Constitutional Interpretation and Change

  • February 21, 2012

    by Jeremy Leaming

    The U.S. Supreme Court’s conservative majority is seemingly preparing to provide a potentially fatal blow to affirmative action policy. After the high court announced earlier today that it would consider Fisher v. Texas, a white college student’s challenge to the University of Texas’ affirmative action policy, The Huffington Post’s Mike Sacks wrote, that affirmative action was heading back to the high court “and this time its prospects for survival are poorer than ever.”

    As Sacks notes, in 2003 the Supreme Court upheld by a 5-4 vote in Grutter v. Bollinger that the University of Michigan law school’s affirmative action program was constitutional. The law school’s policy, in part, was based on a longstanding commitment to “one particular type of diversity,” that is, “racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against, like, African-Americans, Hispanics and Native Americans, who without this commitment might not be represented in our student body in a meaningful manner.”

    The lower federal court in the Grutter case found Michigan’s use of race as a factor in admissions was unconstitutional. The federal appeals court, however, overruled that opinion.

    Retired Supreme Court Justice Sandra Day O’Connor wrote the majority opinion in Grutter. She noted that part of the reason Michigan used race as a factor in higher education admissions policies was to create a richer educational experience. She said the majority would defer to the school’s “educational mission.” O’Connor noted that the briefs supporting the school “substantiated” the “educational benefits” of its affirmative action policy. Those friend-of-the-court briefs, O’Connor wrote included “expert studies and reports entered into evidence at trial,” and “numerous studies show[ing] that student body diversity promotes learning outcomes, and ‘better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.’”

    O’Connor, moreover, said the law school had not employed a rigid quota system in trying to achieve its goal of bringing underrepresented minorities into the fold. “The Law School’s current admissions program considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race,” she wrote.

  • February 20, 2012

    by Nicole Flatow

    In a U.S. Supreme Court order issued Friday, two of the justices called for review of the controversial decision in Citizens United v. FEC “in light of the huge sums currently deployed to buy candidates’ allegiance.”

    The high court issued a stay to block a Montana Supreme Court ruling that upheld a state campaign finance law. The stay allows previously prohibited corporate election spending to occur while the court considers whether to review the state’s decision.

    But as part of the order, Justice Ruth Bader Ginsburg issued a statement, joined by Justice Stephen Breyer, calling for the court to grant certiorari so that the justices may consider whether  Citizens United “should continue to hold sway.”

    “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United v. Federal Election Comm’n, … make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption,’” they write, quoting from the opinion.

    In a column for Slate, U.C. Irvine law professor Richard Hasen points out that Ginsburg’s selection of that particular passage from the decision exposes “the false premise at the heart of the Citizens United case.”

  • February 16, 2012
    BookTalk
    No Undocumented Child Left Behind
    Plyler v. Doe and the Education of Undocumented Schoolchildren
    By: 
    Michael A. Olivas

    By Michael A. Olivas, William B. Bates Distinguished Chair of Law at the University of Houston Law Center, and director of the school’s Institute of Higher Education Law & Governance.


    Immigration has always been a complex transaction and dangerous sojourn, and local forces have attempted to control the process, especially as the country was forming and borders were not yet fully established. Throughout United States history, state and local politicians have introduced and enacted thousands of anti-alien bills. Some legislation has even been so mean-spirited as to advocate a repeal of 1982’s  Plyler v. Doe, the watershed Supreme Court decision that required Texas to give undocumented children free access to public schools. In difficult economic times, elected officials find scapegoating aliens is an easy way to reach low-hanging fruit, as if these workers were the source of the sputtering economy. For example, Alabama enacted HB 56 (the “Alabama Taxpayer and Citizen Protection Act”) in 2011, regarded as the most-draconian anti-immigrant legislation to date. The statute even required schools to conduct a census of undocumented children in schools, until it was enjoined by the trial and Circuit judges.

    Such arguments and legislation, mixed in a cauldron amidst shrill warnings about the rights of “real Americans,” lead inevitably to a sense of divisiveness, racial superiority, and undifferentiated prejudice. Such imprecise, undifferentiated, and broad-brush swipes at “illegals” and “anchor babies” generally tar all the groups. Free-floating racialized animus often leads to a generalized resentment against all people of color, or “others,” especially those constructed as “foreigners.”  If there were a group that holds promise to become productive, undocumented K-12 and college students would surely be that group. With the generally dismal schooling available to these students, that even a small percentage could meet the admission standards of colleges and universities is extraordinary. Given their status and struggle, each successful student represents a story of substantial accomplishment. Most of these students have parents who struggled to bring them to this country and exercised considerable risk to enable their achievements. That they succeed under extraordinary circumstances is remarkable to virtually all who observe them. These students’ success partially explains why so many educators and legislators have accepted Plyler and worked to assist them in navigating the complexities of school and college. Despite the success of anti-immigrant rhetoric in shaping a discourse and of restrictionists in fashioning resentments, reasonable legislators of both parties have attempted to address the issues these students face.

