Supreme Court Benchmarks
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MS. FARNSWORTH: Now four constitutional law professors with their assessment of this past term: Eugene Volokh from the University of California at Los Angeles; Douglas Kmiec from the University of Notre Dame; Kathleen Sullivan from Stanford University; and Bryan Fair from the University of Alabama. Thank you all for being with us. And starting with you, Kathleen Sullivan, how would you characterize the court’s action in the civil rights cases? How would you generalize?
KATHLEEN SULLIVAN, Stanford University Law School: (Stanford) Well, if you ask whether the court was liberal or conservative on civil rights this term, the answer is both. In the race redistricting cases, it took a very conservative approach.
It said that even though Democrats and Republicans routinely gerrymander districts to maximize party advantage, racial minorities, blacks and Hispanics in Texas, blacks in North Carolina, are not permitted to gerrymander districts to maximize the advantage of black voters or Hispanic voters in sending representatives to Congress.That was consistent with the court’s trend toward colorblindness in both race preferences in education, employment, and contracting, and race preferences in voting.
But on the other hand, the court had two striking liberal decisions on civil rights this term: the gay rights decision coming out of Colorado and the women’s rights decision coming out of Virginia. Those cases were quite striking and, and quite liberal, indeed.
In the Colorado case, the court made its only real landmark decision of the term, a decision holding that for the first time gay people are protected by the 14th Amendment equal protection clause against laws that explicitly disadvantage them. Colorado had said in an amendment to its state constitution, uh, no homosexual person can bring any claim of discrimination, whether before a city council in Aspen, Denver, or Boulder, or before a court throughout the state.
That, said the court, in a majority opinion by Justice Kennedy violates the guarantee of equal protection of the law because it makes gay people worse off than anybody else in Colorado, left-hand people, freckle-face people, red-headed people, hot dog vendors, all of whom could complain that they were discriminated against, so it was really a first and very striking, considering that it was only a decade ago that the court upheld a Georgia criminal law against gay sex.
And finally in the women’s rights decision, this is really perhaps the most stunning victory ever for women under the equal protection clause, and it’s quite poetic that it was Justice Ginsburg who argued so many sex discrimination cases in favor of women’s rights as an advocate on the other side of the bench. She wrote the majority opinion, saying, gender stereotypes will not do; you may not say that women are not tough enough, not aggressive enough to survive the adversative method of VMI’s cadets. So on balance, a mixed record, conservative on race, liberal on gay and women’s rights.
ELIZABETH FARNSWORTH: Professor Kmiec, what about free speech, mixed, as it was on civil rights?
DOUGLAS KMIEC, Notre Dame Law School: (South Bend, Indiana) I agree with Prof. Sullivan. It is largely a mixed record, and one, one sees here kind of a disappearing conservative majority that we saw in the last term, producing kind of inconsistent results here. Briefly, just on the civil rights decisions, I think one of the real problems here is that we had not so much poetic results as political results. On free speech, there is–
ELIZABETH FARNSWORTH: Excuse me one minute. What do you mean political results?
PROF. DOUGLAS KMIEC: Well, if you look at the Romer case and you look at the VMI case, uh, you have examples there where the court seemingly says it’s applying, uh, traditional legal standards. In the Romer case, it’s rational basis review standard, which is intended to be highly deferential.
ELIZABETH FARNSWORTH: And remind people–Romer is the Colorado case.
PROF. DOUGLAS KMIEC: Romer is the–
ELIZABETH FARNSWORTH: The gay rights case.
PROF. DOUGLAS KMIEC: –gay rights case. And in VMI, the gender case, applying intermediate scrutiny but, in fact, uh, the results of those cases just simply do not follow from the application of those legal standards. In the Colorado case, uh, the Supreme Court almost totally disregarded Colorado’s attempt to stay legally neutral in the sensitive issue of homosexuality and in VMI, uh, here you have a court that says it’s trying to be sensitive to state and local interests but totally disregards the fact that there is an ample record demonstrating that single-sex education is highly efficient, highly productive, and, in fact, states have the historical role in allocating their educational dollars and assessing educational demand.
ELIZABETH FARNSWORTH: So you see a political agenda here?
PROF. DOUGLAS KMIEC: Well, I see political results here, and I see results that are not explained by, by legal theory and by precedent and jurisprudence. And–
ELIZABETH FARNSWORTH: Okay.
PROF. DOUGLAS KMIEC: –and that’s very troubling, because–
ELIZABETH FARNSWORTH: Let me go to Prof. Fair just–
PROF. DOUGLAS KMIEC: Sure.
ELIZABETH FARNSWORTH: –on that subject for a minute. Prof. Fair, do you see the same kind of political results?
BRYAN FAIR, University of Alabama Law School: (Tuscaloosa, Alabama) No, no, I don’t. I disagree with my colleague from Notre Dame. I think that the court in the Colorado case correctly decided that gay and lesbian people have civil rights and can present claims of discrimination in a court of law pursuant to the protection clause. In the VMI case, I see the court saying that separate but equal is unconstitutional in the gender context, as it said before in the race context. Uh, and I see the court in the redistricting cases interfering in the local political processes that some members of the court often say the court should not interfere with, so I see the cases as inconsistent. I expected, given the Colorado case and the VMI case, that the court would decide the redistricting cases differently, and finally admit that there’s a difference between racial caste producing legislation and programs designed to aid minorities and others in political representation.
ELIZABETH FARNSWORTH: Prof. Volokh, we still seem to be on the same civil rights area. It is one of the most important areas. How do you see the court’s actions, and how–do you–where do you come down on this issue of political results?
EUGENE VOLOKH, UCLA Law School: (Los Angeles) Well, it’s interesting. It’s very hard to tell what’s going on in the Justices’ heads. I think that, by and large, they try to follow what they see as the law. At times, there is some uncertainty in the law, and there perhaps one’s ideology can’t help but influence these things. It’s funny, people are saying, well, it’s very liberal, very conservative. I think that the decisions that we see are actually very moderate politically decisions where the court really is, for better or worse, politically more or less where the country is. On the redistricting cases, the race redistricting cases–
ELIZABETH FARNSWORTH: Excuse me. You don’t see it as very strong one way or the other, right in the middle?
PROF. EUGENE VOLOKH: Certainly not in these cases.
ELIZABETH FARNSWORTH: How about inconsistent? There seems to be a general agreement there is some inconsistency.
PROF. EUGENE VOLOKH: Well, you know, you could say, well, they’re inconsistent because they are interfering with states here or not interfering with states here. Liberals would like them to interfere with states in certain respects, and not in other respects. Conservatives would like interference sort of the other way around and non-interference the other way around. You know, it’s hard to tell from these three cases whether they’re inconsistent with one another.
I agree with Prof. Kmiec that Romer V. Evans, the Colorado Amendment 2 case, seems to be quite inconsistent with a lot of other cases that it purports to be following. I think that the VMI case is actually quite consistent with the court’s sex-based jurisprudence, and Prof. Kmiec may or may not be right that there are a lot of efficiencies, a lot of benefits to single-sex education. But the court has generally said that by and large sex classifications are impermissible, even when they’re practically beneficial in some respects. This is just a matter of principle, that we by and large ought not have sex classifications, even when there are some efficiencies to be gained from that.
And I do think that is in today’s America, that is a pretty moderate position. The same thing goes for the race-based redistricting cases. Prof. Fair argues that, that the court should distinguish essentially benign race classifications from mean-spirited kind of malign case producing race classifications. There are arguments to be made for that. I don’t quite agree with them.
And I think, by and large, the country is on average relatively uneasy about it. The country’s fairly skeptical about race classifications, although many people are willing to tolerate some in narrow areas to a narrow extent. This is pretty much where the court is going too, a great skepticism towards racial classification, but leaving the door open for the truly unusual and sort of emergency critical situations where there are narrow, narrowly-tailored race-based solutions. So I think on those cases–
ELIZABETH FARNSWORTH: Kathleen–
PROF. EUGENE VOLOKH: –it’s a pretty moderate, moderate position.
ELIZABETH FARNSWORTH: Kathleen Sullivan, moving on to something that we did not cover in the introductory piece, uh, business law. Yesterday the court came down with a very important case having to do with savings and loans. Is this court–could you tell us just a bit about that–is this court pro-business, would you characterize it that way?
PROF. KATHLEEN SULLIVAN: Yes. Well, there were three significant rulings in favor of property rights, you might say, this term. One was yesterday’s decision which said that the government, even the federal government, has to keep its contracts–this case yesterday said that the federal government had essentially schnookered a group of savings and loans by changing the accounting rules in mid stream. It got them to buy-outs and failing thrifts and on the promise of certain accounting rules. Then it changed the accounting rules, costing them their ability to function.
What the court said yesterday is everybody has to keep their contracts, including the United States Government, and that’s a really a very conservative opinion in the sense that the framers were always worried that government would abrogate its contracts and yesterday the court said you can’t do that. But there were two other business decisions during the term that might be noted. One was the court finally put a limit on punitive damages. In a case involving a BMW with a bad paint job several months ago, the court said there are some limits the Constitution imposes on punitive damages; you just can’t get millions of dollars because you had a bad paint job. That–the court has made a bunch of false starts toward that holding.
This term it finally said juries can’t run wild with punitive damages, and, of course, corporations who face those kinds of claims are very happy about that decision. And finally, in a case called 44 Liquor Mart, Inc., the court held that liquor advertisers have a right to advertise. The case came up in Rhode Island, where there was a ban on liquor price advertising for big discount operators. It was a form of protectionism really for Mom and Pop liquor stores.
The court struck that down under the First Amendment free speech clause, said advertising is protected speech, just like other kinds of speech, and most important, the court made clear that there’s no vice exception to the free commercial speech doctrine. It used to be thought that maybe if you advertised liquor or tobacco or gambling, maybe that kind of advertising had last First Amendment protection than advertising shampoo. The court has now said no, we apply one First Amendment to all advertising and, of course, free speech through advertising has great implications for corporations and may have some implications for upcoming issues about tobacco ad regulation that the Clinton administration is proposing.
