Tuesday, June 23, 2009

The burning building theory of constitutional law

Last October, about a month before the presidential election, I wrote a piece for this blog called, "The abortion conundrum." My point was to suggest that the time had come to acknowledge that a constitutional right to abortion was not in danger, regardless of who was elected. Very briefly, I argued that seeing the "abortion-and-the-Court" debate as one that boiled down to the presidential selection of Supreme Court justices failed to take into account the complexities of judicial selection and confirmation. A moot point now, suppose John McCain had been elected. How high on his list would finding justices prepared to overturn Roe/Casey be, given that the voters who would have put him over the top were probably more inclined to support abortion rights than not? How prepared would a Democratic majority in the Senate have been to confirm a nominee with demonstrated opposition to abortion rights? Getting past that, how eager would that new justice be to provide the vote to overturn a right that had been incorporated into the social fabric of the nation for 35 years? Where was the clear constitutional mistake? Did the five Republican-appointed justices who comprised the majority of the seven-person majority in Roe, including Lewis Powell, Potter Stewart and Harry Blackmun, really so radically misread the Constitution or, more importantly, the political sensibilities of a nation that, in 1973, had begun to institutionalize the seminal changes in the status of African-Americans, women and other minorities that had begun in the 1950s?

Keep going. How eager would Republican governors like Charlie Crist of Florida be to sign legislation prohibiting abortions deemed constitutional under Roe and Casey? How willing would any governor interested in re-election or simply in maintaining political leverage outside of this narrow question be in alienating wide swaths of voters who might like Republican economics but cringe at the power of the Christian Right in their party? And how many doctors would stand for a state legislature's decision to wrest control of their medical practices? Do governors really think there is something advantageous about turning on the evening news to see doctors and female patients being led out of a medical building in handcuffs? Or worse, negotiating the blinding speed with which information is distributed on the Internet, including You Tube and other real-time websites and blogs?

Beyond the drama surrounding a post-abortion rights world, I also offered this take on the justices' approach to the abortion question:

Have you ever been in a conversation where you insisted that you'd go back in a burning building to retrieve your favorite things, rescue your or your children's cat, climb the fire escape to help the kindly old gentleman who lives four doors down from you and always remembers your birthday or to save the wheelchair-bound elderly woman who is always there for you when you need to discuss your personal problems? Of course. We all have. Yet, would we actually go back into the building to save a cat, rescue a person who isn't related to us or retrieve family photos? The only honest answer is that we don't know. Until you are actually faced with a choice that, until that point in time, has only been an abstract point of discussion, you really have no idea what you are doing to do.

My point, which I abbreviate here and made better in my previous post, is that, despite the misguided assurances of so many political scientists that we can "predict" the outcome of Supreme Court decisions by cobbling together sophisticated mathematical models that take into account personal attitudes, social background, political party, the number of questions the Justices ask the advocates appearing before them and so on, there are sometimes cases, arriving at a certain point in time and so fraught with social and political consequences, that put the Court in a similar position as the people standing outside the burning building. For lack of a more clever description, I refer to cases like Casey and yesterday's decision in the Court's most closely watched case of the term, Northwest Austin Municipal Utility District Number One v. Holder (2009) as examples of the "burning building" theory of constitutional law.

In fairness to political scientists, lawyers commenting on the Court's decision to leave Section 5 of the Voting Rights Act of 1965 in place seem, as a whole, schocked -- as in, Casablanca . . . Rick's Cafe . . . gambling, prostitution in a bar "shocked" -- that the same five member bloc that equated "voluntary" desegregation in the Parents Involved decision of two terms ago with the state-imposed system of racial segregation declared unconstitutional 53 years before in Brown v. Board of Education, did not coalesce to strike down the various requirements of Section 5, including the "bailout" and "preclearance" issues. Even Dahlia Lithwick, who covers the Court for Slate and is by far the best at making sense of what the Justices do and why of any of the mainstream correspondents who cover that beat, seemed stunned that the Chief Justice Roberts of April's oral argument in NAMUDNO. Click here for her comparison of Roberts at oral argument with the kindler, gentler Roberts who wrote the Court's majority opinion. Several other excellent legal commentators, including Tom Goldstein at SCOTUS Blog, see Roberts's opinion as an exercise in "judicial minimalism," or the deeper-rather-than-wider approach to constitutional decision-making that first gained traction about ten years ago in Cass Sunstein's influential book, One Case at a Time: Judicial Minimalism on the Supreme Court. Sunstein's basic thesis was this: judges should approach cases from the narrowest perspective possible to minimize judicial intervention in the "democratic process," and leave the tough choices to Congress or the states (or, as in NAMUDNO, other "political subdivisions," such as cities, towns and counties). Judicial minimalism recognizes a place for judicial correction of legislative mistakes, provided those mistakes infringe upon constitutional rights; but takes the gloss of traditional liberal dependence on "enlightened" justices as Platonic guardians (think Ronald Dworkin) of our constitutional rights. Judicial minimalism, as a theory, is really not much more than an updated take on John Hart Ely's Democracy and Distrust (1980) of almost 30 years ago. But Sunstein, like Ely, had (and has) came at "liberal judicial activism" from the critical perspective of a liberal law professor with influence in high places. Sunstein, like Ely, might have a soft spot for the liberal progress engineered by the Warren Court. But he was the liberal's anti-Dworkin, and that made him appear less dangerous to conservatives and more politically appealing to post-modern Democrats like Barack Obama (who, of course, hired his former colleague at the University of Chicago law school after the election to work in the White House).

