“Reverse Carolene Products” and the Political Process Doctrine

June 18

I’ve been thinking about the 1968 Supreme Court case of Hunter v. Erickson, the case in which the Court invented what has become known as the “political process doctrine.” Hunter invalidated a referendum that amended the Akron, Ohio city charter to overturn a fair housing Law, and required that any further such law be approved by referendum. Hunter held that by singling out a category of antidiscrimination laws as requiring a special form of approval, the referendum “places special burdens on racial minorities within the governmental process” and therefore constituted an impermissible government action taken with the intent to injure them.” Hunter played a key role in the Supreme Court’s recent decision in Schuette upholding Michigan’s ban on affirmative action preferences, accomplished through referendum.

For reasons expressed well in Justice Scalia’s concurrence in Schuette, the political process doctrine is extremely problematic. Scalia argues that the doctrine is “[p]atently atextual, unadministrable, and contrary to our traditional equal-protection jurisprudence.” According to Scalia, an equal protection challenge to a facially neutral law can only success if the plaintiff proves “[discriminatory] intent and causation.” Hunter should be overruled because the “Court neither found [that the referendum had targeted minorities] nor considered it relevant, bypassing the question of intent entirely, satisfied that its newly minted political-process theory sufficed to invalidate the charter amendment.”

So what can be said for the political process doctrine as depicted in Hunter? (The later, broader version espoused in the 1982 Seattle School Dist. case is a separate matter; I doubt that one is defensible). Here’s my take.

One possible defense is that the doctrine serves as a sort-of “reverse Carolene Products.” Footnote 4 of that 1938 case famously suggested that the Court should engage in strict review of legislation is the product of “prejudice against discrete and insular minorities… which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.” Carolene Products made sense in 1938, when African Americans were largely concentrated in the American South and were largely disenfranchised there, Asian immigrants were not permitted to become citizens, and other groups faced persistent gerrymandering to limit their political influence.

Nowadays, however, despite controversies over voter ID and the like, minority groups are well represented in the political process. And modern public choice theory teaches us that so long as they are able to participate fully in the political process, “discrete and insular minorities” often have a significant political advantage compared to a dispersed and disorganized majority, especially when it comes to issues of particular interest to the minority group. Of course, additional factors come into play in various situations, but there is no a priori reason to assume in the contemporary United States that members of a racial minority are disadvantaged in the political process with regard to any particular issue. Indeed, the very persistence of racial and ethnic preferences in the face of strong overall public disapproval, but much greater support from African Americans and Hispanics, could be seen as contrary evidence, at least in that especially relevant context.

Therein lies the possible rub. Minority groups, especially if they are isolated from the rest of the country (via housing and school segregation, low rates of intermarriage, and the like), as African Americans were in 1968, have a significant disadvantage in the legislative process. The majority, even a non-prejudiced majority, may not take their interests fully into account in the legislative process. Out-of-sight, as they say, is out of mind. This disadvantage, however, is balanced out by the fact that an isolated minority group has significant advantages in organizing itself regarding issues of special interest to that group. Like other organized interest groups, from the Sugar Lobby to AIPAC to realtors, it can then use those advantages to secure legislation in its interest, by itself or in coalition with others who share its interests or its ideological goals.

Referenda–which inherently disperse the advantages of concentrated interest groups–invalidating such victories and making it more difficult to achieve them again in the future short-circuits that process. If referenda establishing constitutional amendments to overturn ordinary legislation were common, one could argue that this is simply the way the political ball bounces. But they are (and were) not. And when African Americans and their political allies were able to secure fair housing legislation, and this was promptly overturned by constitutional-amendment-by-referendum, it’s not terribly surprising that the Supreme Court saw this as imposing an unconstitutional racial injury; it denied African Americans not only the opportunity to procure favorable legislation, but also denied them the ability to counter-balance the disadvantages they faced from prejudice or indifference in the political sphere with the advantages of being a “discrete and insular minority.”

Does that mean that Schuette was decided incorrectly? No. First, it’s not clear that any group in the U.S. is sufficiently isolated to justify reverse Carolene Products. Second, the referendum or other change to the ordinary political process still has to injure the groups at issue. Current Supreme Court precedent provides affirmative preferences by state institutions are allowed almost solely for the purpose of enhancing diversity in higher education. The diversity rationale arguably suggests that the main benefit of achieving a critical mass of minority students through affirmative action preferences is that it improves the education of the non-minority students. If white students benefit from “diversity” based preferences at least as much as minority students, there is no particular group being disadvantaged by Proposition 2′s ban on such preferences. In other words, Proposition 2 can’t be unconstitutional because it makes it more difficult for minority groups to lobby for benefits for themselves, given that, as Justice Scalia points out, if a public university defended a racial preference policy “on the ground that was designed to benefit primarily minorities … we would hold the policy unconstitutional.” But if reverse Carolene Products makes sense, it does mean that the political process doctrine, applied in a case like Hunter is far more defensible than Scalia would have it.

David Bernstein is the George Mason University Foundation Professor at the George Mason University School of Law in Arlington, VA.
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Orin Kerr | June 18