In a very provocative article in the New York Times Magazine, Emily Bazelon suggested that "[t]he next few years of Supreme Court rulings could be brutal for liberals." This is because some weighty issues are coming to a Court where conservatives hold a 5-4 edge. And the issues are certainly volatile, from the constitutionality of the health care law to same sex marriage, affirmative action and illegal immigration. Fretting appears to be in order.
There is reason to fret, for example, about the state of the federal judiciary. As Bazelon writes, Republican Presidents since 1981 nominated and confirmed 41 appellate judges under the age of 45, as contrasted to only 10 for the Democrats. President Bush contributed 10 appellate judges to this list. president Obama? Zero. This is baffling, especially since Obama is a former law professor who seemingly understood that lower court judges "turn the Supreme Court's vague decrees into actual marching orders for the country." Instead, the President has shied away from big fights, and in so doing has left the federal bench with more than 80 vacancies. Incidentally, these vacancies are unparalleled in the history of the federal judiciary.
There is further reason to fret in Bazelon's plea for strict scrutiny for sex discrimination. She writes that the three women justices might be able to find two more votes -- Breyer's, Kennedy's, or maybe Scalia's -- to change the standard for sex discrimination from intermediate scrutiny to strict scrutiny. On her account, this is important because the government has an easier time justifying such discrimination under intermediate than under strict scrutiny. This is right, of course, but it is also why I think she has it exactly backwards. This is not Bazelon's fault, of course; her argument is on the side of reason. This is due to the conservative justices' ahistorical and disingenuous application of strict scrutiny.
Their story is quite simple. While facing a state racial set-aside program, Justice O'Connor wrote for the Court that she could not tell whether the program was in fact a benign law designed to help its intended beneficiaries, or a law analogous to Jim Crow statutes of old. She had no idea. And so the only way she was able to draw that distinction was by applying strict scrutiny and asking the government to proffer a compelling interest for enacting any such laws. Needless to say, whatever interests the government proffered fell short. And the laws were struck down time and again.
Note what this would do for sex discrimination statutes. As matters stand, the government only needs to identify an important interest for treating men and women differently. Under this standard, Title IX remains a constitutional exercise of congressional power, as does Title VII's prohibition against sex discrimination. Were the standard ratcheted up to strict scrutiny, it remains to be seen whether the government could justify either of these two laws. It seems unlikely.
This is why if given a choice, I'd happily give back strict scrutiny as applied to racial classifications. I don't think advocates of gender equality want any part of it.
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Bazelon makes a third point, and by the title of her essay, this is where I thought she'd spend most of her time. This is the question of what the Court will do with the big cases it will soon face. On this point, she hedged: on the one hand, she offered Kennedy's opinion in Brown v. Plata, the California prisoner population case where Kennedy wrote that “[p]risoners retain the essence of human dignity inherent in all persons. Respect for that dignity animates the Eighth Amendment prohibition against cruel and unusual punishment.” This ruling signals that Kennedy might be inclined to rule in favor of the health care law.
On the other hand, Kennedy joined the five-member majority that upheld Arizona's laws that crack down on businesses who hire illegal immigrants. This is a strong signal that Kennedy will vote to uphold the notorious Arizona immigration law that allows the state to stop people and ask for their papers. Bazelon also cites work by Professor Lee Epstein that suggests that median voters on the Court "line up almost exactly with the president who chose him." In Kennedy's case, Bazelon points out, that would be President Reagan. Hardly a comforting thought for liberals, "no matter how many times Obama invokes him in speeches."
The question of what Kennedy will do in the future presents one of the most interesting questions in constitutional theory and law. This is why I think Bazelon gave it short shrift. Undoubtedly, Kennedy is the Court's median justice, and according to Epstein, a super median justice at that. He holds the future of the Court in his hands. This is key, as the Court is gearing up to face some of the iconic statutes that form part of the Second Reconstruction. The next few years could indeed be "brutal" for liberals.
When it comes to questions of race, however, Kennedy has given us enough information to think that he will give these questions the considered attention they deserve. I am thinking here of his concurrence in Parents Involved and his majority opinions in both Ricci and LULAC v. Perry. I will say much more about this argument in a future post. For the moment, I can say that I do not think he will take that fateful step.
As for the implications of this view: it is clear that the conservative justices are gearing up to examine the constitutionality of the Voting Rights Act and select portions of the Civil Rights Act. This means that one person, properly situated, can single-handedly bring down the Second Reconstruction. This is a remarkable fact of American political life. Justice Kennedy will choose to uphold or strike down these revered civil rights laws on the basis of his idiosyncratic cultural worldviews and his particular understanding of the politico-constitutional domains in question. How in the world do we justify that?
In the end, I think Alexander Bickel had it almost right. The challenge of constitutional theory lies in justifying placing this power not on an unaccountable court but on a single justice.