souter, Ginsburg, Breyer), with Justice Kennedy in the middle. These 5-4 cases cover the full range of the court's docket, from criminal law to administrative law to military law to the meaning of constitutional due process. It's hard to look down the list of 5-4s without wondering whether psychology rather than ideology might provide a better explanation for this behavior.

The second observation to jump out of the numbers, of course, is Justice Kennedy's extraordinary role. He dissented in only one of the 5-4s (Arizona v. Gant). Of the 15 that fell into the usual pattern, he voted with the conservative side of the court 10 times and with the more liberal side five times. The court's shift to the right—due in part but, of course, not completely to Justice Kennedy's preferences—is best illustrated, I think, by a count of the number of dissenting votes that each justice has cast so far. These are the dissenting votes on the conservative side: Roberts 10, Thomas 10, Alito 11, Scalia 12. On the more liberal side: Breyer 16, Ginsburg 20, Souter 21, Stevens 24. So the total number of dissenting votes so far among the four conservatives is 43. Among the four liberals, it is 81. Justice Kennedy, by the way, has cast two dissenting votes during the entire term thus far. By definition, of course, the Supreme Court always has what political scientists call a median justice. But I wonder whether the situation has ever been quite this extreme or whether you find it as breathtaking as I do.

Sometime during the week, I'd like to revisit opinions that did not get a great deal of attention but offer us quite a bit of insight into the Roberts court as it concludes its fourth term. But for now, we'd better rest up for the excitement to come this morning.

Until then,
Linda


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From: Dahlia Lithwick
To: Walter Dellinger and Linda Greenhouse
Subject: The Opposite of Drama
Posted Monday, June 22, 2009, at 11:21 AM ET
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Dear Walter and Linda:

Welcome back, Walter, and welcome, Linda! We are so thrilled to have you join us for what I believe to be the eighth annual end-of-term Breakfast Table.

The Supreme Court just surprised the heck out of everyone, I think, by deciding the explosive Voting Rights Act case you briefly discussed last night, Walter. It was a decidedly nonexplosive resolution of this question, as evidenced by the 8-1 vote.

Here is the link to the decision, which does not strike down Section 5 of the act but ducks the big constitutional question and, on more technical grounds, lets the little Northwest Austin Municipal Utility District "bail out" from the Justice Department's "preclearance requirement" for making changes to local voting rules. The "preclearance requirement" singles out only the so-called "covered" jurisdictions—all or parts of 16, mostly Southern, states with histories of racial discrimination in their voting practices—for special government clearance when they change their voting rules. These covered jurisdictions are supposed to be permitted to "bail out" from their preclearance obligations, but this case arose because a small Texas municipal district was not permitted to do so. The lower courts had said that was because it was technically ineligible under the statute (because it's a political subdivision that doesn't register voters). But the court finds today that it should have been.

In an opinion authored by Chief Justice John Roberts, the court notes, "Our usual practice is to avoid the unnecessary resolution of constitutional questions. We agree that the district is eligible under the Act to seek bailout. We therefore reverse, and do not reach the constitutionality of §5." Justice Clarence Thomas, dissenting in part, says he would have found that "Section 5 exceeds Congress' power to enforce the Fifteenth Amendment" and that "the violence, intimidation and subterfuge that led Congress to pass Section 5 and this court to uphold it no longer remains."

Talk about your narrow decisions. I am still reading the opinion and Thomas' partial dissent, but Walter and Linda, I am curious whether you think the court made the decision to leave this landmark piece of civil rights legislation intact at least partly in response to the landmark public discussion of race in America that Walter alluded to in his first post. Today's ruling turns the temperature way down on the Sotomayor confirmation, doesn't it? And Linda, what does all this minimalism and agreement mean for your contention that the court is now more hopelessly polarized than ever?

Cheers,
Dahlia


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: There's Always Another Day
Posted Monday, June 22, 2009, at 1:39 PM ET
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Dahlia, in answer to your question about what the 8-1 vote in the Voting Rights Act case tells us about how polarized the court is: It reveals a court that is both polarized and paralyzed. Clearly, the conservative justices who forced this case onto the court's plenary docket back in January—rejecting the Bush administration's request that they summarily affirm the district court decision upholding the Section 5 extension—stared into the abyss and blinked. Or maybe it was just Justice Kennedy who blinked. (See my previous post.) But I'd like to think it wasn't simply Anthony Kennedy who got cold feet at the prospect of a decision striking down one of the iconic achievements of the civil rights revolution, one that was not simply lying around unattended but that had been re-enacted with near unanimity by Congress only three years ago. I'd like to think the prospect of doing that gave Chief Justice Roberts a few shivers, too.

So, of course, that raises the question of what they were thinking back when they decided the challenge to Section 5 needed full briefing and argument. Well, the chief justice's opinion tells us what at least some of them were thinking: that Congress may well have exceeded its authority under Section 5 of the 14th Amendment to keep the preclearance regime going. Justice Clarence Thomas at least has the candor, in his dissenting opinion, to declare that flat-out. It was obvious from the oral argument back in April, when Justices Souter and Ginsburg were offering up the bail-out issue as a challenge to the appellant's standing, that the prospect of constitutional avoidance held little appeal for Chief Justice Roberts and his allies, who, at least at that moment, definitely included Justice Kennedy.

It's fascinating that no one from the liberal side of the court said a word here today. That was obviously the result of a considered collective judgment. There was not much they could say that would have made the outcome any better, and there was a distinct possibility that by saying anything nice about Section 5, or questioning their colleagues' motives, they might have pushed Kennedy in the other direction.

Not that there wasn't a great deal that they could have said. For those who want to understand why a new political day did not necessarily dawn with the election of Barack Obama (whose name the chief justice studiously avoids mentioning today, referring only to the fact that "minority candidates hold office at unprecedented levels"), take a look at the brief filed "on behalf of neither party" by Nathaniel Persily of Columbia Law School, et al. This brief points out that the 2008 election in fact "revealed the intransigence of racial differences in voting patterns" rather than their disappearance. The election revealed a "widening of the gap in political preferences between racial groups and a greater differentiation between the covered and noncovered jurisdictions." (This is Section 5 speak for those states and subdivisions in which the preclearance requirements of the Voting Rights Act apply.)

Based on the exit polls cited in this brief, Obama received 48 percent of the white vote in noncovered jurisdictions and 26 percent in places where Section 5 applies. In fact, fewer whites in covered jurisdictions voted Democratic in 2008 than in 2004. Of course, Justice Thomas would say these statistics are meaningless because they don't reveal intentional discrimination sufficient to overcome the strictures that he believes the court has properly placed on Congress' authority to enact legislation to protect against violations of core constitutional rights. That's a battle for another day.

Will the court be able to avoid having that battle? It seems to me today's opinion invites it. Challenging Section 5 is a movement issue, and it will come back. I'm reminded of a puzzling chapter in the court's history back in the mid-1980s, when the viability of the exclusionary rule was a hot issue. The court had a routine search case called Illinois v. Gates. The conservatives, seeing it as a vehicle for creating a good-faith exception to the exclusionary rule, added that question to the question originally granted and ordered reargument, over the dissents of Justices Brennan, Marshall, and Stevens, who objected that the Illinois courts had never had a chance to consider the new question. After reargument and the passage of several months, and "with apologies to all," the majority decided that the dissenters' objections were well-founded and that the question should not be decided. "A wide exercise of the powers confided in this Court dictates that we reserve for another day the question whether the exclusionary rule should be modified," Justice Rehnquist wrote for the court in June 1983. A year later, in United States v. Leon, the court bit the bullet and carved a good-faith exception out of the exclusionary rule. Lesson (and warning): There's always another day.

Yours,
Linda


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From: Dahlia Lithwick
To: Walter Dellinger and Linda Greenhouse
Subject: Roberts, Then and Now
Posted Monday, June 22, 2009, at 3:22 PM ET
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Linda and Walter:

If you want to your brain to implode, try reading today's decision in NAMUDNO next to a transcript of the oral argument from last April. Linda, you made this observation implicitly in your last post, but let me just say it outright: What happened to the Chief Justice John Roberts who gnashed his way through that oral argument with nothing but contempt for Section 5 and those who defended it?

Here was Roberts in April, questioning Deputy Solicitor General Neal Katyal's claim that Section 5 was still necessary because it still deters racially discriminatory voting practices: "Well, that's like the old—you know, it's the elephant whistle. You know, I have this whistle to keep away the elephants. You know, well, that's silly. Well, there are no elephants, so it must work."

Here is Roberts writing today: "These improvements [in racial conditions] are no doubt due in significant part to the Voting Rights Act itself, and stand as a monument to its success."

Here was Roberts in April, irked at the mere suggestion that there is still racism in some jurisdictions but not in others: "At what point does that history … stop justifying action with respect to some jurisdictions but not with respect to others that show greater disparities? … Your answer is that Congress can impose this disparate treatment forever because of the history in the south. … When can they—when can they—when do they have to stop?"

Here is Roberts writing today: "More than 40 years ago, this Court concluded that 'exceptional conditions' prevailing in certain parts of the country justified extraordinary legislation otherwise unfamiliar to our federal system. In part due to the success of that legislation, we are now a very different Nation. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today."

There is simply no way to reconcile the John Roberts speaking in late April with the John Roberts writing in late June, beyond Linda's conclusion that April Roberts simply blinked when confronted with actually striking down part of a path breaking civil rights law. Lyle Denniston suggests at SCOTUSblog that when Roberts started thinking about drafting what he was thinking, the opinion "simply would not write." Yet Clarence Thomas found that it would, and did, write. And he alone is left to argue, in his dissent, that Section 5 is constitutionally unjustified:

The extensive pattern of discrimination that led the Court to previously uphold §5 as enforcing the Fifteenth Amendment no longer exists. Covered jurisdictions are not now engaged in a systematic campaign to deny black citizens access to the ballot through intimidation and violence. And the days of "grandfather clauses, property qualifications, 'good character' tests, and the requirement that registrants 'understand' or 'interpret' certain matter," are gone. … Punishment for long past sins is not a legitimate basis for imposing a forward-looking preventative measure that has already served its purpose. Those supporting §5's reenactment argue that without it these jurisdictions would return to the racially discriminatory practices of 30 and 40 years ago. But there is no evidence that public officials stand ready, if given the chance, to again engage in concerted acts of violence, terror, and subterfuge in order to keep minorities from voting. … Admitting that a prophylactic law as broad as §5 is no longer constitutionally justified based on current evidence of discrimination is not a sign of defeat. It is an acknowledgment of victory.

Walter and Linda, what do you make of these words, coming from the only African-American on the Supreme Court, who argues today that doing away with Section 5 is the best way to "honor the promise" of the Voting Rights Act itself?

Implodingly,
Dahlia


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Narrowly Avoiding a Constitutional Revolution
Updated Monday, June 22, 2009, at 5:17 PM ET
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Dahlia, you ask how we should respond to Justice Thomas' declaration that finding Section 5 "no longer constitutionally justified" should be seen not as a "sign of defeat" but rather an "acknowledgment of victory." Superficially, that's very catchy. There are only two problems with it—the facts and the law. On the facts, there is plenty of evidence that American society has not yet entered a post-racial political nirvana. (See my earlier reference to Nathaniel Persily's brief in this case.) On the law, the point that's completely obfuscated in today's opinions is that the Supreme Court is not writing on a blank slate. Rather, it is reviewing action taken by a contemporary Congress in the exercise of its powers under the 14th and 15th amendments to protect citizens' rights to equal protection of the law as well as the right to vote. This is a core legislative function granted to Congress by the Reconstruction Amendments. The City of Boerne line of cases, which Justice Thomas adopts explicitly and Chief Justice Roberts embraces implicitly, has never been applied to limit congressional authority to protect interests deemed worthy of strict scrutiny. I realize that's a pretty dense sentence—let me unpack it, because I think it's crucial to understanding what's going on here and what the stakes really are.

Section 5 of the 14th Amendment gives Congress the authority to enforce, by "appropriate legislation," the rights to due process and equal protection that the amendment itself guarantees. Twelve years ago, in City of Boerne v. Flores, the Rehnquist court carved a chunk out of Congress' enforcement power, declaring that action taken by Congress under Section 5 was constitutional only if it was a "congruent and proportional" remedy for a demonstrated constitutional violation. Using this brand-new formulation, the court went on to strike down portions or particular applications of the Religious Freedom Restoration Act, the Violence Against Women Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act. In today's case, all the discussion about how there is supposedly no longer a voting rights problem supports the argument that the conceded intrusion on federalism imposed by the preclearance requirement is no longer—if it ever was—a congruent and proportional remedy for a constitutional violation that has faded into history.

This skeptical standard of review is in sharp contrast to the deference the court showed to Congress in South Carolina v. Katzenbach, the 1966 case that upheld the Voting Rights Act and basically said that however Congress chooses to deploy its Section 5 enforcement, power will be upheld as long as the congressional choice is "rational." So the complicated underlying doctrinal question in today's case was whether the Supreme Court would import the City of Boerne standard, with all its overtones of judicial triumphalism, into the arena of race or decide that, given the 14th Amendment's exclusive concern with race, that this was a boundary across which it would not allow the City of Boerne standard to creep.

Under the Clarence Thomas concurrence and dissent, the answer is clear that the court owes Congress only minimal deference, a la City of Boerne. Under the Roberts opinion, the answer would almost certainly have been the same—if the chief could have rounded up five solid votes. This would truly have been a constitutional revolution, with a significance outstripping the fate of Section 5 of the Voting Rights Act. For a rich discussion of this issue, see a background paper recently issued by the Constitutional Accountability Center: "The Shield of National Protection."

Dahlia and Walter, I'd like to ask you whether you think the chief justice's opinion is an exercise in judicial minimalism and, if so, whether that's a good thing.

Until later,
Linda


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From: Walter Dellinger
To: Linda Greenhouse and Dahlia Lithwick
Subject: Plenty of Drama in Today's Voting Rights Act Decision
Posted Monday, June 22, 2009, at 6:07 PM ET
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Dear Dahlia and Linda:

I'm not sure I agree with Dahlia that there is no drama in today's 8-1 decision to avoid deciding the constitutionality of the Voting Rights Act's Section 5 preclearance requirement, which mandates that jurisdictions with a past practice of racial discrimination get approval from the Department of Justice before changing their voting rule. The court stepped back from blowing up one of the key provisions of the most important civil rights law ever passed when it was widely expected that the detonator button would be pushed. That is no small thing. When he was director of the NAACP Legal Defense Fund, Thurgood Marshall said that Rule No. 1 was "never lose." Winning big was great, but the most important thing was to avoid a loss that would preclude fighting another day. The current LDF director, John Payton, and its courtroom advocate, Debo Adegbile, have reason to be pleased today.

That said, I do agree with Linda that it may be only a matter of time before the court invalidates this part of the Voting Rights Act, unless Congress is willing to make significant changes to it.

Questions abound. Have we, finally, for once, seen an instance of the minimalist judging that John Roberts espoused in his confirmation hearing? Or does the opinion suggest that Section 5 of the Voting Rights Act in its present form is doomed when that inevitable next case goes to the Supreme Court? How soon will a jurisdiction that has tried and failed to get out from under Section 5 bring a new challenge? What can Congress do to save it?

To go back to my first question, to start with, why didn't the court's majority proceed to invalidate Section 5 now? I agree with Linda that the chief justice may be genuinely reluctant to take such a dramatic and symbolic step when it can be avoided. One additional factor that might be at work is the pendency of the white New Haven firefighters' suit, Ricci v. DiStefano. If the court is going to use that case to make a significant change in the civil rights jurisprudence known as disparate impact analysis—and we will know that soon—some justices might have been hesitant to strike down significant and long-standing remedies under both Title VII and the Voting Rights Act back-to-back. Substantially revising two pillars of the civil rights structure in a single week might have been too much at once.

It does appear that the Voting Rights Act as written is doomed. The chief justice's opinion is full of reasons for holding it unconstitutional and barely mentions two points in its favor, each of which is attributed to the trial judge and not endorsed by the majority opinion. Roberts notes that in 1965, in Katzenbach v. South Carolina, extraordinary circumstances justified what would have otherwise been an unconstitutional remedy of requiring states to get advance permission before changing their voting laws. He goes on to say that Section 5 requires of states subject to it actions that would be unconstitutional if imposed on other states. And then he concludes that there is considerable evidence that the geographical formula for which states Section 5 covers is not justified by current circumstances. You can do the math in your head.

So why not go ahead and strike it down now? In a thoughtful posting, Tom Goldstein of SCOTUSblog suggests that this really is an instance of the "minimalist" chief justice emerging. Not only does the Roberts opinion achieve an almost unanimous consensus on a very divisive issue, but he enters into a dialogue with Congress, inviting the legislature to consider the court's concerns and respond with a revised statute that is more fully consistent with constitutional structure.

I am not sure, however, how minimalist or respectful of Congress this result really is. There are several revisions Congress could adopt that would make Section 5 more acceptable to the court's majority. But only one of those changes is really material: redoing the formula for which states the act covers. Today's decision seems to say to Congress, "We won't even consider upholding the preclearance requirement unless you use a fresh, rather than a historic, determination of what states and subjurisdictions still have a problem with racist voting and discriminatory voting laws." Congress, however, had very good reasons for its decision to keep the historic coverage formula in place, reasons of judgment and practicality and legislative process. In the end, the question of whether it is "appropriate" to use the older formula rather than a new one seems to me to be a matter the 15th Amendment entrusts to the good judgment of Congress, not the court.

And yet the fact that Congress did not revisit the formula for deciding which jurisdictions were covered seemed particularly troubling at oral argument to both the chief justice and Justice Kennedy. Congress did amass findings that racial discrimination in voting was still a problem and that the jurisdictions covered by Section 5, taken as a whole, had greater problems with race discrimination than the rest of the country taken as a whole. But Congress did not undertake to determine, as of 2003, whether, for example, Virginia, which Section 5 covers, still had more racial voting problems than, say, Oklahoma, which Section 5 does not. This seemed to Justice Kennedy and Chief Justice Roberts to offend those states' "equal dignity." Justice Kennedy said at oral argument that the current formula meant that "the sovereignty of Alabama is less than the sovereign dignity of Michigan. And the governments in one are to be trusted less than the governments [in] the other." Congress, he suggested, should have had a much fuller record of current information to justify imposing a stigma on those governments that are to be "trusted less" than others.

But Congress had very sound, practical, and pragmatic reasons for leaving the states covered by Section 5 as they were: a fear that reopening the formula could turn into a legislative nightmare. The jurisdictions covered by Section 5 are basically comfortable with being covered on the basis of history. The historical fact that these states formally engaged in pernicious voting practices—which no one disputes—imposes no great stigma on their current body politic. To decide, as the court seems to demand of Congress, which states are currently "more racist than the other states" through a new coverage process could well produce a legislative process of chaos and recrimination. Imagine: Virginia gets out of the requirements of Section 5 by showing it is now no worse than Oklahoma, followed by Georgia saying, "Why do you think we're worse than Virginia?" Congress had a hugely important reason for wanting to avoid making that present judgment of comparative blameworthiness.

As Linda notes, it is very questionable that the court, rather than Congress, should make the judgment about what is appropriate legislation under the Civil War amendments that are the basis for the Voting Rights Act. The 15th Amendment, after stating that the right to vote shall not be abridged on account of race, provides: "The Congress shall have the power to enforce this article by appropriate legislation." Congress is thus the only institution mentioned in a fundamental constitutional provision that entrusts protection of voting rights to the federal government.

The court seems to be telling Congress that it might uphold the law if Congress were to undertake revisions that would bring the law more in line with the court's own sense of an appropriate legislative process. For the court to second-guess Congress on such a matter seems far from minimal—and a matter of drama in itself.


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: More Cynical Than Minimalist
Posted Tuesday, June 23, 2009, at 9:47 AM ET
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Walter, you suggest—and, as you point out, others have more fully embraced—the idea that yesterday's Voting Rights Act decision can be viewed as an exercise in judicial minimalism, the kind of "Over to you, Congress" handoff that we should expect to see from a nonactivist court. I thought so, at first, myself. As one who has criticized (see, for instance, my article "A Tale of Two Justices" in the autumn 2007 Green Bag) Chief Justice Roberts' overreaching plurality opinion in the court's last important race-related case, Parents Involved in Community Schools (the Louisville and Seattle voluntary school-integration case) from two years ago, I thought I should probably salute the court this time for disengaging from a profound constitutional debate that appeared beyond its institutional capacity to resolve.

But on reflection, it seems to me that this decision is more properly labeled cynical than minimalist for two reasons. First, the actual holding, that NAMUDNO and other jurisdictions of its ilk are entitled to go for a Section 5 bailout, is an exercise in statutory revisionism that would be too cute by half even without ample evidence, as Dahlia documented yesterday by quoting from the oral argument, that the court's conservatives didn't really believe it for a minute. What's that old saying about applying the law and not making the law? Here, they rewrote the law. I think Justice Thomas is quite correct to maintain that whatever this is, it's not a proper invocation of the doctrine of constitutional avoidance.

Second, the notion that Congress can be enlisted to avoid this looming constitutional showdown by readjusting Section 5's geographic coverage is completely unrealistic, as anyone familiar with the history of the 2006 extension has to know. The decision in Congress not to revisit the existing list of covered jurisdictions was a very deliberate one—made because everyone knew that the extension effort would get hopelessly bogged down if that can of worms were opened. And, with the clock running on Section 5's expiration date, the whole effort could well have failed. Now, that's not a pretty picture, and maybe it's a reason to be suspicious of the whole project. If so, then say that. Don't pretend that Congress can actually be expected to get its act together to retool and re-tailor Section 5 to the Supreme Court's satisfaction.

A truly minimalist approach to this case would have been to accept the Bush administration's invitation to summarily affirm the judgment below that upheld the extended Section 5. Since this case came up not as a petition for certiorari but as a jurisdictional statement within the court's mandatory appellate jurisdiction, summary affirmance would have been a judgment on the merits, and everyone could have gone away quietly. (By the way, for anyone who would like to see what a truly minimalist opinion looks like, I recommend Justice Alito's opinion in the "seven aphorisms" case from February, Pleasant Grove City v. Summum, which deftly cuts through all sorts of thorny and unresolved questions about First Amendment forum doctrine to explain why a city that has the Ten Commandments on display in a public park is not thereby obliged to yield to a cult's demand that it also display a competing, albeit shorter, list of weird aphorisms. A decision the other way would have scattered aphorisms around the countryside like so many Canada goose droppings.)

As for what lies in store for Section 5, Bruce Ackerman has an interesting post on Balkinization, suggesting that a future Obama court would not only uphold but celebrate Section 5. Interesting thought experiment. Perhaps the same scenario occurred to Chief Justice Roberts, close student that he is of the court and American history. If so, that could explain the court's nonminimalist decision to grab this case for plenary review. The chief justice, deeply skeptical of the Voting Rights Act for basically his whole adult life, might have sensed after the November election that time was not on his side and that he'd better take the opportunity to rein in the act while he could. But time ran out, and his majority, or at least one member of it, ran for cover.


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From: Dahlia Lithwick
To: Walter Dellinger and Linda Greenhouse
Subject: What Do We Talk About When We Talk About "Identity"?
Posted Tuesday, June 23, 2009, at 2:35 PM ET
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Dear Walter and Linda:

While we have a moment to catch our breath before more decisions rain down on Thursday, I want to get your thoughts on some of the other opinions that have already come down this term. And also on the nomination of Sonia Sotomayor to the Supreme Court, which seems to have fallen off the front pages in recent days—in part because the worst of her attackers seem to have down-shifted from shrill, cartoonish, and wrong to just shrill and wrong to—now—just wrong.

With 17 years of her judicial experience to examine, those who would attack Sotomayor as unqualified are focusing on a few words from old speeches and her role in the 1980s on the board of the Puerto Rican Legal Defense and Education Fund. They really do seem to be grasping at old straws. I understand why they'll feel the need to try to use those straws to build a house, no matter how tippy, but it's been stunning to see the energy go out of the story these past weeks.

I want to ask both of you about another aspect of the harmonic convergence Walter described in his initial post, a convergence in which the SCOTUS docket and confirmation hearings cosmically collide. In addition to the ways the race cases echo the race conversation in the run-up to the confirmation, there is also a gender case that may shape the way we talk about gender at Sotomayor's hearings. I keep thinking that if the strip-search case comes down as we expect and the Supreme Court says it's fine for school administrators to strip search young girls for pain meds, it will only add fuel to the growing conviction that the court just doesn't understand women at all. It may well be this year's Ledbetter case. Linda, yesterday you mentioned Justice Ginsburg's new openness about her male colleagues' failure to understand life from a woman's perspective. Why do you think she's started speaking out so openly? Do you really believe, as you wrote, that Sotomayor should "say what she thinks"? Hasn't saying what she thinks—about race and gender and affirmative action—made her a walking target, even if the attacks won't ultimately go anywhere?

Is there ever a way to talk about "identity politics" without being accused of just having too much identity? Is there ever a way to talk about "empathy" without being accused of having some mental deficiency or disorder?

Do either of you want to comment on the awesome judicial misconduct case, Caperton, or the two cases that came down last week involving DNA testing and age discrimination? I will listen to your thoughts on these and other matters with empathy bordering on bias.

Yours,
Dahlia


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: The Now-Notorious Berkeley Speech
Posted Tuesday, June 23, 2009, at 3:30 PM ET
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Dahlia,

You ask whether I believe that justices should go around saying what they really think. One thing that's interesting about the current justices is that they exemplify every possible answer to this question—from Justice Scalia, who tells us what he thinks even when no one asks him (and had to pay the price of recusal for it a few years back when he had publicly dumped on the "under God" challenge to the Pledge of Allegiance as that case was making its way to the court), to Justice Souter, whose wit and eloquence are well-known within the closed circle of those privileged to hear him but who almost never spoke in public during his Supreme Court tenure. Somewhere in the middle is Chief Justice Roberts, who speaks publicly quite often but studiously avoids saying anything of substance. (Justice Stevens, by the way, does his share of public speaking and not infrequently says something quite pointed and interesting—but for some reason or other, his off-the-bench remarks are not often seen as newsworthy.)

A court of nine Scalias would be exhausting, and a court of nine Souters would deprive us of an ongoing sense of a court of nine human beings trying to engage, in one way or another, with the world around them. I actually think Justice Ginsburg has it about right. She doesn't speak all that often, so when she comments on a pending or recent case, or some other development, you know her remarks are carefully considered and strategically intended. I think she does the court and the public a favor.

So what about S.S. (as she will soon be known inside the court, where justices are routinely referred to by their initials)? The manufactured outrage over her "wise Latina" remark is fatuous—and cynical (not to overuse that word around this breakfast table), given the actual thrust of her remarks at that now-notorious Berkeley speech eight years ago. Anyone who reads the whole speech will have to acknowledge that her real point is that anyone, of whatever background, can make a good judge if they strive constantly, as she says she does, to set aside their own defining characteristics and to be fair and open to all. But no one reads or quotes those paragraphs. I think the response to her various remarks is sexist among other things. After all, didn't then-Judge Alito talk at his confirmation hearing about his constant awareness of being the son of an Italian immigrant, the implication being that despite Princeton and Yale (sound familiar?), he retained a common touch and understanding of those with less-exalted credentials? Everyone thought that was pretty nice. Do I very much hope that S.S. retains the willingness to tell us how things look from her corner of the bench? I look forward to hearing from her.

I do have a few thoughts on Caperton and some other recent decisions. I'll save them until I hear from Walter.

