Affirmative inaction at the Supreme Court

I’ve been cogitating for over a week about the Supreme Court’s second go-round with Abigail Fisher’s challenge to the University of Texas’s undergraduate affirmative action program, and I’m still struck by how little we learned from the proceedings. We already knew that there were four justices (Roberts, Scalia, Thomas, and Alito) who would make little effort to disguise their hostility toward affirmative action. Even Scalia’s Foxified version of the mismatch theory, which claims that affirmative action harms beneficiaries by encouraging them to attend schools that are too academically challenging for them, startled people only because of its tone, as opposed to its content. (I did entertain the prospect that Scalia had a bet with one of his fellow justices about when Clarence Thomas would speak next during oral argument, and that Scalia’s remarks were intended to bait Thomas into responding.) We also knew that four justices (Breyer, Ginsburg, Sotomayor, and Kagan) supported the state’s efforts to produce a student body matching the diversity of a ethnically diverse state.

The major discovery, as I see it, is the recognition that Justice Kennedy really really really doesn’t want to be the fifth vote to deep-six affirmative action, whatever his reservations about the policy. Everything about Fisher‘s journey strongly suggests that the four most conservative justices took the case with the expectation that they would eventually garner Kennedy’s vote. Had Kennedy wanted to supply that fifth vote, he could have done so when Fisher’s case first appeared before the justices. Instead, the Court chose to remand the case to the Fifth Circuit Court of Appeals, with orders to apply strict scrutiny, the most stringent form of equal protection review, to the Texas plan. (More precisely, to the part of the plan that uses holistic assessments of applicants, rather than the part that guarantees admission to any student graduating in the top 10 percent of his or her high school class.) The conservative-leaning Fifth Circuit had already upheld the Texas policy, but perhaps the Supreme Court’s directive would induce a different result. When the Fifth Circuit applied strict scrutiny and still upheld the program for a second time, the Court could have chosen to call it a day, but instead it seized the opportunity for a second crack at the case.

Justice Kennedy’s behavior during Fisher II’s oral argument suggests continuing hesitancy to accept the conservative bloc’s invitation to curtail affirmative action. Aside from eschewing the hostile rhetoric that characterized the more conservative justices’ line of questioning, Kennedy toyed with the idea of remanding to the trial court for fuller fact-finding into the operation of the Texas admissions policy. It is possible that a deeper dive into how the Texas policy works, or into how the minority students admitted under the Ten Percent Plan compare to those admitted under the holistic analysis being challenged by Fisher, might prove enlightening. But the justices have already been supplied with ample information, courtesy of litigants’ filings and amicus curiae briefs, into the unique way that the University of Texas seeks to produce a diverse student body.

As one who battles tendencies to procrastinate (hence the tardiness of this post), I think Justice Kennedy’s actions should be viewed as consistent with the procrastinator’s mindset. Sometimes people procrastinate because their ingrained perfectionism leads them to fear failure. But sometimes, as I believe is happening here, people procrastinate to avoid having to commit to a particular course of action. If you decline to make a decision, after all, you can skirt responsibility for what happens subsequently.

In Fisher II, Kennedy currently has several decision options, none of which seem to appeal to him. He’s skeptical of race-consciousness in public policy, and that skepticism precludes siding wholeheartedly with the liberal justices and upholding the use of race as part of a holistic analysis, as Justice Powell set forth in his pivotal opinion in Regents of the University of California v. Bakke (1978). At the same time, he does not subscribe to the doctrinaire color-blindness that his fellow conservatives are insisting upon, but any opinion that strikes down Texas’s holistic approach must invalidate Bakke as well, and Kennedy, based on his actions in both Fisher cases, seems reluctant to do that either. Barring a change of mind or heart, his remaining option is to hold out for some additional information to serve as cover for whichever position he eventually takes. His conservative colleagues could lean on him to make a decision already, but given the procedural history we’ve seen so far, they might not find themselves pleased with the result of that decision. Perhaps, then, they will enable Kennedy’s procrastination. Stay tuned….


The Supreme Court takes on jury selection

There is much to be said for the adage that hard cases make bad law, but there may be less to be said for the claim that easy cases make good law, at least at the Supreme Court level. Exhibit A: Monday’s oral argument before the Court concerning race-based uses of peremptory challenges in voir dire, or jury selection. The case offers as clear-cut an example of racial discrimination in jury selection as one is likely to encounter, yet it is precisely that characteristic that threatens to diminish the case’s utility with respect to combating such discrimination.

First, a brief primer on peremptory challenges: Unlike challenges for cause, which require counsel to articulate a reason why a challenged juror cannot decide the case free of bias, peremptory challenges allow potential jurors to be struck for any reason or no reason. This device enables the removal of potential jurors who are believed to harbor prejudices against one’s side, even though they don’t say anything directly revealing their prejudices. The exercise of peremptory challenges reflects an attorney’s hunches, based on such considerations as body language and vocal tone. But it can also reflect stereotyping about particular groups of people and their beliefs. More specifically, peremptory challenges have a long and ignominious record of being used to single out African-American jurors for removal, based on the stereotype that they are unwilling to convict African-American defendants.

The Supreme Court, in Batson v. Kentucky (1986), attempted to curtail the use of race as a primary factor in striking jurors, though it did not rule the use of peremptory challenges unconstitutional in and of itself. Once a defendant has claimed that the prosecution’s use of peremptory strikes was driven by racial considerations, the prosecution must then demonstrate that the strikes had a race-neutral basis, such as age, income level, or occupation. The judge then determines whether these proffered justifications are legitimate or mere pretexts for discrimination. This last stage is where Batson has failed to live up to its promise, as judges typically accept even the flimsiest justifications as valid. One can understand why judges might hesitate to single out prosecutors, with whom they work on a day-to-day basis, as being both bigots and liars about said bigotry. But the result is the frustration of Batson‘s purpose; if any dubious post-facto justification can pass muster, then blatant discrimination will go unpunished.

The prosecution behavior in the Georgia case just heard by the Court seems, based on its cartoonishness, as it were designed to test the Court’s willingness to label any behavior a Batson violation:

In notes that did not surface until decades after the trial, the result of a public records request, prosecutors had marked the names of black prospective jurors with a B and highlighted those names in green.

They circled the word “black” where potential jurors had noted their race on questionnaires. They ranked the black prospective jurors in case “it comes down to having to pick one of the black jurors,” as the prosecution’s investigator put it in a draft affidavit at the time.

Had the defendant’s attorney not attained access to the prosecution’s notes by invoking the state’s open records law, none of this behavior would have come to light. What was hidden in plain sight, in contrast, was the prosecutor’s request to the all-white jury to sentence Timothy Foster, an African-American accused of murder, to death to “deter other people out there in the projects.” But without the notes that had previously been unavailable to Foster’s counsel, this case would never have found its way to the Supreme Court, the prosecutor’s racially charged appeal notwithstanding.

Based on the tenor of oral argument, it’s difficult to imagine that the Court will rule against Foster. The unanswered question, however, is what victory might look like. Because most Batson claims aren’t backed by prosecutors’ notes providing explicit evidence of discrimination, any ruling that relies on the availability of such notes to make the case for a Batson violation will leave the status quo untouched, thereby allowing barely camouflaged discrimination to continue. At the same time, there has been no signal that the justices are inclined to rethink the constitutionality of peremptory challenges themselves, as Justice Thurgood Marshall argued in his concurring opinion in Batson.

If peremptory challenges are going to continue to be part of jury selection, then reform must address the willingness of trial judges to accept the purportedly race-neutral rationales provided by prosecutors. If trial judges find it too awkward to enforce Batson assertively because of their regular interactions with prosecutors, then one solution might be to impose meaningful oversight of trial judges’ Batson rulings. Under current precedent, Batson rulings receive great deference on appeal because the trial judge is able to witness the selection process firsthand, and thus is best-positioned to determine the plausibility of the prosecutor’s proffered race-neutral justifications. But videotaping voir dire could equip appellate judges to review Batson decisions more meaningfully. And appellate judges wouldn’t share trial judges’ concerns about alienating prosecutors. But it’s more likely that the Roberts Court will decide the easy case while declining to strengthen Batson to prevent discriminatory behavior that can’t be uncovered without what Foster’s attorney called an “arsenal of smoking guns.”

