Fourteenth Amendment

  • April 24, 2014
    Guest Post

    by Liliana M. Garces, William C. Kidder and Gary Orfield

    Garces is an Assistant Professor of the Higher Education Program and Research Associate of the Center for Study of Higher Education at Penn State College of Education. Kidder is the Assistant Executive Vice Chancellor at UC Riverside. Orfield is the Professor of Education, Law, Political Science and Urban Planning and Co-Director of the Civil Rights Project/Proyecto Derechos Civiles at UCLA.

    Chief Justice Hughes famously said that a dissenting opinion is “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.” Dred Scott, the Civil Rights Cases, Plessy, KorematsuIn these and other landmark race-related cases, dissenting Justices spoke eloquently to “the intelligence of a future day” in laying bare the errors in the holding and reasoning of the Court’s majority opinions.

    Justice Sotomayor’s dissenting opinion in Schuette, joined by Justice Ginsburg, is both brooding and compelling in the way it speaks to an intelligence of a future day, a day when, “as members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter.”

    We deeply regret the decision by the Supreme Court upholding Michigan’s ban on race-sensitive admissions as constitutional and overturning the Sixth Circuit’s en banc ruling that the referendum violated the federal constitutional guarantee of equal protection. On the heels of recent voting rights and campaign finance decisions—decisions that not only create enormous barriers but further weaken minority political power and increases the power of money—the Schuette ruling exemplifies how legal decisions can ignore the stark realities of our nation and the deep racial inequalities that continue to exist in America. 

  • 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.

  • June 13, 2012
    Guest Post

    By David H. Gans, Director of the Human Rights, Civil Rights & Citizenship Program, Constitutional Accountability Center (CAC). This analysis is cross-posted at the Text & History Blog.


    Twenty years ago this month, a bitterly divided Supreme Court handed down Planned Parenthood v. Casey, one of the most important opinions delivered by the Court on the meaning of the Constitution’s protection of liberty and equality for all Americans.  In a landmark joint opinion, authored by Justices Anthony Kennedy, Sandra Day O’Connor, and David Souter, a narrow five-Justice majority reaffirmed what they called the “essential holding of Roe,” beating back a twenty-year assault on the Supreme Court’s decision in Roe v. Wade and the notion that the Constitution protects substantive fundamental rights not enumerated elsewhere in the Constitution.  In the process, the Justices rooted protection of a woman’s right to reproductive choice, not in a generalized right of privacy as Roe had, but in a woman’s right to bodily integrity, to personal liberty, and to equal citizenship.  (For more discussion, see CAC’s Crossroads Chapter on Reproductive Freedom).  As a senior in college at the time, I had the incredibly good fortune of working on the legal team representing Planned Parenthood at the Supreme Court – alongside brilliant and courageous attorneys Kitty Kolbert and Linda Wharton – and to this day my work on Casey is still one of the proudest moments of my career in the law. 

    Casey’s understanding of constitutional protection for personal liberty and equality drew on the Court’s precedents going back 70 years and the doctrine of stare decisis.  The joint opinion forcefully demonstrated that keeping faith with the Court’s precedents required reaffirming constitutional protection for a woman’s right to reproductive choice, while the dissenters argued that these  precedents had to be jettisoned.  Two decades later, thanks to the work of Jack Balkin, Reva Siegel, Dawn Johnsen and others, there is more basic foundation of support for Casey’s understanding of fundamental constitutional principles: the Constitution’s text and history.  Contrary to conventional wisdom, both Casey’s analysis of the protection of substantive fundamental rights and of gender equality has deep roots in our Constitution’s text and history.  Supporters of Roe and Casey should embrace these sources – just as much as precedent – in defending a woman’s right to reproductive freedom against attacks by conservatives.   

  • June 12, 2012

    by Jeremy Leaming

    It took an incredibly ridiculous amount of time, but 45 years ago today the U.S. Supreme Court finally got around to invalidating state laws that banned interracial marriage.

    The case, Loving v. Virginia decided on June 12, 1967, involved Mildred and Richard Loving who were married in the District of Columbia in 1958, and later prosecuted in Virginia by authorizes intent on enforcing the state’s racist laws against interracial marriage. The couple later moved to the District of Columbia and lodged a class action challenging Virginia’s anti-miscegenation laws as a violation of the Constitution’s liberty protections found in the Fourteenth Amendment.

    The case eventually reached the Supreme Court.

    Writing for the unanimous Court, Chief Justice Warren E. Burger rejected Virginia’s arguments that its laws did not subvert the Constitution. The state’s arguments are not worth reciting. Suffice it to say, those arguments were racist. The Warren Court easily found that Virginia’s laws were a serious affront to the Constitution’s liberty protections.

    “There is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification,” Burger wrote. “The fact that Virginia prohibits only interracial marriage involving white persons demonstrates that the racial classifications must stand on their own justification, as measures designed to maintain White Supremacy.

    “We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

  • March 23, 2012

    by Nicole Flatow

    The country lost a civil rights giant, with the passing of president and director-counsel of the NAACP Legal Defense and Education Fund, John A. Payton. He died suddenly on Thursday at Johns Hopkins University Hospital after a brief illness, The Root reports.

    Payton led LDF in several major Supreme Court victories, including Northwest Austin Municipal Utility District v. Holder, which rejected a challenge to the constitutionality of a core provision of the Voting Rights Act of 1965, and Lewis v. City of Chicago, a major employment discrimination victory, according to a statement from LDF.

    The statement adds:

    Widely considered one of the country's most skilled members of the Supreme Court bar, John Payton's enduring legacy will be his commitment to a principle articulated by LDF's founder, Charles Hamilton Houston. "What I am more concerned about," Houston said, "is that the Negro shall not be content simply with demanding an equal share in the existing system. It seems to me that his historical challenge is to make sure that the system [that] shall survive in the United States of America shall be a system which guarantees justice and freedom for everyone."

    LDF's work will go on, in just the way that John would have wanted.

    President Obama said today in a statement:

    Michelle and I were saddened to hear about the passing of our dear friend John Payton. As president and director-counsel of the NAACP Legal Defense and Education Fund, John led the organization's involvement in five Supreme Court cases.

    A true champion of equality, he helped protect civil rights in the classroom and at the ballot box. The legal community has lost a legend, and while we mourn John's passing, we will never forget his courage and fierce opposition to discrimination in all its forms.

    Payton was a voice for the civil rights community, and a leading constitutional thinker. During a 2009 American Constitution Society event at the National Press Club on “The Road from Lincoln to Obama,” Payton discussed the importance of shedding our racist history as we move forward with our constitutional jurisprudence.

    “I would say Reconstruction didn’t fail. It was destroyed,” he said.

    He continued: