UncertainJustice

Equality is an explosive principle on the Roberts Court. In cases about school desegregation, voting rights, affirmative action, and same-sex marriage, the justices have engaged in bare-knuckled fights over what the Constitution means by “equal protection of the laws” and what role they — rather than the democratic process — should play in bringing about that substantive vision of equality. More than in most areas of law, these debates have turned personal, as justices on the left and right have mixed their own experiences with principle and precedent to produce extraordinary opinions.

In Chapter 1 of Uncertain Justice: The Roberts Court and the Constitution, Joshua Matz and I tell this fascinating story, offering a guided tour of the biographies, doctrine, and fundamental principles at stake in this Court’s rulings on equality. The chapter is subtitled “Are We There Yet?” in order to reflect the striking degree to which the justices inscribe their opinions within what they believe to be the arc of history required by the Constitution. As we show, the justices disagree at a deep level about how far we have come and where we should be going.

In this post, I’ll talk briefly about just a few of these cases, focusing mainly on race and offering a brief thought about same-sex marriage.

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In 2007, the Court issued a landmark opinion on the modern meaning of Brown v. Board of Education, the case in which the Court famously struck down “separate but equal” segregated schools. Parents Involved in Community Schools v. Seattle School District No. 1 struck down, over a furious dissent by Justice Stephen Breyer for the four left-leaning justices, plans voluntarily adopted by two local school boards to achieve a measure of racial integration at a time of sharply rising racial re-segregation in our public schools.

Chief Justice John Roberts wrote the majority. Although he usually favors narrow rulings, he makes an exception for race cases, which have led him to produce a string of grand statements of uncompromising principle. That principle is, at first glance, straightforward: as he put it in Parents Involved, “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In his view, the Constitution is colorblind and tolerates no government use of racial classification — even when the goal is to benefit minorities.

Boldly claiming Brown’s mantle, Roberts insisted in Parents Involved that “history will be heard.” As he saw it, Brown was not about “the inequality of the facilities but the fact of legally separating children on the basis of race.” The school districts at issue had therefore violated Brown’s core holding: “Before Brown, school children were told where they could and could not go to school based on the color of their skin. The school districts in these cases have not carried the heavy burden of demonstrating that we should allow this once again — even for very different reasons.”

Roberts’s opinion in Parents Involved fully manifested his unyielding hostility to race-conscious government action, whatever its purported justification. He sees little room for democratic process in race cases, unless that process has resulted in a denial of “special” protections for minorities, and wields judge-crafted constitutional law without reservation in striking against “benign” race-based measures. He believes America has moved far enough past its tragic legacy of racism that special measures supposedly justified by that inheritance are no longer tolerable, and that race-conscious laws do little more than painfully divide the American people along forbidden racial lines.

This same mindset was on full display in Roberts’s majority opinion in Shelby County v. Holder, a case invalidating a key part of the Voting Rights Act — the crown jewel of the civil rights movement and the main federal legal protection for minority voters in the South.

Justice Clarence Thomas wrote separately in Parents Involved to emphasize the heavy price on minorities of even well-intentioned race-conscious measures. As he explains in his autobiography, Thomas is wary of blacks “being offered up as human sacrifices to the great god of theory.” He thus remembers watching with horror as black children were bused into South Boston in the early 1970s, a time when “I wouldn’t have gone to South Boston” because “it would have been taking my life into my hands for me to do so.”

Perhaps drawing on those experiences, in Parents Involved, Thomas directly compared modern-day liberal integrationists to Jim Crow-era segregationists. “What was wrong in 1954 cannot be right today,” he declared, adding that “if our history has taught us anything, it has taught us to beware of elites bearing racial theories.” Thomas has repeatedly expressed similar views in affirmative action cases, castigating the Court for its unwillingness to take race-based affirmative action entirely off the table.

In these cases, Thomas spends little time talking about his usual focus, original public meaning. Rather, he focuses mainly on the principles set forth in Brown — a choice likely attributable to the fact that strong historical scholarship suggests that Americans in the 1860s understood the 14th Amendment to be compatible with suitably designed benign race-conscious programs. Like Roberts, Thomas also shows little interest in the political process: This is not an area of the law in which he sees much value in democratic deliberation.

Breyer, in contrast, wrote a dissent in Parents Involved that unabashedly celebrated democracy and embraced benign race-conscious laws. Rejecting the Roberts’s view of Brown, Breyer retorted that Brown “sought to bring into American society as full members those whom the Nation had previously held in slavery.” He added, “Those who drafted an Amendment with this basic purpose in mind would have understood the legal and practical difference between the use of race-conscious criteria in defiance of that purpose, namely to keep the races apart, and the use of race-conscious criteria to further that purpose, namely to bring the races together.” In Breyer’s view, Brown was about “true racial equality — not as a matter of fine words on paper, but as a matter of everyday life in the Nation’s democracy,” and thus Brown was “about the nature of a democracy that must work for all Americans.”

Cast in this light, Brown left a measure of room for a democratic choice about how best to achieve meaningful racial equality. Breyer invoked remedial, educational, and democratic interests to support the challenged programs, and warned against unduly self-certain judicial intervention: “I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems.”

Breyer’s emphasis on democratic solutions carried through to his opinion in the recent Michigan affirmative action case, Schuette v. BAMN. There, the court upheld a state amendment in Michigan banning race-conscious programs in public employment, education, and contracting.

Writing only for himself, Breyer explained that, while he believes that the Constitution allows affirmative action, it also “foresees the ballot box, not the courts, as the normal instrument for resolving differences and debates about the merits of these programs.” Faced with the claim that Michigan voters had impermissibly rigged the political process against racial minorities, he replied that the amendment had done no such thing: rather, it had moved control from “unelected university faculty members and administrators” to Michigan’s electorate. In his view, even to the extent prior cases called into question the propriety of such a move, they ran up “against a competing principle” that favors “decisionmaking through the democratic process.” He explained, “Just as this principle strongly supports the right of the people, or their elected representatives, to adopt race-conscious policies for reasons of inclusion, so must it give them the right to vote not to do so.”

Breyer’s celebration of democracy in Schuette did not move Justice Sonia Sotomayor, who wrote a powerful, controversial and widely-discussed dissent in which she warned of distortion of the political process. “To know the history of our Nation,” she warned, “is to understand its long and lamentable record of stymieing the right of racial minorities to participate in the political process.” Rather than lobbying universities or electing different officeholders, she explained, Michigan voters “changed the rules in the middle of the game, reconfiguring the existing political process in Michigan in a manner that burdened racial minorities.” As a result, she concluded, “there are now two very different processes through which a Michigan citizen is permitted to influence the admissions policies of the State’s universities: one for persons interested in race-sensitive admissions policies and one for everyone else.”

Sotomayor defended the court’s political process doctrine as a “crucial check on majority rule,” ensuring that the minority gets to “play by the same rules as the majority.” She also offered a forceful, personal rebuttal to the right-leaning justices’ oft-repeated insistence that we have come far enough past racism that we need not take account of it: “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. 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.’”

On this view, Sotomayor concluded in a direct swipe at Roberts, “the way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.”

Anthony Kennedy has walked the most complex path of any justice. In Parents Involved, he rejected the Roberts’s insistence on colorblindness, but still voted to strike down the integration plans. Although he accepted that schools may aim to achieve integration, he demanded that they do so by making as little use of race as possible. Thus, they may not classify individual students based on race, but may account for race in deciding where to build schools or recruiting faculty. As he explained, “The idea that if race is the problem, race is the instrument with which to solve it cannot be accepted.”

A few years later, in the affirmative action case of Fisher v. University of Texas at Austin, Kennedy followed a similar course: He rejected absolutist calls for colorblindness and recognized that diversity is a compelling interest, but insisted that courts carefully scrutinize the means chosen by universities to achieve racial diversity. If universities can use proxies for race — e.g., class and geography — then they must do so. Race-conscious admissions must be a last resort, justified under strict scrutiny as the only method of achieving diversity.

In neither Parents Involved nor Fisher did Kennedy display much concern for democratic process; both opinions reflect a muscular use of judicial power and confidence that these matters are principally the domain of judge-made constitutional law. In Schuette, however, writing for a plurality to uphold the amendment, Kennedy unabashedly celebrated democracy: “Michigan voters used the initiative system to bypass public officials who were deemed not responsive to the concerns of a majority of the voters with respect to a policy of granting race-based preferences that raises difficult and delicate issues . . . Our constitutional system embraces, too, the right of citizens to debate so they can learn and decide and then, through the political process, act in concert to try to shape the course of their own times and the course of a nation that must strive always to make freedom ever greater and more secure.”

Ultimately, these rulings seem driven more by substantive visions of equality than by faith in democracy. The right-leaning justices celebrate democracy when it rejects affirmative action, but show little regard for it when democratic process results in integration programs or affirmative action (or reauthorization of the Voting Rights Act). The left-leaning justices are harder to categorize, due in part to recusals by Kagan and Sotomayor’s short time on the bench. Breyer has adhered with striking consistency to faith in the democratic process. Sotomayor, in contrast, has displayed skepticism that the democratic process can be trusted to protect racial minorities — or even to give them a fair shake in the process itself. Justice Ruth Bader Ginsburg joined Sotomayor’s Schuette dissent and also dissented in Fisher, suggesting that she is of a similar mind. While the left-leaning justices presumably would not judicially require affirmative action or integration, and are in that sense respectful of democratic choices, their view of when judicial intervention is required is shaped by a substantive view of which groups require protection in American life.

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It would therefore be ill-advised for casual readers of these opinions to make too much of the justices’ language celebrating or denigrating democratic process. Substantive beliefs about equality are the principal driver here. That is why Justice Antonin Scalia, for instance, could pen a celebration of democracy in Windsor (the Defense of Marriage Act case) while standing with one foot planted in the freshly-dead corpse of the Voting Rights Act (and while urging the court to invalidate all school integration and affirmative action programs). And it is why Roberts, who otherwise seems genuinely to care about democratic process (as shown, for instance, by his ruling in the Health Care Case), gives it virtually no respect in race cases, unless democracy happened to produce a conservative outcome.

This lesson is particularly important for the same-sex marriage context. Quite a few commentators have ripped some of Kennedy’s comments in Schuette about democratic process out of context and insisted that they support bans on same-sex marriage. Not so. In equality cases, general language about democracy is mostly just rhetoric. The respect it appears to embody almost invariably dissipates when the substance of the legislation under review collides with where any given justice thinks the Constitution impels us. For that reason, Windsor’s potent comments about the origins and nature of hostility to marriage equality, and about the denial of dignity such hostility effects, tell us much more about the future of marriage equality than anything in Schuette.