Monday, October 1, 2012

Supreme Courtin' It

There’s a lot of buzz suddenly about the Supreme Court possibly changing the course of the election. The thinking is that with the Supremes about to hear several controversial cases right before the election, that could excite one side or the other to turn out. Uh... no. Few people connect the Court to the election. Moreover, the Court won’t be issuing rulings until after the election. Still, there are some interesting cases coming up.

Case No. 1: Affirmative Action. Fisher v. U. of Texas is an affirmative action case arising out of the admissions program at the University of Texas. Texas uses race as a consideration in its admissions to ensure educational diversity. Nine years ago, in Grutter v. Bollinger, the Supreme Court said this was acceptable, but the Court has since moved to the right.

When it was originally created, affirmative action was approved by the Court on the basis that it would involve discrimination in favor of certain groups to address “prior wrongs.” This meant, it could be used only where there had been prior discrimination. This was meant to justify discriminating against people who never discriminated themselves because supposedly their racial/gender group had benefited even if they hadn’t. Over time, however, it spread to virtually everywhere, and it got the point that it applied to more than 60% of the public including people who had just arrived in America. That’s when the Court began reining it back in.

In this case, Fisher, who is white, claims that she would have been admitted to the school if she had been any other race. Texas counters that diversity is important to them. Obama’s Justice Department has backed the University.

It’s not clear what the Court will do, though Justice Roberts has attacked affirmative action in the past as being “a sordid business, this divvying us up by race.” Kennedy, Scalia and Thomas all opposed the Grutter case allowing race to be used at all, and Alito likely sides with them. So it’s possible the Court will end the use of race in admissions and hiring, or at least require proof of direct discrimination. That said, they could also rule much more narrowly by saying that race may not be used where a goal like diversity can be achieved through some race-neutral means (like taking the top X% of high school graduates within the state or looking at family income). Or they could just affirm the present order.

Case No. 2: Gay Marriage. The Supreme Court is likely to take on two gay marriage cases. The first involves the Defense of Marriage Act (DOMA). DOMA defines marriage federally as between a man and a woman and denies around 1,000 federal benefits (tax breaks, social security benefits, burial services, etc.) to gay couples who have been legally married in their home states. Obama’s Justice Department has refused to defend the law and several lower courts have already ruled it unconstitutional. How the Supreme Court will rule is unclear, but I suspect they will strike DOMA down.

In the past, the Supreme Court has overwhelmingly struck down laws which denied gays the same rights and protections afforded to heterosexuals. In Lawrence v. Texas in 2003, the Court struck down a law making gay sex illegal. In Romer v. Evans in 1996, the Court struck down a Colorado amendment which banned the passage of gay rights laws. It’s likely that the Court will conclude that DOMA illegally discriminates between lawfully married couples and will strike it down.

The Court may also take on the more significant Hollingsworth’s case, which involves California’s Proposition 8, which banned gay marriage in California. Prop 8 was struck down by the Ninth Circuit on narrow grounds rather than on the basis of some right for gays to be married, but the practical effect of that ruling would be to allow California to go forward with gay marriage.

The Supreme Court could refuse to hear the case (deny cert) in which event the law would remain struck down. Or it could affirm the decision or overturn it. If I had to guess, I would say the Court avoids deciding whether or not there is a right for gays to marry and will instead find some technical reason to affirm or overturn the Ninth Circuit’s ruling. My guess is that ultimately (in some later ruling), the Supreme Court will affirm the right of the states to make up their own minds on the issue of gay marriage, and in anticipation of that ruling, it will stick very closely to making sure that each side complied with California’s legal process in this case. Thus, whichever side should have won under California’s election/legislative process will prevail. . . but the issue won’t be decided under the United States Constitution. But you never know.

Case No. 3: Voting Rights Act. In 2006, the Congress extended the portion of the Voting Rights Act which requires state and local governments “with a history of discrimination” to get advance approval from the Justice Department before they can change their voting rules. Congress extended this law 25 more years and Bush signed it. It applies to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as some counties in California, Florida, New York, North Carolina, South Dakota, Michigan and New Hampshire.

When the Court reviewed this provision in 2009, it expressed significant skepticism, but did not rule on its validity at the time. Said Justice Roberts:
“We are now a very different nation [than the one that first enacted the Voting Rights Act]. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
With Congress renewing the law but without making any changes, and with these states arguing that any discrimination was in the distant past, it’s likely that if the Court hears this case that it will strike down or significantly narrow this provision. The practical implications of this can be seen in things like the recent Voter ID laws, which essentially need Justice Department approval or need to be litigated in advance. Without this provision, states would be much more free to pass these law and would no longer be presumed to have discriminatory intent.

Thoughts?

55 comments:

K said...

I was originally in favor of affirmative action for blacks as an emergency short term tactic to help kill the cancer of segregation and ghettoization. Due to the last 30 years of AA, this is now a much stronger country than before.

That being said, I also can not think of a better way of keeping racism and hate alive than to continue what amounts to government enforced racism for any longer. It requires the victims to be made keenly aware of their victim status - thereby creating hate on their side - and makes victims of those who are being actively discriminated against.

In addition, it has become a corrupt form of political patronage - extending to as many "victim" classes as possible to buy votes for a certain political party which shall remain obvious.

Patriot said...

Andrew......I am not a Constitutional expert. How does the Constitution apply when states continue to vote these ideas down, yet the courts continue to invalidate them? I'm thinking of these "Propositions" that overwhelmingly pass on gay marriage, affirmative action, etc. This sure looks to me like true Democracy when the people speak. I know we are a Constitutional Republic, with Representatives in Congress who pass laws, but surely the will of the people is being overruled when the courts strike these Propositions down isn't it?

(Just don't call me Shirley)

Tennessee Jed said...

just guessing here, but 1) further erode affirmative action on relatively narrow grounds. 2) uphold gay marriage 3) they will significantly narrow the provision of the voting rights act rather than strike it down in full.

tryanmax said...

Very interesting, but I agree with the initial assessment that voters overall don't connect elections to the Supreme Court. Talk radio has done something to correct this but it hasn't created a monolithic set of voters because of it.

The buzz over the SC is part of a broader effort to create buzz over almost anything besides Obama's presidential record. Suddenly, this election could turn on any number of things omitting that one. Why, suddenly the MSM is cautioning that Obama--once the Democrats' "great communicator"--just isn't that good of a debater. But let's leave that for discussion on/after Wednesday. And TIME just ran a cover story (that I have yet to read) on Mormonism. It's clutching at straws time, and the left knows it.

AndrewPrice said...

K, I can see the initial purpose. If you have a class of people who were wrongfully excluded from society, then it makes sense to open the doors and let them in. But once you start talking 1-2 generations down the line, then it becomes a real problem for me. And at this point, it really is nothing more than a racial/gender spoils system which bares no relationship to the actual effects of discrimination.

And you are right, it breeds racial resentment in those who are now discriminated against, plus it causes all the achievements of those who are part of the protect group to be discounted, and in my experience, it keeps the protected class from needing to learn the skills it takes to succeed because they have extra protection against being fired. At this point, it hurts them more than it helps them.

AndrewPrice said...

Patriot, The Constitution is the supreme law of the land and nothing beneath it (Congress, President, states, voters) may violate it. So if the Court determines that a piece of legislation or a voter initiative goes beyond what is allowed by the Constitution, then the Court can strike it down whether the people want it or not. Otherwise, the Constitution would be meaningless as people could just invalidate it by majority vote.

Think of it in less controversial terms. Imagine if the people voted on an amendment that said that from now on you needed the government's approval to speak about politics. Sure, the majority wants it and maybe even the Congress passed it after the states did, but the Constitution forbids infringements on free speech. Thus, it gets struck down. And if the people really want it, they need to amend the Constitution to allow it.

AndrewPrice said...

Jed, That would be my guess too, though I don't think they will find a right for gay marriage. I think they will allow this to forward on the basis of California law and will push the issue off. Then I think in the future, they will hold that each state much accept marriages performed in other states, which means de facto gay marriage. If they ever go further after that, I'm not sure.

AndrewPrice said...

tryanmax, I saw that but didn't read the article. I think your assessment if right, they are looking for anything other than Obama's economic record -- which is miserable. They know they need to distract people from the economic aspect of things because that's a sure loss for Obama, so they are trying foreign policy, various "scandals", personalities, attacking Mitt's religion, polls, etc. ... anything but economics.