  • February 10, 2012
    Guest Post

    By Rebecca L. Brown, Newton Professor of Constitutional Law at USC Gould School of Law. She is the author of the 2010 ACS Issue Brief, “The Prop 8 Court Can Have it All: Justice, Precedent, Respect for Democracy, and an Appropriately Limited Judicial Role.”


    The Ninth Circuit did a great job this week in deciding the Perry case, involving the constitutionality of Proposition 8 — not only because of the result it reached, but because of how it got there. I think the court did a great service to the plaintiffs in Perry (as well as those similarly situated), to the state of California, and to the Constitution itself. I say this because the court focused very carefully and narrowly on the facts of the particular case, and did not yield to the temptation, always present in a sensational case, to be dramatic, to exaggerate, or to stretch the law. Instead, in my view, the court did exactly what we want a court to do when faced with any Equal Protection challenge:  to consider very carefully the interests that the state offers in support of its unequal treatment of some of its people, and to insist that those interests be both genuine and closely tied to the law under attack. 

    On that score, Proposition 8 could not survive, for a very simple reason. The interests that were offered in support of denying marriage status to same-sex couples were not relevant to the actual inequality that Proposition 8 created. As the court recognized, Proposition 8 affected only the status of marriage, not the legal infrastructure supporting families headed by same-sex couples. The word “only” does not at all mean that the denial of this status is unimportant to either side of this debate. But it does confine the court’s equal protection inquiry to just those state interests that could be said to justify this denial of the title of marriage. The court rightly recognized that broad assertions of state interests that might arguably be served by restricting same-sex households and families were simply not germane to Proposition 8 itself, because that proposition did not have any effect on the surviving bundle of property, parenting, and companionship rights that support those households and families. The state was called upon to offer a non-hostility-based rationale for leaving same-sex households legally intact while denying them the status of marriage.  The court found none.

  • February 10, 2012

    by Nicole Flatow

    Following sharp attacks from religious and conservative groups of the health care rule that would require insurance plans to cover contraceptives, the White House has announced a minor alteration to the rule that maintains free access to birth control.

    The change would shift the onus of providing the contraceptive services from the employer to the insurance provider. If a religiously affiliated employer objects to providing that coverage in its benefits package, the insurance company will be required to reach out directly to the beneficiary to offer full contraceptives coverage.

    “No woman’s health should depend on who she is or where she works or how much money she makes,” Obama said in announcing the change today. He added:

    I understand some in Washington want to treat this as another political wedge issue. But it shouldn’t be. I certainly never saw it that way. … We live in a pluralistic society where we’re not gonna agree on every single issue or share every belief. That doesn’t mean we have to choose between individual liberty and basic fairness.

    Today's shift, described by one official as an “accommodation” rather than a “compromise,” was quickly endorsed by the Catholic Health Association, one of the original critics of the rule, as well as Planned Parenthood and NARAL Pro-Choice America.

    But the announcement is not likely to satisfy some of the most committed critics. Just last night during a webcast, the Family Research Council blasted the contraception rule as “not only an attack on the consciences of employers and employees, but a direct attack on religious freedom.”

    Throughout the week, constitutional experts have reiterated that the contraception rule did not violate the Constitution’s religious liberty clauses.   

     "There isn't a constitutional issue involved," prominent litigator David Boies told MSNBC’s Lawrence O’Donnell. “There isn’t anything in the Constitution that says an employer, regardless of whether you are a church employer or not, isn’t subject to the same rules as every other employer.”

    “One thing I think is crystal clear — there is no First Amendment violation by this law,” Adam Winkler, a constitutional law professor at UCLA, told TPM. “The Supreme Court was very clear in a case called Employment Division v. Smith, written by none other than Antonin Scalia, that religious believers and institutions are not entitled to an exemption from generally applicable laws.”

    Atlanta Journal-Constitution columnist Jay Bookman highlights some excerpts from the Smith decision in which Scalia, “himself a devout and very conservative Catholic,” makes the case for Obama. Scalia wrote: