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A legal blog offering excursions into the Constitution, equality law, sex, gender identity, and sexual orientation.
“They reached for tomorrow / But tomorrow’s more of the same”
In its decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (SFFA), the Republican-appointed supermajority of the Supreme Court held that the use of race in the undergraduate admissions programs of Harvard College and the University of North Carolina was unlawful under Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment, respectively. Among other problems, Chief Justice Roberts’s opinion for the Court in SFFA hides what the majority justices are doing – hides how it is changing the applicable constitutional law, by misrepresenting that law – and its reasons for what they did may rest on what they themselves would call racial stereotypes and/or an unvoiced belief in the superiority of white people.
The majority justices claim to be applying the rules from Supreme court precedents for evaluating equal protection challenges to race-based affirmative action in higher education admissions. The majority opinion says, using a past tense, that “we have permitted race-based admissions only within the confines of narrow restrictions” (emphasis added). Summarizing, it states: “University programs must comply with strict scrutiny, they may never use race as a stereotype or negative, and – at some point – they must end.” While it has the chutzpah to accuse Justice Sotomayor’s dissent (joined by Justices Kagan and Jackson) of disregarding stare decisis and “want[ing]” the Court’s equal protection law “to be different” than its precedent shows it to be and “wrench[ing that] case law from its context,” in fact, the majority is applying new rules, “moving the goal posts” as the dissent puts it at one point.
The changes in the governing law the majority opinion wreaks are apparent in its arguments against Harvard’s and UNC’s admissions programs. It contends that the defendant schools’ justifications for their consideration of race in admissions served purposes too “amorphous” to satisfy strict scrutiny – but that reasoning would equally have doomed the University of Michigan law school’s admission policy that the Supreme Court upheld in Grutter v. Bollinger in 2003, a case upon which the majority opinion leans heavily. And the majority’s amorphous purpose reasoning would seem wholly to preclude any use of applicant’s race in admissions, thus necessitating the overruling of Bakke v. Regents of the University of California (1978), Grutter, Fisher v. University of Texas at Austin (2013) (Fisher I), and Fisher v. University of Texas at Austin (2016) (Fisher II) – something the majority does not fess up to doing. And thus as the dissent in SFFA notes, “the Court does even attempt to make the extraordinary showing required by stare decisis” before overruling those decisions.
But overrule it necessarily does, as consideration of the majority opinion’s reasoning about a ban on using race as a negative makes indisputable. Without any quotation or even citation, the majority asserts that “our cases have stressed that an individual’s race may never be used against him in the admissions process.” Why did the majority maintain that Harvard’s and UNC’s admissions practices violated this stricture, even though the schools treated the race of certain underrepresented minority applicants as a plus in the admissions process? Because “[c]ollege admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” This means that colleges and university cannot consider race at all in admissions. And that holding is incompatible with the holdings of Bakke, Grutter, Fisher I, and Fisher II, necessarily overruling them. But because the Court, as the dissent accurately notes, does not attempt to justify this overruling, it may blunt the force of any criticisms it might endure. Were it widely understood by the public that, as with the Dobbs decision’s express overruling of Roe v. Wade last year, the Court with its new composition is again overruling constitutional precedent that has structured life in the U.S. for decades, the majority might be exposed to sharper objections from more quarters.
But not only does the majority opinion in SFFA mask what the majority is doing, its reasoning and lacunas therein also obscure why the Justices may be doing it. The majority deems it disqualifying that the policies at Harvard and UNC do not have a “logical end point” (quoting Grutter). The majority interprets those policies as “promising to terminate their use of race only when some rough percentage of various groups is admitted,” thereby “effectively assur[ing] that race will always be relevant.” (quoting City of Richmond v. J.A. Croson Co. (1995)). But how would that be the case? The majority apparently presupposes that it would never be the case that a race-blind admissions process could produce student bodies that, for example, approximately mirror the demographics of a given population (that of the state where a college is located, say, or that of the U.S. as a whole), even, I assume, in a future, racially egalitarian U.S. But why not? The Court has in the past criticized as “completely unrealistic” what it believed was the city of Richmond’s “assumption that minorities will choose a particular trade in lockstep proportion to their representation in the local population.” But why does the majority’s contrary decision not reflect an assumption – a “stereotype” about racial groups of a type seemingly condemned by the majority’s reasoning in this case – that they would, in an egalitarian society, not have similar interests in various fields?
