WHAT GOT INTO THE COURT?
WHAT HAPPENS NEXT?
The William Timbers Lecture
November 20, 2003
My goal here this evening is NOT to duplicate a political science or law class. This is Dartmouth, after all, and I know you came here with American Government and lots of other AP’s under your belt. Rather, I thought I would use our time together to talk to you about the Supreme Court as I see it, at a most fascinating juncture in the court’s history.
I know that many people find the Supreme Court to be a rather abstract and elusive subject. That’s surprising, because the court actually deals with – in fact, is limited by the Constitution to dealing only with – actual, concrete, specific, “cases and controversies.” So I’d like to frame my remarks about the court with some actual recent cases from the last term and the current one, to let those cases speak to you quite directly, and to use them, I hope, as a way of sharing some insights about how the court works.
The first part of this lecture’s title, “What Got Into the Court?”, refers to the term that ended last June – a term that was quite amazing, potentially transformative, and so important the court and the country that no conversation about the current court can really begin without considering what occurred and trying to come to some understanding of how it occurred.
The 2002-2003 term will, of course, be known in history for the two decisions the court handed down during the last week in June: the ruling in Grutter v. Bollinger that upheld affirmative action in university admissions, and in Lawrence v. Texas that endorsed a constitutional framework for gay rights. Not to keep you on the edge of your seat: we will get to those. But no Supreme Court case stands alone. Many different streams of thought flow continually across the court’s docket. Each precedent the court creates or considers has roots and branches. So I’d first like to spend a few minutes talking about two other, less noted cases that the court decided last term in the months that led up to the June landmarks. I want to show you that the affirmative action and gay rights decisions were not the only times last term that the court defied widespread expectations and, in doing so, told us something quite interesting about where the court is today, what cues it responds to, and what kind of dialogue the justices are currently engaged in with the legal, political, and social culture that surrounds them.
The first of these straws in the wind arrived on March 26 when the court decided Brown v. Legal Foundation of Washington. On the surface, this decision appeared to resolve only a question of specialized interest to the legal profession: the validity of state programs that pool the escrow deposits that lawyers hold for their clients for brief periods of time, and that then direct the interest earned on these pooled deposits to legal services for the poor. These programs, which exist in all 50 states under the name Iolta, for Interest on Lawyers’ Trust Accounts, have been lightning rods for conservative groups that have packaged their objections not as overt opposition to government-supported legal services but as an argument against what they claim to be an unconstitutional taking of private property.
In an earlier round of this battle five years previously, the court had decided that the pooled interest was in fact the clients’ property, leaving open the decisive question of whether its use in these public programs amounted to a Fifth Amendment “taking.” As the issue came back to the Supreme Court for an answer, the stakes were more than theoretical, amounting to some $160 million a year, or about 15 percent of all money from private and public sources spent in this country on legal services for the poor. Given the court’s prior decision, it appeared highly likely that this important source of money was about to dry up.
So those who supported the Iolta program made it their business to make sure the court at least knew what the real-world stakes were, beyond the intricacies of takings doctrine. The American Bar Association, the chief justices of the 50 states, the National League of Cities, and the attorneys general of 36 states – in other words, a fair representation of the country’s legal and political establishment – filed briefs urging the court to save the program. Since the earlier decision had been 5 to 4, the program’s supporters needed only one vote, and they got it: Justice Sandra Day O’Connor, who voted with the majority in the earlier decision, now joined the four previous dissenters in a majority decision holding that while the interest was private property, its public use could not be considered a taking. This conclusion was based on the real-world fact that the interest would not have existed in the first place except for the Iolta program itself. The tiny bits of interest earned by each short-term escrow account would have been consumed by the transaction costs of opening and closing the account. The property owner’s loss rather than the government’s gain is the measure of an unconstitutional taking, Justice John Paul Stevens wrote for the majority, and since the depositors suffered no actual loss, there was no taking.
Shift ahead two months to my second case, Nevada Department of Human Resources v. Hibbs, decided May 27. Hibbs was last term’s chapter in one of the Rehnquist Court’s more riveting dramas, the federalism revolution. The question, as has often been the case, was one of state immunity from suit under a law that Congress intended to apply universally, to state and private employers alike. The statute in question was the Family and Medical Leave Act of 1993, which obliges employers to provide up to 12 weeks of unpaid leave for workers, male and female, to take care of family emergencies. The constitutional question was whether Congress had the authority to abrogate the immunity the states claimed under the 11th Amendment which – to oversimplify more than a bit – bars suits against states in federal court unless Congress has invoked a proper basis of authority to declare otherwise.
This is an intricate constitutional issue more suitable for a law review article than for our gathering here today. I’ll make only two points. One is that in a series of lockstep 5 to 4 decisions, the court had upheld state claims of immunity from suit under other federal laws, including laws against discrimination on the basis of age and disability. Congress in these statutes thought it was opening up the federal courts to suits against states, but the Supreme Court ruled that Congress had lacked the constitutional authority to accomplish that goal.
My second point here is that of all the recent cases, the stakes in Hibbs were the highest. That was because the Family and Medical Leave Act addressed sex discrimination. The law was aimed at removing a particular burden from women in the workplace, or in the job market: the assumption by employers that if a problem came up at home, it was going to be the woman who took time off to deal with it. The statute’s rationale was that mandating a sex-neutral leave policy would help erase the stereotype that caregiving is women’s work, a stereotype that causes women to be less valued as employees.
The relevance for the issue before the court in Hibbs is that for purposes of the Equal Protection clause, sex discrimination is a form of discrimination that receives “heightened scrutiny’’ from the courts. Unlike official discrimination on the basis of age or disability, permissible as long as the government can put forward a “rational basis” for its policies, distinctions on the basis of sex are valid only if they serve an important governmental interest. Under this analysis, policies that discriminate on the basis of sex (or race) stand on weaker ground, and are much more difficult to justify than those that make distinctions on some other basis that does not receive heightened scrutiny. Congress’s authority under Section 5 of the 14th Amendment to enforce the Equal Protection guarantee is consequently at its peak when it comes to enacting federal legislation designed to combat these particularly troublesome forms of discrimination.
At least, such had been the accepted wisdom as Hibbs reached the Supreme Court. But now there was a real question as to whether Congress actually possessed the authority it had invoked when it extended the Family and Medical Leave Act to the states. If in its new solicitude for state immunity from suit under the 11th Amendment, the court were now to rule that the 11th Amendment immunity trumped Congress’s power under the 14th Amendment even in discrimination cases deserving of heightened scrutiny, the federalism revolution would prove to have gone very far indeed toward shifting the balance of power in the country away from the national government. Further, serious questions would be raised about the application of such basic federal civil rights laws as Title VII of the Civil Rights Act of 1964. So Hibbs attracted a great deal more attention from civil rights groups, scholars of women’s history, and others (including a spirited defense of the statute by the Bush Administration) than it might have appeared, on the surface, to merit.
The Hibbs case produced the major surprise of the term – and I do include the June decisions in that judgment. In an opinion by Chief Justice Rehnquist, a 6 to 3 majority rejected the states’ immunity claim and upheld the power of Congress to remedy what the Chief Justice described as “the pervasive sex-role stereotype that caring for family members is women’s work.” The court endorsed the theory behind the law, finding it sufficiently “narrowly targeted” to remedy a well-documented problem for women in the public as well as private workplace. It was the first time the states had lost a major immunity case since the federalism revolution gathered steam in the early 1990’s.
With that background, we can now turn to the last week in June. You undoubtedly remember these cases. The University of Michigan’s affirmative action policies, which explicitly took account of race in admissions to the law school and undergraduate school and concededly made it easier for minority students to gain admission to these competitive programs, were challenged by several disappointed white applicants who claimed to have been the victims of unconstitutional race discrimination. The Texas sodomy law applied only to same-sex couples, making it a crime for such couples to engage in sexual practices that were perfectly legal in Texas for opposite-sex couples. The law was challenged by two men whom the police found having sex in the privacy of their own apartment, to which the police had been called by a hostile neighbor making a false report of a firearms offense taking place there.
Those are the basic facts, and I will limit myself to a few observations. When the court agreed to hear the Michigan affirmative action cases, it appeared that the most that supporters of affirmative action could hope for would be language from somewhere in some eventual opinion that could be invoked for damage control. The court’s major last word on affirmative action in higher education, the 1978 Bakke decision, had been dying an incremental and very public death for 15 years, and it seemed most unlikely that either of the challenged Michigan programs would survive: certainly not the undergraduate program, with its 20 points for minorities on a 150-point admissions scale, and not the law school program, either, which while promising a “holistic” consideration of each applicant’s special qualities somehow managed to produce a class with the same proportion of minority students year after year. Maybe, just maybe, the court would be persuaded not to shut the door completely, but even that prospect seemed dubious.
Yet something happened during the four months between the grant of cert. in December and the arguments in early April that changed the polarity. I sensed the change in the weeks leading up the argument, and I wrote about it, but lacking access to the only nine people who could really tell me what was happening, I worried that the change was one of perception rather than reality. By the end of the two hours of argument, however, it was quite clear that the sun would not set on affirmative action – although I can hardly claim to have anticipated the mysterious 25-year “sunset” language that Justice O’Connor included in her majority opinion upholding the law school program.
Nor, I think would anyone have predicted the scope and sweep of the majority opinion in Grutter. This was not some grudging acceptance of affirmative action as a lesser of evils. It was, rather, an unapologetic embrace of a proposition that put affirmative action on a stronger footing than Justice Powell’s solitary opinion in Bakke itself: that diversity serves a compelling state interest not only as an educational tool for enriching life in the classroom, as in the Bakke formulation, but as a pathway for full participation by members of minority groups in the civic and economic life of the country. “Effective participation by members of all racial and ethnic groups in the civic life of our Nation is essential if the dream of one Nation, indivisible, is to be realized,” Justice O’Connor wrote. This is not, explicitly, a rationale based on remediation of historic societal wrongs – a rationale foreclosed by the court’s cases – but it is very close, projecting the asserted benefits of affirmative action out of the classroom and onto the canvas of American history and society as a whole. A court that was widely expected to overturn Bakke, in other words, instead incorporated and moved beyond it.
So what happened during those months following the grants of cert? As in the Iolta and the Hibbs cases, the justices had the chance to consider what was really at stake and to contemplate whether following the logical consequences of their recent precedents in each of these contested areas (takings, federalism, equal protection) took them to where they really wanted the court to be.
Of course, the justices were well aware that the mere fact of granting an affirmative action case in the current climate would galvanize the country and place the court in the full glare of public attention – from the court’s point of view, never a desirable place to be. Of course the court expected to be flooded with briefs from all sides.
But I don’t think the justices had any idea of what they were about to get. The aftermath of granting the Michigan cases did not unfold as planned. Certainly the court expected to hear a defense of affirmative action from the traditional civil rights community and from colleges and universities, and it did. But briefs also poured in from Fortune 500 companies, talking about the need for a workforce that was both educated and diverse, to compete in a global marketplace. A brief from retired military officers and superintendents of the military academies described affirmative action at the service academies as essential for maintaining the diverse officer corps needed to serve an integrated military. It was clear during the argument that the justices had read this brief and at least a good sample of the others. More than 100 briefs, a record number, were filed in these cases.
