February 21, 2012

Supremes Signal End to Affirmative Action?

Below, Curt Levey discusses the legal and political implications of the Supreme Court’s decision today to hear Fisher v. University of Texas, involving the constitutionality of racial preferences in university admissions. Levey, CFJ’s Executive Director, was one of the Center for Individual Rights attorneys who represented Barbara Grutter and Jennifer Gratz in the University of Michigan cases in which the Court upheld the diversity rationale for race-based admissions:

The Supreme Court’s decision to review the University of Texas’ race-based admissions system ensures that racial preferences will be on the front burner in the 2012 elections. As I explained in an October 3, 2011 op-ed in The Hill, the lineup of cases asking for Supreme Court review would “likely … focus[] Americans on several of the nation’s most emotional and divisive issues … at the perfect time to influence the 2012 election.” What was likely has now become certain. For the third time this term, the Court has introduced a controversial issue into the 2012 elections by agreeing to review a case that tees up the issue.

Unlike the other two cases, involving ObamaCare and Arizona’s immigration law, Fisher won’t be decided before the election. But it will be argued before the Justices so close to the election – a few weeks before or after – that it’s sure to be part of fall campaigns.

And that’s on top of the precariousness of the Supreme Court’s ideological balance, which alone is enough to make the Court a big issue in this election. As I further explained,

“The ages of several Supreme Court Justices and the closely divided makeup of the Court means that its ideological balance – and with it, the fate of gay marriage, abortion, illegal immigration and the like – could swing wildly in either direction after 2012.”

While today’s decision will inevitably impact the election, the direction of the impact is not completely clear. Americans overwhelmingly oppose racial preferences, as indicated both by the passage of anti-preference ballot initiatives in the blue states of Michigan, California and Washington and by numerous polls. For example, a 2009 Quinnipiac University Poll found that Americans by a two-to-one margin “oppose affirmative action programs that give preferences to [blacks or Hispanics] in hiring, promotions and college admissions” (61% opposed and 33% supported preferences for blacks; 29% supported preferences for Hispanics).

Given public opinion, shining a light on the affirmative action issue would seem to hurt Democrats, who are associated with promoting and defending racial preferences. However, Republicans have often been hesitant to capitalize on the issue and supporters of preferences have traditionally been more motivated by the issue.

Moreover, President Obama will be happy to remind minority voters that his re-election is the only thing that can turn around the Supreme Court’s increasing suspicion of racial preferences. Thus, Fisher could turn into a political plus for Democrats at the polls if Republican candidates remain silent on the issue.

Turning to the likely legal impact of Fisher, UT-Austin’s proven success in achieving racial diversity using non-race-based methods – most notably, the Top Ten Percent Plan – gives the five center-right Justices who are suspicious of preferences a perfect opportunity to, at very least, narrow their use without denying the importance of diversity. As I said in a 2004 law review article following the Grutter and Gratz decisions:

“[S]chools that have already achieved diversity through race-neutral means will have a very hard time defending a return to race-based policies. … [B]y UT-Austin President Larry Faulkner's own report, black and Hispanic enrollment recovered fully and minority academic performance increased at his flagship college after race-neutral methods were substituted for race-based admissions following Hopwood v. Texas. Faulkner may soon have to explain to a court why he decided to reintroduce race despite this success.”

Since Justice Alito replaced Justice O’Connor in 2006, it’s been even clearer that the University of Michigan decisions would be a high water mark for supporters of race-based admissions. It is hard to say whether the Court will use Fisher to overturn those decisions and completely eliminate the diversity rationale for affirmative action in admissions. That’s probably up to Justice Kennedy. But the Supreme Court did not take the Texas case to leave the legal state of race-based admissions untouched, and any change in the rules laid down by Grutter and Gratz will be a setback for those who favor explicit racial preferences over race-neutral means of achieving diversity.


February 13, 2012

CFJ Briefs in ObamaCare & Arizona cases

Today, the Committee for Justice submitted an amicus (friend of the court) brief in each of the two biggest cases before the Supreme Court this term, the ObamaCare case (HHS v. Florida) and the Arizona immigration case (U.S. v. Arizona).

In the Arizona case, CFJ joins with its co-amici – the Center for Constitutional Jurisprudence, the Individual Rights Foundation, Congressmen Ed Royce, Ted Poe and Tom McClintock, and Indiana State Senator Mike Delph – to urge the Supreme Court to uphold Arizona’s immigration law, SB 1070, against the Obama Administration’s claim that it is preempted by federal law.

Our brief explains that the Administration “has presented the startling and unsupported argument that the President has unilateral authority to preempt state enactments that may cause conflict with the President’s enforcement priorities” – in this case, the President’s decision to under-enforce the immigration laws enacted by Congress. To the contrary, the Supreme Court “has consistently held that the Constitution assigns plenary power over immigration policy to Congress, not the President.”

Our brief reminds the Court that it “has maintained a presumption against preemption when analyzing preemption challenges pertaining to an area of law traditionally occupied by the states.” One such area is the states’ “broad right to protect the public health, safety and welfare of their citizens,” which is precisely what SB 1070 addresses. And to the extent that it addresses immigration policy, the “Arizona law expressly follows congressional policy—and indeed mirrors the provisions of the federal law.”