Until then,
Linda


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From: Walter Dellinger
To: Linda Greenhouse and Dahlia Lithwick
Subject: What Anthony Kennedy Sees Is Law
Posted Tuesday, June 23, 2009, at 6:38 PM ET
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Dahlia and Linda—Dahlia asks whether we have any comments on a few of the recent decisions, including the DNA case (District Attorney's Office v. Osborne) and the judicial recusal case (Caperton v. Massey Coal). What I found interesting was to read those two seemingly unrelated cases in tandem. Each involves a plaintiff seeking relief from an unjust state practice by asking the court to recognize a new federal due-process right. In both cases, Justices Stevens, Souter, Ginsburg, and Breyer would recognize a federal due-process right. In both cases Justices Roberts, Scalia, Thomas, and Alito would not. The difference in outcome—Caperton wins; Osborne loses—is produced by the vote of Anthony Kennedy, the only justice who finds a due-process right in one case and not the other.

In each case, Chief Justice Roberts writes an opinion arguing that it would be a mistake to "constitutionalize" the state-law practices at issue. The two opinions are strikingly similar. But one (Osborne) is the majority opinion and the other (Caperton) is the dissenting opinion.

Kennedy holds for the court in Caperton that an arguably biased state court judge's refusal to recuse himself from a case can raise a federal due process issue. The facts are notorious. Caperton won a $50 million damage judgment against Massey Coal. While Massey Coal's appeal was pending in the West Virginia Supreme Court, Massey's chairman spent more than $3 million getting a new justice elected to that court—a justice who cast the deciding vote in Massey's favor, overturning Caperton's trial court victory. (It's hard to believe, but the facts are even worse than that brief summary suggests, as Dahlia's account of the oral argument details.) The majority opinion is an easy write: How could it possibility be consistent with due process to require a litigant to have his case decided by a judge who was put on the court by his opponent's money?

Chief Justice Roberts' dissenting opinion in Caperton argues that it would be a mistake to use this one injustice—no matter how outlandish—as a reason to constitutionalize state law on judicial recusals. However appealing Caperton's claim of unfairness, a U.S. Supreme Court decision rectifying this injustice would turn the countless (hundreds a year, at least) state court recusal motions into federal constitutional claims requiring adjudication in federal courts, often in the U.S. Supreme Court.

Roberts writes much the same opinion decrying the extension of due process to a new area in Osborne, the DNA case. But this time he has Kennedy's vote, so his opinion is for the court's majority. Convicted criminal William Osborne wants the state of Alaska to permit testing (at Osborne's own expense) of DNA evidence that could definitively prove his guilt or innocence. For reasons that are rather inscrutible, Alaska has refused to let this DNA testing be done. Roberts writes an opinion that sounds a lot like his Caperton dissent. In his Caperton dissent, Roberts write "… opening the door to recusal claims under the Due Process Clause" would require federal courts to come up with a code of rules for state judges recusal obligations." In his Osborne majority opinion, Roberts says, "If we extended substantive due process into this area, we would … be forced to take over the issue of DNA access ourselves. We are reluctant to enlist the Federal Judiciary in creating a new constitutional code of rules for handling DNA." But this time, Kennedy agrees.

Why does Kennedy alone believe that Caperton's claim to a fair bench is an appropriate matter for constitutional due process adjudication while Osborne's request for access to DNA evidence is not? And if there is a difference, does Justice Kennedy get it backward? If the two claims for due process recognition were to be distinguished, it would seem to me that Osborne might have the stronger case. Admittedly, there is plausibility to the chief justice's argument that the Alaska courts might still afford Osborne the DNA testing he seeks and might come up with a good reason if and when they finally turn him down. It all sounds perfectly plausible as you read the somewhat opaque opinion. But when I finish the opinion, I find myself thinking, "Wait, why is it that Alaska won't let him test the DNA evidence at his own expense?" And I can't remember a coherent reason. It may be fine to tell Osborne he needs to make an additional presentation to the Alaska courts. But why not go ahead and say right now that at the end of the day he will have a federal due process right to test evidence that could prove him innocent unless the state comes up with a far better excuse than they have so far?

Although Roberts suggests in his Osborne opinion a few issues federal courts would have to determine if the court were to recognize a right to DNA testing, those questions don't seem very numerous or difficult. In Caperton, on the other hand, Roberts makes a far more persuasive showing that once you make state judicial recusals a matter of federal constitutional law, the line-drawing problems are bewilderingly complex. Roberts lists 40 difficult questions left open ("How much money is too much?" … "What type of support is disqualifying?" … "What if the [judicial] candidate draws 'disproportionate' support from a particular racial, religious, ethnic or other group and the case involves an issue of particular importance to that group? What is the proper remedy?")

As I said at the outset, four justices would have recognized due process claims in both cases, and four would have rejected the claims in both. If you are going to distinguish between the two, Osborne's due process claim to his DNA test seemed to me less problematic than Caperton's due process claim for federal review of state recusal decisions. Kennedy saw it the opposite way. And what he sees is law.

Best,
Walter


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Do Female Judges Have To Quit Their All-Women Book Groups?
Posted Wednesday, June 24, 2009, at 10:06 AM ET
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Dear Walter and Dahlia:

Walter, before I take up your invitation to talk about Caperton and other highlights and lowlights of the term, indulge me in a digression about the preposterous criticism Sonia Sotomayor has endured for getting together with her girlfriends in a group amusingly named the Belizean Grove. Get a life, people! Do I really have to explain the joke to you? Here's the Bohemian Grove, where captains of industry wander about and bond amid the redwoods, dwelling in "camps" on fabulously valuable property in Northern California and mingling with basically every other powerful man in the country. And here's a bunch of women who give themselves the tongue-in-cheek name of Belizean Grove (trust me, I've been to Belize), who own no property, who do not engage (or at least I assume they don't) in the male BG's truly odd ritual of peeing on the redwoods (I'm not making this up), and who enjoy one another's company by taking occasional trips.

I take a trip to Mexico every winter with a group of female friends, and we call ourselves Las Amigas. If I decided to go for a federal judgeship, would I have to become a former amiga? How is this different from all-women book groups? I guess any woman who aspires to a judgeship had better make sure her book group is co-ed, lest she be accused of a "double standard." And let's not even mention the National Association of Women Judges, an estimable group of long standing, with a distinguished membership roster. I could go on, but I will restrain myself. I'm just sorry that S.S. or her advisers felt the need to dignify this nonsensical criticism by taking a defensive tone about the Belizean Grove and then "resigning."

Now, briefly, to Caperton. This was, indeed, a very odd exercise. The case was latched onto by a whole bunch of well-meaning folks who thought they could use it as a poster child for what's wrong with a system in which judges must run for election and raise money to do so. But its facts are so extreme that it can in no way be described as typical, and it produced an opinion so qualified and so tied to those facts, it's impossible to state the holding accurately in a way that has any utility for the nonextreme, and hence less visible and perhaps more troubling, situations that come up when judges have to run for office or retention. The real fight in this case was evidently in conference, in a closed-door debate that went on for weeks over whether to grant it. I'm sorry that they did: The case promised more than it could possibly deliver, while doing very little to clarify a judge's duties in ethically ambiguous situations. But the game was over with the grant of cert—once this case was run up the flagpole, it was quite foreseeable that Justice Kennedy would have to salute rather than be seen as shrugging off the behavior that went on here. Tony Mauro had an enlightening interview with Tom Phillips, the former chief justice of Texas, who suggests that very little will come of Caperton in the end.


I just want to mention two other cases. One is Gross v. FBL Financial Services, which came down last Thursday and was largely overlooked among the coverage of the DNA case Walter talked about. Why did this 5-to-4 decision (majority opinion by Justice Thomas) provoke just about the angriest dissent I've seen from Justice Stevens since Bush v. Gore? Because of the bait-and-switch game the majority played. The court granted on the relatively narrow question of whether a plaintiff in a "mixed motive" age discrimination case has to present "direct evidence" of age discrimination in order to shift the burden to the employer to show that the adverse action—firing, failure to promote, unwelcome transfer, etc.—would have been taken regardless of the employee's age. ("Mixed motive" simply means that the defendant is alleged to have acted for an impermissible reason among other reasons, and since malefactors rarely declare their bad motives, many discrimination cases require peeling back the cover story to get at the truth.)

Having granted cert on this question, the majority then leapfrogged over it to rewrite the rules for litigating an age discrimination case. The court held that the burden never shifts to the employer to explain itself. Rather, the employee-plaintiff bears the burden throughout the case of showing that age was not simply one factor among others but that it was the "but-for" cause of the adverse employment action. The court took this big step without notice to the parties that it was even under consideration. Once it decided to go that route, the court should have invited supplemental briefing or—as would have happened in earlier years—scheduled a reargument so that all parties could have addressed the implications of a potential ruling that will, predictably, make it much harder for victims of age discrimination to survive summary judgment, let alone prevail on the merits. This was a nasty/lazy/shoddy way to proceed. Justice Stevens said it better: "[a]n unabashed display of judicial lawmaking."

Another case that has not received sufficient scrutiny is Ashcroft v. Iqbal, decided May 18. In this 5-to-4 decision (majority opinion by Kennedy), the court dismissed a suit against the former attorney general by one of the hundreds of Muslim men who were rounded up after 9/11 and jailed under harsh conditions in the federal prison in Manhattan. The question concerned the pleading requirements for such a suit—had the plaintiff, Iqbal, presented enough of a case to be able to get discovery. In holding that he had not, the majority relied on an antitrust case from 2007, Bell Atlantic v. Twombly, which raised the pleading bar in antitrust cases by requiring plaintiffs to show at the outset that their theory of the case was not only conceivable and nonconclusory but also "plausible." Justice Kennedy declared that the Twombly case was not limited to the antitrust area but "expounded the pleading standard for all civil actions." Not so fast, said Twombly's author, Justice Souter, in dissent. He said his point in Twombly was to enable a court to dismiss a case at the pleading stage when the plaintiff's theory (of Sherman Act violations) was consistent with lawful conduct as well as with illegality, taking the allegations as factually correct. In the Iqbal case, Justice Souter said, Iqbal's allegations, if true, showed only illegality, and he was therefore entitled to move on to discovery; this was not a Twombly case. Ah, but by a 5-4 vote, it became a Twombly case, and all civil litigation now has to meet a higher pleading standard than Twombly's author himself intended. Another bait-and-switch. Nice.

I hope I haven't run on too long here. These cases aren't the most thrilling, perhaps, but they are where the rubber met the road this term, and they have implications—unlike Caperton—beyond their facts. By the way, it appears that tomorrow won't be the final day of the term—we can keep enjoying our breakfast until next Monday, and I look forward to it.

Yours,
Linda


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From: Dahlia Lithwick
To: Walter Dellinger and Linda Greenhouse
Subject: The Symmetry of Our Suffering
Posted Wednesday, June 24, 2009, at 2:19 PM ET
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Dear Walter and Linda:

At the heart of Linda's great post about Judge Sotomayor and the dust-up over her membership in an all-women's club called the Belizean Grove lies the problem of perceived symmetry. Is there a difference between a group of all-male power brokers who exclude women and a group of all-female power brokers who exclude men? Does it matter that the women formed their own group because they were locked out by the men? My former boss Mike Kinsley says there needn't be symmetry; that "we tolerate discrimination in favor of traditionally oppressed groups more than we tolerate discrimination against them." Our colleague Stuart Taylor contends that "some of the other racial and gender double standards that Kinsley endorses—which served long ago as remedies for discrimination—have come to operate as engines of discrimination that do serious harm to real people."

And that's the nut of the Ricci case: Is tossing the results of a promotion exam because it disadvantages African-American firefighters the same as discriminating against white ones?

Now, Linda says that with respect to all-male clubs, there's no symmetry and there shouldn't be because the Belizean Grove is mainly a lark and a joke. Kinsley says there's no symmetry and that's fine (then he excoriates women who join exclusive women's groups for discriminating against ordinary women). I want to bring John Payton into the discussion because his thoughts on symmetry and perceived symmetry are illuminating. Payton is the head of the NAACP's Legal Defense Fund, and he spoke at an event in New York last week about what qualities we need in our judges. I moderated. Here is Stanley Fish's thoughtful account.

Payton invoked the illusion of symmetry, quoting a stunning passage from professor Herbert Wechsler's famous 1959 Holmes Lecture at Harvard Law School, "Toward Neutral Principles of Constitutional Law," in which Wechsler argued that Washington, D.C., restaurants that denied access to black patrons caused as much harm to him (as a white man) as they did to blacks. Wechsler wrote: "In the days when I was joined with Charles Houston in a litigation in the Supreme Court before the present building was constructed, he did not suffer more than I in knowing that we had to go to Union Station to lunch together during the recess."

The brilliant Wechsler—in his search for the kind of neutral legal principles that allow one to call balls and strikes—truly believed that he suffered as much for being forced to dine at Union Station with a black man as the black man denied access to Washington restaurants.

Nobody disputes that Frank Ricci, a white fireman, suffered as a result of the city of New Haven's decision to throw out a promotions test he worked so hard to pass. Just as nobody disputes that Barbara Grutter, a white Michigan resident, suffered for being denied access to the University of Michigan law school because of its affirmative action policies. As a subjective matter, so-called "reverse discrimination" is experienced as no less painful a denial than discrimination. And the only thing more unfair than being treated unfairly is being told that your suffering is less compelling or urgent than the next guy's.

But Wechsler's subjective belief that he was as hard hit by forced racial segregation as Charles Houston suggests that our sense of what's "fair" is inevitably constrained by the limits of our own experience and imagination. Instead of railing about Sotomayor's alleged sexism and racism, it's worth trying to imagine what she knows that we do not yet understand. The only other alternative is to become a nation of bitter, atomized victims, struggling to be the most aggrieved. In his talk at the Brennan Center, John Payton hailed the deep truth in Sandra Day O'Connor's vision from Grutter, the Michigan affirmative action case: "Nothing less than the nation's future depends upon leaders trained through wide exposure to the ideas and mores of students as diverse as this Nation of many peoples."

Walter, Linda, the court is poised to hand down the Ricci decision, and it may well set the terms for the rest of the Sotomayor debate. What do you think of Wechsler's strange hierarchy of suffering? And is this whole conversation around race and Ricci doomed to collapse in a heap of public misunderstanding, umbrage, and resentment?

Yours,
Dahlia


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From: Walter Dellinger
To: Linda Greenhouse and Dahlia Lithwick
Subject: You Go, Girls
Posted Wednesday, June 24, 2009, at 6:33 PM ET
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Dahlia and Linda,

It's going to be hard for me to get a word in edgewise in this gabfest, with its veto-proof two-thirds female majority. (Also, you are both amazingly fast journalists; as a professor, I assumed it took a semester to write anything.) But I'll try, because this conversation has taken a turn to where two really important issues converge.

The substantive issue of symmetry (should all uses of race or all uses of gender be treated alike) intersects with the jurisprudential issue of what goes into good judging (logic alone or experience, social context, practical understanding, a sense of history, etc.). To treat membership in all-male or all-female (or all-white and all-black) organizations as logically indistinguishable is to ignore everything we know about history and context. Having the women in an organization get together among themselves and share their experiences may or may not be a good idea. But it is fundamentally different from having the men—who may have run the institution for the last century—have meetings from which women are excluded.

There is no better example of the false triumph of logic over experience than the 1896 decision in Plessey v. Ferguson, where the Supreme Court upheld Louisiana's law mandating separate railroad cars for white and black passengers in an opinion making the logically correct observation that the law treated the two races exactly alike. It was the court's Southerner, John Harlan of Kentucky, who, in dissent, uttered the two critical words that destroyed that logic: "everyone knows," he wrote, before continuing to describe the true meaning of segregation as oppression of the black race.

The most recent triumph of false logical symmetry was the 2007 decisions in the Louisville and Seattle school-desegregation decisions where the chief justice's plurality opinion equated the efforts of the people in Jefferson County, Ky., and Seattle to have white and black students educated together with the same as the system of racial subjugation and servitude practiced in the American South. As I wrote at the time, at this Breakfast Table, in "Everything Conservatives Should Abhor," the opinion was logically elegant, but it failed the first lesson taught to preschoolers who watch Sesame Street: "Which of these things is not like the others?" Assuming that judging should be like calling balls and strikes leads to the conflation of very different experiences—and to bad law.

The soon-to-be-decided case of Ricci v. DeStephano is the next venue for the symmetry debate. New Haven administered a new multiple-choice test to firefighters seeking promotion. Unlike the results on other tests in prior years, this new test produced a racial disparity in the number of firefighters who became eligible for promotion: Whites became eligible for promotion in roughly twice the proportion that black firefighters did. Asserting a concern that this disparity could not be justified under Title VII, the city's civil service board, on a tie vote, declined to certify the results. White firefighters (including one Latino) sued the city, arguing that the decision not to use the test results was an unlawful employment practice under Title VII and violated the Equal Protection Clause. The court of appeals sustained the city's decision.

Because Judge Sonia Sotomayor was one of the judges on the panel that decided in the city's favor, the case has attracted a great deal of attention. But, as an important letter from professor Richard Primus of Michigan shows, a reversal by the Supreme Court would not cast any negative reflection on Sotomayor, whose vote was entirely in keeping with precedent in her circuit. Her panel may well get reversed, but that reversal would represent a change in the law.

Indeed, at least four justices do appear to contemplate making a fundamental change in Title VII's disparate-impact law, as part of a reconceptualizing of race that would condemn almost every governmental consideration of race. The chief justice suggested at oral argument in Ricci that the right test is whether a government action would be sustained if you reversed the identity of the races involved. The potential ramifications of such an a-historical, a-contextual principle could be staggering. Every justice whom I know of has assumed, for example, that a college could seek to increase its minority enrollment by such race-neutral means as accepting all those who are in the top 10 percent of their high-school classes. But surely a court would not sustain a state university's race-neutral admissions criterion that was adopted for the sole and express purpose of reducing minority enrollment. Even the mildest of actions—such as special recruiting efforts targeted at increasing minority applications—would surely be rejected if they were designed to hold down the number of minorities who applied.

Logic calls for symmetry. Experience—history, context, and common sense—may suggest a different result.

Linda, your thoughts on Ricci?

Regards,
Walter


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Symmetry vs. Entitlement
Posted Wednesday, June 24, 2009, at 7:11 PM ET
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In thinking about Ricci, the New Haven firefighter case, I think it may help to shift our focus from "symmetry" to "entitlement." That's how this complicated case has been framed in the public discussion: The firefighters who studied for the test and passed it are said to have been deprived, because of New Haven's purportedly discriminatory reaction to the racially disparate results of the exam, of the promotions to which they were entitled.

Now, entitlement is a powerful concept. The frequent fliers who paid to join the now-defunct Clear Traveler program and who learned yesterday that not only will they no longer get to jump the airport security line but that they will not even get their money back are deprived of something to which they were entitled. But all they have is a breach of contract claim—not a discrimination suit because, of course, everyone who joined the program is in exactly the same place—namely, out of luck. So why does the New Haven case speak to many people so powerfully?

The white (and Hispanic) firefighters who passed the test were not, in fact, entitled to be promoted—under New Haven's "rule of three," they were entitled to be "considered" for promotion, and some number of them would in fact not have been promoted because there were more successful test-takers than there were available promotion slots. The claim of Barbara Grutter in the University of Michigan Law School affirmative action case was a good deal more attenuated than that. Neither she nor any other applicant could really claim entitlement to be admitted to the law school—all they could claim was to be considered on their merits and to have their merits fairly evaluated against those of some thousands of other applicants, many of whom were destined to go away disappointed.

So to understand the Ricci case, I think we have to recognize that "entitlement" is not a particularly useful point of entry. The black test-takers who failed were, of course, entitled to be evaluated by means of an exam that was validly job-related, in that it actually tested the skills actually necessary to perform as an officer in the fire department and not some other set of skills that it might be nice to have. That's basic Title VII law, and that's the nub of this case. Once the disparate results were known, the burden shifted to New Haven to show that the test was a valid one. New Haven had some reason to think that it couldn't meet that burden, and the lower courts agreed, applying settled 2nd Circuit precedent in this area. Title VII contains a single command: Don't discriminate in employment. Simple enough. But in application, it can get complicated, because disparate impact raises the specter of discrimination, which in some instances can be dispelled only by taking race into account in a way that can itself suggest discrimination. So what's an employer to do, and what is a reviewing court to do? The legal principles are, in fact, quite clear. Applying them to the messy facts of real cases is a delicate business—and there has not been much delicacy or nuance in the way the Ricci case has been discussed.

We'll see tomorrow or Monday whether the Supreme Court is up to the challenge. Walter started off our Breakfast Table conversation by talking about "harmonic convergence." I think it's more like a perfect storm. See you tomorrow.

Linda


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Is There an Illicit Market in Advil?
Posted Thursday, June 25, 2009, at 1:03 PM ET
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Good morning, Dahlia and Walter,

Was today a bit of a let-down (no Ricci)? Not really. There's a lot of meat in the decisions that did come down, so I'll kick off briefly and then go back to my reading. It's a challenge to enter Safford School District v. Redding, the strip-search case, in the chart I keep of voting patterns. Yes, Justice Thomas, lone dissenter, forcing a 13-year-old girl to reveal her breasts and pubic area to school officials is a strip-search even if she did not actually have to remove her underwear. But there is no two-word way to describe the votes. Six justices (Souter, Roberts, Scalia, Kennedy, Breyer, Alito) found a Constitution violation but also found that the school officials had qualified immunity; two, Stevens and Ginsburg, found a violation with no immunity; and one, Thomas, found no problem at all, accusing the majority of ushering in a dangerous era of "deep intrusion into the administration of the public schools" by the federal courts.

That's certainly a substantial overstatement of what the majority has accomplished here. Drawing on its ruling in New Jersey v. TLO from 1985, in which the court upheld a search for cigarettes in a student's purse, Souter's opinion for the majority today stresses that all that school officials need to insulate a search against a Fourth Amendment challenge is "a moderate chance of finding evidence of wrongdoing" or a reasonable suspicion "that the search will pay off." It's quite a deferential standard. Read in conjunction with the 5-4 majority in the case about English language learning students that came down this morning, Horne v. Flores, it is completely apparent that this court is not about to lead the charge of federal judges substituting their judgment for that of school administrators. Justice Thomas' citation, in Redding, of other cases in which students have been caught with drugs in their pants ("Redding would not have been the first person to conceal pills in her undergarments") is quite odd. The cases he cites all involve drugs of abuse—OxyContin, hydrocodone, ecstasy. I'm still trying to imagine the illicit market in Advil, which is what Redding was wrongly accused of having. Or maybe I'm missing something.

I'm still pondering the Horne v. Flores opinions and will have some thoughts later. Happy reading.

Linda


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From: Dahlia Lithwick
To: Walter Dellinger and Linda Greenhouse
Subject: Ginsburg Rides Again
Posted Thursday, June 25, 2009, at 3:42 PM ET
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I, too, want to focus on the surprise that was Safford Unified School District v. Redding, the Arizona strip-search case. After a towel-snapping oral argument, in which only Justices Ruth Bader Ginsburg and John Paul Stevens appeared to think that stripping a 13-year-old girl down to her underwear and bra in a quest for prescription-strength ibuprofen (ibuprofen! says Linda) was far beyond the acceptable bounds of what school administrators may reasonably do under the Fourth Amendment, today was like watching a whole different court.

Justice Ginsburg appeared no less horrified by her colleagues' cluelessness at oral argument than she was by the search itself, and she had made that plain, both at argument and in an interview with Joan Biskupic of USA Today this spring. I was in court for opinions today, and when Justice David Souter, who had seemed to be leaning toward permitting the search at oral argument, began reading the opinion, I wondered whether Ginsburg was about to explode in furious dissent. Her face (as always?): perfectly impassive. When Souter went on to read an 8-1 decision holding that the search of Savana Redding in this case was not reasonable under the Fourth Amendment (Thomas concurring in part and dissenting in part), it was as if the whole court had entered the 21st century. The standard set out in the 1985 school search case New Jersey v. TLO allowed students to be searched so long as "the search as actually conducted [is] reasonably related in scope to the circumstances which justified the interference in the first place." TLO further held that the scope is permissible when it is not "excessively intrusive in light of the age and sex of the student and the nature of the infraction."

Writes Souter, describing the failure of administrators to make less-intrusive inquiries about the likelihood of Savana stashing drugs in her undies before stripping her down: "What was missing from the suspected facts that pointed to Savana was any indication of danger to the students from the power of the drugs to their quantity, and any reason to suppose that Savana was carrying pills in her underwear. We think that the combination of these deficiencies was fatal to finding the search reasonable." As Linda observes, this is a pretty deferential standard. If the school believed the drugs were dangerous and in her bra, the search might be OK.

And then Souter refused to find that the illegality of such searches is so "clearly established" that the school officials should be denied qualified immunity. Souter writes that the law in this area is sufficiently fuzzy to shield them from suit. Here's where John Paul Stevens and Ginsburg, in their respective partial concurrences and dissents, get a bit steamed. Ginsburg writes: "I agree with the Court that Assistant Principal Wilson's subjection of 13 year old Savana Redding to a humiliating stripdown search violated the Fourth Amendment. But I also agree with Justice Stevens that our opinion in New Jersey v TLO 'clearly established' the law governing this case." She concludes, "Wilson's treatment of Redding was abusive and it was not responsible for him to believe that the law permitted it." She would deny him qualified immunity.

Justice Clarence Thomas, for his part, dissents as to the illegality of the search under the Fourth Amendment. Whether or not the administrators searched Savana's underwear was immaterial. "Because the school officials searched in a location where the pills could have been hidden, the search was reasonable in scope under TLO."

OK, so what I need to know is what happened between oral argument and today that appeared to change the minds of the seven other male justices? On the way out of court today, I thanked Joan Biskupic and NPR's Nina Totenberg for their strong, brave pieces after oral argument. Ginsburg and Stevens turned this ship around, I suspect, with the power of persuasion and a public-shaming chaser. OK by me. Last question: Having looked, just briefly, at Justice Souter's majority opinion, does Redding offer any clearer guidance about the appropriate standard for future humiliating searches than TLO? Is whatever law that was not clearly established in that case any clearer now?

Best,
Dahlia


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From: Walter Dellinger
To: Linda Greenhouse and Dahlia Lithwick
Subject: Where Sotomayor Might Make a Real Difference
Posted Thursday, June 25, 2009, at 6:45 PM ET
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Dahlia and Linda,

I agree with what you both say about Redding. On the more difficult question of whether Redding's Fourth Amendment right was "clearly established" before today's decision, making it fair game to get damages from the school district, I'm tempted to say that any right agreed to by every justice on this court except Thomas must be pretty damn clear. I was also struck by the fact that Stevens quotes himself from nearly 25 years ago, quoting a court of appeals decision that had been written five years earlier and that said "[i]t does not require a constitutional scholar to conclude that a nude search of a 13-year-old child is an invasion of constitutional rights of some magnitude." Still, it is understandable that court's majority, having ruled in favor of students' rights for the future, isn't inclined to take money from the school system's budget for this past error.

How much guidance the opinion gives to school officials is unclear. In this respect, the decision is like the Caperton v. Massey Coal opinion's opaque guidance on when due process requires judges to recuse themselves. The constitutional rule may not be at all clear, but the court is sure that it is clearly violated in this case.

I found particularly interesting today an important decision that might have come out the other way if Judge Sonia Sotomayor were already on the court instead of Justice Souter. Indeed, today's decision in Melendez-Diaz v. Massachusetts suggests the possibility that a significant area of the law could possibly shift if Judge Sotomayor is confirmed. Melendez-Diaz is the latest in a series of decisions in which the same unusual and interesting group of five justices have ruled in favor of criminal defendants on basic issues involving the structure of criminal procedure.

