Equal Protection Clause

  • April 22, 2015

    by Caroline Cox

    In SalonMarcy Wheeler explains why new reforms governing surveillance are not likely to solve many problems. 
     
    Russell Berman reports for The Atlantic that after a five-and-a-half month wait, the Senate is ready to confirm Loretta Lynch as U.S. Attorney General. 
     
    At the Constitutional Accountability Center's Text & History BlogDavid H. Gans discusses the importance of the Equal Protection Clause in the same-sex marriage cases.
     
    Noah Feldman writes at Bloomberg View that the Supreme Court's decision on Tuesday that police cannot performa a cannot prolong a traffic stop to search for drugs with a trained canine illustrates a growing concern on the Supreme Court with police conduct. 
     
    At NPRNina Totenberg provides further coverage of the Supreme Court's Tuesday decision on canine drug searches during traffic stops.
  • February 10, 2015

    by Nanya Springer

    In recent years, there has been much discussion about whether America is now a “post-racial” society.  The introduction of the first non-white family into the White House was accompanied by some enthusiastic declarations of victory over the scourge of racism.  Observers looked to the president and to other successful minorities and decided that yes, racism is indeed over.

    But focusing on the most successful elements of any demographic group proves little, for wealth has the ability to elevate and to insulate.  One area where this is most evident is in the American criminal justice system.  When navigating the justice system, the ability to hire top-notch legal counsel or to post a significant bond drastically affects the outcome of a case.  This is true for both white citizens and for citizens of color.

    Unfortunately, however, racial inequality in this country remains tightly intertwined with economic inequality, and aspects of the criminal justice system that disadvantage poor people disproportionately disadvantage people of color.  There also exists implicit racial bias, if not outright prejudice, in the hearts of some police, prosecutors, judges and jurors which can manifest itself during any phase of a criminal case.

    The result is that Americans of color face disadvantages at every stage of the criminal justice system.  From arrest to sentencing, obtaining bail to obtaining a lawyer, plea bargaining to jury selection, and even in being put to death, criminal defendants consistently fare better when they are white.

  • October 17, 2013
     
    Many reasonable accounts from high court correspondents suggest the U.S. Supreme Court appears likely to uphold a Michigan constitutional amendment banning the use of race-conscious admissions policies at public universities.
     
    On Tuesday, with hundreds of protestors gathered outside the courtroom, oral arguments in Schuette v. Coalition to Defend Affirmative Action were presented to eight justices of the high court, with Justice Elena Kagan recusing herself. The constitutional amendment at issue, passed via state referendum in 2006, faces a challenge from a coalition of affirmative action advocates that claims the amendment violates the Equal Protection Clause by placing an undue burden on minority populations. In part, the Coalition says that legacy students could lobby university officials for preference in the admissions process, while minority students must win a statewide repeal of the amendment before taking similar action.
     
    In general, the Supreme Court’s conservative justices did not appear ready to support the Coalition’s arguments. For example, in response to civil rights attorney Mark Rosenbaum, arguing on behalf of the Coalition, Reuters reports that Chief Justice John Roberts “leaned forward from his center chair on the mahogany bench and said curtly: ‘You could say that the whole point of…the Equal Protection Clause is to take race off the table.’” He went on to ask if it was “unreasonable for the state to say, ‘Look, race is a lightning rod…We want to take race off the table and try to achieve diversity without racial preferences’?”
     
    For his part, Justice Anthony Kennedy was restrained in his questioning, appearing to seek a narrow justification for upholding the Michigan amendment while leaving in place important precedent. After all, rulings in 1969 and 1982 in cases from Akron and Seattle – in which the Court struck down voter measures that removed anti-discrimination laws in education and housing – complicate any path to upholding the amendment. Michigan Solicitor General John Bursch suggested a possible distinction: earlier cases involved anti-discrimination laws, while the amendment at hand only demands equal treatment. “This was a broad-based law that was primarily motivated by the people of Michigan’s decision to move past the day when we are always focused on race,” Bursch explained.
  • December 10, 2012

    by Jeremy Leaming

    Calling balls and strikes, is that what marriage equality will come down to? Arguably one of the more conservative Supreme Court’s in modern history has chosen to wade into a major equality battle, and its Chief Justice once said that judging is akin in some ways to being a baseball umpire.