The briefing was notable not only for numbers but for lopsided-ness: with few exceptions, the only anti-affirmative action briefs were from advocacy organizations whose mission is to oppose affirmative action. One of those exceptions was the brief filed for the petitioners by the Bush Administration. But it was so labored and internally inconsistent – neither embracing affirmative action not opposing it, offering the Texas “10 percent” plan (guaranteeing admission to the University of Texas to the top 10 percent of every high school in the state) as the only example of an acceptably narrowly-tailored way to take race into account without explaining what relevance that approach could have for law school admissions – that there is little question that it did the Administration’s ostensible cause more harm than good.
Clearly, the opponents of affirmative action were out-briefed, but this was not simply a numbers game. The briefs gave the court a societal reality check. Who was affirmative action important to, and why? How would the country look and feel if the court actually followed the logical consequences of Croson, Adarand, Shaw v. Reno, and other decisions that barred counting by race in other contexts? What would it mean for higher education? What would the numbers be? What would the reaction be? Those small green booklets posed and answered those questions.
The briefs, in other words, supplied an ingredient that was crucial to the outcome of the case: a sense of the culture, one might say the constitutional culture, in which the court was operating. Of course, the court was being asked to address the question in the cases as a question of law. As de Tocqueville pointed out many years ago, most great questions in American society present themselves as questions of law. But no great Supreme Court case is only a question of law. It is always also an episode in the ongoing dialogue by which the court engages with the society in which it operates and in which the justices live. Sometimes a case arrives rather early, sometimes even too early, in that dialogue and sometimes, as with affirmative action, it arrives when it tempting to conclude that there is nothing left to say. And then, through what Robert Post has recently called a “mysterious alchemy,” the court manages to “conceive and convey its judgments within the web of cultural understandings that it shares with the society it serves.” And constitutional law is made.
The nuanced judgment in the Michigan cases, that affirmative action by-the-numbers as in the undergraduate admissions program (Gratz v. Bollinger) is unacceptable while the law school’s non-formulaic version passes muster in Grutter, is not only the court’s current response to the constitutional dialogue but its last word for quite a while. While many found puzzling Justice O’Connor’s reference to a 25-year sunset for affirmative action, it seemed to me she was telling the country that the court does not expect to resume this conversation in a fundamental way for another generation. People can work out the details, as the University of Michigan recently did in revising its undergraduate admissions plan, without the Supreme Court effectively sitting in on every admissions committee meeting.
Lawrence v. Texas also arrived on the court’s docket in the midst of an ongoing constitutional conversation. By one measure, it was rather early in that conversation: there were only a handful of decisions on the books dealing with gay rights. One was overtly negative, and others were not free of ambiguity. But it seems to me that one remarkable thing about the Lawrence decision was that this was not the conversation the majority chose to continue. Instead, the Lawrence court resumed a very long running societal dialogue – one of the very oldest – about individual liberty, privacy, and freedom from government intrusion. The turn the majority made in Lawrence was to conclude that this was the conversation that mattered. Yes, Bowers v. Hardwick gave the wrong answer, but what Lawrence really tells us is that it was the answer to the wrong question. The rights of gay people do not exist under a separate heading, detached from the larger theme and trajectory of individual rights. Instead, the constitutional status of the claims of gay men and women to “dignity” and “respect,” in Justice Kennedy’s formulation, is itself a measure of the vitality of society’s commitment to individual rights for all: gay rights as nothing more or less than human rights. Lawrence v. Texas is a supremely inclusive opinion, bringing those who had been strangers to the law inside the protective circle defined by due process and equal protection.
Where did this come from? Lawrence traveled a quite different path than Grutter. The justices granted cert. in the Michigan cases because there was a conflict in the federal circuits on an important issue the court had been rather transparently avoiding. There was no such conflict over gay rights, at least in the federal courts; state courts and legislatures had been steadily dismantling the old regime of criminal sodomy laws, but there was no particular reason for the court to intervene in December 2002. The only reason to take up the challenge to the Texas law was that a majority of the court had come to the conclusion that it was time to confront Bowers and to dismantle it. Unlike the Michigan cases, the bottom line in Lawrence was never in doubt. The Texas law would be overturned. The only questions were how broadly the court would rule and what analytical path it would take.
