A "view" from the Court by someone in the courtroom today (two notable cases were argued today aside from the cases discussed below -- see SCOTUSBlog for discussion and some audio about the t.v. case) is found here, including a note that Thurgood Marshall's widow (who knew she was still alive? or is a "frequent presence"?) and son was there to hear the opinions announced. They were guests, the general public at best likely to have a chance to stay a few minutes in small groups. Of course, the PTB does not deign to provide video or in this case even audio.
Noted as well is the lack of copies of bench statements. Unlike the arguments themselves, neither oral or audio is found at the website though Oyez.com in recent years eventually posts the audio of the opinion announcements sometime after the term. These announcements are the most "public" of the Court's actions, some justices (again, going by then less complete audio at Oyez.com) in the past only providing very brief announcements. These days, the justices take a few minutes at least, even for fairly obscure cases. To what end? I take it as a limited statement for public consumption and if nothing else it would be logical for general viewing, at the very least in transcript form. It is wrong that it is not.
The first, 5-4, upheld on totality of circumstances grounds a stop of a vehicle on an anonymous tip. The stop led to smelling marijuana and so on. But, the "but for" here was an anonymous call that the car ran someone off the road. Scalia in dissent (with the three women justices - Breyer, as is his wont in several 4A cases, joined the majority ... written by Thomas in his usual dry majority fashion) found it pretty ridiculous. On the merits, he makes some good points. Still, the net effect is likely to be somewhat narrow, since -- as he notes -- there are so many ways to stop a vehicle legally, especially with his "let's ignore reality" Whren opinion.
[The portions that are a paean to local democracy deciding complex issues of the day is nice but some readers of the majority in Parents Involved, where locals deciding to support race conscious programs were struck down might be a bit confused. Of course, there are checks to this sort of thing as Kennedy et. al. knows. On this point, ultimately Breyer comes off as the most consistent, especially looking long term.]
Scalia/Thomas would have just overturned the political process precedents. In fact, as noted here, the concurrence would toss out a lot more bathwater -- the famous Carolene Products Footnote Four might warrant a go too. As I note there, however, it is not like the footnote is some outlier that four justices tacked on in some obscure 1930s case. It voices the beginning of modern day equal protection law. I'd note one more thing about the concurrence. It notes obviously "a law directing state actors to provide equal protection" is constitutional as would be one that would "forbid what [the 14A's] text plainly requires."
But, the law here really isn't evenhanded. As applied here, the law removes from public universities the ability to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” When a law was used to single out hate speech (including cross burnings) against certain groups, Scalia found it illegitimate in R.A.V. v. St. Paul. This is what the law here does -- certain groups can get preferential treatment or use the administrators in the universities toward that end, but others cannot.
This is not quite "equal protection" in my book and very well might be the reverse. Justice Breyer concurred here. He noted that the measure is not about use of preferences to address past discrimination, but to advance diversity. From the text, that splitting the baby seems a bit curious. Anyway, granting that, he thinks diversity is fine as a rationale, but it is a matter of political discretion. What about the concern that the measure burdened racial groups by changing the political process by making it harder for them to obtain relief? Well, the ultimate decisions here are made by unelected officials though this is a matter delegated by people elected. Breyer argues that this case "does not involve a reordering of the political process." In a fashion that makes you question if he is trying to limit the reach of the plurality, this hand wave is pretty unconvincing given Sotomayor (joined by Ginsburg -- Kagan recused) pointing out how the elected officials did affect the policies here. Breyer simply doesn't really respond to this section and it weakens his case significantly.
I started this discussion by quoting a portion of Sotomayor's dissent, an impressive effort imho, which she announced from the bench. The passion of that section as well as a latter statement that those on the Court who oppose the need of race conscious programs hold a position that "ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America" led Roberts (for himself -- interestingly, Alito did not join in, but then, Roberts was the author of Parents Involved) to respond with a brief concurrence.
Other than a footnote that touches on a point raised by Scalia as well, the concurrence basically was a "I'm not a clueless racist" comment. It also alleged: "dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions." This appears to refer to a section that defends the argument that such preferences are constitutionally necessary. It was not merely some "policy preference" argument, but a response to implications in the plurality etc. that the preferences are constitutionally infirm or at least suspect. Suffice to say, if policy preferences are a foot, both sides do it here. But, I don't think that is a fair analysis anyway.
As noted above, the dissent -- as dissents are wont to do -- might lay it on a bit too thick. But, it is a powerful defense on the importance of regulating the political process to avoid, to quote, "one process for racial minorities and a separate, less burdensome process for everyone else." The case is specifically about that -- not specific policies, but burdening certain classes of people by making it harder for them to change public policy to address their needs. The substantive matters at issue clearly influence the debate here, which is why the dissent also addresses that. This is also a core reason why I think Breyer's splitting the baby as to dealing with discrimination and diversity is problematic.
The dissent at one points argues that "equal protection is a personal right, but there can be no equal protection violation unless the injured individual is a member of a protected group or a class of individuals." This is misleading at best without clarification. Its reference to Carolene Products helps -- if "prejudice against discrete and insular minorities may be a special condition" (religious, national and racial are also explicitly cited) for judicial notice, membership matters. Singling out certain groups is a flag. But, so is singling out a person in an illegitimate matter. The thing there is that the government has to meet a much lower standard of review -- rationality. Either way, that portion of the dissent is iffy.
It is a powerful dissent. I can live with the plurality though find Breyer's concurrence unconvincing given Sotomayor's response on a key point. The policy here is a bad one, but a reasonable argument can be made that it is one that can be made without being unconstitutional. Still, ultimately, I think Sotomayor has the better case. She also brings out Romer -- she notes that the political process argument was not ultimately relied upon, but the Court still noted how the sexual minorities there were singled out all the same. The same thing continues today with state DOMAs, same sex couples singled out by special constitutional amendments that are worse is a special way than merely losing in normal legislative processes. An amendment to the Constitution is a special barrier, yes?
And, it is very good that Sotomayor forcibly states the reality of race today, including how it still stings. A matter of speaking truth to power. Thomas suggests one can be quite passionate on the issue and hold an opposite position, even as one of those from the class supposedly being helped here. Let each speak their peace. Still, her message to me is most convincing -- race matters still, we cannot hand wave it away by just saying we just govern neutrally (if there is an injury, including racism, we need to take it into consideration to heal it) and it is not perversely racist to do otherwise. See, e.g., SCOTUSBlog summary of the plurality:
Perhaps, it boils down to me understanding why it might not be time yet to trust local political majorities to do this for certain groups at least without providing an extra level of scrutiny ("special vigilance") to such behavior. Kennedy's usual non-responsive majority is rather telling here.
Noted as well is the lack of copies of bench statements. Unlike the arguments themselves, neither oral or audio is found at the website though Oyez.com in recent years eventually posts the audio of the opinion announcements sometime after the term. These announcements are the most "public" of the Court's actions, some justices (again, going by then less complete audio at Oyez.com) in the past only providing very brief announcements. These days, the justices take a few minutes at least, even for fairly obscure cases. To what end? I take it as a limited statement for public consumption and if nothing else it would be logical for general viewing, at the very least in transcript form. It is wrong that it is not.
The Court’s opinion serves up a freedom-destroying cocktail consisting of two parts patent falsity: (1) that anonymous 911 reports of traffic violations are reliable so long as they correctly identify a car and its location, and (2) that a single instance of careless or reckless driving necessarily supports a reasonable suspicion of drunkenness.Two notable opinions handed down today. The second is in various ways more so, though ultimately (expectations aside), it was also decided on fairly narrow grounds. I'll briefly cover the first and go to the second.
The first, 5-4, upheld on totality of circumstances grounds a stop of a vehicle on an anonymous tip. The stop led to smelling marijuana and so on. But, the "but for" here was an anonymous call that the car ran someone off the road. Scalia in dissent (with the three women justices - Breyer, as is his wont in several 4A cases, joined the majority ... written by Thomas in his usual dry majority fashion) found it pretty ridiculous. On the merits, he makes some good points. Still, the net effect is likely to be somewhat narrow, since -- as he notes -- there are so many ways to stop a vehicle legally, especially with his "let's ignore reality" Whren opinion.
And race matters for reasons that really are only skin deep, that cannot be discussed any other way, and that cannot be wished away. Race matters to a young man’s view of society when he spends his teenage years watching others tense up as he passes, no matter the neighborhood where he grew up. Race matters to a young woman’s sense of self when she states her hometown, and then is pressed, “No, where are you really from?”, regardless of how many generations her family has been in the country.The second opinion involves the Michigan affirmative action ballot measure, and especially after the USSC in effect punted on the question last term, some thought it would broadly send a message against race based measures. No. The justices as a whole might send a message that they are very wary of such things, but continued to leave some opening. Justice Kennedy's plurality opinion (joined by Roberts/Alito) was summarized during SCOTUSBlog's live blog thusly:
Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home. Race matters because of the slights, the snickers , the silent judgments that reinforce that most crippling of thoughts: “I do not belong here.”
The opinion is divided. Justice Kennedy wrote the plurality joined by the Chief Justice and Justice Alito. They conclude in their opinion that there is no authority in the federal constitution or in the Court's precedents for courts to set aside Michigan laws that commit to the voters the determination whether racial preferences may be considered in governmental decisions, in particular with respect to school admissions.The opinion makes clear that it is merely ruling on the political process reasoning of the lower court and honors flexibility -- seeing strong First Amendment values here -- in setting forth policy here. It interprets precedents in the area to require some clear "targeting" of racial minorities and held that a key case has excessive dicta (which it basically held the appeals court here relied upon) that wrongly goes beyond that. Thus, not only does the opinion not change affirmative action law (though hints of its leanings are apparent) but it basically didn't seem to say the appeals court was wrong -- if anything, the problem was one of its own precedents. The opinion is around a third the length of the dissent (as is his wont, Kennedy doesn't address its arguments) and is probably the best the losing side could have hoped for.
[The portions that are a paean to local democracy deciding complex issues of the day is nice but some readers of the majority in Parents Involved, where locals deciding to support race conscious programs were struck down might be a bit confused. Of course, there are checks to this sort of thing as Kennedy et. al. knows. On this point, ultimately Breyer comes off as the most consistent, especially looking long term.]
Scalia/Thomas would have just overturned the political process precedents. In fact, as noted here, the concurrence would toss out a lot more bathwater -- the famous Carolene Products Footnote Four might warrant a go too. As I note there, however, it is not like the footnote is some outlier that four justices tacked on in some obscure 1930s case. It voices the beginning of modern day equal protection law. I'd note one more thing about the concurrence. It notes obviously "a law directing state actors to provide equal protection" is constitutional as would be one that would "forbid what [the 14A's] text plainly requires."
But, the law here really isn't evenhanded. As applied here, the law removes from public universities the ability to “discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.” When a law was used to single out hate speech (including cross burnings) against certain groups, Scalia found it illegitimate in R.A.V. v. St. Paul. This is what the law here does -- certain groups can get preferential treatment or use the administrators in the universities toward that end, but others cannot.
This is not quite "equal protection" in my book and very well might be the reverse. Justice Breyer concurred here. He noted that the measure is not about use of preferences to address past discrimination, but to advance diversity. From the text, that splitting the baby seems a bit curious. Anyway, granting that, he thinks diversity is fine as a rationale, but it is a matter of political discretion. What about the concern that the measure burdened racial groups by changing the political process by making it harder for them to obtain relief? Well, the ultimate decisions here are made by unelected officials though this is a matter delegated by people elected. Breyer argues that this case "does not involve a reordering of the political process." In a fashion that makes you question if he is trying to limit the reach of the plurality, this hand wave is pretty unconvincing given Sotomayor (joined by Ginsburg -- Kagan recused) pointing out how the elected officials did affect the policies here. Breyer simply doesn't really respond to this section and it weakens his case significantly.
I started this discussion by quoting a portion of Sotomayor's dissent, an impressive effort imho, which she announced from the bench. The passion of that section as well as a latter statement that those on the Court who oppose the need of race conscious programs hold a position that "ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America" led Roberts (for himself -- interestingly, Alito did not join in, but then, Roberts was the author of Parents Involved) to respond with a brief concurrence.
Other than a footnote that touches on a point raised by Scalia as well, the concurrence basically was a "I'm not a clueless racist" comment. It also alleged: "dissent devotes 11 pages to expounding its own policy preferences in favor of taking race into account in college admissions." This appears to refer to a section that defends the argument that such preferences are constitutionally necessary. It was not merely some "policy preference" argument, but a response to implications in the plurality etc. that the preferences are constitutionally infirm or at least suspect. Suffice to say, if policy preferences are a foot, both sides do it here. But, I don't think that is a fair analysis anyway.
As noted above, the dissent -- as dissents are wont to do -- might lay it on a bit too thick. But, it is a powerful defense on the importance of regulating the political process to avoid, to quote, "one process for racial minorities and a separate, less burdensome process for everyone else." The case is specifically about that -- not specific policies, but burdening certain classes of people by making it harder for them to change public policy to address their needs. The substantive matters at issue clearly influence the debate here, which is why the dissent also addresses that. This is also a core reason why I think Breyer's splitting the baby as to dealing with discrimination and diversity is problematic.
Colleges and universities must be free to prioritize the goal of diversity. They must be free to immerse their students in a multiracial environment that fosters frequent and meaningful interactions with students of other races, and thereby pushes such students to transcend any assumptions they may hold on the basis of skin color. Without race-sensitive admissions policies, this might well be impossible. The statistics I have described make that fact glaringly obvious. We should not turn a blind eye to something we cannot help but see.The value of diversity here is not just academic diversity though that might be a driving concern in Justice Powell's Bakke opinion and an important value alone. The policies that the amendment here make harder for some people to obtain -- people in classes past cases hold to heightened scrutiny (intermediate for gender, strict for race/nationality) -- have been shown to be essential in various respects to protect equal protection of the law. The dissent's appeal to history shows why there should be doubt when ballot measures single out certain groups, even without the blatant targeting cited by the plurality. But, the immediate issue at hand only underlines the problematic nature of the measure here.
The dissent at one points argues that "equal protection is a personal right, but there can be no equal protection violation unless the injured individual is a member of a protected group or a class of individuals." This is misleading at best without clarification. Its reference to Carolene Products helps -- if "prejudice against discrete and insular minorities may be a special condition" (religious, national and racial are also explicitly cited) for judicial notice, membership matters. Singling out certain groups is a flag. But, so is singling out a person in an illegitimate matter. The thing there is that the government has to meet a much lower standard of review -- rationality. Either way, that portion of the dissent is iffy.
It is a powerful dissent. I can live with the plurality though find Breyer's concurrence unconvincing given Sotomayor's response on a key point. The policy here is a bad one, but a reasonable argument can be made that it is one that can be made without being unconstitutional. Still, ultimately, I think Sotomayor has the better case. She also brings out Romer -- she notes that the political process argument was not ultimately relied upon, but the Court still noted how the sexual minorities there were singled out all the same. The same thing continues today with state DOMAs, same sex couples singled out by special constitutional amendments that are worse is a special way than merely losing in normal legislative processes. An amendment to the Constitution is a special barrier, yes?
And, it is very good that Sotomayor forcibly states the reality of race today, including how it still stings. A matter of speaking truth to power. Thomas suggests one can be quite passionate on the issue and hold an opposite position, even as one of those from the class supposedly being helped here. Let each speak their peace. Still, her message to me is most convincing -- race matters still, we cannot hand wave it away by just saying we just govern neutrally (if there is an injury, including racism, we need to take it into consideration to heal it) and it is not perversely racist to do otherwise. See, e.g., SCOTUSBlog summary of the plurality:
“It cannot be entertained as a serious proposition,” the opinion said, “that all individuals of the same race think alike.” But, it said, that assumption would have to be the “beginning point” if a court were required to analyze what government policies racial minorities believe to be in their interest.
Pursuing such an inquiry, Kennedy said, would “impose a high risk of inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms.” Moreover, he said, courts would have to determine “the policy realms in which groups — groups defined by race — have a political interest.”Compare this to the Seattle case the plurality limits:
That process would lead to “racial antagonisms and conflict,” according to the Kennedy analysis.
In effect, then, the charter amendment served as an "explicitly racial classification treating racial housing matters differently from other racial and housing matters." This made the amendment constitutionally suspect: "the State may no more disadvantage any particular group by making it more difficult to enact legislation in its behalf than it may dilute any person's vote or give any group a smaller representation than another of comparable size." [cites omitted]There is no need to assume all blacks, men/women or whatever group in question think alike here. The concern is a specific group is being treated differently, no matter whatever a majority vote of their local community (with them contributing as individual voters) think. Sotomayor et. al. remind that certain groups have a history etc. that warrant particular concern here -- a measure concerning (targeting?) race is different from let's say occupational experience. What "demeaning stereotypes" are required here, exactly? It's ironic that a measure -- assume this was done constitutionally if you like -- selectively limits local decision-making and makes it selectively hard to change it by particular personal characteristics influenced by strong held beliefs about such questions and being wary is somehow "divisive" or something.
Perhaps, it boils down to me understanding why it might not be time yet to trust local political majorities to do this for certain groups at least without providing an extra level of scrutiny ("special vigilance") to such behavior. Kennedy's usual non-responsive majority is rather telling here.
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