In United States v. Booker, the court held that the Federal Sentencing Guidelines, if binding, would violate a criminal defendant's rights under the Sixth Amendment's jury trial clause. In Crawford v. Washington, the court held that it violated the "confrontation clause" of that same amendment to introduce a statement by a witness whom the defendant couldn't confront with cross-examination. Today, the court holds that the confrontation clause gave Melendez-Diaz a right to call to the stand and cross-examine the lab technician who prepared the report in a drug case. The decision could have significant ramifications: Criminal defendants will want to rely on it in seeking to cross-examine those who prepare incriminating DNA reports, for example. The halls outside criminal courtrooms could soon be filled with techies in white lab coats.

In all three of these important victories for criminal defendants, the five-justice majority consisted of Justices Scalia and Thomas and Justices Stevens, Souter, and Ginsburg. While the lineup is unusual, it is not surprising. It consists of what one might very, very loosely call the court's two "conservative legalists" and the court's three "liberal legalists" who team up on a result they believe is compelled by provisions added to the Constitution in 1791. Dissenting in all these cases were the court's four more "pragmatic" justices, who found the majority's rulings dysfunctional in a modern criminal justice system. In Booker and Crawford the four "pragmatic" dissenters were Justices Kennedy, Breyer, and O'Connor and Chief Justice Rehnquist. In today's lineup, Kennedy and Breyer were joined by Rehnquist and O'Connor's replacements, Roberts and Alito. The Scalia-Stevens group relies upon the deep discussion of constitutional history and original understanding previously set out in their Crawford opinion. Kennedy's pragmatists, on the other hand, are concerned that today's ruling "has vast potential to disrupt criminal procedures that already give ample protections against the misuse of scientific evidence."

Souter's departure will leave the court with four justices in a "legalist" camp and four in the "pragmatic" camp. As a former prosecutor and trial judge, Sotomayor might well share the pragmatists' concerns about the impact that adherence to the "legalisms" of Scalia, Thomas, Stevens, and Ginsburg (and, for now, Souter) would have on effective law enforcement and efficient trials. (Souter was also once a prosecutor, of course, but in a bucolic and less intense environment than Sotomayor would have experienced in the Manhattan DA's office.) Her record seems to be one of carefully examining conflicting claims and listening to both sides. So you just don't know—because before hearing the arguments in the next of these cases, she probably doesn't know.

Finally, I'm glad that Ricci didn't come down today. The delay gives everyone who is interested in that case a chance before the decision comes down to read the awesome five-part series "The Ladder" that Nicole Allan and Emily Bazelon posted on Slate this morning. It's about the Ricci case but also about much more. They review the history of the racial struggle over hiring and promotion in fire departments, and they recount what they learned from spending a lot of time in New Haven firehouses talking to firefighters about the current controversy. They seem to understand and appreciate (I avoid saying "empathize" with) the perspective of both white and black firefighters. For me, reading this series makes the right legal outcome clear. I'll post something saying why over the weekend. Other readers of the series may come to a different opinion than mine about how the Supreme Court ought to rule. But either way, their conclusion will be far better informed for having read this series.

And we haven't yet gotten to the case—Horne v. Flores—that so aroused Justice Breyer that he took the unusual step of reading his dissent from the bench.

Talk to you soon.
Walter


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Rescuing the Court From an Institutional Train Wreck
Posted Thursday, June 25, 2009, at 7:30 PM ET
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Dahlia, you ask whether this morning's opinion changes the standard for school searches of students that has existed since New Jersey v. TLO 24 years ago. Comparing TLO with Safford Unified School District v. Redding gives me a feeling of nostalgia for the days when the problem that most concerned school officials was smoking in the bathroom—which was the TLO case—and for life before "zero tolerance" policies blighted the lives of perfectly good kids who pushed the envelope a bit too far and got unlucky. The TLO court lived in that simple old world. No school official back then would have asked a girl to lift her bra to disclose whether she was hiding cigarettes. It's no wonder the lower courts have not all been on the same page in applying TLO to today's world.

Seems to me the Souter opinion does a good job of importing the reasonableness presumptions of TLO into today's world. The key paragraph, I think, is the final one just before the qualified immunity section:

We do mean, though, to make it clear that the T. L. O. concern to limit a school search to reasonable scope requires the support of reasonable suspicion of danger or of resort to underwear for hiding evidence of wrongdoing before a search can reasonably make the quantum leap from outer clothes and backpacks to exposure of intimate parts. The meaning of such a search, and the degradation its subject may reasonably feel, place a search that intrusive in a category of its own demanding its own specific suspicions.

In other words, there are two sliding scales at work: the danger that is to be prevented (and reasonable suspicion of such) and the intrusiveness of the search (the "degradation its subject may reasonably feel"). Courts and school administrators are on notice that both of these factors are in play in evaluating the reasonableness of the search.

There's an interesting sentence near the end of the Souter opinion: "We would not suggest that entitlement to qualified immunity is the guaranteed product of disuniform views of the law in the other federal, or state, courts, and the fact that a single judge, or even a group of judges, disagrees about the contours of a right does not automatically render the law unclear if we have been clear." So now the court is clear.

Dahlia, you suggest that the public response to the fact, and more particularly to the unfortunate oral argument in Safford, might have caused some members of the majority to reconsider the course they had apparently set out on when the court granted the school district's cert petition. It's interesting to think about such a scenario in Monday's Voting Rights Act case. There is an anonymous "guest post" on Rick Hasen's Election Law Blog suggesting that something of the same kind was at work in that case. The anonymous blogger hints at having some inside information (or maybe is just a smart observer). His/her suggestion is that the surprising result in the case was actually a collective product, across ideological lines, born of a felt need to rescue the court from an institutional train wreck. The blogger also suggests that we'll see something pretty interesting about this case when the justices' papers are made public. Unfortunately, by the time the current justices open their papers, very few people old enough to read this or any other blog will be around.

I do want to move on to the court's other accomplishments today: Horne v. Flores, the 5-4 decision releasing Arizona from the obligation to provide more money to the Nogales school district for the teaching of English, weighs in at 82 pages for the Alito majority opinion and the Breyer dissent. Despite that numbing length, I think there's still more going on in that case than meets the eye. Any takers?

Linda


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: The No-Federal-Judges Zone Gets a Lot Bigger
Posted Friday, June 26, 2009, at 2:35 PM ET
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Dahlia and Walter—

A quiet, no-opinion day, thank heavens, because there's still lots to process and ponder from earlier this week. Yesterday, I mentioned that the strip-search decision gave me a feeling of nostalgia for the good old days when school administrators suspected students of nothing more serious than smoking in the bathroom. Well, the court's 5-4 decision in Horne v. Flores, the English-language-learners' funding case, gave me a feeling of nostalgia as well, for quite a different reason.

Beneath the surface of the two lengthy and dense opinions (Alito for the majority at 36 pages and Breyer for the dissenters at 46, and he announced his dissent from the bench), an old battle is being waged here over the appropriate role of the federal courts in directing state and local governments on how to conduct their traditional functions of running schools, prison systems, etc. This is the "institutional reform litigation" that the majority takes as its target, and it is a label with a great deal of resonance. Breyer argues, persuasively in my view, that this label is a mischaracterization for what happened in this case, in which the federal courts found that Arizona was out of compliance not with the general constitutional principles embodied in the Eighth or 14th amendments but with the mandate of a specific federal statute, the Equal Education Opportunity Act of 1974. And as this litigation over the appropriate level of funding for English-language instruction bounced around the lower courts in its prolonged remedy phase, the question became whether the formula that the Arizona Legislature settled on for paying for English-language instruction violated a subsequent federal statute, the No Child Left Behind Act.

There are obvious federalism implications, to be sure. Justice Alito further suggests in his first footnote that the 1974 law may have been beyond Congress' authority under today's "congruence and proportionality" standard of City of Boerne v. Flores (a footnote that made me nostalgic for the good old days when Congress could carry out its enforcement authority under Section 5 of the 14th Amendment as it saw fit). But this whole dispute is anchored in federal statutory law. The plaintiffs were asking for their statutory entitlement—not for some creative new right, such as the right to have a school funding formula divorced from the local property tax and equalized across districts. The latter is the claim that the Supreme Court rejected in the 1973 case San Antonio v. Rodriguez, a high watermark of institutional reform litigation. (I discuss that case in a recently published article in Constitutional Commentary, "What Would Justice Powell Do? The 'Alien Children' Case and the Meaning of Equal Protection.")

The days of institutional reform litigation are long past. Those battles were fought and won by conservatives back in the days when Justice Alito and Chief Justice Roberts were law clerks and young lawyers in the Reagan administration. In fact, shutting the federal courthouse doors to institutional reform cases, and extracting the courts from such cases that they were already in, was a signal part of the Reagan-era legal counterrevolution. By shoehorning Horne into the institutional-reform box, today's majority is trying to widen the no-federal-judges zone to encompass an area where federal courts had been assumed to be free to enforce federal law. (It's worth noting that both the state of Arizona and the federal government were in this case on the plaintiffs' side—the petition was filed by the state education commissioner and the state legislature, not the state itself.)

Justice Breyer may not be an institutional reformer himself, but he cut his eye teeth back in the era when federal courts were assumed to have an appropriate role in cases of this sort, and he understands what game is afoot here. I think that explains the passion behind his dissent. If you think I'm overinterpreting the decision, take a look at the petitioners' amici, including the Eagle Forum, the Pacific Legal Foundation, and other groups that are addressing the big picture rather than the numbing procedural details of this case. "By exercising their political preferences over the law, the lower courts usurped state and local authority over education," says Phyllis Schlafley's Eagle Forum.

I'll be back later with some updated statistics and further musings on yesterday's opinions.

Yours,
Linda


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From: Walter Dellinger
To: Linda Greenhouse and Dahlia Lithwick
Subject: Judges With Attitude
Posted Friday, June 26, 2009, at 6:15 PM ET
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Dahlia and Linda,

The passion of Justice Breyer's dissent in Horne v. Flores flows in part from his belief in the importance of what he calls "the underlying subject matter of this proceeding." The case, he noted, concerns the rights of Spanish-speaking students attending public school near the Mexican border to receive the English-language tools they need for full participation in a society where English is the predominant language.

In the Equal Educational Opportunity Act, Congress sought to ensure that children who come to America learn English by requiring state and local governments to take appropriate action to overcome language barriers. The district court found that there were severe deficiencies in the educational program for English-language learners in Nogales, Ariz., that was attributable to lack of state funding, and the court ordered the state to provide funding that was rationally related to the costs of an appropriate program. In this action, the state school superintendent and the Legislature, citing changes in their programs, asked the district court to release the state from any further obligations under the order. The district court found the funding order was still necessary because deficiencies in the program remained. The 9th Circuit affirmed.

The Supreme Court reversed and remanded, holding that changes may have occurred that might warrant release from the funding order. It sent the case back to the lower courts to examine whether release from the funding order was warranted.

So why did the case produce so much heat? The answer, as Linda notes, is that it became characterized as an instance of "institutional litigation."

Ah yes, Linda, I do remember the days in the '70s and '80s when the phrase "institutional litigation" was even more of a flash point than, say, "abortion rights" at many of the events I attended at conservative think tanks. There were liberals in those days who espoused litigation not simply as a method of resolving disputes between litigants but as a means of widespread social and economic reform, often involving judicial decrees regulating how state institutions were managed. To conservatives, the idea of federal judges actually running school systems, prisons, welfare agencies, and the like was anathema. In some cases, however, rule by judicial decree was the only means available for vindicating core individual constitutional rights that were being violated. A prime example: litigation involving prison systems whose systemic and horrible conditions constituted cruel and unusual punishment.

The one kind of litigation that raised the most genuine concern about judicial role was the use of general constitutional provisions as a basis for judges to reorder state and local government budgeting decisions. Although Horne v. Flores involves funding, it was, as Linda notes, based on an express legislative command from an act of Congress and not on rights found by judges from general language of the Constitution.

Although the Supreme Court reversed, it did not order the lower courts to release the state from its obligation. Instead, it told the lower courts that they had to reconsider the state's argument that it should be released from any funding obligation in light of changed circumstances. The court did not pronounce the end of the district court's jurisdiction (as the petitioners had asked). For the equal-language advocates, that was a victory. (I should note that my law firm partner Sri Srinivasan argued this case before the Supreme Court pro bono for the advocates seeking language funding. My former student Kenneth Starr argued for the other side.)

What the dissenting justices found upsetting about the decision to set aside the lower court's order was the majority opinion's adoption of a special form of appellate review of lower court orders in "institutional reform litigation." Nothing in the federal rules or general equitable principles, they argued, provides a basis for setting aside the normal deference to trial court's findings and discretion for one particular category of cases. In his dissent, Breyer asked, "Does the Court mean to suggest that there are other special, strict pro-defendant rules that govern review of district court decisions in 'institutional reform cases.' " And what are those rules, and when is a case an "institutional reform" case, he asked. The court, he concluded, "may mean its opinion to express an attitude"—he means a negative attitude—toward such cases. "An attitude," Breyer added, "is not a rule of law."

So, the court wants federal courts to be more receptive to states' desires to get out from under federal court decrees, but it is not prepared to create clear new legal rules that would require that result. Some lower courts may take the hint by ending those orders, but others may take up the court's invitation to justify keeping their orders in place by making more detailed and specific findings. The effect? As with so much this Term, it's too early to tell.

Yours,
Walter


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Fun With SCOTUS Stats
Posted Friday, June 26, 2009, at 6:55 PM ET
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Dahlia and Walter:

I started off this week with some statistics about the term so far. Math-challenged as I am, I'm bemused to now find myself the Breakfast Table's unofficial statistician, but here are some updates and new data: It's striking that with just three decisions to go, Justice Kennedy has the fewest majority opinions so far this term: only six. Justice Scalia has the most: 10. Here are the others: Thomas, nine; Stevens, nine; Roberts, eight; Breyer, eight; Souter, eight; Alito, seven; Ginsburg, seven.



From the court's April argument sitting, consisting of 10 cases, only two are undecided: Ricci, the New Haven firefighter case, and Cuomo v. Clearing House (bank regulation preemption). Kennedy is the only justice with no opinions from April. That makes it quite likely that he has Ricci—not, one would suppose, very good news for New Haven. The third remaining case, Citizens United v. F.E.C. (campaign finance) is the only undecided case from March, a sitting that had only six arguments. Roberts, Alito, and Ginsburg are all without opinions from March. I'm betting that the chief has that case. He is interested in the subject, and is not likely to go without an opinion for a whole sitting, albeit a sparse one.

There have now been 72 cases decided with full opinions, of which 21 have been decided by a vote of 5-4. Of these 21, 16 have been the usual four versus the usual four, with Kennedy joining the conservatives 11 times and the liberals five times. Kennedy has been in dissent in three of the 5-4 cases that broke the usual pattern, including two decided yesterday (Atlantic Sounding and Melendez-Diaz), plus Arizona v. Gant. He has cast four dissenting votes all term.

Here is how the others line up in terms of dissenting votes cast: Roberts, 12; Thomas, 13; Alito, 13; Scalia, 14—for a conservative total of 52 dissenting votes. On the other end of the bench: Breyer, 18; Ginsburg, 23; Souter, 24; Stevens, 27—for a liberal dissenting-vote total of 92. (This last set of numbers is open to debate—I am counting Stevens and Ginsburg as having cast dissenting votes yesterday in the strip-search case based on their concurring/dissenting opinion that would have denied qualified immunity to the school officials, but one could certainly argue that it's more significant that they joined the Souter majority in the Fourth Amendment holding.)

Aren't numbers fun? I never used to think so.

Yours,
Linda


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From: Dahlia Lithwick
To: Linda Greenhouse and Walter Dellinger
Subject: Our Judges With Attitude
Posted Friday, June 26, 2009, at 7:24 PM ET
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Linda and I are sidling up to the possibility—inspired in part by an anonymous poster at Rick Hasen's Election Law Blog—that the Roberts court was biting its tongue in the VRA case and Redding, and my lingering question is, if that's true, why? Why now? Why these cases? Hasen's anonymous poster writes that the VRA decision was the "product of a wide (perhaps unanimous) agreement this was a moment of high institutional risk, and perhaps moral sensitivity, and that the Court was allowing itself to verge very close to a self-inflicted wound." Help me unpack that; what exactly would the wound be? That the court looks political? Er. That hasn't stopped them before. Or does it have something to do with the special status of the Voting Rights Act (and perhaps the uniquely awful—but eminently tell-able—tale of Savana Redding's humiliation). Why was the court ready to pull the trigger on the Seattle schools case but not willing to go there on the VRA? Why all of a sudden now with the statesmanship?

Part of the answer has to be the Sotomayor confirmation hearings, which begin in two short weeks. The chief justice knows better than anyone how powerful these hearings are when it comes to messaging about the court. And we know exactly what these hearings would have looked like had the Supreme Court just gutted the VRA, or allowed young girls to be strip-searched for ibuprofen. With these narrow 8-1 decisions, instead of a week of angry Democrats questioning Sotomayor about the heartless cyborgs of the Roberts court, we will again just go through the motions on stare decisis and whether Griswold is superprecedent, superduper precedent or venti-precedent.

I am just now reading an advance copy of professor Barry Friedman's fantastic new book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, due out in September. In it, Friedman argues that the American public has a lot more control over the courts than we think we do—that the justices don't actually stray all that far from public opinion. That's quite a notion: Despite the rumors of lofty out-of-touch-ness, the high court is in conversation with the public all the time. Do you agree with that thesis as a descriptive matter? As a normative matter? And if the court is really going to reign itself in over rabble like us, what sorts of things should it be reacting to?

I was trying and trying to write a limerick about Ricci, to launch us into the weekend, but nothing seems to rhyme with "disparate impact."

Talk to you soon,
Dahlia


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Confronting the Confrontation Clause
Posted Sunday, June 28, 2009, at 12:26 PM ET
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Dahlia and Walter,

Setting this week's crime lab analysis case and last week's DNA testing case side by side and trying to get my hands around them both, something has been bothering me. Looked at for their results—forget the doctrinal basis for those results—they don't make sense. In last week's District Attorney's Office v. Osborne, the court ruled 5-4 that a criminal defendant did not have a right to DNA testing of the evidence against him—even at his own expense. In this week's Melendez-Diaz v. Massachusetts, the court ruled 5-4 that defendants have a right to cross-examine the technician who performed the laboratory analysis of incriminating evidence (cocaine, in that case)—even if it meant that understaffed crime labs might have to send their technicians to courtrooms hundreds or thousands of miles away, perhaps years after the fact, to testify about something they might or might not even remember.

Huh?

The difference, of course, is that the first case arrived on the court's docket as a due-process case, and the conservatives on the court, as Chief Justice Roberts' majority opinion made clear, are not in the business of establishing new due-process rights. The second case came up under the Confrontation Clause, the constitutional provision that textualist/originalist justices love more than any other except the Second Amendment and the Sixth Amendment jury-trial right that underlies the Apprendi/Booker line of cases about criminal sentencing. What part of confrontation, Justice Scalia asks, don't you understand? As Walter pointed out in his earlier post, this decision was produced by the unusual—but typical of Sixth Amendment cases—lineup of the textualist conservatives (Scalia and Thomas), plus the liberals (Ginsburg, Souter and Stevens), while the dissenters were the more pragmatic conservatives (Roberts and Alito) and the pragmatic liberal (Breyer), plus Kennedy.

All this is quite comprehensible to those of us who live in Supreme Court land. But to anyone living in the real world, it must seem completely baffling, even nonsensical. Just a thought for a Sunday morning as we practice our breathing exercises for a busy Monday.

Yours,
Linda


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From: Walter Dellinger
To: Linda Greenhouse and Dahlia Lithwick
Subject: Souter: A Last Lecture on Gay Marriage?
Posted Monday, June 29, 2009, at 8:20 AM ET
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Dear Dahlia and Linda,

Dahlia's last post brought up Barry Friedman's forthcoming book, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, and asked whether we agree with its thesis. As part of the process of coming up with an answer, I wound up studying an opinion of Justice Souter's from a few days ago that strikingly addresses not only this issue but substantive liberty and may include his partially disguised thoughts on gay marriage litigation as well.

But, first, to answer your question, Dahlia: Does public opinion influence the court's decisions? Should it? The court's history suggests that major decisions have indeed been influenced by public opinion, although seldom determined by it. The influence of public opinion was candidly acknowledged, for example, in. Dickerson v. United States, in which Chief Justice Rehnquist forthrightly stated that the court's decision not to overrule Miranda v. Arizona was influenced in part by the fact that Miranda had become an accepted part of the national culture.

The court's most important 20th-century decision, Brown v. Board of Education, is a compelling case study of the court's dialogue with the American people, a discussion in which each influenced the other. As early as 1938, the court had done all the "legal" and "logical" work necessary to find segregation unconstitutional. But a judicial decision actually ending segregation in the South would have been impossible in 1938. Such a holding could have ended judicial review—not Jim Crow. Only after the transformative experiences of World War II, Jackie Robinson, and the emergence of America as a world leader did the court conclude that it was in a position to act. Even then, the Warren Court was further ahead of public opinion when it decided Brown than it had ever been before or has been since. It was a full decade before the country was actually accepted and complied with the decision—a decade in which the national debate was itself profoundly influenced by the court's pronouncement.

It was not a mere coincidence that when the court stuck down homosexual sodomy laws in Lawrence v. Texas in 2003, the number of states that still had such laws was about the same as the number of states that still had de jure school segregation when Brown was decided—in each case, the retrograde states made up about one-fourth of the country. In contrast, when the court sustained state laws banning the use of lethal medication in Washington v. Glucksberg, the rejected claim of a right to physician-assisted suicide had not yet been recognized by even a single state.

What makes these questions so timely is that David Souter, who will sit as a justice for the last time this morning, addressed these issues in a very powerful way just last week in an passage that may well have been intended as a valedictory message to the court and a caution to those who litigate on behalf of individual liberty. In his dissent in the DNA case, District Attorney's Office v. Osborne, Souter wrote extensively about issues of substantive liberty that he did not need to address in order to decide the case before him. He obviously had some things he really wanted to say before hanging up his black robe.

In his essay-within-an-opinion, Souter clearly had the sweep of the court's future in mind, and not just any single issue. It is still hard to avoid the conclusion that one issue in his mind was gay marriage. His carefully nuanced message both defends the legitimacy of judicial recognition of "non-traditional" rights and cautions against a premature quest for national judicial rules.

Souter, recognizing the value of "continuity with the past," accepts the proposition that tradition is a "serious consideration" in judging whether a practice is "outside the realm of reasonable governmental action." He rejects, however, the notion that tradition defines and limits the scope of the liberties entitled to judicial protection against hostile legislation.

A true originalist, Souter refuses to limit individual rights to the time-bound set of liberties that the Framers of the 14th Amendment would have include had they chosen to adopt a specific list. The short answer is that the Framers did not so choose. They deliberately wrote with a broad brush and left particular applications to the future. In carrying out that mandate, Souter writes, the court must look to "widely shared understandings within the national society" that can change "as interests claimed under the rubric of liberty evolve into recognition."

Having defended the concept of evolving liberty, Souter then turns to the important question of when it would be "premature for the Judicial Branch to decide whether … a general right should be recognized."

"The beginning of wisdom," he writes, "is to go slow." Before declaring "unsympathetic state or national laws arbitrary to the point of being unconstitutional," he writes, a wise court will "recognize how much time society needs in order to work through a given issue."

His opinion then takes what seems to be an extraordinarily personal turn. He may be speaking of himself (or his rural neighbors) when his says that "[w]e can change our own inherited views just so fast, and a person is not labeled a stick-in-the-mud for refusing to endorse a new moral claim without having some time to work through it intellectually and emotionally." Sometimes, he says, "an attachment to the familiar and the limits of experience" limit "an individual's capacity to see the potential legitimacy of a moral position."

So, too, it is with the broader society, which "needs the chance to take part in the dialectic of public and political back and forth about a new liberty claim." Souter's final message to his conservative colleagues is that conceptions of liberty evolve. And his last caution to those litigators pushing the frontiers of liberty is that nations, like individuals, need time to assimilate new thinking.

He will be missed.

Yours,
Walter


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From: Linda Greenhouse
To: Walter Dellinger and Dahlia Lithwick
Subject: Social Science for an Audience of Nine
Posted Monday, June 29, 2009, at 9:33 AM ET
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Dear Dahlia and Walter:

Walter, I'm in your debt for making me go back to read and savor Justice Souter's opinion in the DNA case. And it really is worth savoring as a summation of a career and a manifesto by a true conservative, one who has seen it all for the past two decades—interpretative theories tested and found wanting, theories hijacked, theories that once in a while during his tenure have showed the way to a better place. I'm reminded of his paean to stare decisis in his section of the joint opinion in Planned Parenthood v. Casey, which preserved the constitutional right to abortion 17 years ago:

The Court must take care to speak and act in ways that allow people to accept its decision on the terms the Court claims for them, as grounded truly in principle, not as compromises with social and political pressures having, as such, no bearing on the principled choices that the Court is obliged to make. Thus, the Court's legitimacy depends on making legally principled decisions under circumstances in which their principled character is sufficiently plausible to be accepted by the Nation. 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.

That passage, of course, leads us to Dahlia's question about the role of public opinion in the Supreme Court's work. It's such a rich subject, and I look forward to reading Barry Friedman's book. Another new book, The Constitution in 2020, a collection of essays edited by Jack Balkin and Reva Siegel, has just been published by Oxford. In their introduction, Professors Balkin and Siegel make this point:

Judges exercise independent judgment, but they still reason as members of a political community. Their decisions draw on contemporary values and respond to complex currents in public opinion. … In a democratic society, courts best perform their institutional role as partners in a larger dialogue: They respond to popular visions of the Constitution's values and help to translate these values into law. Constitutional ideas usually emerge from the bottom, not the top.

What they're talking about is public opinion not in the poll-driven sense but opinion as reflected in what's often referred to as "constitutional culture." There's a lot of fascinating scholarship on this theme, including Reva Siegel's work on the "de facto ERA"—the Equal Rights Amendment failed to get ratified, but the Supreme Court went ahead and changed the Constitution's meaning to erect very substantial barriers against sex discrimination. Walter mentions Chief Justice Rehnquist's vote to reaffirm the Miranda decision in the Dickerson case. How about his vote to declare unconstitutional the exclusion of women from the Virginia Military Institute—in many ways even more surprising? And, of course, the Court goes through an explicit public-opinion-referring exercise when it counts by states to decide whether capital punishment in various circumstances (retardation, adolescence) has become sufficiently "unusual" to violate the Eighth Amendment.

And public opinion in a more macro sense influences the electoral process, which influences who gets to sit on the Supreme Court. Commentators who want the Court to overturn the Second Circuit's decision in Ricci v. DeStefano, the New Haven firefighter case we are all waiting for, have invoked polls that show public discomfort with affirmative action, social science marshaled for an audience of nine. No matter how Ricci or any other individual case turns out, the answer to Dahlia's question is undoubtedly a resounding yes.

And the other thing I'm sure of, Walter and Dahlia: We'll be tuning in this morning.

Yours,
Linda


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From: Dahlia Lithwick
To: Emily Bazelon, Walter Dellinger, and Linda Greenhouse
Subject: Ricci's Reversal
Posted Monday, June 29, 2009, at 10:57 AM ET
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Dear Walter and Linda and Emily (welcome!),

The Supreme Court has just handed down Ricci, the New Haven, Conn., firefighters case. Justice Anthony Kennedy, writing for a 5-4 court, finds a violation of Title VII. The city loses, and the white and Hispanic firefighters win. Here is the opinion.

This is not the narrow decision some had hoped for. Writes Kennedy:

We conclude that race-based action like the City's in this case is impermissible under Title VII unless the employer can demonstrate a strong basis in evidence that, had it not taken the action, it would have been liable under the disparate-impact statute. The respondents, we further determine, cannot meet that threshold standard.