Four years ago, John Roberts appeared before the Senate judiciary committe and, disavowing his sterling, life-long and not-so-hidden credentials as a social, political and judicial conservative, embraced judicial minimalism as his preferred approach to deciding complex constitutional cases. Four years later, Roberts's record is hardly one that heeds to the "minimalist" philosophy. Not only did his opinion for the Court go much further than it needed to in Parents Involved, it demonstrated a lack of respect, even ignorance, at times, for the nation's history of forcible racial discrimination. On other constitutional questions involving free speech, religion and abortion rights, Roberts has not hesitated to climb aboard the conservative train determined to align the Constitution with the policy preferences of the right-wing of the Republican party. And why not? That's exactly why he was selected, his cynical insistence that he was simply there to "umpire" disputes on the "law" notwithstanding. No reasonable person with an understanding of law and politics should have believed him then, and no one, not even someone as smart as Dahlia Lithwick, should believe him now.

So why did Chief Justice Roberts back off his tough talk at NAMUDNO's oral argument and conclude that it was unnecessary for the Court to decide the constitutionality of Section 5? How was able to get the Court's four moderate-to-liberal justices, Stevens, Souter, Ginsburg and Breyer, to join his opinion? These are, after all, the same four justices who have repeatedly dissented in the Court's string of voting rights cases making it harder for states to design majority-minority districts. (Side note: the Bush administration filed an amicus brief in NAMUDNO asking the Court to let stand a lower court's ruling leaving the Section 5 requirements in place. Why? Since the late 1980s, Republican justice departments have accepted the quid pro quo in many of the states covered by the 1965 law, exchanging solid African-American districts designed to elect black Democrats for white, suburban districts that have sent white Southern Republicans to Congress, thus breaking the back of the New Deal alignment between Northern and Southern Democrats that harkened back to Reconstruction. Republicans exceed the number of Democrats representing districts in the former Confederacy, although that moved in the opposite direction in the 2008 election. Every Republican is white; every African-American representing a Southern congressional district is a Democrat. This is no accident).

I think the answer is fairly self-evident. Too much was at stake in this case, coming down just eight months after the election of the first African-American president of the United States, for Chief Justice Roberts to risk his reputation over. Just four years into what promises to be a long turn at the helm of the nation's highest constitutional court, Roberts would be forever saddled with the monicker as having been the chief justice who presided over the demise of the nation's most important civil rights law. His opinion contains none of the moral equivalencies between race-based remedies and the pre-Brown system of America's public education system, which radiated the stench of state-imposed segregation far beyond the Southern states. Roberts spoke respectfully of the 1965 law's successes, which he called "undeniable," and acknowledged that it took that law to kick-start the 15th amendment's promise that the right to vote shall not be conditioned upon race, color or previous condition of servitude. And, quite honestly, his criticism of the current status of the law compared with the conditions that existed when the law was passed are quite reasonable. In fact, if the worst thing to come out of this case is that Congress has to clean up Section 5 and bring the "preclearance" requirements into line with the changes that the law helped create, that's actually a positive development. A Democratic Congress with 41 African-American members in the House and the nation's first African-American president are in a much better position to satisfy the Court's concerns about Section 5 than had this decision come down in the early 2000s or during Newt Gingrich's reign of terror in the 1990s. The lawyers reading the Court's opinion are right about one thing, though: Congress had better move quick.

After years and years of criticizing the 1965 law, a record that goes back to his time in the Reagan justice department, a department that was the most hostile of any presidential administration to the rights of African-Americans since the modern civil rights era began in the early 1950s, Roberts blinked at the opportunity to turn a professional lifetime of caustic rhetoric on race into the big victory that conservatives, in government and in the right-wing public interest bar, have wanted for years. No, this wasn't some legal theory driving Roberts's decision . . . judicial minimalism or, as disgruntled dissenter Clarence Thomas suggested, an ill-timed use of the "doctrine of constitutional avoidance." Rather, Roberts's rhetoric caught fire, and he chose to stand outside rather than enter a building that, engulfed in flames, would have burned his reputation to the ground.

1 comment:

Stephen Meli said...

I don't know if I can get on board with your theory quite yet Dr. Ivers. I think the real test will be when we finally get a decision in Ricci v. DeStefano in the near future. The Ricci case has far more media coverage and is much more of a political hot potato than the NAMUDNO case. If the Court (most notably Chief Justice Roberts) refuses to decide on the constitutionality of New Haven's conduct and instead follows the "burning building theory" then I will definitely see support for what you are saying. But the Roberts Court may very well decide in favor of the firefighters, narrowing the definition and application of affirmative action in the process.

Furthermore, the purpose of the VRA was that eventually it would no longer be necessary. Justice Thomas' dissent argued that this moment has in fact arrived and that the extreme provisions of the bill are no longer necessary since violations are not nearly as widespread as 45 years ago. I would think that spelling the end of Section 5 would be seen more as a victory for civil rights than as the demise of it. In the abstract, we can debate the symbolism of such an action but in a case where there is no evidence of past discrimination I find the argument wanting. Maintaining the idea that the Southern States and their subsequent districts WILL discriminate if given the opportunity to redistrict is punishing the sons for the sins of the father. It involves assuming the officials are guilty until proven innocent. I find it odd that the Roberts opinion would argue that the Court was correct to tackle the constitutionality of the VRA in Katzenbach due to the widespread discrimination, but now that the discrimination is no longer widespread that it shouldn't be deciding the provision's constitutionality.