Forget Clarence Thomas: In Louisiana, You Can Be Guilty Before Proven Guilty

Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)

Why you should care about Boyer v. Louisiana: Criminal defendants without the money to pay for their defense are being imprisoned for years without trial, subverting the basic tenet of “Innocent Before Proven Guilty.” (Picture via: http://www.britannica.com/blogs/wp-content/uploads/2010/06/supreme-court.jpg.)

As the dust settles from Monday’s Boyer v. Louisiana oral argument before the Supreme Court, the major news takeaway is undoubtedly Justice Clarence Thomas’ breaking of a nearly seven-year silence from the bench to crack what may or may not have been a joke about the competence of either Harvard or Yale-trained lawyers (the full transcript of the argument is here).  Much hay has been made in the press over what Thomas’ joke could have meant–see the near-breathless coverage analyzing the Justice’s mindset here, here and here–but the actual arguments behind Boyer, which explores the limits of the state’s obligation to provide a speedy trial for an indigent death penalty defendant, are interesting enough to merit a second glance as well.

Jonathan Boyer and the state of Louisiana disagree over almost every aspect of what happened on the night of February 3, 2002, when Bradlee Marsh was shot three times and killed as he sat in his pickup truck. While Louisiana maintains that Boyer was responsible–a conclusion bolstered by Boyer’s subsequent confession and the testimony of Boyer’s brother–Boyer claims that his “confession” was fake and that someone else was behind the killing. Regardless of the perpetrator’s identity, all sides agree that after his arrest and indictment for first-degree murder, Jonathan Boyer waited over five years in prison for his trial to begin after Louisiana appointed but did not have the money to fund the two requisite attorneys assigned to defend his death penalty case. (The federal Constitution does not mandate two defense lawyers in capital cases, but Louisiana state court rules do.)  It was only after the state decided to drop the first-degree murder charge–a move which took the death penalty off the table and made his case less expensive to defend–in favor of lesser charges that adequate funds were freed up and trial began. By this time, several witnesses had died or otherwise become unavailable. Boyer was convicted of second degree murder and armed robbery and sentenced to life imprisonment without parole. He now argues that Louisiana’s failure to fund his lawyers in the years it spent pursuing the death penalty led to a violation of his Sixth Amendment right to a speedy trial–the remedy for which requires a reversal of his murder conviction.

The Supreme Court outlined in 1972’s Barker v. Wingo a four-factor balancing test for determining whether a Sixth Amendment infringement has taken place: (1) the length of delay, (2) the reason for the delay, (3) whether and how the defendant asserted his right to a speedy trial, and (4) the prejudice that the defendant suffered due to the delay. Depending on the facts of the case, each factor is weighed against either the defendant or the state. In 2009’s Vermont v. Brillon, the Court found that a “systemic breakdown” in the public defender system leading to a delay of trial could be counted against the state. The main question in Boyer is whether a five-year failure to provide funding for the indigent’s appointed defense should similarly be held against the state. A “Yes” to that question doesn’t automatically mean that Boyer’s speedy trial rights were violated, but it does help his case in the Barker balancing.

Unsurprisingly, Louisiana argues that the delay in funding should not be held against the state so long as the state did not purposely withhold the money to avoid trial. Though Louisiana’s prosecutorial offices routinely received surpluses (of hundreds of thousands of dollars) to try cases in the same period of time that Boyer awaited trial from prison, the state maintains that the lack of funds for his defense resulted from other factors beyond its control, like Hurricane Katrina cleanup and the available monies being used up in other capital cases. Louisiana insists that it already dealt Boyer a more-than-fair hand by even bothering to appoint two counsel for him, which was enough to safeguard Boyer’s Constitutional rights.

At Monday’s lively oral argument, the Justices split over whether the delay was actually attributable to Boyer or to the state. Justice Scalia agreed with Louisiana that the state had already been very “generous” in naming multiple Ivy League-educated attorneys for Boyer (which is where Justice Thomas stepped in with his now-infamous four-word joke concerning their competence). Rather than putting the onus on Louisiana to fund the two lawyers required under its own state procedure, Scalia postulated that had Boyer truly cared about getting a speedy trial, he would have waived his state right to two attorneys and proceeded with just the one lawyer required by the federal Sixth Amendment. Justice Ginsburg questioned whether Boyer, a man with an eighth-grade education, knew that this option was available to him. Justice Kagan pointed out that even Louisiana seemed unaware that Boyer could move forward with only one attorney, since it had previously explained the delay by saying it could not “ethically or legally bring [Boyer] to trial” because he had been “without properly funded counsel for so long.” Meanwhile, Justice Sotomayor, who has worked as a prosecutor in New York, repeatedly pressed Louisiana to explain how a state’s choice to fund prosecutors’ investigations (or anything else) over capital defendants’ lawyers could not be attributed to the state.

The Justices also sparred over the scope of the question to be decided. In addition to laying out the four-factor balancing test, Barker v. Wingo holds that speedy trial challenges must be considered on a case-by-case basis, which allows for a far more fact-intensive inquiry than the Supreme Court is used to handling. Several members of the Court, led by Justice Breyer, mentioned repeatedly that the Court’s only job is to consider the general question of whether the failure to fund counsel should weigh against the state in a speedy trial challenge. (If so, they are content to send the case back down to the Louisiana courts for the case-specific reconsideration of whether such a violation occurred.)  Justice Scalia, however, believes the Supreme Court should both answer the general question AND perform the case-specific four-factor reanalysis for Boyer. To that end, Scalia spent a significant part of the oral argument focusing not only on the reason for the delay but on whether Boyer and his legal team properly brought up the speedy trial issue in the lower courts, whether he actually suffered prejudice due to the delay, and whether a reversal of his murder conviction would still leave him with a 99-year concurrent sentence for his armed robbery conviction.

If the oral argument is any indication, Justices Alito, Ginsburg, Sotomayor and Kagan agree with Breyer’s general reading of the question presented. These Justices also seem receptive to the idea that the lack of indigent defense funding is attributable to the state. This would constitute the five-Justice majority needed to remand the case to the state court for re-analysis.  It’s possible that Boyer could still lose his battle there–notwithstanding a SCOTUS ruling that the failure to fund should be weighed against Louisiana, Louisiana could still win the overall Barker balancing back in the lower court. But even if this happens, the Supreme Court will have (at the very least) sent a clear message to the states that if they keep shunting indigent defendants to the back of the line, they will be held responsible for such decisions.

As for Clarence Thomas’ thoughts on the fundamental questions of the case: who really knows? He hasn’t asked a substantive question at oral argument since 2006, and he certainly didn’t start on Monday. (I’m inclined to agree with Tom Goldstein of SCOTUSblog and Andrew Cohen of The Atlantic when they say the hoopla over the joke was a case of much ado about nothing.) Given the issues at stake, it’s too bad that Justice Thomas’ offhand remark ended up overshadowing the interesting points coming from both sides.*  The depressing truth about death penalty cases is that they take an extraordinary amount of effort and resources to defend–money and time must be spent for thorough investigation and expert witnesses, for both the trial and the sentencing phases–and as Justice Sotomayor pointed out, only a very small group of lawyers in this country are even qualified to argue death penalty cases. A defendant with money may be able to hire such a lawyer and pay for the investigation, but the indigent’s court-appointed counsel cannot be expected to pay such expenses out of pocket. And while it’s not unforeseeable that very cash-strapped states acting in good faith may simply not have enough money some years to try or defend all their capital cases, it is brutally unfair to make the indigent defendant bear the brunt of those funding decisions by waiting out that time in prison.

In other words, Louisiana for over five long years subjected an untried Jonathan Boyer to a philosophy of “guilty before proven guilty,” a situation he was powerless to avoid because he had no means of his own to mount a defense and no authority to change the state’s funding decisions. Regardless of Boyer’s culpability for the murder of Bradlee Marsh, the Supreme Court needs to remember that the Constitution guarantees a speedy trial for those found innocent and those ultimately found guilty, for those who can afford to defend themselves and those who cannot. Louisiana needs to be held accountable for its choice.

*I do wonder what Justice Thomas himself thinks of all the media attention surrounding his comment, particularly when he opined publicly in April 2012 that his fellow Justices should listen more and refrain from interrupting lawyers so frequently during oral argument.

The permanent Republican victory

Frank Rich cautions against premature liberal gloating of coming triumphs, demographic or otherwise:

What’s more, the right thinks long-term, and if you look at the long-term, the whole ugly “fiscal cliff” standoff was a win-win for conservatives, no matter what their passing defeats in this week’s deal. The more Washington looks dysfunctional, the more it sows dissatisfaction with the very idea of a Federal government. Yes, Democrats and the White House can argue that polls show that the Republicans would be getting most of the blameif Congress couldn’t reach agreement on the “fiscal cliff.” But that’s short-term liberal wishful thinking. Long-term, this intractable dispute has undermined Americans’ faith in government, period, and the voters’ plague-on-all-your-houses view of Washington is overall a resounding ideological win for a party that wants to dismantle government, the GOP. The conservative movement is no more dead after its 2012 defeat than it was after the Goldwater debacle of 1964.

Silver lining? Social issues, at least, seem to be a winning hand for the Dems:

John Roberts is as political a Chief Justice as I’ve seen — political in the sense of wanting to be well-regarded by mainstream public opinion and posterity. He’s no Scalia-Thomas-Bork right-wing bull in the china shop. Much as I welcomed his upholding of Obamacare, his logic was so tortured that I shared the view of conservative critics that he was holding a finger to the wind and cynically trying to be on the right side of history. His remarks about  the nation’s fiscal impasse are content-free and gratuitous — and irrelevant to his constitutional role — but they do reflect his own desire to maintain a noble public image. It was, one might say, a Howard Schulz PR move. If nothing else, this Chief Justice’s continued obsession with his own profile may bode well for the future of same-sex marriage: Hard to imagine that Roberts will thwart a civil rights breakthrough now enthusiastically supported by an overwhelming majority of the young and even not-so-young Americans who will write the history of the Roberts Court.

Robert Bork’s America

The 85-year-old former judge died today, and Jeffrey Toobin — breaking from punditocratic tradition — went for the jugular:

Robert Bork, who died Wednesday, was an unrepentant reactionary who was on the wrong side of every major legal controversy of the twentieth century. The fifty-eight senators who voted against Bork for confirmation to the Supreme Court in 1987 honored themselves, and the Constitution. In the subsequent quarter-century, Bork devoted himself to proving that his critics were right about him all along…

It was said, in later years, that Bork was “borked,” which came to mean treated unfairly in the confirmation process. This is not so. Bork was “borked” simply by being confronted with his own views—which would have undone many of the great constitutional landmarks in recent American history. As Senator Edward Kennedy put it in a famous speech on the Senate floor, “Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, schoolchildren could not be taught about evolution, [and] writers and artists would be censored at the whim of government.”

Was Kennedy too harsh? He was not—as Bork himself demonstrated in the series of intemperate books he wrote after losing the Supreme Court fight and quitting the bench, in 1987. The titles alone were revealing: ”The Tempting of America,” “Slouching Towards Gomorrah: Modern Liberalism and American Decline,” and “Coercing Virtue: The Worldwide Rule of Judges.” One of his last books may have summed up his views best. Thanks in part to decisions of the Supreme Court—decisions that, for the most part, Bork abhorred—the United States became a more tolerant and inclusive place, with greater freedom of expression and freedom from discrimination than any society in history. Bork called the book, accurately, “A Country I Do Not Recognize.”

Marriage equality and the Supreme Court

David Cole reminds us that the upcoming Supreme Court cases on same-sex marriage are important, but nevertheless remain just a part of a much longer, inevitable march towards full marriage equality:

Whatever the Court does will affect gay marriage only in the short term. The political tide has turned decisively in the direction of marriage equality, and nothing the Court does can stop it. Polls show that two-thirds of Americans today support recognition of gay marriage or civil unions for gay couples, and young people favor marriage equality by especially large margins. In the 2012 elections, marriage equality proponents prevailed in all four states where gay marriage was on the ballot, and President Obama’s announcement in May that he had (finally) decided to support gay marriage appears to have cost him no votes. The statistician Nate Silver has predicted, based on state-by-state demographic poll results, that by 2016, the only states that do not have a solid majority in favor of gay marriage will be in the Deep South, and that by 2024, a majority will support gay marriage even in Mississippi, which he predicts will be the longest hold-out. Gay marriage is an inevitability.

But if the Court’s decisions in the gay marriage cases may not have lasting consequences for gay marriage, they are likely to have historic significance for the legacy of the Roberts Court. If it upholds the laws at issue, its decisions will almost certainly come to be viewed as the Plessy v. Ferguson of the twenty-first century, defending and reinforcing a deeply discriminatory practice without good constitutional reason. If, by contrast, the Court rules, as it should, that marriage equality is constitutionally required, its decisions will be celebrated in the history books alongside Brown v. Board of Education. Which side would you want to be on?

Supreme Court to Hear Prop 8, DOMA case

Photo by: J. Emilio Flores for the New York Times

Photo by: J. Emilio Flores for the New York Times

SCOTUSblog is reporting that the Supreme Court has granted certiorari to both Hollingsworth v. Perry, the California Proposition 8 case, and United States v. Windsor, a Defense of Marriage Act challenge. The Court will hear arguments in the two cases when it reconvenes in 2013.

Lyle Denniston has a preliminary breakdown of the order on SCOTUSblog’s live blog:

Prop. 8 is granted on the petition question — whether 14th Am. bars Calif. from defining marriage in traditional way. Plus an added question: Whether the backers of Prop.. 8 have standing in the case under Art. III.

[With regards to United States v. Windsor]: In addition to the petition question — whether Sec. 3 of DOMA violates equal protection under 5th Amendment, there are two other questions: does the fact that government agreed with the [Second Circuit] decision deprive the Court of jurisdiction to hear and decide the case, and whether BLAG (House GOP leaders) has Art. III standing in this case.

There is a good deal of complexity in the marriage orders, but the bottom line is this: the Court has offered to rule on Prop. 8 and on DOMA Section 3, but it also has given itself a way not to decide either case. That probably depends upon how eager the Justices are to get to the merits; if they are having trouble getting to 5 [justices] on the merits, they may just opt out through one of the procedural devices they have offered up as potentials.

More coverage of this development can be found here, here, here and here.

Almost There: Supreme Court to Decide Whether to Hear DOMA, Prop 8 Cases

Karen Golinski, a federal employee in California, and her wife Amy Cunninghis.  Golinski is one of the plaintiffs challenging the Defense of Marriage Act. (Photograph by Jim Wilson/The New York Times.)