Justice Scalia concurs, writing:

I join the Court's opinion in full, but write separately to observe that its resolution of this dispute merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?

Justice Alito concurs to scold the dissenters for their recitation of the facts. And Justice Ginsburg, who read her dissent from the bench this morning, writes that context matters:

The white firefighters who scored high on New Haven's promotional exams understandably attract this Court's sympathy. But they had no vested right to promotion. Nor have other persons received promotions in preference to them. New Haven maintains that it refused to certify the test results because it believed, for good cause, that it would be vulnerable to a Title VII disparate-impact suit if it relied on those results. The Court today holds that New Haven has not demonstrated "a strong basis in evidence" for its plea. … In so holding, the Court pretends that "[t]he City rejected the test results solely because the higher scoring candidates were white." … That pretension, essential to the Court's disposition, ignores substantial evidence of multiple flaws in the tests New Haven used.

What does all this mean for cities going forward, and what does it mean for disparate impact—the part of Title VII that prevents employers from basing hiring or promotions on screening that eliminates candidates from one racial group, absent a business necessity?

What does it mean for Judge Sonia Sotomayor's upcoming confirmation hearings? Her Republican critics were fondly hoping that her logic would be rejected today. As Sen. John Cornyn said last week: "The court's decision, I believe, will tell us a great deal about whether Judge Sotomayor's philosophy ... is within the judicial mainstream or well outside of it." Looking forward to everyone's thoughts.

Best,
Dahlia


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From: Walter Dellinger
To: Emily Bazelon, Linda Greenhouse, and Dahlia Lithwick
Subject: Taking Ricci Off the Table
Posted Monday, June 29, 2009, at 12:29 PM ET
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Linda, Dahlia, and Emily:

One quick note on Ricci: The advanced political commentary has been focused on what the decision will mean for the confirmation of Judge Sonia Sotomayor, who was a member of the court of appeals panel whose decision was reversed today. As one Republican senator put it on Sunday, will the Supreme Court decide the case in a way that shows her to be "outside the mainstream"? We now have the answer to that question, and the answer is no.

Four Justices—Ginsburg, Stevens, Breyer, and Souter (whom Sotomayor would replace) —voted to affirm the decision she joined. I am confident (and hope to demonstrate in a later posting) that Justice Sandra Day O'Connor would surely have joined with those four had she still been on the court. In other words, the position Sotomayor took would have been affirmed, had the court not shifted to the right when George W. Bush named Samuel Alito to replace O'Connor. And even if I'm wrong about that, being with the four and not the five is fully within the mainstream, however that's defined.

Moreover, reading the opinions makes clear that the court's five-justice majority is adopting a new standard. Justice Kennedy's opinion for the court says, "For the foregoing reasons, we adopt the strong-basis-in-evidence-standard … to resolve any conflict between the disparate-treatment and disparate-impact provisions of Title VII." Both the majority and dissenting opinions seem to agree that this represents the adoption of a new standard. (Justice Ginsburg, speaking in dissent from the bench, called it "novel.") As a court of appeals judge, Sotomayor was obligated to apply the law at the time of her decision. She did so.

This decision should effectively take the Ricci issue off the table as an issue for her confirmation process. I'll have a lot to say about the decision later this afternoon, as I'm sure you all will.

Regards,
Walter


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From: Linda Greenhouse
To: Emily Bazelon, Walter Dellinger, and Dahlia Lithwick
Subject: An Opinion Without Staying Power?
Posted Monday, June 29, 2009, at 1:05 PM ET
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Dahlia, Walter, Emily:

Early in her 39-page dissenting opinion in Ricci, Justice Ginsburg makes this observation: "The Court's order and opinion, I anticipate, will not have staying power." Perhaps she means, as she said two years ago in her dissenting opinion in the Ledbetter case, that "the ball is now in Congress's court." That, in other words, Congress, having in 1991 corrected what it saw then as the court's errors in narrowing Title VII, can do the same thing again and override the "strong basis in evidence" standard that today's majority has imposed on employers. The court holds today that after administering a promotional exam or other job test that turns out to have a racially disparate impact, an employer has to live with that result unless it can show a "strong basis in evidence"—something more than just statistics—to believe it would be subject to Title VII liability under the statute's "disparate impact " prong before it can take the explicitly race-conscious step of scrapping the same; without such a strong basis in evidence, the employer would then be liable for violation of Title VII's "disparate treatment prong."

Or maybe Justice Ginsburg means that a future court will re-evaluate today's holding and restore the balance in Title VII law that has existed for most of the statute's life.

But it seems to me that another scenario is just as likely, and it is the one suggested explicitly both by Justice Scalia's concurring opinion and by the Kennedy majority opinion itself. While noting that the court is not reaching the constitutional question at issue in this case—whether the city, when it refused to use the exam results, violated the Equal Protection rights of the test takers whose scores made them eligible for promotion—Justice Kennedy then says: "We also do not hold that meeting the strong-basis-in-evidence standard would satisfy the Equal Protection Clause in a future case."

Bottom line: This is the unstable product of a court at an unstable moment, veering close to the cliff but (as in the Section 5 Voting Rights case a week ago) not quite, or not yet, over it. More later.

Linda


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From: Emily Bazelon
To: Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick
Subject: Ricci's Competing Story Lines
Posted Monday, June 29, 2009, at 2:09 PM ET
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Dear Dahlia and Walter and Linda,

Among liberal observers of the court, the fear about Ricci has been that it would come to stand for the adage that bad facts make bad law. You can see that play out today in all the energy the opinions expend dueling over the facts. Usually, by the time a case reaches the Supreme Court, everyone more or less agrees on the set of facts that are relevant to deciding it. Not this time. Justice Ginsburg—in a dissent she read from the bench, as I think she has done fewer than 10 times over her career—says that in his majority opinion, Justice Kennedy's "recitation of the facts leaves out important parts of the story." Justice Alito then devotes his entire concurrence to filling in yet more facts, because, he says, Ginsburg "provides an incomplete description of the events that led to New Haven's decision to reject the results of its exam."

Why all the competitive storytelling? The Supreme Court's ruling today will apply whenever cities try to base promotions (or, by extension, hirings) on a procedure that turns out to eliminate most or all of the minority candidates. This is called disparate impact, and Congress wrote it into Title VII in 1991. New Haven's test for promoting firefighters had such a disparate impact—that's one thing all the justices do agree on. The question is, What happens next? Can the city say, hey, we think there's another better way to make these promotions that won't leave us with a fire department led only or mostly by white people; now let us go figure that out? Until today, the answer seemed to be yes. Now the answer is clearly no. If a city in this position sees a disparate impact problem coming toward it like a right, it can step out of the way only if it has, as Linda explains, a "strong basis in evidence" for thinking that the test can't be defended—in other words, that the test it used is more job-related, and a better measure of performances, than the other measures of assessment it didn't use.

The city can't throw out its test even though the results allow for the promotions of no black firefighters because it would be making such a decision based on race or, as Kennedy writes, because "the City rejected the test results because the higher scoring candidates were white." He is treating the decision to throw out the test and start over as an absolute racial preference. Here is where the bad facts come in: Frank Ricci and the other white (and one Hispanic) firefighters who sued did what they were supposed to do. They studied for the test the city offered, and they scored the highest. But they didn't get the promotions they felt entitled to because no black firefighters scored as well. Justice Ginsburg points out that Ricci and his fellow plaintiffs "had no vested right to promotion." She's right. But to the majority, that doesn't really matter, because the majority focuses only on this test and this round of promotions in New Haven. And when you frame the case that way, Frank Ricci and his dashed hopes take up the whole screen. At which point, you think about justice for them and only them.

Ginsburg widens the lens. She goes back to the early 1970s, when African-Americans and Hispanics made up 30 percent of New Haven's population and only 3.6 of the city's 502 firefighters. This is when the black firefighters in New Haven started suing. Their efforts yielded much better representation among the rank-and-file in the department. But as Ginsburg says, not among the fire department's leadership: "The senior officer ranks (captain and higher) are nine percent African-American and nine percent Hispanic. Only one of the Departments' 21 fire captains is African American." (More from me about the history of New Haven's fire department here.) New Haven threw out the test results because it was trying to rectify that imbalance. To Ginsburg, this should surely be permissible—a city trying voluntarily to comply with Congress' 1991 mandate to address disparate impact.

And then, Ginsburg points out, the majority raises the bar for what New Haven must show to justify throwing out these test results. Kennedy dismisses as "stray facts" in the record the doubts raised about how the test was weighted—60 percent written, 40 percent oral—and the city's proposal to replace the test with an assessment center, which are designed to evaluate the particular skills needed for a job. But Ginsburg sees that the 60-40 weighting simply reflects the demands of the union—the same union that filed its own suit against the city in support of Frank Ricci. And she sees the merit of the assessment centers as an alternative measure. "Relying heavily on written tests to select fire officers is a questionable practice, to say the least," she writes. "Successful fire officers, the City's description of the position makes clear, must have the '[a]bility to lead personnel effectively, maintain discipline, promote harmony, exercise sound judgment, and cooperate with other officials.' These qualities are not well measured by written tests." No wonder, in Ginsburg's view, a 1996 study found that two-thirds of the cities surveyed were using assessment centers in making promotion decisions.

Widen the lens, and you see New Haven struggling to open up its fire department to all comers. You also see other ways to promote firefighters that can lead to more racial diversity and consideration of the leadership skills and judgment we'd presumably most want to evaluate. But there's another way to look at the facts in New Haven—Justice Alito's way. He sees a city that screwed a group of hapless white firefighters because the mayor was trying to curry favor with a "politically important racial constituency" and, in particular, with Boise Kimber, a black reverend in the city who spoke out against promoting an almost entirely white slate of fire officers. Boise Kimber has plenty of unsavory bits in his past. Alito runs through many of them. Because in his view, the evil to be protected against in New Haven is black political power.

This is just hard for me to swallow. Sure, Boise Kimber is a convenient example of small-time race baiting and semi-thuggery. But the record in this case shows him doing a lot of yelling, not driving the city bus. Alito says that Frank Ricci and the other plaintiffs have the right to demand "evenhanded enforcement of the law." And, in a shot against Sonia Sotomayor, who voted against the white firefighters in a 2nd Circuit ruling, Alito says "that is what, until today's decision, has been denied them." But what about New Haven's black firefighters? Don't they deserve better from their city than what they've gotten over the years? And wasn't New Haven, however clumsily, trying to address that? That is what Ginsburg sees that the majority does not.

Looking forward to your thoughts; more of mine soon,
Emily


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From: Linda Greenhouse
To: Emily Bazelon, Walter Dellinger, and Dahlia Lithwick
Subject: Are Sotomayor's Critics Stuck?
Posted Monday, June 29, 2009, at 2:39 PM ET
--------------------------------------------------------------------------------

Walter, you are so obviously correct that this decision renders completely implausible any criticism of the 2nd Circuit panel—yet folks out there are sure trying. The majority not only says the 2nd Circuit was wrong, it also says that the Equal Employment Opportunity Commission and the several other federal agencies that have long used the "four-fifths rule" to determine when a job test had a burden-shifting disparate impact were wrong. Under that rule, a test that members of one racial group passed at less than 80 percent the rate of members of another racial group was prima facie discriminatory (the initial showing the plaintiff has to make). The burden in any resulting litigation would then shift to the employer to justify the outcome—i.e., to show that the requirement or test was job-related. As I read the majority opinion, numbers are no longer enough to indicate that an employer has anything to worry about, in the absence of "a strong basis in evidence" that something besides results in a miss. This is a substantial weakening of the disparate-impact prong of Title VII. As you suggest, Walter, the 2nd Circuit (and the 6th Circuit, which had handled a similar case in a nearly identical way) was playing by the old rules, and the Supreme Court changed those rules. Don't we want our appellate judges to play by the rules they are given and to refrain from the activism that would be involved in crafting new ones? Does it seem to you, as it does to me, that Judge Sotomayor's critics are now kind of stuck?

Yours,
Linda


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From: Walter Dellinger
To: Emily Bazelon, Linda Greenhouse, and Dahlia Lithwick
Subject: The Impact of New Haven's Test
Posted Monday, June 29, 2009, at 3:25 PM ET
--------------------------------------------------------------------------------

Emily, Linda, and Dahlia,

I'm working my way toward dealing with the theory of the Ricci opinions, but for now I have a more immediate question about what the court's opinion means: How dependent is the result on the fact that the test had already been given? Can the city of Bridgeport decide not to use a test like New Haven's because of the New Haven results? Can New Haven now immediately vote that it will not use that same test next year, acting on the basis of the record it assembled when it decided not to certify the results of this year's test? Is that an impermissible "race-based decision?"

The one thing that is clear is that something changes once the city has "made clear" its selection criteria. The relevant passage in Justice Kennedy's majority opinion reads as follows:

Nor do we question an employer's affirmative efforts to ensure that all groups have a fair opportunity to apply for promotions and to participate in the process by which promotions will be made. But once that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee's legitimate expectation not to be judged on the basis of race.

So whatever latitude the court is giving employers to undertake "affirmative efforts to ensure that all groups have a fair opportunity," that latitude shrinks considerably at the point at which "employers have made clear their selection criteria." It is plain that the court believes that some kind of entitlement attaches once individuals have taken a test (or even earlier when promotion criteria have been chosen). That may not have very much to do with race, but it could have a potentially significant effect on both public and private employers wholly beyond race. What other litigation can be brought by job or promotion applicants who argue that they had a vested entitlement in the employer's previously selected criteria?

More to come.

Walter


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From: Dahlia Lithwick
To: Emily Bazelon, Walter Dellinger, and Linda Greenhouse
Subject: When Worlds Collide
Posted Monday, June 29, 2009, at 5:04 PM ET
--------------------------------------------------------------------------------

Dear Emily, Linda and Walter:

There is a good deal of yipping in today's Ricci opinions about collision courses and what doctrine is on what kind of collision course with what other doctrine. It's a surefire way to confuse an issue when you insist that a failure to act swiftly and decisively will allow two constitutional worlds to collide in the manner of the aged Mr. Spock encountering the young Mr. Spock in the latest Star Trek movie.