T-Rav said...

Yeah, I had a hard time figuring out how these cases would "have an impact on the election," as the news was saying. Affirmative action and gay marriage? Big deals, of course, but I'm not sure who's going to make up their mind on who to vote for based on them alone.

Anyway, I'm not even going to try and predict how these cases will turn out. With Benedict Roberts as Chief Justice, nothing's predictable anymore.

AndrewPrice said...

T-Rav, I think that's right. I doubt people will make their minds up just on that, especially since they won't be decided before the election -- so there is no lightening rod opinion -- and people don't really connect the elections to the court.

It is incredibly difficult to predict how the Court will rule, but it's worth guessing to help people see the possibilities. And if things go as expected, then these three decisions could ultimately prove to be quite significant in the long term.

DUQ said...

Excellent analysis Andrew. I think that ending affirmative action would go a long way to finally breaking up this idea that we need to see people through their ethnic or gender groups and that would be good the country.

DUQ said...

By the way, I wish these Republican idiots would stop running around talking about Romney's campaign failing! How does that help? And then that jerk Schwarzenegger said today that he's not sure how he'll vote?!! Seriously??!

K said...

Andrew: Not only does AA keep the protected group from having to measure up, it keeps the problem from being solved. Right now, men, who are under performing women in k-12 are being affirmative actioned into college to keep the ratio closer to 50-50. This keeps the actual problem of why men are doing badly vis a vis women from actually being addressed with any urgency while giving all groups a vested interest in accepting a de facto quota system.

LawHawkRFD said...

Andrew: I think the Supreme Court will reverse the Ninth Circuit on the gay marriage issue. The California Supreme Court carefully reviewed state and federal constitutional provisions, and found no violation. It may also pay deference to the concept that the California law is constitutional on adequate independent state grounds, a rule which has been in disrepair until recently. I'm guessing that the Court will find that the Constitution makes no provision for marriage, and therefore the issue remains properly with the states. All of this makes an assumption I make very nervously, and that is that Roberts hasn't actually had some sort of "living Constitution" epiphany which would allow him to find that marriage is a fundamental human right, a matter not contained in the Constitution but very popular with foreign jurisdictions.

I think they will also narrow affirmative action even further, perhaps simply declaring that it simply no longer serves any legal or constitutional purpose.

VRA has to go. The Supreme Court might find that the Act, as currently amended, simply delegates too much power to the Justice Department to determine what comprises voter discrimination.

And I agree, as important as these issues are, I don't think they'll have much effect on the election.

AndrewPrice said...

Thanks DUQ! I think that both the affirmative action and the Voting Rights Act case have the potential to really reshape race relations in the US for the better.

AndrewPrice said...

DUQ, I saw the Arnold quote and I can't believe what for a disloyal ass he is! The beef with Romney in the MSM is that he's "too moderate," and if Schwarzenegger can't support him, then he's not at all loyal.

AndrewPrice said...

K, That's true. It is a system that basically keeps people from addressing problems. And it smears entire groups and denigrates their accomplishments. Plus, it keeps group animosity up because it makes people fight for groups rights. You couldn't design a more insidious system.

T-Rav said...

DUQ, I made the same complaint last night. And I would extend it not only to Ahnuld but to those who are "admitting" that Romney's "not doing too well" but can still turn it around. No, no, no, do not go on defense. The campaign needs to be on a relentless offense. Talk like this is counterproductive and deflates enthusiasm.

AndrewPrice said...

Lawhawk, I am honestly not sure which way they will go on California law, but I think that will be the controlling issue. I don't see them deciding anything under the Constitution at this point because I get the feeling they think this issue will resolve itself legislatively and they will wait for that.

I hope they decide affirmative action must go, but we'll see. This has been a particularly difficult court to read and it wouldn't surprise me if they went in any direction these issues. But I agree, it needs to go. There is no legitimate reason to put states under the watch of the Justice Department for actions they took 50+ years ago. All the people in charge then are dead and gone and the modern South is nothing like the old South.

AndrewPrice said...

T-Rav, I agree, the worst thing you can do in a political campaign is to run around telling everyone how poorly you've done and promising to do better. That makes people think you're a loser. Just make the improvements and avoid the admission. And everywhere I turn right now, it seems that someone new is saying "yeah, we sucked, but we'll get better." Please, stop!

tryanmax said...

Ugh! I too have had it with the defeatist Republican talk. "Too moderate"!?!? Where did that come from? I thought being moderate was what was supposed to win elections. Sheesh!

rlaWTX said...

I think Jed is right in his predictions...

Defeatist GOP - I think these talking heads may be the ones who want to stay in the cameras' eye more than they want to support the candidate - and know that being negative is the only way.

AndrewPrice said...

tryanmax, Me too. I'm sick of the defeatism. It's time people stopped undermining their own side!

The "too moderate" claim is the label dumped on Romney throughout the primaries. All the conservatives said he was too moderate and the moderates said he was the only one who can win. And now the RINOs are claiming he's not moderate enough for them to support him. Give me a break!

AndrewPrice said...

rlaWTX, I agree. I think Jed is most like right.

I agree about the talking heads too -- they want attention so they take contrary positions no matter what because it lets them get noticed. I also think that some of them would be happy with an Obama victory because it makes their jobs easier. If Romney wins, they will need to learn policy rather than just write knee-jerk opinions.

In addition to them, however, right now there are a lot of Republicans running around telling anyone who will listen that Romney's campaign has been failing but they think it will get better. Gee, thanks.

DUQ said...

T-Rav, I apologized if I plagiarized your mind. :)

It's a great point though and it has me upset that every time I turn around some Republican is downplaying our side and making us sound like fools. Grr.

Doc Whoa said...

The defeatism drives me crazy too.

Doc Whoa said...

On the article, what is the Voting Rights Act? I hear it all the time, but what does it really do?

ellenB said...

Andrew, Excellent breakdown. I saw a couple articles on this, but they weren't really heavy on details so I wasn't sure what it meant. nice work!

Individualist said...

My problem with AA is the Thomas Sowell argument that it hurts and does not help the minority group that is supposed to benefit from it.

As to the voting rights act this is really the "stop voter fraud" act and the people standing in its way want to allow the fraud to continue. not having to have some form of picture Id to vote is just silly.

Individualist said...

As to gay marraige this issue is less clear. there are things I agree with such as being able to sign up for benefits that make sense.

Despite this I beleive that a union between homosexuals and a union between man and woman are inherently different. Especially with regard to determining things like custody of children and the rights of biological parents compared to the rights of homosexual spouses of a biological parent.

I think the law needs to maek this distinction which is why I think there should be civil unions but they should not be defined as marraige.

AndrewPrice said...

DUQ, Don't forget, that's also because the media is choosing to put those statements all over the front page. This isn't just the Republicans, though they are the underlying problem.

AndrewPrice said...

Doc, The Voting Right Act was the act put into place during the Civil Rights Movement to eliminate discriminatory practices that were meant to keep blacks from voting -- like IQ tests for voters. It also does things like banning districts meant to keep minorities from getting elected -- though this has switched over to allowing the creation of specific minority districts.

AndrewPrice said...

Ellen, Thanks! I saw the AP article on this, which is probably what you saw, and it was very basic. I'm glad you approve. :)

AndrewPrice said...

Indi, My problem with affirmative action is the idea that it's ok to discriminate against people who have never discriminated to help people who have not been the victims of discrimination just because of their races. I find that morally repugnant.

I understand it originally where it was meant to right actual discrimination and to make up to people who were victims of that discrimination even if they couldn't be specifically identified. But to keep that going decades and generations later is simple racism in my book and promotes racial separatism.

AndrewPrice said...

Indi, What you're talking about in terms of gay marriage are social science questions and the Supreme Court rarely relies on those to make its decisions. In fact, Roe v. Wade is probably the one truly famous instance where they did. Instead, they normally look at the law itself and they leave the "why" to the legislature. And when it comes to discriminating between classes of people, the state typically needs to show a pretty compelling justification. I don't think they can do that in this case, especially if the state allows civil unions which are basically marriage without the name because that wipes out all the social science questions.

ellenB said...

You're very welcome. Thanks for the informative article.

As for Arnold, shouldn't he disappear somewhere in shame now?

AndrewPrice said...

Ellen, You would think so, but apparently not. I guess when you're an egomaniac, nothing you do is ever that wrong.

ScyFyterry said...

It would be nice if the Supreme Court took bold steps on the two race issues. I think that we need to suck the venom out of the race issue in this country and getting the government out of pushing the idea that racism is alive and well and needs to be controlled by the government would go a long way toward that.

I don't really have an opinion on the gay stuff. Like you said a while back, I think it's inevitable, and I don't have a problem with it, so why fight it? Just pass it and get it overwith.

AndrewPrice said...

Terry, It would be nice if they did clear some of this out rather than keeping it on life support by just trying to narrow the tests each time. All they end up doing is encouraging people to come up with other strange policies that distort the admissions process.

I agree with you about gay marriage. It's coming and I can't see the harm, so why fight it? Move on.

rlaWTX said...

The VRA also requires nearly every concept of voting be OK'd by the fed govt first for those hands-tied states. In today's political climate (southern states are Red, the fed gummit is bleu), this results in the states being held hostage by the feds. Ask me again how I feel about Holder...

(BTW since I find bleu cheese repugnant, that was intentionally not a compliment)

T-Rav said...

DUQ, I accept your apology. Good thing, too. I take mental plagiarism very seriously. ;-)

Anthony said...

AndrewPrice said...

Patriot, The Constitution is the supreme law of the land and nothing beneath it (Congress, President, states, voters) may violate it. So if the Court determines that a piece of legislation or a voter initiative goes beyond what is allowed by the Constitution, then the Court can strike it down whether the people want it or not. Otherwise, the Constitution would be meaningless as people could just invalidate it by majority vote.

--------
I'm not a lawyer, but from where I stand, creativity often (and to a point, inevitably) comes into play in SC rulings. Supreme Court justices seem to discover new rights all the time.

Its my pet theory that the stability comes not from a grounding in the Constitution but from the fact that SC justices, give a lot of weight to precedent (though they toss it out when it suits them), change only so often and are largely protected from public preassure (though they are creatures of their times who are aware of the debates that swirl around them).

I don't view the fact the justices seem to matter more than the Constitution as a terrible thing in all cases (unhappy about the SC discovering that it is cruel and unusual to give juvenile offenders sentences of life without parole, but I'm fine with Brown vs The Board) but it does seem to be a characteristic of judges no matter what idealogical hat they wear.

AndrewPrice said...

rlaWXT, That's true, those states basically need to ask permission to do anything in regard voting. It's a way to keep those states under the control of the Feds -- or hostage too.

I did notice your use of bleu. Very appropriate! Very French. LOL!

AndrewPrice said...

T-Rav, Don't we all take mental plagiarism seriously! It's the worst crime a person can commit, apart from every other crime. ;)

AndrewPrice said...

Anthony, This is sacrilege among conservatives, but I agree. I think with a few exceptions, the court has been very good at maintaining the Republic in good order by slowing introducing changes which the public wants right at the point where they become irresistible. And that keeps people from abandoning the Constitution or trying to change it so often that it becomes meaningless.

The problem is when the Court gets ahead of itself, like it did in the 1960s with Roe and some of the capital punishment cases. In those cases, it tried to push liberal ideas rather than ideas which the public was ready for. And that generated a massive backlash which resulted in decades of venomous politics.

AndrewPrice said...

Anthony, By the way, Brown is an interesting case which makes your point perfectly. The earlier court, "separate by equal" got it wrong. They blew their chance to set right a terrible wrong and that led to a lot of damage to the country. In Brown, the court fixed that.

BUT... notice something interesting about the ruling. When a court normally makes a ruling, it takes effect immediately. But the Brown court didn't do that. In other words, they didn't say "desegregate right now," they said "with all deliberate speed." Basically, they gave people a chance to get accustomed to the way things would be. That's another example of how they massage the public to make the change as stable as possible.

Also, Brown is another good example of how good laws lead to abuse. When you reach the point where the Denver, Colorado school district is being run by a Federal Court thirty years after Brown, and a Judge in Kansas City is ordering tax increases, then you've gone too far and the courts are pushing a good ruling to the point of backlash.

Individualist said...

Andrew

It is not a matter of compelling interest, it is a matter of what is the interest.

If a gay man is "married" to a spouse who dies and that spouse had child with another woman, what rights if any does he have. He may not have more rights that the biological nother but does he have some rights and if so what are they. Can it be argued he has none and would that be right.

Courts currently give a benefit to the mother over fathers (even though they say they don't. The way I look at it is that this has to be defined somehow. Otherwise I foresee a legal mess. I figure if it confuses me then it will create court battles somehwere down the line. would it not be better for there to be some kind of guidance and distinctions premade when that happens. Other than that i don't know.

AndrewPrice said...

Indi, All those kinds of issues are already defined in the law, though not always satisfactorily, and what changed need to be made will be made by legislatures or courts if the legislatures leave the issues undecided.

All the Supremes will really deal with at this point is whether or not gay marriage is allowable or required or neither. All the rest is really a matter for states to work out through their own legislatures and courts.

As for "the interest," that's not how appeals courts work. Courts don't decided, "this is what I think is important." They try to determine what is required/allowed under the law. That's their job. And then they push it back down to the lower courts to fill in the factual gaps. And things like social science, i.e. "this is what I think is important", almost never gets used to make law -- only to prove facts. But the gay marriage issue isn't about facts, it's about law.

Individualist said...

Andrew - the problem I see with AA is this.
suppose we ahve group A and Group B. B is the product of discrimination. We have a Widget manufacturer hiring widget builders. Widget building requires a certain level of competence.

The Widget company randomly hires from a select group based on their test performance. They find the select only 10% B but B is 20% of the population at large. They find out that B underperforms on the test because not that many of B were fortunate enough to attend widget building school.

So the label each application A and B and accept a lower standard for B. this alienates those of A but 80% of them get jobs so it is OK. Half of the B's hired however underpreform in the factory just as they did on the tests so the Widget Builder has to hire more workers to stay as prodcutive. The udnerperformers can't be fired but many find promotions harder because they never get trained since no one want to tell them they need training for fear of being labelled racist.

Then you have a group of people given jobs and ignored because their performance never matters and they never get challenged and more of them fail to move up in skill.

You tried hiring an extra 5 % and pretending the lack of skill did not matter but you would have done B as a group a better service by hiring the 10% that were qualified and given them the same opportunity to excel. Instead more than likely no one in the 20% get to excel because the label of being an affirmative action employee means their performance is ignored.

AndrewPrice said...

Indi, That's how I've seen affirmative action work as well. I've seen that it makes employers scared to hire minorities because they know they can't fire them. It means that minorities who would do great at College B end up being accepted at College A and find themselves near the bottom of the class and totally demoralized. It means no one is willing to tell minorities the same "hard truths" they tell non-minorities, i.e. "you just don't belong here" or "you need to work a hell of a lot harder."

And it causes the problems you mention. Not to mention that everyone then assumes that any minority who succeeds did so because of affirmative action -- I've heard a TON of female lawyers complain about this.

And those are certainly problems and a key reason why the policy needs to be ended.

But for me, the problem with the policy starts right at the beginning with the moral question of whether or not it should even be allowed at all.

T-Rav said...

Among the reasons not to be defeatist, a CNN poll has Obama up only 50-47 among likely voters....with a, er, D+8 turnout model.

(Rasmussen has come out and predicted a D+3 scenario, give or take a point.)

AndrewPrice said...

Interesting. I don't think I buy the D+3 scenario, but we'll see. I think it will more likely by 0 or R+1/2.

So backing out Rasmussen from CNN would mean Romney 52 Obama 45 ...ish. That fits with a lot of other data.

DUQ said...

T-Rav, Did Rasmussen say why he thinks +3D?

Kit said...

"If I had to guess, I would say the Court avoids deciding whether or not there is a right for gays to marry and will instead find some technical reason to affirm or overturn the Ninth Circuit’s ruling. My guess is that ultimately (in some later ruling), the Supreme Court will affirm the right of the states to make up their own minds on the issue of gay marriage, and in anticipation of that ruling, it will stick very closely to making sure that each side complied with California’s legal process in this case."


But they will still be accused of being bigoted, narrow-minded, and hateful.

AndrewPrice said...

Kit, That's the way the world works today. If you don't do what I want, then you are evil. The idea of good faith disagreements is gone.

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