Tomorrow, the Supreme Court is expected to decide whether to hear a same-sex marriage case this term. While the Court has an array of petitions to choose from–five Defense of Marriage Act (DOMA) cases, the California Proposition 8 challenge, and an Arizona state benefits case are all on deck–it looks likely that at least one DOMA case will get the nod if it does tackle the issue. (And not just because Justice Ruth Bader Ginsburg predicted it would earlier this year.) The Proposition 8 case, Hollingsworth v. Perry, may be flashier, but it concerns a constitutional amendment that affects only same-sex marriages in California. On the other hand, DOMA creates a conflict between the federal government and any state that recognizes same-sex marriage, a group that has now grown to nine (plus the District of Columbia) and counting. As the number of legally married gay couples continues to climb, it is in the interests of the Supreme Court to decide DOMA’s constitutionality sooner rather than later.

Should the Court hear a DOMA challenge, what will be at stake for both sides? The five DOMA cases all arise from a dispute between state and federal definitions of marriage, which has been steadily brewing since the 1996 passage of the Defense of Marriage Act. While family law has traditionally been left to the states, Section 3 of DOMA defines “marriage” for federal purposes as a legal union between one woman and one man, and a “spouse” as an opposite-sex husband or wife. In the places that have recognized marriages between two women or two men, however, same-sex spouses find themselves caught in a strange limbo where they are legally married in the eyes of the state but not in the eyes of the federal government. They receive all the state benefits and privileges that marriage affords, but DOMA prevents them from enjoying the many federal benefits of marriage* that their heterosexual counterparts receive, including Social Security survivors’ benefits, joint income tax filings, shorter green card waiting times for non-citizen spouses, freedom from estate taxes on a deceased spouse’s assets, and family coverage on federal employer health insurance plans.

The DOMA challengers from Massachusetts (Gill v. Office of Personnel Management, Massachusetts v. U.S. Department of Health and Human Services), New York (Windsor v. United States), Connecticut (Pedersen v. Office of Personnel Management) and California (Golinski v. Office of Personnel Management) are a sympathetic bunch. They include a federal government employee wishing to enroll her family in her health insurance plan, a senior hit with over $300,000 in federal estate taxes for an inheritance left by her wife, and a veteran denied Family Medical Leave Act time off to take a sick spouse to medical treatments. The challengers argue that the differential treatment between opposite-sex and same-sex married couples violates the Equal Protection Clause, and that the federal government impinges on states’ rights by refusing to recognize same-sex marriage where states have chosen to legalize it. In all five cases, the federal appellate circuit courts agreed with them. On the other hand, the supporters of DOMA maintain that the federal government has a right to its own definition of marriage for the purposes of federal funding and programs, and that DOMA merely reaffirms what the executive and judiciary branches have always believed: namely, that marriage can only be between a “traditional male-female couple.”

Less work for Eric Holder. (Photograph by Brendan Smialowski, AFP/Getty Images)

Adding a wrinkle to this scenario is the fact that the executive branch has actually been doing everything in its power to get the judiciary to step in and resolve the issue in favor of the anti-DOMA side. In February 2011, the Obama administration announced that the Department of Justice would no longer defend DOMA in legal challenges, including the five cases before the Supreme Court now, because it believed Section 3 to be unconstitutional. (The Bipartisan Legal Advisory Group from the House of Representatives now defends DOMA in court.) At the same time, the administration signaled its intention to keep enforcing the law (by continuing to reject federal benefits applications from same-sex married couples) until either Congress repealed the law or the Supreme Court decided its constitutionality. While this may seem counterintuitive, this bifurcated method of enforcing but not defending a federal law ensured that all five cases had a chance to keep moving through the federal appeals system and reach the Supreme Court. Granting the plaintiffs their benefits in the middle of a case would have removed their immediate cause for complaint and mooted their lawsuits before an appellate court could find the underlying law unconstitutional. Keeping the plaintiffs’ injury alive, however, kept the cases in play. Now that they have reached the certiorari stage, the DOJ has explicitly asked the Supreme Court to take at least one case and provide a definitive ruling on the constitutionality of Section 3.

The 2010 Census found that 42,000 same-sex couple households resided in states with same-sex marriage.  That figure doesn’t even include the thousands more in Maine, Maryland and Washington, the three states that legalized same-sex marriage this month. Thanks to the bottom-up, state-by-state legalization approach that marriage equality proponents have been using, nearly one-fifth of the states now allow gay and lesbian couples to marry. The more states that join, the higher the number of couples adversely affected by DOMA will be, and the more challenges we will see in the federal courts. Expect the Supreme Court to accept at least one DOMA petition, and expect the arguments to focus not only on equal protection but also on federalism and states’ rights. I’ll be back next time to talk about the Court’s track record on gay rights and the likely concerns of our resident swing vote, Justice Anthony Kennedy.

* In January 2004, the United States General Accounting Office counted 1,138 provisions in federal statutes in which “marital status is a factor in determining or receiving benefits, rights and privileges.”

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post here on legal issues.

Death to Citizens United

Courtesy of Forbes.

That’s what Senator Tom Udall (D-NM) is going for. After surveying his options and concluding that no other alternative exists, Udall — who’s also integral to Senate filibuster reform efforts, which I’m covering in a magazine article to appear within the next month — is pushing for a constitutional amendment:

The amendment would give Congress the constitutional power to regulate the raising and spending of money in national elections, and it would give the states the same power to regulate spending in their elections. The amendment strikes at the fundamental heresy that lies at the heart of both Citizens United and Buckley v. Valeo, the 40-year-old case that made CU inevitable, given the correct composition of a future Supreme Court: namely, that money is speech. To this, of course, was added the equally preposterous notion that corporations are people and that, therefore, they have the same free speech rights as you, me, and the guy on the next bar stool. (How preposterous? Google Santa Clara County vs. Southern Pacific Railroad some time and get a good look at how corporate personhood got birthed on the wrong side of the constitutional blanket.) Pass the amendment, and all of the entangled absurdity of Citizens United goes away. One doomsday machine takes out the other.

As a law student, Udall watched the Buckley case work its way through the system all the way to fruition. He was already a local district attorney in the 1980s when a constitutional amendment was proposed to overturn Buckley. (Udall’s uncle, the late Congressman Mo Udall of Arizona, was one of the early supporters of that amendment and took campaign-finance reform as one of his signature issues when he ran for president in 1976.) He saw clearly where the country was headed once that decision was handed down. He heard the floodgates beginning to creak open.

“Back then, Mo and Dave Obey (the former Wisconsin congressman) believed that, if you could investigate, and find that campaign contributions injected corruption, or the appearance of corruption, into the system, then you could regulate it.” Unfortunately, in its intricate tricks and traps, to borrow a phrase from Senator-elect Warren, Citizens United took care of that, too, with weathervane Anthony Kennedy famously opining within his crucial concurrence to the CU-based decision that struck down the Montana law that corporate independent campaign expenditures “do not give rise to corruption or the appearance of corruption.” And thus are born Super Pacs and phony, covertly-financed 501(c) “welfare” organizations out of which come roaring a thousands attack ads.

“What they’ve done, essentially, is legalize money-laundering,” Udall says. “You can shut down the 501(c) and then sluice the money into the campaign, and the secrecy around the donors is maintained. Secrecy has no place in a democracy and particularly not in the electoral process.

“Once you say that money is speech,then you get what we have now — a Supreme Court that’s getting bolder and bolder in defending its decision. That’s what you saw when the Montana law was struck down. They passed that law because they saw what unlimited and anonymous corporate money could do to democracy. Right now, there is no possible legal remedy to this decision on a national level. We have to go with a constitutional amendment because we have to take the Supreme Court head-on.”

This is still an uphill battle, however: so far only 26 senators support the amendment. So…41 to go, plus the House?

Highlights from the Fisher v. University of Texas Oral Argument

“Wow, that went really well for the University of Texas!” – No one

Last Wednesday, the Supreme Court held a one-hour oral argument in Fisher v. University of Texas, in which our eight justices (Justice Elena Kagan recused herself) engaged in lively debate over the future of racial affirmative action in state universities. (For more on the case, see my post from last week.) Five highlights from that argument:

  • Predictably, the Justices on the left–Ginsburg, Sotomayor and Breyer–came flying out of the gate with questions for Bert Rein, Abigail Fisher’s attorney. Ginsburg and Sotomayor immediately questioned whether Fisher has suffered the requisite injury she needs to be able to sue, if (as UT claims) she would have been rejected even under a completely race-neutral plan. As is the case with SCOTUS oral arguments in general, a Justice from the other end (Scalia) jumped in not to ask Rein a follow-up question but to provide the answer on his behalf, countering that Fisher’s injury was not the loss of admission but the loss of an opportunity to be considered fairly by UT. Ginsburg, Sotomayor and Breyer seem convinced that the UT admissions scheme satisfies the Grutter test, and Rein certainly received quite a bit of help from Justice Scalia as the liberal justices continued to press him. On the other hand, Justices Alito, Roberts and Scalia hammered Gregory Garre, the attorney for UT, with Sotomayor occasionally stepping in to offer a helping hand.
  • Both lawyers were repeatedly asked what a “critical mass” of underrepresented minority students at UT might be, at which UT would have adequate student body diversity. When asked by Sotomayor when enough was enough, Rein punted and stated that the definition of “critical mass” (a phrase that comes from Grutter) is something that UT and not Fisher needs to prove, declining to say out loud that the critical mass is whatever number of minorities that the top-10% plan captures in any given year. On the other hand, the conservative justices pressed UT hard on its own fuzzy definition of “critical mass,” appearing at points to try and bait the school into admitting that it has a certain number or percentage of minority admits in mind. This, of course, would be an unconstitutional quota forbidden under Grutter, which is exactly what the conservative wing thinks UT is actually using. UT, for the record, thinks of critical mass as the point where minority students do not feel like the spokespeople for their race, which is a nebulous answer most unsatisfactory for Scalia, Alito and Roberts.
  • Justice Roberts asked UT’s lawyer, Gregory Garre, about self-identification of race on UT applications and whether the school had any way of knowing when applicants were lying about their minority status. Roberts also wanted to know whether someone who is 1/4 or 1/8 Latino (or 1/32 Latino, as Scalia added on later) could self-identify as being Latino, or whether that would be violating some kind of honor code. Undoubtedly, Roberts’ point was to question the effectiveness and sincerity of UT’s plan to increase classroom diversity, if it has no way of even figuring out which applicants actually are underrepresented minorities. But the flip side of this question seems to undercut Fisher’s argument: if Roberts is right and applicants are fraudulently self-identifying as minorities, that means UT’s student body has an even lower number of minority students than it currently thinks it does.
  • Justice Alito questioned twice whether it’s fair that affirmative action is being used to help the wrong group of people. Specifically, he wants to know why wealthy African American and Latino students are getting a preference instead of students from underprivileged or even just plain middle-class families. Alito also wants to know how all Asian Americans can be grouped into one category when some ethnic subgroups are more underprivileged and underrepresented than others. UT’s answer is that applicants can state their countries of origin as well, which the school will take into account–but again, Alito doesn’t seem convinced.
  • The big question in all this is what Justice Kennedy thinks, since he is likely to be the deciding vote. Donald Verrilli, arguing for the United States in support of UT, appealed to the swing justice by bringing up his 2007 concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, in which Kennedy spoke of the country’s strength as arising from the fraternizing of different creeds, races and cultures. However, Kennedy seems skeptical of the UT plan, characterizing it at one point as prioritizing “race above all.” At another point, Kennedy calls race a “tie-breaker “ in UT’s admissions scheme, the same term that was used in Parents Involved to describe Seattle’s usage of race in its ultimately-doomed affirmative action plan.

The bottom line is that the justices are likely to rule 5-3 in favor of Fisher and strike down UT’s admissions scheme, which is going to put universities across the country back at square one. (A 4-4 tie would leave the status quo in place, thus allowing UT’s admissions process to continue as is.) The question is how far the Court will go not just in striking down the specifics of the UT plan but in limiting racial affirmative action across the board. Despite the fact that he invited the Court to do so in his brief, Rein maintains that he’s not asking the justices to overrule Grutter. But as Justice Sotomayor stated toward the end of oral argument, “You don’t want to overrule it, but you just want to gut it.” It looks like a gutting of Grutter is exactly what we’re headed toward. Of course, this is far too early for Justices Breyer, Ginsburg and Sotomayor (whose dismay at Fisher’s arguments was palpable)–but for the rest of the Roberts Court, this moment couldn’t come any sooner and is certainly nine years too late.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.

Can We Ever Have Too Much Diversity in Our Classrooms?: Grutter, Parents Involved, Fisher and the Fight Over Race-Based Affirmative Action

If at first you don’t succeed, sue.

If you haven’t been living under a rock for the past few months, you’ve probably heard that affirmative action is back on the docket of the Supreme Court this term. Even if you have been living under a rock, you’ve probably still heard about it. You may be sick of hearing about it already. (If so, stop reading.) While there is a whole hell of a lot that can (and will) be said about race-based affirmative action in the context of higher education–whether it’s about its consequences for certain minority groups, its main beneficiaries, its effectiveness or its future direction–I’m going to limit myself to an overview of SCOTUS’ recent affirmative action cases and try to point out some of the inconsistencies that the Court must resolve with Fisher v. University of Texas (to be argued this Wednesday), and then close out with a couple of thoughts on affirmative action in general.

Fisher arises directly from a pair of 2003 cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. Jennifer Gratz, a white applicant to the undergraduate school, argued that UM’s practice of granting underrepresented racial minorities automatic “points” in an admissions equation violated the Fourteenth Amendment’s Equal Protection Clause. Barbara Grutter, a white applicant to the law school, argued that UM Law’s practice of taking race into account in its admissions decisions, period, was also unconstitutional.

Now for a little bit of constitutional law: in Equal Protection challenges, a government policy that affords differential treatment between the races is examined under a standard known as “strict scrutiny.” Strict scrutiny means that the policy can only be upheld if the government can show two things: (1) a “compelling state interest,” and (2) “narrowly tailored” means to achieve this goal. Applying this standard, the Supreme Court ruled for Gratz–striking down the undergraduate school’s “bonus” points for underrepresented minorities–but against Grutter. It distinguished the two admissions schemes based on the fact that the law school merely considered race as one of many potential “pluses” and not as an automatic “booster”. Significantly, the Court accepted UM Law’s rationale that student body diversity itself is a compelling state interest “essential” to UM’s educational mission, because we learn to reject racial stereotypes and see members of different groups as individuals (rather than spokespeople for their entire race) when we encounter them frequently in our classrooms.* It then found that the law school had narrowly tailored its use of race in the admissions process. While quotas and automatic points unfairly insulated candidates from comparison with other applicants, taking race into account as part of a holistic process did not. Thus, UM Law’s policy was constitutional. The majority opinion, authored by Sandra Day O’Connor, represented a compromise between the reality of the obstacles still encountered by underrepresented minority students and the American ideal of a pure, colorblind meritocracy. But Justice O’Connor also wrote that she expected race-conscious admissions policies to be “limited in time” and Grutter to be obsolete in twenty-five years.

Who doesn’t want to be a part of this?

The Court is sixteen years ahead of schedule, but it looks ready to limit or even overturn Grutter now. In Fisher v. University of Texas, Abigail Noel Fisher argues that her rejection from UT violates the Equal Protection Clause. Under existing Texas law, the top 10% of students in every high school in the state receives automatic admission to state-funded universities. Race is not taken into account for this group of students, which is how UT gets 70-80% of its incoming class. For the rest of the applicants who do not make the 10% cutoff (now competing to be part of the remaining 20-30% of UT’s incoming class), race is taken into account as one factor among many, per the Grutter rule. Fisher, who is white, didn’t make the top 10% of her high school, and didn’t make the cut when her application was passed down to the pool where race was taken into consideration. She contends that the UT plan is unconstitutional because Texas doesn’t need to give underrepresented minorities a boost in the non-top-10% pile. UT’s race-neutral top-10% plan already results in a significant number of Latino and African American enrollees and makes UT’s classrooms plenty diverse enough without having to disadvantage Asian American and white applicants, Fisher claims. Any further consideration of race is just a smokescreen used by UT to admit a target number of Latinos and African Americans per year–in other words, a racial quota, which is expressly banned by SCOTUS. Texas, on the other hand, doesn’t see a problem with making its classes more racially diverse than the top 10% plan would allow and thus considers race as merely one part (“a factor of a factor of a factor of a factor”) of its holistic look at the non-top-10% applicants.

Fisher never directly argues that Grutter was wrong to accept diversity in higher education as a compelling interest, only that UT has already achieved adequate diversity through race-blind means and should stop there. (In other words, there is a “tipping point” of racial diversity after which you become less diverse by admitting too many students of color, despite the irony that white students are currently admitted at a higher rate under Texas’ non-top-10% holistic consideration than under the top-10% rule, thus… increasing racial diversity at UT.) But Fisher also wants the Court to consider clarifying or overturning Grutter altogether because courts have been too deferential to schools’ admission schemes–not truly questioning whether there is both a compelling state interest and narrowly tailored means–thus turning Grutter into a meaningless and unworkable standard.

On this argument, Fisher may very well find a majority of sympathetic Justices. It’s helpful to her that the perspective of the Court has changed dramatically in the past nine years, now that Sandra Day O’Connor has retired and Samuel Alito and John Roberts have moved in. Justices Alito and Roberts have made no secret of their disapproval of race-based affirmative action. Importantly, Roberts ruled in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 that Seattle could not use race as a “tiebreaker” when assigning elementary students to schools. Justice Roberts refused to acknowledge that diversity was a compelling state interest at the grade school level, dismissing Seattle’s goals of reducing racial isolation and racially-entrenched housing patterns. Unlike Justice O’Connor, Roberts believes that society is already colorblind enough, and that all this talk about racism is what’s really perpetuating racism: “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

No diversity for you!

Where things get sticky is when we try to make sense of Grutter and Parents Involved together. Parents Involved did not overturn Grutter; both are good law. Justice Roberts made sure to dispose of Grutter early on in his opinion, noting that it was limited to the realm of higher education and therefore did not apply to Parents Involved, which took place in the context of grade schooling. But this seemingly pat division raises inconsistencies when you look at what the Court is saying about diversity in each case: how can student diversity suddenly become compelling at the age of 18 and above when it hasn’t been for the last 12 years? Does it actually make any sense to say that elementary and high school students don’t need to be exposed to peers of different cultures and backgrounds, but then say that this exposure becomes of paramount importance when you leave for college, where you can then learn to reject racial stereotypes? Wouldn’t it be too late by then, and wouldn’t it make more sense to start teaching these lessons at an early age? Roberts wriggled his way out of this in Parents Involved by appealing to nebulous “considerations unique to institutions of higher education,” though he doesn’t bother to elaborate on how exactly this is different for grade school education. But either you believe that the state has a right to cobble together diverse classrooms in order to teach its young people acceptance and respect, or you don’t. It looks as though the Court’s conservative wing–Scalia, Thomas, Roberts and Alito–is eager to take the latter approach.

I am confused but powerful.

As ever, it may come down to Justice Anthony Kennedy, the current swing vote who will surely play as crucial of a role now as Justice O’Connor did in 2003. (Justice Elena Kagan has recused herself, so a 4-4 tie would mean that the Fifth Circuit’s decision upholding the UT plan stands, but if Kennedy votes with the four conservatives, UT loses 5-3.) And on the topic of affirmative action, Justice Kennedy seems to be a bit confused. Kennedy dissented in Grutter. He agreed with Justice O’Connor that diversity was in fact a compelling state interest, but found UM Law’s admissions scheme unconstitutional because he did not think it was narrowly tailored. In Parents Involved, Justice Kennedy again found that the challenged plan met the compelling interest test but not the narrowly tailored requirement. His concurrence broke with Justice Roberts on the question of whether diversity is a compelling educational goal at the grade school level (Kennedy believes it is), but then slammed the Seattle plan for categorizing students as “white” and “non-white” and not being narrowly tailored. Ultimately, his vote alongside the Court’s conservatives decided the case in favor of Parents Involved and the Seattle plan was struck down. What’s unclear, however, is exactly what kind of a plan Justice Kennedy would find narrowly tailored enough, and whether the University of Texas scheme will meet this unknown Kennedy standard. While diversity may survive as a compelling state interest as long as Kennedy hasn’t changed his mind, the UT plan might not–and if it doesn’t, schools across the country will be sent scrambling once again to devise a plan that does pass muster.** Diversity is nice, the Court seems to be saying, but we still haven’t figured out what the best way to achieve that is, or where we cross over the line into too much diversity.

As a final note, it’s worth remembering that colleges and grad schools use affirmative action in their admissions decisions in a multitude of ways that extend well beyond race. Justice O’Connor noted in Grutter that the University of Michigan’s admissions policy included “many possible bases for diversity admissions,” including languages spoken, community service performed and hardships overcome. Studies consistently show that female students get better grades in school and outperform men in universities, but colleges use gender affirmative action to try to admit a male-female student ratio as close to 50-50 as possible (since a student body that skews too much toward one gender will hurt campus social life and be “unappealing”). Schools use geographic affirmative action–if there’s 50 applicants from California and 50 applicants from New York with perfect GPA’s and perfect SAT scores and one applicant from North Dakota with an almost-perfect GPA and almost-perfect SAT scores, there’s a good chance that the North Dakotan is going to be admitted ahead of at least some of the perfect California and NY applicants despite the lower numbers. Athletes get preferences. Legacies get preferences (sometimes getting a boost in admissions chances by as much as a whopping 45%). And the list goes on and on. If a school has 50 applications from clarinet players and one from a piccolo player and it just so happens that the university orchestra’s one piccolo has just graduated, the piccoloist might get a bit of a boost. Amidst a pile of 50 applications from students who speak French as a second language and one from a student who is fluent in Croatian, the Croatian speaker might get some special consideration.

Despite all this, very few people ever kick up a big fuss about the injustices in the admissions process that discriminate against non-athletes, non-legacies, non-piccolo players, non-Croatian speakers and women, choosing instead to cry foul about race-based preferences. After all, Abigail Fisher isn’t mad about the male students or the children of UT alumni who might have cost her a shot at being a Longhorn. She’s mad about the African American and Latino students who got in before her, because it’s somehow easier to swallow the idea that students of color are the ones “stealing” spots they don’t deserve, and that they bring less to the college or grad school experience than other “preferred” students do. Of course, the existing system of affirmative action is not perfect, and there are a lot of ideas out there about what we can do to improve it.*** But the Supreme Court would do well to consider the realities of the holistic admissions process–which already have built-in considerations that benefit white/upper-class/male applicants and that have largely been left unchallenged in the courts–before it tries to convince us that we’ve reached our colorblind ideal, sixteen years ahead of schedule.

*The idea that racial diversity in the context of education can be a compelling state interest is not a new one; SCOTUS had accepted this argument earlier in the 1978 case Regents of the University of California v. Bakke.

**Or they could switch to a completely race-blind admissions process in which top-scoring students constitute all of the incoming class. In the absolute worst-case scenario for supporters of affirmative action, Kennedy may agree with Fisher’s argument that it’s time to stop considering race in higher education, period, and overturn Grutter.

***Richard Kahlenberg, who I’ve linked to multiple times in this post, has done extensive research into both race-based and legacy affirmative action and advocates a switch to income-based affirmative action, an approach which, he argues, would benefit many underrepresented minority students as well as students from lower-income white and Asian American families.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.

Scott Brown’s Model Justices: A Venn Diagram

In Monday night’s Massachusetts Senatorial debate, Scott Brown noted that his favorite Supreme Court justices are Scalia, Kennedy, Sotomayor and Roberts, which is a little bit like saying that your favorite foods are spam, foie gras, twinkies and vegan butter. While Brown might have been able to pick two out of the above four without raising too many eyebrows, the more names he added to that list, the more it looked like he was randomly grasping at any Justices he could remember. (Especially with Sotomayor and Scalia; for God’s sake, doesn’t Brown know that they are both YANKEES fans??) But what if, despite Elizabeth Warren’s guffaws and obvious glee–which even a facepalm could not hide–Brown actually knows more about The Nine than we’re giving him credit for? The First Casualty has come up with a Venn Diagram to see if we could make any possible sense out of Brown’s answer (click to enlarge):

 

Bottom line: Brown’s answer would have been way more credible had he stuck with any combination of Scalia // Kennedy // Roberts. As it is, barring some further explanation that we’ve all missed, his four-way answer makes little sense unless he highly prioritizes Catholicism in a Justice. Either that, or he’s a huge fan of the United States v. Jones majority opinion from last term (where the Court held that the Government’s attaching of a GPS device to a car constitutes a search requiring a warrant), which all four model justices joined.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.