Once upon a time, civil rights laws had two vehicles—one forbidding "disparate treatment" (overt racial discrimination) and one prohibiting disparate impact (discriminatory effects, regardless of intent). These two vehicles have been chugging along side-by-side for years, ostensibly to the same destination, until today, when they suddenly turned on each other and charged. Time and again in Justice Anthony Kennedy's majority opinion for the five justices who found a civil rights violation in New Haven's decision to toss out the promotion test results, one finds this language of damned if you do, damned if you don't: "Allowing employers to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate-impact liability would encourage race-based action at the slightest hint of disparate impact." Or: "Congress has imposed liability on employers for unintentional discrimination in order to rid the workplace of 'practices that are fair in form, but discriminatory in operation.' … But it has also prohibited employers from taking adverse employment actions 'because of' race."

Justice Antonin Scalia sets up the constitutional smash-up to come even more apocalyptically, warning that the court today "merely postpones the evil day on which the Court will have to confront the question: Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?" The majority sees today's decision as the unavoidable consequence of using race to get beyond race, to paraphrase Chief Justice Roberts in his 2007 ruling about school desegregation.

The dissenters, on the other hand, don't see an imminent collision of two onrushing statutory vehicles, insisting that the majority alone is to blame for the smash-up. Justice Ruth Bader Ginsburg, in a dissent she read today from the bench, insists that the disparate-impact test is not the poor stepsister to the disparate treatment standard; indeed, it was adopted to work in tandem: "Title VII's original text, it was plain to the Court, 'proscribe[d] not only overt discrimination but also practices that are fair in form, but discriminatory in operation.' "

She adds, "Neither Congress' enactments nor this Court's Title VII precedents … offer even a hint of 'conflict' between an employer's obligations under the statute's disparate treatment and disparate-impact provisions. Standing on an equal footing, these twin pillars of Title VII advance the same objectives: ending workplace discrimination and promoting genuinely equal opportunity."

The suggestion that from this day forward, an employer striving to comply with Title VII always risks running afoul of Title VII effectively turns the landmark civil rights law into a snake chasing its own tail. The statute, on its face, allows an employer to use race to get beyond race.

Sniffs Ginsburg, with many a scare quote: "To 'reconcile' the supposed 'conflict' between disparate treatment and disparate impact, the court offers an enigmatic standard and then explains how nobody knows what today's new standard, requiring a 'strong basis in evidence,' really means." To the extent there's a looming collision, she thinks, it's between the court's newly announced standard and the fundamental goals of Title VII.

Meanwhile, John Payton, president and director-counsel of the NAACP Legal Defense and Educational Fund Inc., writes in to tell me that none of this will change the general law of disparate impact at all:

It is important to note that the Court's ruling does not make it more difficult for minority plaintiffs to litigate against employers who have violated Title VII's disparate impact standard. For example, let's suppose African-American firefighters in Raleigh-Durham or elsewhere file a lawsuit tomorrow alleging that a promotional test has a disparate impact on racial minorities. The exact same legal standard would apply to their suit as applied prior to today's decision: Once they show a prima facie case of a disparate impact violation, the fire department would be liable for violating Title VII unless it can establish that the test is job related for the position in question and consistent with business necessity. And even if the employer makes such a showing, the African-American firefighters may still succeed by showing that a less discriminatory alternative practice is available. In other words, the end result of Ricci may result in a renewed push to vigorously enforce Title VII's disparate impact provisions by minority and women firefighters.

That's a radically different reading of the result than most folks have come to. Is Payton right? Is the snake that's chasing its tail in fact the Ricci opinion itself?

Dahlia


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From: Linda Greenhouse
To: Emily Bazelon, Walter Dellinger, and Dahlia Lithwick
Subject: Who Called Off the Charge?
Posted Monday, June 29, 2009, at 5:24 PM ET
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Dahlia, you invite us to respond to John Payton's minimalist view of the decision: that nothing really changes in the litigation arena. (I assume he would concede that the decision makes voluntary compliance by employers a much dicier proposition—now they really will have to wait to be sued.) I think John may be correct as far as today's opinion goes, but I think the opinion also invites challenges to the showing that are necessary at the pleading stage to get a disparate-impact suit launched. The majority doesn't think that numbers alone—a mere "statistical disparity based on race"—do it. The suggestion is that there has to be something else. Or maybe the burden on the defendants to justify their numbers will be lessened. Something more seems to be in play here, with a majority that is deeply skeptical of disparate-impact analysis in general and that borrows so freely from 14th Amendment cases in what seems very much a constitutional-avoidance construction of Title VII.

Jack Balkin has an interesting post on Balkinization wondering about the source and meaning of the court's "minimalism" in the Voting Rights Act case last week and today in its stopping short of a constitutional holding. He plausibly suggests that the majority is responding to political realities of the Obama era and doesn't want to assume the risk of striking down or crippling iconic civil rights statutes. This raises the question: What did the court think it was doing when it added these two cases to its docket in January? It had to do something with the Voting Rights Act case, of course, since it was a mandatory appeal. But it could have affirmed summarily, as the Bush administration urged, without putting everyone through the drill of plenary review and that ugly April argument. The grant in Ricci was purely voluntary—without a circuit conflict, and with only a brief per curiam opinion below, the case fell far short of meeting the usual criteria for cert. Maybe it just took a while for the meaning of the election to sink in. Or maybe there was something in the briefing and public reaction to the pendency of the cases that focused the court's mind. In any event, it's something of a puzzle that aggressive steps at the front end did not lead to full aggression at the end of the day.

Here's another puzzle—the court's final order list today grants, vacates, and remands the 6th Circuit case that it had been holding until after the resolution of Ricci. In that case, Oakley v. Memphis, the 6th Circuit reached the same result as the 2nd Circuit ruling that the court today reversed. So Memphis presumably gets another day in court while New Haven gets none, since the court, having set its new "strong basis in evidence" standard, doesn't do what it would usually do (as Justice Ginsburg notes in her dissent) and send the case back for application of the standard. Instead, the majority goes on to decide the case itself. Can anyone recall a previous occasion (other than habeas in the old days) when the court adopted a new rule in the petitioner's favor and then went on to apply it without a remand? Just wondering.

Linda

.


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From: Emily Bazelon
To: Walter Dellinger, Linda Greenhouse, and Dahlia Lithwick
Subject: The Fallout From Ricci
Posted Monday, June 29, 2009, at 5:24 PM ET
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Walter, I think you're right that the consequences of Ricci are clearest when cities give tests for promotion or hiring and then realize those tests have had a disparate impact by eliminating minority candidates. As Ginsburg writes in her dissent, "As a result of today's decision, an employer who discards a dubious selection process can anticipate costly disparate-treatment litigation in which its chances for success … are highly problematic." That is bad for New Haven and other cities that give tests like these, then wish they hadn't.

But here's the good news: If cities opt to use so-called assessment centers for these kinds of promotions, they should be home-free. And, as Ginsburg explains in her dissent, assessment centers sure look like a better way to make these determinations. So maybe today's ruling will give cities an incentive to move away from these highly technical tests of questionable value and toward measures that get at all the qualities you'd want in the leadership of a fire department. Also, as John Payton points out in Dahlia's post, minority firefighters can still sue for disparate impact under the same standard they could sue under before. What's really changed is what a city that doesn't want to defend its test against such a lawsuit must do.

In the short-term, though, New Haven's fire department will soon have 15 new lieutenants and captains, it seems. And in a city that is about two-thirds black and Hispanic, 13 of the 15 will be white, perhaps two Hispanic, and none African-American, since Mayor John DeStefano said today that the city would go ahead and certify for promotion the top scorers on the 2003 test at the heart of the lawsuit. That is thoroughly discouraging to Wayne Ricks, a black firefighter of 27 years, who came within a few points of a promotion to lieutenant during the round of promotions before the one at issue in the case. "It's really unfortunate, and I think this will just make it more difficult for African-Americans to gain employment in fire departments and police departments," Ricks said.

Lead plaintiff Frank Ricci, on the other hand, framed his victory in terms that evoke America, the land of opportunity: "If you work hard, you can succeed in America, and all of these guys worked hard," he said on the steps of New Haven's federal courthouse. True. But only part of a larger truth. And in historical terms, a strange sort of rhetoric to hear a white person laying claim to.

The mayor, for his part, praised all the members of his fire department for doing their jobs well despite the lingering conflict and bitterness over this litigation. And he said, "I have no doubt that there is a set of firefighters who feel justified right now and that they've played by the rules … and another group who feel like the rules are stacked against them and as soon as they start to get ahead, the rules change." Watch him here. Dahlia, you asked whether the two parts of Title VII were really on a collision course with each other. I don't think they have to be. But maybe once this test had been given and then taken away, this Supreme Court couldn't look at the case or the law from any other vantage point.

Thanks for letting me crash the Breakfast Table party!

Emily


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From: Walter Dellinger
To: Emily Bazelon, Linda Greenhouse, and Dahlia Lithwick
Subject: Ricci Shouldn't Have Happened This Way
Posted Monday, June 29, 2009, at 7:22 PM ET
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Emily, Linda, and Dahlia:

This case went off the rails when this litigation was launched in medias res. No promotion decisions had been made. Having decided not to certify the test results, the city's civil service board—had it not been for this litigation—would have next proceeded to determine how decisions would be made for this round of promotions, then applied those new criteria to those seeking promotion. What those criteria would have been and who would or would not have been promoted are completely unknowable.

Given that no one had been promoted and no one had been denied promotion, it's very hard to see how the firefighters who brought suit were able to establish the very first element of a Title VII action: the existence of an "adverse employment action."

In addition to satisfying the statute, it would have been far better for the process to judge New Haven actions after promotion decisions were actually made using whatever new standards the city chose to adopt. Completing the process would have shed light on the question of whether there were in fact equally good (or perhaps, better) criteria for determining promotions, and with far less racial disproportion. The city might have adopted a fine new race-neutral set of criteria that seemed fair to all, like using the assessment center approach of which Emily writes. Or, on the other hand, the city might have resorted to a terrible promotion plan that clearly used race in an unlawful way—like rescoring the test to add points to the scores of individuals depending on the race of the individual test-taker.

Which takes us to the fact that Justice Kennedy's opinion relies in part on a
logically flawed, categorical error. He writes: "If an employer cannot rescore a test based on the candidates' race [citing the Title VII provision], then it follows a fortiori that it may not take the greater step of discarding the test altogether to achieve a more desirable racial distribution of promotion-eligible candidates. ... "

This is wrong. There is a very powerful difference between setting aside the results of a test based on what you learn from general racial statistics about those who took the test, on the one hand, and adjusting individual test scores on the basis of race, on the other. The first does not require any official determination of any individual's race; one needs nothing more than a general impression of the racial composition of the group as a predicate for taking action. The second—adoption of a unlawful, race-based remedy such as racial rescoring of tests—requires the government to make an official determination of each person's race (and to benefit or burden the person on the basis of that determination).

Using race to identify a problem has never before been considered problematic. It is what necessarily happens before institutions adopt the most widely accepted race-neutral actions, like using admissions criteria for every applicant that have less of a racial impact (for example, accepting students in the top 10 percent of their high-school class, which, in states like Texas, would produce a racially diverse student body). Contrary to Kennedy's assertion, deciding not to use test results should be far less problematic than "rescoring based on race."

Here, all New Haven did was set aside the results of a test. It seems to me that test would have been very hard to defend, given the other questionable employment rules that surrounded it. New Haven counts the multiple-choice test as 60 percent of what determines promotion. That places twice the weight on test-taking as the median for firefighter promotions around the country. How can that unusually great a weight be justified?

Kennedy says only that it was insisted upon by the union. Yep. That was two decades ago, when the union was dominated by the white firefighters. That so great a weight should necessarily be given to a multiple-choice test used to pick leaders out of a group of qualified firefighters is hard to see. A young law professor friend of mine, a very brainy former Supreme Court law clerk, says in an e-mail to me, "I'm pretty certain that if given a chance to prepare I could totally ace the firefighters multiple choice exam—and I'm the last person in the world you would want leading the charge into your burning house."

But in any event, we, and the court, have no way of knowing whether the plan New Haven would have come up with would have seemed better or worse that the system it first undertook to use.

This was thus an improvident and aggressive grant of review by the court, not an "unsought responsibility." The courts should have said, "Let's wait at least until a city has finished its promotion process and taken some adverse employment action before we weigh in."

But then there would have been less to talk about.

Regards,
Walter


--------------------------------------------------------------------------------

From: Dahlia Lithwick
To: Emily Bazelon, Walter Dellinger, and Linda Greenhouse
Subject: When Breakfast Table Morphs Into Midnight Snack
Posted Monday, June 29, 2009, at 7:32 PM ET
--------------------------------------------------------------------------------

Dear Linda, Emily, and Walter:

This year's Breakfast Table has stretched on improbably past lunch, over dinner, and could surely go on through a hearty midnight snack. There's a good deal we haven't even touched on here this week and a good deal we'll wish we'd thought to write as we reread these decisions in the coming days. It's always an honor and a pleasure to have such expert (and speedy) guidance and insight in these last few days of the court's term.

Thank you for spending your week with us. See you at Judge Sotomayor's hearings next month.

Best,
Dahlia

Emily Bazelon is a Slate senior editor.
Walter Dellinger is an attorney in Washington, D.C. and the Douglas B. Maggs professor of law at Duke.
Linda Greenhouse covered the Supreme Court for the New York Times for 30 years. Since January 2009, she has been the Knight Distinguished Journalist in Residence and Joseph Goldstein Senior Fellow in Law at Yale Law School.
Dahlia Lithwick is a Slate senior editor.

Article URL: http://www.slate.com/id/2220927/


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