What opinion assignment reveals about Justice Thomas

Anyone who follows the Supreme Court even casually knows that Justice Clarence Thomas is reliably conservative. (I really need the “Match Game” studio audience to shout in unison, “How conservative is he?”) Numerous estimators lend quantitative empirical support to this claim. But for those who develop migraines from too much exposure to math, perhaps the most telling indicator of Thomas’s ideological position appeared briefly in Adam Liptak’s article in Friday’s New York Times that received more attention for its claim that Thomas’s majority opinions “contain language from briefs submitted to the court at unusually high rates.” Liptak writes:

The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.

Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording, including quotations from statutes and earlier decisions, is particularly common.

If this explanation is accurate, the takeaway is that on the most conservative post-New Deal Supreme Court, and perhaps the most conservative Court of the past 100 years, Thomas can’t be assigned any majority opinion of ideological consequence because his views are too extreme. This account does not mean that Thomas has lacked any influence on the Court; his concurring opinions on subjects like the Second Amendment have sometimes persuaded fellow conservatives to move toward his position. But individual justices make their own decisions about whether to write concurring or dissenting opinions. Majority opinions, in contrast, are usually not self-assigned, and patterns of opinion assignment can reveal much about how justices are perceived by their peers. The inferences drawn from Thomas’s assignments offer a compelling qualitative complement to the statistical estimates of his ideology; indeed, they suggest that Thomas is more of an ideological outlier than the quantitative estimates would indicate.

Justice Breyer misses the lead hidden in plain sight

Justice Stephen Breyer captured headlines with his recent cri de coeur against capital punishment, a statement that was remarkable coming from a justice who was neither a long-term abolitionist, like William Brennan and Thurgood Marshall, nor a deathbed convert, like Harry Blackmun, Lewis Powell, and John Paul Stevens. But Breyer’s dissent in Glossip v. Gross missed an opportunity to highlight a central theme of his dissent: the arbitrary application of the death penalty. As Mark Graber details so skillfully at Balkinization, “Richard Glossip is Exhibit A for problems of reliability and fairness with the process that sentences people to death, particularly when prosecutors rely heavily on plea-bargaining with one defendant in order to convict a defendant who refused to admit guilt.”

The whole post is worthwhile reading, if only to convey the full absurdity of proceedings that advanced well beyond Kafkaesque some time ago. Here’s the short version of the story:

  • The man who clubbed the victim to death with a baseball bat, Justin Sneed, is not facing execution, despite the lack of evidence casting doubt on his culpability.
  • Sneed escaped a date with the needle by agreeing to testify that a co-worker, Richard Glossip, had paid Sneed $10,000 to kill their boss.
  • Glossip was convicted and sentenced to death for soliciting murder, even though the only evidence against him was Sneed’s paid-for trial testimony.
  • Glossip’s conviction and sentence were overturned by the Oklahoma Supreme Court on grounds of ineffective assistance of counsel, but the outcome on retrial (seven years after the murder) was the same, and the same court upheld it.
  • The heinousness of the murder was offered as an aggravating factor in determining Glossip’s sentence, even though it did not lead to execution for the man who actually swung the bat.
  • During this period, the state repeatedly offered to spare Glossip’s life if he confessed to the murder. Therefore, his death sentence appears to be a way of punishing Glossip for insisting on his right to a jury trial.