One possible answer is that the majority believes that (non-Asian) minorities will never achieve at the levels that white people do, that (non-Asian) minority students would never (without consideration of race) be admitted to competitive universities on the “merits” at comparable rates. This is not an attitude unknown to U.S. Supreme Court justices, including one the SFFA majority treats as a reliable source on the meaning of the Equal Protection Clause, the first Justice Harlan. Harlan, who dissented from Plessy v. Ferguson’s upholding a state law requiring railroads to segregate black and white passengers on railroad cars (on the ground that separate but equal accommodations would satisfy equal protection). The majority quotes Justice Harlan’s Plessy dissent for the claim that “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” Harlan, in the very passage the majority quotes (and in language the majority reproduces), was condemning legal measures reflecting a belief in a “superior, dominant, ruling class of citizens,” and a correlative belief in an inferior class, a “caste.” But when it comes to his actual racial views, the majority doesn’t recount them.
What else did Harlan say in his famed Plessy dissent (besides a detour about the inevitable alienness of “the Chinese race”)? “Every true man has pride of race, and under appropriate circumstances, when the rights of others, his equals before the law, are not to be affected, it is his privilege to express such pride and to take such action based upon it as to him seems proper.… The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth, and in power. So, I doubt not, it will continue to be for all time, if it remains true to its great heritage, and holds fast to the principles of constitutional liberty.”
If that is what they believe (and it could explain why they don’t think racial groups in American will ever even “roughly” be “qualified” for admission to at least elite universities), the majority justices may have learned not to say that part aloud, learned not to state publicly that the white race will always be dominant. They will omit this from their adulation of Justice Harlan. They will not repeat the mistake – condemned now by history – of people like Judge J. Whitfield Davidson, who in the wake of the Supreme Court’s decisions in Brown v. Board of Education (I and II) said publicly: “[T]he white man has a right to maintain his racial integrity and it can’t be done so easily in integrated schools.” But as a proposition about the beliefs of a majority of justices who have repeatedly made it harder to redress racial discrimination even in areas as fundamental as voting, who regard it (as the SFFA opinion quotes) as “‘sad’” were “each identifiable minority assigned proportional representation in every desirable walk of life” (emphasis added), and who seem utterly convinced that in educational achievement that would not be possible without race-based affirmative action, such sociological white supremacy is, sadly, not unthinkable.
“Let yourself go,/ Relax,/ And let yourself go.
Relax,/ You’ve got yourself tied up in a knot.”
I had originally reacted with incredulity about a recent effort to paint Amy Coney Barrett’s nomination to the Supreme Court as largely irrelevant to the fate of Roe v. Wade and constitutional protection for reproductive rights. I drafted a blog entry with the title and epigram above. But I secured publication of my commentary in law.com’s The Recorder here. So, with permission of The Recorder, I present that commentary below.
Reprinted with permission from the Oct. 8, 2020 issue of The Recorder. © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited.
Law Professor’s Argument Is No Reason Not to Worry About ‘Roe’
David Cruz, law professor at the University of Southern California Gould School of Law, says a recent op-ed from Stanford’s Michael McConnell is misleading about the security of Roe v. Wade and abortion rights in the nation’s high court with the addition of Judge Amy Coney Barrett.
By David Cruz | October 08, 2020 at 08:00 AM
Conservative law professor Michael McConnell has published an op-ed in the Washington Post essentially telling the nation to take a chill pill about the confirmation of President Donald Trump’s nominee to the Supreme Court of the United States. Replacing liberal Supreme Court Justice Ruth Bader Ginsburg with conservative Judge Amy Coney Barrett of the U.S. Court of Appeals for the Seventh Circuit “would not end abortion rights,” he says. Unfortunately, his argument rests on errors a constitutional law professor at Stanford should not make and is misleading about the security of Roe v. Wade and abortion rights in the Supreme Court after Barrett fills Ginsburg’s seat.
In the op-ed, McConnell tries to reassure the large portion of the American public who approve of women’s constitutional reproductive rights that Roe has not in the past been overruled despite numerous Supreme Court appointments by conservative presidents starting with Ronald Reagan. And according to McConnell, it “will not be lightly overruled” by the court even with Barrett installed. As supporting evidence, he argues: “Roe was reaffirmed this summer, in effect, by June Medical, with a majority opinion written by Chief Justice John G. Roberts Jr., an appointee of President George W. Bush.”
Almost everything about this sentence other than John Roberts’ position as chief justice and the president who approved him is wrong or at least misleading.
Start with Roberts’ opinion in June Medical Services v. Russo. In this case from June 2020, the Supreme Court by a 5-4 vote held restrictive Louisiana abortion regulations were unconstitutional. This shows us that Roe is safe, McConnell in effect says, because Roberts wrote the “majority opinion” in June Medical, showing that even judicial conservatives aren’t chomping at the bit to overrule Roe.