ELIZABETH FARNSWORTH: Douglas Kmiec, looking at these cases, looking at the other cases we’ve been discussing, did you learn anything about the position of particular Justices, or the role they play?
PROF. DOUGLAS KMIEC: Well, I think we still see that Justice O’Connor and Justice Kennedy play a pivotal role in terms of, uh, forming majorities. Obviously, Justice Ginsburg came into her own, her background with regard to women’s issues came to the floor in the VMI case. I think one case we shouldn’t overlook in the race area, if I might, is the Hopwood decision dealing with the University of Texas School Admission Program.
ELIZABETH FARNSWORTH: Which came down yesterday.
PROF. DOUGLAS KMIEC: It came down yesterday, and this is not a full opinion. This is a denial of review. Now Justices Souter and Ginsburg did write a separate opinion with regard to that denial explaining their position. Uh, the University of Texas had been running in its law school basically dual admission programs, one for minorities and one for others, applying separate standards and separate committees. The Fifth Circuit Court of Appeals held in a rather strongly worded opinion that the use of race, except for remedial purposes, is never acceptable under the Constitution. Uh, a good number of people thought the Supreme Court would take that case. Prof. Sullivan’s colleague, Prof. Tribe, argued most strongly in a brief that the court should, uh, and I think that it’s quite significant that the court denied review. Now Justice Souter and Justice Ginsburg tried to minimize the significance of, of the denial of review, uh, but in point of fact, I think this sends a signal that is consistent with the voting rights cases, and which is somewhat ahead of perhaps the political curve in the country that race is just an inappropriate factor, except for remedy, in terms of public decision-making.
ELIZABETH FARNSWORTH: Bryan Fair, briefly your response to that, but also I really want to talk for–we have a short amount of time left–I want to hear what you think about the role of various Justices too.
PROF. BRYAN FAIR: Well, first, my reaction to the Hopwood denial is, is, is very different. I think that the paragraphs provided by Ginsburg and Souter indicate nothing more than that the court thought there were bad facts, that the record had changed between 1992 and 1994. I don’t think this is a watershed for people who would rather not use race in admissions. I think that the Fifth Circuit opinion is limited to the Fifth Circuit now. I think that Tribe, Laurence Tribe, is correct, that the court should have taken the case because of what the panel did to Bakke, but we will have this case before the court within the next couple of years.
ELIZABETH FARNSWORTH: And briefly on the different Justices.
PROF. BRYAN FAIR: My sense is that we often refer to this court as the Rehnquist court because he’s the Chief Justice. But my sense is that it’s really the O’Connor court, that she perhaps more than anyone else is the pivotal vote in important cases, whether the case is a case like the VMI case or the redistricting case, uh, and on issues like affirmative action, something important to the country, as she goes, so goes the court.
ELIZABETH FARNSWORTH: Prof. Volokh, your view on the Justices.
PROF. EUGENE VOLOKH: Definitely. It’s the O’Connor-Kennedy court, probably, but, indeed, O’Connor has a very important role because O’Connor and Kennedy are swing votes. They’re basically people, more or less, of the center right, and, uh, it’s their swing votes that make it a relatively center-right court, not as far right on some issues as say Scalia and Thomas and Rehnquist would like, but certainly not, not a relatively left court either, except perhaps in some free speech issues, where of course right and left have been shifting a lot, at least in judicial debates, but also in political debates.
The interesting things, besides kind of reaffirming the O’Connor-Kennedy, the importance of O’Connor and Kennedy, uh, about this past term is Thomas, that last year, Justice Thomas had some very interesting opinions, very, very logically reasoned, very well written opinions, and this year, he’s been adding to that. They are in some respects quite persuasive, I think generally quite respectable. One of the things that they show him is that they show him as somebody who has a particular vision of the Constitution, various provisions of the Constitution, and who is quite willing to advocate it, sometimes in the face of contrary precedent. He is somebody who is sometimes willing to change the existing law that he believes is unsound and explain, say honestly that this would be a change, but explain why this is right.
So in that respect, he really is a very interesting voice on the court, in many respects an interesting comparison to say Justice Souter and Justice Breyer and to some extent Justice O’Connor, who have different political perspectives but are much less willing to change. And one example–
ELIZABETH FARNSWORTH: Prof. Fair, we have just a couple of seconds left.
PROF. BRYAN FAIR: I would just say as–about Justice Thomas, he has shown, uh, in this term and in the last several terms that he is the ideologue that many people thought he was. He has an agenda. His decisions, many think, are not well written or well reasoned but are political tracks.
PROF. EUGENE VOLOKH: Well, who–
ELIZABETH FARNSWORTH: I have to break this off. Thank you all for being with us.
PROF. KATHLEEN SULLIVAN: Thank you.