It is puzzling why Breyer did not highlight these facts. To be sure, the Supreme Court granted review in Glossip v. Gross exclusively to consider the question of whether midazolam is a sufficiently efficacious numbing agent to make its use compatible with the Eighth Amendment. As such, the Court did not have before it the questions of Glossip’s guilt or sentence, or of the appropriateness of the lower court proceedings. But Breyer used his dissent to place on the table the larger, and thus more obviously bracketed, question of whether the death penalty can ever be administered in a way that is neither cruel nor unusual. Once he took this consequential, not to mention headline-grabbing, step, why would he not draw upon the facts of Richard Glossip’s case?

Sister Wives, Now Coming to a Court Near You (if you live in Montana)

Throughout the debate over legalized same-sex marriage, the scenario leading the parade of horribles has involved the polygamist households that would see their own opportunity for legalization once the traditional one man-one woman marriage was no longer legally sacrosanct. (Leave aside for now all those household arrangements in Scripture that don’t comply with what today’s traditionalists consider traditional.) Indeed, Chief Justice John Roberts and Associate Justices Samuel Alito and Antonin Scalia gave the hypothetical substantial attention during oral argument, and in their dissenting opinions, in the recently announced Obergefell v. HodgesOn Wednesday, the hypothetical became less hypothetical:

A Montana man said Wednesday that he was inspired by last week’s U.S. Supreme Court decision legalizing gay marriage to apply for a marriage license so that he can legally wed his second wife.

Nathan Collier and his wives Victoria and Christine applied at the Yellowstone County Courthouse in Billings on Tuesday in an attempt to legitimize their polygamous marriage. Montana, like all 50 states, outlaws bigamy — holding multiple marriage licenses — but Collier said he plans to sue if the application is denied.

“It’s about marriage equality,” Collier told The Associated Press Wednesday. “You can’t have this without polygamy.”

It’s tempting to laugh this claim out of court, but two decades ago, James Obergefell’s claim that the Fourteenth Amendment compelled Ohio to grant formal recognition to his long-term commitment to another man was considered outlandish as well. What Collier won’t have behind him, according to the AP account, is interest-group support. The ACLU has not yet responded to Collier’s request for the organization to represent him, and I’d imagine that pretty much every seemingly intractable civil liberties problem will have to be resolved conclusively before the ACLU considers tackling this one. Even the pro-polygamy advocacy group Principle Voices appears skeptical of Collier’s stance. According to the group’s director, polygamist households don’t want the government scrutiny that would come with legalization, and as such would prefer protection against anti-cohabitation laws to a judicial holding legalizing plural marriage.

From a legal standpoint, the distinctions between plural marriage and same-sex marriage between two people (this article adeptly summarizes many of the key differences) should suffice to keep claims like Collier’s from gaining any traction in the short term. What will keep the pro-polygamy movement from achieving long-term success, as the gay rights movement eventually did, is the probable lack of logistical support from legal civil rights activists. Why will this support prove harder to come by for proponents of plural marriage equality?

  • LGBT individuals are represented in the legal profession, and among the legal elites who spearhead public law litigation, in a way that polygamists and would-be polygamists are not. It is possible that the latter might be more inclined to come out, as it were, in response to a change in the legal status of polygamy. But it’s hard to imagine that there is a meaningful number of individuals just biding their time until the Supreme Court reverses its holding in Reynolds v. US (1878) and requires states to recognize plural marriage.
  • Much of what shifted public opinion on same-sex marriage had to do with greater numbers of heterosexuals recognizing that they knew family members, friends, and co-workers who are gay. And support for marriage equality appears to correlate with having a large number of gay individuals in one’s professional or personal circles. Would a similar pattern emerge if would-be polygamists could be open about their relationships, and monogamists would come to understand better the triad-next-door? Perhaps, but not in the short term. And LGBT individuals could cast their appeals in terms of the unfairness of denying them access to civil marriage, with the attendant social legitimation and wide array of government benefits, based on their internal wiring. Until plural marriage candidates can present compelling scientific evidence that they were “born that way,” they will have to convince monogamists that their lifestyle choices should not preclude the extension of official recognition to their desired arrangements.
  • Justice Anthony Kennedy’s majority opinion in Obergefell stressed the denial of dignity resulting from treating same-sex couples’ long-term commitments as unworthy of recognition by the state. People wishing to form plural marriages might find themselves frustrated or inconvenienced by the state’s restricting them to one spouse at a time. But it’s hard to argue that their dignity has been compromised.
  • Finally, it’s hard to envision civil rights advocates taking up a cause that has virtually no chance of success. Consider the three Obergefell dissenters who claimed that using the Fourteenth Amendment to require marriage equality for same-sex couples will inevitably require formal recognition of polygamy. What are the odds that they would vote in support of Nathan Collier’s claim, were it to land before them? Scalia will officiate a gay wedding before that happens. And Collier would have no chance of picking up support from the justices comprising the Obergefell majority, as they could readily find ways to distinguish between two-person marriages and plural marriages.

I’m aware that legal scholars and political observers would have made similar arguments about gay marriage two decades ago, and I recognize the non-zero probability that I’ll be eating these words someday. But a lot of legal mobilization would have to occur before that probability rises much above zero.

The losing end in Obamacare 2.0

As the Supreme Court began to take up the question of whether the Affordable Care Act properly allowed subsidies to go to those purchasing insurance on the federal health exchange, as opposed to state-run exchanges, two lines of argument began to emerge. One focused on the plain language of the phrase “Exchange established by the State,” which, according to the petitioners, clearly meant that only purchasers at state exchanges could receive subsidies. This interpretation required a studied disregard for the ACA’s broader purpose of expanding health care access, as well as other textual provisions that appear not to distinguish between purchasers at state exchanges and purchasers at But it allowed ACA opponents to blame Congress for sloppy drafting and to hold Congress responsible for fixing it.

A second line of argument claimed that the the disputed language was not a bug, but a feature of the ACA. By this account, Congress deliberately limited subsidies to states with their own exchanges, as a way of strong-arming recalcitrant states into participating. This claim had little support from the historical record, as no one involved with the ACA negotiations thought that subsidies were being withheld as a means of commandeering states to create exchanges. (Indeed, the dissenting opinion in the first ACA Supreme Court case worked on the assumption that eligibility for subsidies did not hinge on your home state’s decision to create its own exchange.) It also lacked any logical foundation: Why would Congress, on the cusp of achieving the century-old dream of national health insurance, include a feature that, if triggered, would sabotage the ACA altogether? Whether it could convince five justices, however, remained an open question that provoked no small amount of agonizing from ACA supporters.

Justice Antonin Scalia’s dissent, while not as dyspeptic as what followed the next day, is caustic in presenting its application of textualism to the ACA’s subsidy language. The bulk of the opinion focuses on what he sees as the absurdity in holding that “Exchange established by the State” can encompass the federal exchange. While paying lip service to the need to interpret contextually, he considers the relevant text so clear in its meaning that no consideration of context can compel a contrary result. After all, why bother including “by the State” if you intend to make subsidies available to all, irrespective of who created the exchange? If you wish to consider this phrase a drafting error–and Scalia’s not convinced that it is–then Congress, and not five justices, should be the actor to fix it.

As for the alternative history of the ACA presented by the petitioners, Scalia does not rely much on it. He does refer to the theory as “plausible,” but that’s about as far as he goes. The bulk of the opinion pits Scalia’s textualism against the purposive approach favored by the majority. It is noteworthy that in a case holding such policy and political (if not legal) significance, Scalia was unable to convince two fellow conservatives on the Court to join a textualist opinion against the Obama administration’s interpretation of the ACA’s subsidy language.

ACA survives at the Supreme Court again

All the hand-wringing over incipient chaos in American health care can now cease (at least until the next election), thanks to the Supreme Court’s 6-3 ruling today in King v. Burwell. Chief Justice John Roberts, who wrote the majority opinion, and Justice Anthony Kennedy joined the four-justice liberal wing in rejecting the claim that the text of the Affordable Care Act (ACA) limited health insurance subsidies to individuals living in states with their own health exchanges. As a result, the approximately 6.4 million people who receive their subsidies through participation in the federal exchange will not be at risk of having their insurance yanked out from under them.