As in Grutter, the briefs proved unusually enlightening for the court. While victory has a thousand fathers, some of these briefs were particularly important. I would mention these: an international brief, filed by Harold Koh of Yale Law School to inform the court of legal developments in other Western judicial systems and demonstrate the error of the Bowers majority’s generalizations about how “Western civilization” regards various sexual practices; briefs by professors of history and by a coalition of gay rights groups led by the Human Rights Campaign, likewise demonstrating that the assumptions in Bowers about the historical treatment of gay people were also incorrect; and briefs describing the demography, lives, and aspirations of the gay community in ways that underscored how out of synch with current perceptions and realities the Bowers opinion, and the premises behind it, had become. The National Lesbian and Gay Law Association filed one such brief, and the American Psychological Association filed another. There were also important briefs from the American Bar Association and two libertarian organizations that the court recognized as repeat players, the Cato Institute and the Institute for Justice.
Clearly, the court was ready for this type of presentation when it granted Lawrence and specifically included the question of whether Bowers v. Hardwick should be overruled. The briefs offered confirmatory research to support the justices’ own sense that the culture had changed, not only outside the court, but within it. It is no longer the court it was in 1986, when Bowers v. Hardwick was pending and an oblivious Justice Powell was able to say to a closeted gay law clerk: “I don’t believe I’ve ever met a homosexual.” Gay men and lesbians are open in their identity, whether as law clerks and employees at the Supreme Court or as leading members of the Supreme Court bar. Their presence is simply a given, a good deal more plausible, in fact, than the advent of a female Supreme Court justice appeared to be back in the 1970’s, when I began covering the court. A female justice was seen as so fanciful a notion that such an imagined event was the stuff of comedy in a popular Broadway play, “First Monday in October,” fewer than three years before Sandra Day O’Connor’s nomination in 1981. Perceptions can and do change, sometimes nearly overnight, on the basis of personal experience and direct observation. To adhere to the regime of Bowers would have been to negate the way a majority of the court now sees the world, and the way a majority of the justices wanted the court to appear in the world’s eyes.
So what got into the court in the spring of 2003? A combination of advocacy and opportunity – arguments in the hands of skilled lawyers reaching a court that was primed and willing to listen. A court that thought long and hard about the logical consequences of its recent precedents and turned back from following them to their logical conclusions. A court composed of men and women who, despite their exalted positions, live in the world as employers, spouses, parents, grandparents, and have seen the world change around them. A court engaged in an ongoing constitutional conversation, in which all of us as lawyers and devoted court-watchers are not only privileged but obliged to take part.
The title of this lecture posed a two-part question, not only what got into the court, but what happens next. I have no precise answer to that second question, just a gut feeling that the court’s behavior last term may prove predictive in a larger sense. Perhaps we are seeing a kind of judicial regression to the mean, a retreat toward the center after logical consequences have been tested and found wanting. The Iolta case, combined with the Lake Tahoe development moratorium case during the previous term, in which the court unexpectedly rejected a regulatory takings claim, indicates pretty clearly that the “takings” revolution fomented by Justice Scalia and suggested by his 1992 opinion in Lucas v. South Carolina Coastal Council has run its course. The Grutter decision, combined with the court’s decision two years ago, in Hunt v. Cromartie II, to finally uphold the North Carolina congressional district that the Shaw v. Reno decision in 1993 had found presumptively unconstitutional, indicates that nuance, context, and realpolitik rather than doctrine is the order of the day when considering the ways in which government policy can take account of race.
I am less certain about the course of the federalism revolution and whether the Hibbs decision forecasts a return to the court’s traditional posture of deference to Congress in the exercise of its 14th Amendment power to remedy discrimination. An important new federalism case on this fall’s docket, Tennessee v. Lane, which tests congressional authority to require states to obey the heart of the Americans with Disabilities Act, the provision requiring accessibility of public services, may provide an answer. This is an extremely consequential case both for doctrinal and practical reasons, with briefs devoted to informing the justices about the implications of exempting the states from an obligation that it was the principal purpose of the ADA to place on them.
As for Lawrence v. Texas: the focus on the decision’s holding, and its implication for other types of gay rights claims (including the Massachusetts gay marriage decision that was clearly informed by Lawrence although it was based on state constitutional grounds) has obscured a significant aspect of the court’s analysis: the majority’s open embrace of a fundamental rights jurisprudence in which constitutional meaning evolves to keep up with society’s changed perceptions and needs. To say that this has been disputed territory for the 20 or more years on the court is an understatement. In this respect, the Lawrence opinion may prove significant in the new term and in terms to come in ways that we cannot now imagine. I will quote from the conclusion of Justice Kennedy’s opinion for the court:
“They knew,” he said, referring to the founding generation, “times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”
Just as last term was defined by the affirmative action and gay rights cases, the current term will almost certainly be defined by the court’s response to the Bush administration’s war on terrorism. It is very significant that last week, the court acted over the objections of the administration and agreed to hear a challenge to the open-ended detention at the U.S. naval base at Guantanamo Bay, Cuba of hundreds of foreign prisoners who were picked up on the battlefield during the war against the Taliban and Al Quaeda in Afghanistan. The question in these cases is whether the federal courts have jurisdiction to decide whether the circumstances of their detention violate the Constitution or domestic or international law. At first glance, this jurisdictional issue appears to be just a technical question, but it is fundamental to the role of the federal courts in defining the scope of the constitutional and legal guarantees that lawyers for the detainees have invoked.
It would have been very easy for the Supreme Court to turn away from these cases. When the court declines to hear an appeal, no explanation is required. The administration told the justices that there was no role for the federal courts here, and to leave the entire matter in the hands of the executive branch. This was an argument, at the threshold, that the administration was unable to sell and, given the court that we saw last term, I think it is fairly easy to understand why. This is not a court that is going to take orders from one of the coordinate branches on a core aspect of its jurisdiction. At the end of the day, when it is time to decide the merits of the detainees claims – whether open-ended detention, without formal charges or access to counsel, is legally or constitutionally supportable -- the court may well declare, as it has at similar points of foreign or domestic stress, that judges should give substantial deference to the executive branch in determining what policies best serve the national interest. But it is the court that will make that judgment, not the White House. That is the message the justices sent last week.
As in the Michigan and gay-rights cases, the justices did not act in a vacuum when they agreed to hear the Guantanamo cases. Not only did they receive two excellent cert. petitions from lawyers for the detainees, which stressed the need for the court to retain the ability to define its jurisdiction, but they received eight amicus briefs that indicated quite powerfully that not only the country, but the world, was waiting to see how the Supreme Court would respond to this challenge. Not only the world, in fact, but history: there was a brief from Fred Korematsu, the Japanese-American whose challenge to President Roosevelt’s wartime order expelling more than 100,000 Japanese-Americans from their homes on the West Coast led to the infamous Korematsu case. The court’s decision in 1944 uphold the detention is almost universally seen as a blot on the history of the court and on the record of civil liberties in the United States. Mr. Korematsu, now in his 80’s, represented by several law professors, warned the court not to make the same mistake twice. “These cases provide the court with the opportunity to protect constitutional liberties when they matter most, rather than belatedly, after the fact,” he told the court.
I think that statement offers us a useful perspective as we wait to see what the Supreme Court will do at this historic juncture. The Guantanamo detainees of course have a direct stake in the outcome, but so does the court and so do we. The case is about our commitment to the rule of law, in hard times as well as good times. It is as much about us as it is about them. And as we all watch to see what happens next, the stakes could not be higher.