This argument that abortion rights will continue to be upheld doesn’t survive elementary math. It takes five votes from the nine justices to form a majority. With Ginsburg on the Supreme Court there were four more liberal Justices, who if they picked up just one vote could achieve more liberal results. With Barrett replacing Ginsburg, that leaves three liberals, who would need two of the more conservative justices to agree on any outcome, such as adhering to Roe and subsequent decisions protecting abortion rights. The fact that the four liberals were joined by Roberts in striking down the law challenged in June Medical does not mean that any of the other conservative Justices would do so—especially since the four on the court were unwilling to do so this summer.
In addition, McConnell grossly oversells Roberts’ position in June Medical. He is flatly incorrect in stating that Roberts wrote the “majority opinion” in the case. As the link in his op-ed to the official Supreme Court opinion makes abundantly clear, Roberts’ opinion in the case was not a “majority” opinion. A majority of nine is five or more, but Roberts’ opinion concurred in the judgment in the case (the outcome, but not the opinion). It was a solo concurrence, expressing only the views of the chief justice. The lead opinion in June Medical was a plurality opinion written by Justice Stephen Breyer for himself and the three other more liberal justices of the court. There simply was no majority opinion in the case, which matters because the court has often treated the lack of a majority opinion as a reason a precedent is more susceptible to overruling.
Some have argued that the holding of June Medical is contained in Roberts’ solo concurring opinion that espouses a much less protective version of doctrine than that applied in the Supreme Court’s Whole Woman’s Health v. Hellerstedt decision on which the more liberal Justices relied. In a case where there is no majority opinion, the Supreme Court has said that the holding should be identified pursuant to Marks v. United States, 430 U.S. 188 (1977), which asks which of the concurring justices offers the narrowest reasoning.
The right way to operationalize the Marks rule has divided scholars and courts alike. And, as professor David Cohen of Drexel University has noted, lower courts are already disagreeing about whether Roberts’ view in June Medical constitutes the holding under Marks. Cohen has cogently argued that even accepting Marks, prior Supreme Court precedent applied by the June Medicalplurality, offering more protection to reproductive rights than Roberts’ concurrence, remains the governing law. If that is true, the loss of Ginsburg from the June Medical majority and her replacement with Barrett could well be enough to tip the balance in a way that matters greatly.
Even without overruling Roe, Whole Woman’s Health, or other precedents protecting abortion rights, however, the Supreme Court could effectively gut them. First, rights can be undermined by narrowing interpretations, increasingly limiting the circumstances under which the rights apply, rather than by outright overruling of precedents. Indeed, Supreme Court justices dissenting from conservative majorities that have upheld abortion restrictions ostensibly under Roe or that case’s “central holding” have decried just such sapping and undermining.
This is a technique quite familiar to Roberts, observable for example in his treatment of precedent formally upholding the preclearance requirement of the federal Voting Rights Act of 1965 but gutting it by striking down that important law’s provision subjecting specific states to the requirement to obtain judicial or Justice Department approval to change their voting laws in his 2013 opinion for the conservative majority (Shelby County v. Holder, 570 U.S. 529 (2013)).
Second, McConnell’s op-ed does not address Roberts’ very narrow basis for voting in June Medical to hold the challenged Louisiana abortion regulations unconstitutional. In my view, with that omission it is highly misleading of McConnell to suggest that Roberts “reaffirmed” Roe. Roberts’ solo concurrence expressly explained that he voted as he did only as a matter of stare decisis, respect for the court’s precedent.
That is very different from voting because you are committed to upholding a precedent. Indeed, Roberts candidly stated in June Medical that he was voting to adhere to Whole Woman’s Health’s protection of abortion rights “in deciding the present case”—not in deciding future abortion rights disputes—because “neither party has asked us to re-assess the constitutional validity” of the prior precedent’s rule. Under Roberts, this court has expressly overruled other precedent dating back to the 1970s, so his vote in June Medical should give scant hope to those wishing the court to continue to interpret the Constitution to protect abortion rights.
As a constitutional scholar at a top law school, McConnell surely knows all this. One can only speculate why he omitted it from his op-ed. Regardless of his motivation, the people of the United States should not be fooled into thinking that the replacement of Ginsburg by Barrett does not dramatically increase the risk to constitutional reproductive rights.
David B. Cruz, Newton Professor of Law at the University of Southern California Gould School of Law, is a constitutional law expert focusing on civil rights and equality issues, including the rights of lesbian, gay, bisexual and transgender persons. He is the co-author (with Jillian Weiss) of Gender Identity and the Law (forthcoming, 2020) (Carolina Academic Press).