    Of course since that statement during his confirmation hearings in 2005, the Roberts Court has dealt with matters far weightier than those found on a baseball field. The Court has also shown that judging is a good bit more complicated. Have you read all the opinions, concurring opinions and dissents in the Court’s actions this year on the landmark health care reform law?

    As The New York Times’ Adam Liptak notes public opinion in favor of same-sex marriage may be ahead of where a majority of the Roberts Court is on the matter. And, he notes that the high court’s decision to review both the Ninth Circuit Proposition 8 case and Second Circuit’s DOMA case “has some gay rights advocates bracing for a split decision.” Liptak says the high court could invalidate the so-called Defense of Marriage Act or DOMA on grounds that Congress overreached and strike the Ninth Circuit’s opinion on Prop. 8, holding that the Constitution does not require states to recognize same-sex marriages.

    Janson Wu, a staff attorney for Gay & Lesbian Advocates & Defenders (GLAD), noted some concern, telling ACSBlog, “The fact that the Court decided to hear both a challenge to DOMA and Proposition 8 presents obvious opportunities and risks. All of us fighting for LGBT rights obviously hope for the best case scenario and realize that there is so much work to make that happen. Now is not the time to wait and see how the Court decides. Instead, it is more important than ever for use to continue to achieve victories at both the state and federal level in the next few months, before the Supreme Court decides these cases.”

    While those pushing for marriage equality are rooting for the demise of DOMA, a blatantly discriminatory law that has treated same-sex couples as second class citizens denying them scores of federal benefits that their straight counterparts enjoy or take for granted, others are concerned about a potentially disastrous ruling in the Proposition 8 case.

  • October 8, 2012
    Guest Post

    By Mark Ladov, is counsel for the Justice Program of the Brennan Center for Justice at NYU School of Law.


    The nation will be paying close attention to the Supreme Court’s review of the University of Texas’s admissions policies when it hears oral argument in Fisher v. University of Texas at Austin (UT) on October 10.  Most of the conversation will focus, as it should, on what the Court has to say about race, education and opportunity in the twenty-first century.  But Fisher is also important for what it will teach us about the Roberts Court’s faith in the rule of law and the principle of stare decisis (or the binding effect of past precedent).

    UT’s admissions program considers the race of its applicants, but only alongside a variety of factors (including class, family history, work experience and individual talents) that shape a student’s identity and potential.  As Joshua Civin explained well in this blog, the alternative so-called “race-neutral” approach would actually demean students’ individuality, by forcing them to censor references to race and culture out of their college applications.  

    It is well established that UT’s admissions policies are good for our multi-racial democracy, and wholly consistent with the Constitution’s equal protection clause.  That is not just the opinion of over 70 amici briefs siding with the university.  It is also the view of the Supreme Court, which addressed these exact issues less than a decade ago in Grutter v. Bollinger

    In Grutter, the Court upheld the University of Michigan Law School’s similarly holistic admissions policy.  Justice O’Connor’s opinion enthusiastically affirmed principles first announced by Justice Powell in Regents of Univ. of Cal. v. Bakke(1978).  She explained the importance of diversity for giving all students the best education possible, and for training a diverse set of leaders for America’s future.  

    UT has followed these instructions to the letter.  The Fifth Circuit found exactly that when upholding the constitutionality of its admissions program.  As my colleague Sidney Rosdeitcher points out, in a thorough review of the facts and law of this case, “it would be an assault on the principles underlying stare decisis” for the Supreme Court to reach beyond the issues raised in this case to overturn or limit Grutter.