Some highlights from the majority opinion (thoughts about the dissent to come in a later post):

* Not only did defenders of the ACA get the policy outcome they sought, they got the legal justification on their preferred terms as well. That is, Roberts, while critical of the “inartful drafting” appearing in several parts of the ACA, insisted on understanding the crucial phrase “established by the State” within the broader context of the statute, and in particular the purposes Congress sought to achieve through the law. The potent quotable: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.”

* What makes the Roberts opinion particularly satisfying is its use of the dissenters’ own words to undermine the petitioners’ position. Petitioners claimed that Congress had deliberately sought to limit subsidies to states with their own exchanges, as a way of strong-arming recalcitrant states into participating. Without the subsidies, however, insurance would cease to be affordable for many recipients, and the resulting adverse selection would produce a “death spiral” damaging the health insurance markets at large and leaving millions of Americans without coverage. The idea that Congress would build this complicated regulatory machine and then include a prominent self-destruct button that could sabotage it seems laughable, but the fact that litigation hinging on this claim had made it to the Supreme Court at all meant that it had to be addressed. Roberts disposes of it by quoting Justice Antonin Scalia’s dissent from the first ACA litigation: “Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.” Scalia’s words came in the context of trying to explain why the entire ACA had to fall if any part were to be found unconstitutional, but while he might regret their use in the King majority opinion, even the most powerful jurists in the country don’t get to call backsies.

As for how the statute’s text should be interpreted, Roberts quotes a 2014 opinion from Scalia to argue against the kind of rigid literalism that Scalia has insisted is not how true textualists should go about interpreting statutes. Rather than take four words, in a 900-page statute, out of context, the justices, in Roberts’ words, “must do our best, bearing in mind the fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.”

* The majority declined to pursue an alternative approach rooted in the principle, enunciated in the 1984 Chevron v. NRDC decision and used by the Fourth Circuit in King, that when statutory text is ambiguous, courts should defer to the interpretive judgment of the agency responsible for administering the statute, unless the agency’s construction is unreasonable. For some ACA supporters, the Chevron claim offered an escape hatch, in that the act’s defenders wouldn’t have to argue that the Internal Revenue Service’s construction of the statute was the only correct one; they would simply have to show that it was a permissible one. This option was decidedly Plan B for ACA supporters, however, as it would have left the subsidies vulnerable to a Republican administration’s reinterpretation of the statutory provision. The majority took the question off the table by claiming primary responsibility for determining the contested phrase’s meaning, in light of the unlikelihood that Congress would have delegated to the IRS the authority to make policy judgments–especially concerning something as central as eligibility for health insurance subsidies–outside the agency’s competency.

* Another road not taken involved a federalism claim that had appeared in the Court’s earlier invalidation of the ACA’s Medicaid expansion. Giving states the choice between expanding Medicaid and forfeiting all federal Medicaid funding, said the Court in 2012, wasn’t really a choice at all. Rather, it unconstitutionally coerced the states into adopting the federal government’s preferred policy. A parallel federalism-based argument emerged from Justice Anthony Kennedy during oral argument in King, this time centered around giving states a choice between creating health exchanges and cratering their health insurance market. Like the Chevron deference argument, the federalism-based justification came with some unpleasant side effects for liberals, namely a protection of state prerogatives that could be extended to hamstring future federal regulatory efforts. In the end, though, Kennedy’s earlier musings about federalism did not find their way into the majority opinion.

King v. Burwell‘s ultimate impact, aside from the blow to Roberts’ standing among conservatives, will be more political than legal. After all, no new legal ground was broken, no soaring principle reaffirmed. What we have here is a run-of-the-mill case of statutory interpretation that is noteworthy only because the policy and political stakes were so high. The last Supreme Court ruling to feature such a high ratio of political significance to legal significance, Bush v. Gore, played a central role in the selection of a president. Will King v. Burwell help to select the next president? Stay tuned….

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