We also remind the Court that much more than immigration policy is at stake in this case – specifically, “Arizona’s SB 1070 must be upheld if state sovereignty is not to be undermined.” We conclude that

“In order to preserve the functions of our federalist system identified by this Court …, this claim of Presidential power to override sovereign police powers of state governments must be rejected.”

The Congressmen on our amicus brief are from states – Texas and California – that have been severely impacted by the federal policy of under-enforcing U.S. immigration law, the very policy that the Obama Administration now argues preempts Arizona’s attempts to enforce U.S. law. The state senator on the brief, Mike Delph, authored a law that addresses the illegal immigration problem in Indiana.

Regarding the Committee for Justice’s interest in the case, the brief explains that “the system of federalism established by the United States Constitution, including the twin principles of enumerated federal powers and protection of state sovereignty” is central to the rule of law and thus to CFJ’s mission. “Both of these principles will be weakened if the decision below is allowed to stand.”

The same principles are at stake in the ObamaCare case, in which CFJ joins with its co-amici – a bipartisan group of 333 legislators from 17 states and 13 think tanks and public interest law firms dedicated to advancing individual liberty, including the Cato Institute, Pacific Legal Foundation, and Competitive Enterprise Institute – to urge the Supreme Court to strike down the individual insurance mandate as unconstitutional.

Our brief reminds the Court that

“[The Constitution] gives Congress only certain legislative powers … and the Tenth Amendment emphasizes that all other powers remain with those who breathed life into the new government in the first place: the sovereign ‘people of the United States.’”

Specifically, we argue that “there is no constitutional warrant for Congress to force Americans to enter the marketplace to buy a particular good or service” – in this case, health insurance. The Constitution’s Commerce Clause does not allow Congress to “compel someone to engage in commerce, even if it purports to do so as part of a broader regulatory scheme.”

Because “what Congress is trying to do here is literally unprecedented, as recognized even by the lower courts that ruled for the government,” the implications of upholding ObamaCare are far-reaching and disturbing. Our brief explains that

“Upholding the power to impose [such mandates] ‘would fundamentally alter the relationship of the federal government to the states and the people; nobody would ever again be able to claim plausibly that the Constitution limits federal power.’ (quoting Ilya Shapiro) … Unless this Court wishes to make federal power boundless — a result contrary to the Constitution’s text, structure, and history — it should affirm the judgment below [that the individual mandate is unconstitutional].”


February 07, 2012

9th Circuit's Gay Marriage Decision

We considered trying to make sense of today’s nonsensical Ninth Circuit decision striking down Proposition 8, California’s voter-approved ban on gay marriage, but quickly realized that was futile. Instead, we decided to peek behind the nonsense and figure out what really goes on in the minds of Ninth Circuit judges. With quotes from today’s opinion, here’s our best guess at what the 9th Circuit was really thinking when it struck down Prop 8:

What the 9th Circuit said today:
There is no “legitimate reason for the passage of” Proposition 8.

What the 9th Circuit was really thinking:
If California voters don’t agree with us, they must be irrational.

9th Circuit: “Proposition 8 serves no purpose … other than to lessen the status and human dignity of gays and lesbians in California.”

Really thinking: Not only are the California voters who approved Prop 8 irrational, they’re also mean and homophobic.

9th Circuit: “Broader issues have been urged for our consideration, but we adhere to the principle of deciding constitutional questions [narrowly].”

Really thinking: Let’s face it, this is all we can get away with for now. Even Justice Kennedy isn’t willing to pretend that there’s a broad constitutional right to gay marriage hidden in the Constitution.

9th Circuit: “The People may not employ the [ballot] initiative power to single out a disfavored group for unequal treatment.”

Really thinking: Yeah, we know that the people of California singled out only the wealthiest 0.1 percent of Californians for a tax increase when they passed Proposition 63 in 2004, but it’s okay to single out bad people.

9th Circuit: Denying marriage to gay people is obviously bigoted because “under California statutory law [governing civil unions], same-sex couples had all the rights of opposite-sex couples.”

Really thinking: Heads we win, tails you lose. If the California statute hadn’t given same-sex couples “all the rights of opposite-sex couples,” we’d have struck that down too.

9th Circuit: “The Constitution simply does not allow for ‘laws of this sort.’”

Really thinking: When discovering new constitutional rights not grounded in the text or precedent, it’s always a good idea to cite nebulous propositions as support.

9th Circuit: “Were we unable, however, to resolve the matter on the [narrow] basis we do, we would not hesitate to proceed to the broader [gay marriage] question.”

Really thinking: We realize that the Left was hoping for broad gobbledygook, and we hope they don’t think less of us for giving them narrow gobbledygook.

9th Circuit: Before the passage of Proposition 8, “the California Constitution guaranteed the right to marry to opposite-sex couples and same-sex couples alike.”

Really thinking: Let’s hope no one notices that 1) the only thing the California Constitution has ever said about same-sex marriage is that it’s prohibited, and 2) the court-invented “guarantee” to the contrary lasted only the few months until the next election.

9th Circuit: “[T]he right to be granted marriage licenses … symbolizes state legitimization and societal recognition.”

Really thinking: So we’re essentially holding today that the state has no business deciding what gets “state legitimization.” It’s a good thing judicial activists don’t have to make sense.