What makes a great coach, or a great applicant, or a great anything? And what does race have to do with it?

A few days ago, Terry Bradshaw, hall of fame quarterback, offered his thoughts on Pittsburgh Steelers coach Mike Tomlin.  They were not kind:

“I don’t think he’s a great coach at all. . . . He’s a nice coach. To me, I’ve said this, he’s really a great cheerleader guy. I don’t know what he does. I don’t think he is a great coach at all. His name never even pops in my mind when we think about great coaches in the NFL.”

The quote raises obvious questions.  What makes a great coach?  What does a great coach do?  What is a "great cheerleader guy," as opposed to a great coach?  Who is a great coach in the NFL today, or ever? And most importantly, what does Mike Tomlin's race have to do with any of this?

A great coach

Is Mike Tomlin a great coach?  His numbers at least put him in the conversation.  In his ten years as head coach of the Steelers, he has compiled a 159-102 win-loss record.  That means that he has won 64% of his games.  In those ten years, he has led his team to the playoffs 7 times, has won the AFC twice, and won one Super Bowl.  On its face, this is an impressive record.  By way of a comparison, look at everybody's hall of fame coach Bill Belichick.  In  22 years, Belichick has a 67% winning percentage, 6 AFC championships and 4 Super Bowl wins.  

How do we measure these numbers?  How do we compare Tomlin's numbers to all great coaches in the league, past, present and future?  I cannot pretend to know.  But the beauty of this particular debate is that a lot of people have lots of answers, and they do not always agree with each other. Here's an answer, from Paul Zeise of the Pittsburgh Post-Gazette: Tomlin is a good coach, not a great one, "but numbers without context are meaningless."  And the only context that matters, according to Zeise, is that Tomlin "has never had to coach even one season without an elite/Hall of Fame-level quarterback."  This means that "Tomlin has to be judged on a different scale and with a different curve than most coaches of the past, say, 35 years."  Tomlin also inherited a great team.  And his drafts have been mediocre.  He could be a great coach, Zeise concludes, "but he needs to win at least another Super Bowl, and it wouldn’t hurt if he had a run of successful seasons after [his hall of fame quarterback] is gone."

This is the line that sticks with me: "Tomlin has to be judged on a different scale and with a different curve than most coaches of the past, say, 35 years."  I am not about to fact check whether most hall of fame coaches of the last 35 years have had a hall of fame quarterback or not.  But we know this: Belichick has won four Super Bowls with the best quarterback of his generation, maybe of all time. Does that take away from his accomplishments?  We also know that John Gruden won a Super Bowl in Tampa Bay with what may be, at best a pedestrian quarterback.  Does that make him a great coach?  And we also know that Don Shula never won a Super Bowl with hall of famer Dan Marino as quarterback.

Is the point, then, that Mike Tomlin's record is as-of-yet incomplete?  Is the point that we ought not anoint Tomlin as a great coach until he coaches for longer than ten years?  Maybe so.  But that's not the point that Bradshaw was making.  He was not making an epistemic claim but an ontological one.  The point was not whether Tomlin's record was the record of a great coach, but whether Tomlin is a great coach irrespective of his record.  He is not, according to Bradshaw.  Rather, he is "a great cheerleader guy."  That's who he is, and this is something that a better record will not change.

Think about that for a second.  What makes a great coach and how do we know?  These are old questions.  What is merit and how do we determine it?  I don't pretend to know.  And anyone who pretends otherwise is probably lying, or hasn't given these questions the thoughtfulness they deserve.

A cheerleader guy

Bradshaw did give Tomlin credit for being "a great cheerleader guy."  I think I know what that means. Tomlin is not a strategy guy, and Xs and Os guy, a coach who will out-scheme and out-smart the opposition.  What he will do, according to Bradshaw, is rally the troops and cheer them on.

This quote reminds me of something I read years ago about Sir Alex Ferguson, one of the greatest managers in English soccer history.  Ferguson's greatest strength as a manager, or so I read, were his leadership qualities, the way he could rally a team to fight for a common goal.  One could even think of it as "cheerleading."  I never thought of it as a negative thing.  To be sure, "cheerleading" may be a negative as applied to Tomlin. But without question, the term, standing alone, is loaded.  Think of how many Super Bowl winning coaches you know who are considered "cheerleader guys" and nothing more.  I can't think of many.

The look of a coach...and race

And this brings me to the elephant in the room.  Mike Tomlin is Black.  He was hired only after the NFL instituted the Rooney rule, which required teams to interview an applicant of color before moving forward with a coaching hire.  Tomlin was not in the team's radar, and the interview was extended only as a courtesy.  But Tomlin blew away the interview and got the job.  The hire turned a lot of heads around the league.  It was unexpected, to say the least.  Ten years and a Super Bowl win later, we are still debating whether Tomlin is a good coach, or a great one.  

This debate also reminds me of hall of fame quarterback Warren Moon.  Or Doug Williams.  Or Randall Cunningham.  They were all very good quarterbacks, even great, but the football world had a hard time seeing their greatness.  They did not look the part of "great quarterback."  They were Black quarterbacks before they were great quarterbacks.  And yes, race had everything to do with it.  

I would love to believe that we don't see race, that we only see merit, and that the world is ready to move past race conscious policy making.  But I know better.  And if you don't believe me, do a simple thought experiment.  Imagine a white coach who has won a Super Bowl and been to the playoffs in 7 of his first 10 years in the league, and whether we would be debating if he was a great coach or merely a cheerleading guy. Or think about how many mediocre coaches get second chances, and how many coaches of color get only one chance.  

Just imagine.

What does it mean to look "presidential" (or "professorial," or "decanal," or...)?

One of the big stories of the 2016 presidential election is whether Donald Trump looks and acts presidential. This is no idle conversation.  What voters want to know is whether Trump can act like a president is supposed to act, do the things a president is supposed to do, look like a president is supposed to look.  Note that the bar for candidate Trump is very low.  Reading from a teleprompter will do.  Or not behaving like a sixth grade bully.  Note also that the point is not whether he is or can be presidential.  The point is whether he can pass for one.

Think first about what that means.  And think next about who benefits and who does not when we think about candidates, and jobs, and life, in that way.

What to make of the Puerto Rico Fiscal Control Board?

Back in June, the US Congress agreed on a bill to "solve" Puerto Rico's financial problems.  One of the solutions under the PROMESA Act (who says that politicians and their aides do not have a sense of humor?) is the establishment of a federal control board to oversee the finances of the island and the restructuring of the notorious Puerto Rican debt.  And just this past week, President Obama appointed seven members to the board, five of whom are Latin@s.

This is in-your-face colonialism for a 21st Century audience.

Alt-Right and "race realism" taken with a dose of history

The Diane Rehm show had a terrific discussion about race and immigration this week.  You can find it here.  Of particular interest to me is the conversation began by Jared Taylor, editor of American Renaissance magazine, a self-described "race-realist, white advocacy organization".  This particular exchange, early in the conversation, is particularly revealing:

REHM
Help me to understand what the term race realism means.

TAYLOR
Well, this has to do with the central element that does unite the alt-right. Among the many positions held by the alt-right, we reject the notion that race is some sort of sociological optical illusion. Race is a biological fact, whether we wish to recognize that or not, and we completely reject the idea that all races are exactly equal and equivalent and in effect interchangeable. 

TAYLOR
It's obvious that if a nation goes through substantial racial demographic change, many aspects of it will change, and a majority has the right to remain a majority. This is taken for granted in all non-white countries. You would never expect the Japanese or the Nigerians or the Mexicans to countenance some kind of immigration or other program that reduced them to a minority within a period of decades. They would laugh at it. 

REHM
Of course the United States has, from its very beginnings, taken in far more of a variety of races, some voluntarily and some otherwise. 

TAYLOR
Yes, but the very first immigration law established in 1790 by the very first Congress of the United States, when these fellows were sitting around trying to decide what sort of nation they are going to be, the very first naturalization law was going to restrict naturalizations to free, white persons of good character. 

REHM
And that's how you'd like to keep it. Is that correct? 

TAYLOR
Nations have a right to maintain some kind of cultural, racial and historical homogeneity, yes indeed. Furthermore we had an immigration policy, up until 1965, that was explicitly designed to keep the nation majority European. There was absolutely nothing wrong with this. The United States, people like to call it the American experiment. I don't like to think of my country as an experiment, a bunch of chemicals sitting over a Bunsen burner. 

TAYLOR
We have not suspended the laws of human nature in the United States of America. We are a nation like any other, and the extent to which we lose any kind of cultural, racial homogeneity, the extent that we become a multi-culti mishmash, we will become an ungovernable place...

This is breathtakingly refreshing.  It is a testament to Diane Rehm and her wonderful show.  I am particularly intrigued by Mr. Taylor’s gloss on the past.

Mr. Taylor argues that the white majority has a “right” to remain a majority.  Diane Rehm pushes back, and rightly so: the US has admitted a multitude of races and nationalities from the beginning of the country, “some voluntarily and some otherwise.” Taylor responds with the 1790 Naturalization Act, which reserved U.S. citizenship to “any alien, being a free white person.”  Mr. Taylor appears to read this language as a hardened racial classification.  One need not do so, of course; instead, this language could reflect a racialized baseline that accounted for the reality of slavery as it existed in the late 18^th Century.  In other words, the language of “free white person” is simply to draw a line between black people and everyone else.

Note that this second reading is much kinder to the founding generation and their conflicted views about race.  In contrast, Mr. Taylor’s reading sides with Dred Scott and the reading of our founding generation as racist and white supremacist.  He further ascribes this view to subsequent generations, up to 1965 and the Immigration and Nationality Act, which replaced the national origins quota system with a preference system.

So there you have it.  Mr. Taylor is essentially calling into question the First Reconstruction, which overruled Dred Scott and extended rights of citizenship to the former slaves, and the Second Reconstruction, which continued the earlier struggle.  Mr. Taylor objects to racial progress, diversity and multiculturalism.  He objects to the very things that many of us see as what makes the United States an exceptional country. 

More generally, what I find most interesting about Mr. Taylor’s views is how he deploys history and his reading of our shared past in order to tell a story of where we should be as a nation.  But of course, Mr. Taylor is telling you the story he wants you to hear.  I wonder what he would say, for example, about the Treaty of Guadalupe Hidalgo and its treatment of those living in the annexed Mexican territory.  I also wonder how he would fit Hawaiian and Alaskan statehood within his narrative, or the 1917 Jones Act, which extended US citizenship to the people of Puerto Rico, or the 1924 Indian Citizenship Act, which conferred US citizenship to American Indians born in the US.  Or the McCarran Walter Act of 1952, which removed race as an exclusionary category in immigration.

I imagine he would revert back to his view of the founding generation as racist and white supremacist.

Refreshing indeed.

The Supreme Court has Denied the Stay Request on the NC Case

The Supreme Court denied North Carolina's application to stay the mandate of the Fourth Circuit decision that essentially struck down NC's omnibus voting law.  The Chief Justice, and Justices Kennedy, Alito would have granted the stay except for the preregistration issue.  Justice Thomas would have granted the stay in its entirety.  Some brief observations:

First, as I noted here, on a Court that is evenly divided on contentious voting issues, the courts of appeals are essentially courts of last resort.  But more importantly, they know that and they are behaving that way. The Fourth Circuit wrote the opinion it did because it knew that its decision was effectively unreviewable as long as no one defected from the liberal bloc.

Second, the fact that the conservative justices would have granted the stay (Justice Thomas in toto, the others everything but the preregistration), tells us a lot about the strength of the application for stay by petitioners (and the strength of the ideological divide on these issues).  The application for stay was very strong and obviously attractive to the conservative Justices, presumably the applicant's primary target.  The application was addressed to the soft spot in the lower court opinion, including the Fourth Circuit's understanding of intentional discrimination and the manner in which the Fourth Circuit's analysis limited the Supreme Court's decision in Shelby County.

Third, there are simply two different ways of thinking about law and political participation in this country.  One way of thinking about it appeals to liberals and the other way of thinking about it appeals to conservatives.

Lastly, liberals, particularly liberal academics, depending upon the outcome of the election, may get a chance to not only develop their theories of race and political participation (or of political participation writ large), they may see those theories implemented.  It will be interesting to see what the new scholarship on these issues will look like.  An example of what I have in mind is this recent paper by Pam Karlan.

The D-Word: On Discrimination

I was recently reminded once again that "discrimination" is a powerful word.  I recently joined an over-forty soccer league and we had our first game recently. From my perspective, the referee was calling most of the fouls against our team and in favor of the other team.  After yet another call that went against our team, which resulted in a booking of one of our players, I ran to the referee and shouted "this is discrimination."

The accusation of discrimination upset both the referee and some of the players on the other team.   The referee proceeded to tell me that his father was black and a couple of the players on the other team, who were Latino claimed that the charge of discrimination was absurd because they were non-white.  Words were exchanged.

As it turns out, I was not accusing the referee of racial discrimination, that would have been a non-sensical accusation. Both teams (my team and the opposing team) were predominantly white.  The people of color on my team included two Latinos who could be visually identified as such, two players of Asian descent, and myself.  The people of color on the other team included at least three Latino players but at least two could phenotypically pass as Anglos.  The foul that resulted in a yellow card was called against one of my white teammates.  The referee appeared to me to be Latino and his seemed limited.

I was not accusing him of racial discrimination or of discriminating against me.  I was accusing him of favoring the other team and discriminating against my team. My accusation was not about skin color but shirt color.

But it was interesting to me how an accusation of (a) discrimination (b) by a black person is not only a conversation stopper but evokes deep anger. People get angry about being accused of racial discrimination even when they are discriminating.  And of course the ability to level a charge of discrimination is an extremely powerful weapon.  This is why some have tried to reduce the power of the charge by inventing the concept of "playing the race card."

My opponents and the referee thought I was playing the race card.  I doubt that the referee and my opponents would have a similar reaction if I had used the word "bias" or "favoritism" instead of discrimination.  Moreover, my guess (and this is only a guess) is that if one of my white teammates had leveled the charge of discrimination, the referee would have laughed it off.

I wonder what we be gained and lost, if anything,  if people of color substituted phrases like "racial bias" or "racial favoritism" and the like for "racial discrimination"?  Would a change in discourse inhibit our ability to effectively describe racial discrimination and articulate it as such or would it enhance our ability to communicate with others the cost of racial bias and how it might be addressed?

Monica Puig, citizenship and representation

A few days ago, Monica Puig won Olympic gold in tennis, the first athlete competing under the flag of Puerto Rico ever to do so.  I was sitting at my computer when I heard the news and a bolt of electricity shot through my body.   I cried the first time I saw Puig on the medal stand and heard "La Borinqueña" in the background, and cry every subsequent time I watch the clip. It took me back to my childhood, when my entire neighborhood sat around the television set and watched Wilfredo Benitez and Wilfredo Gomez win world championships in boxing.  The sense of pride is indescribable.  

Yet my passport tells me I am an American citizen.  My passport is wrong.

Caste, the 14th Amendment, and overcoming white supremacy

I just listened to a recent Diane Rehm show, Two Views On The Jim Crow South And Its Legacy, this morning. She interviews Charles Dew and Isabel Wilkerson.  From Professor Dew, I got some answers to questions I ask myself every time I see an old picture of a lynching.  From Professor Wilkerson, I got angry.  Not about what she said, but how her discussion recalled for me our 14th Amendment doctrine and its modern colorblind interpretation.  The moral equivalence of, say, Blacks growing up under Jim Crow and whites applying to college, escapes me.  If that's what the 14th Amendment really means, I am fully prepared to give it back.

The diversity of the 2016 US women's gymnastics team

How is this for an incredible picture?

I am almost at a loss for words.  When I first saw that picture, a million questions crossed my mind.  How did we get here?  How did US gymnastics put together an elite team of gymnasts that look like a microcosm of our society?  Could we replicate this success in other contexts? If the US gymnastics team could go this far over a generation, maybe there is hope for us?

It is easy to look at this picture differently, as a critique of efforts to diversify our society.  In other words, one can look at this picture and conclude that diversity efforts are unnecessary in a world where individual merit and hard work are rewarded. Chief Justice Roberts offered a variant of this argument in his opinion in Parents Involved: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."  And once we stop, all will be well.

I don't buy it, and I don't think the Chief Justice buys it either.  A world where merit is rewarded accordingly, and where hard work takes you where you deserve to go, is not a world I recognize. It is the great American story, to be sure, but it is not reality.  Spend one moment in a hiring committee of your choice and you will know exactly what I mean.  Merit and desert are amorphous catch phrases devoid of any useful meaning.  They are conclusions, not arguments.

Which is why the US gymnastics team blows my mind.  It is one thing to put ten runners at the starting line if we are trying to decide who is the fastest of them all (think here, incidentally, about the Iliad, and particularly Achilles' struggle with merit and desert throughout the poem, and especially during the Games).  But gymnastics, where judges stand on the sidelines and award scores to individual competitors on the basis of what they see and understand, is clearly not racing.  This is a world where conventions and traditions must be followed.  This is also a world where athletes of color have been largely absent.

And that is the point.  This team is normalizing race within a sphere where race has almost served as a barrier of entry, no different from playing quarterback or running back.  And for that, I am thankful, and hopeful.  America's darlings are White, and Black, and Latina.  And so could be anyone else, whether Asian or American Indian, Muslim or Jew.

Indeed, my mind is blown.

Indeed.

A word on Justice Kennedy's "surprising" turn to the left

A few weeks ago, the US Supreme Court upheld the University of Texas' affirmative action plan in Fisher v. Texas.  The big story of the case was Justice Kennedy's apparent switch on questions of race.  How in the world does a justice who refers to the use of race by the state as a "corrosive category," and who argues that “[p]referment by race, when resorted to by the State, can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality," vote to uphold an affirmative action plan?

This was the leading narrative in the wake of Fisher.  Justice Kennedy's opinion was "stunning," "surprising," even "shocking." But that's not quite right.  

More on North Carolina NAACP v. McCrory, the North Carolina Voter ID Case

Last week, a 3-judge court of the Fourth Circuit Court of Appeals issued a unanimous opinion striking down North Carolina's voter identification laws.  Guy offered a terrific discussion of the opinion here, and I don't have much to add to his analysis.  It is dead on.  I want to focus instead on the lessons of the case about judicial behavior, race, and constitutional interpretation.

Fourth Circuit Court of Appeals Strikes Down North Carolina Voting Law

I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law.  North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent.  After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose.  The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional. 

First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites.  The legislature requested racial data on early voting.   The data revealed that African Americans disproportionately used the first seven days of early voting.  The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting.  For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted.  The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans.  When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices  it made . . . we cannot ignore the choices the General assembly made with this data in hand."

Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction.  But as importantly, the Court made an important link between partisan discrimination and racial discrimination.  The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination.  See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute[] racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense.  This is very interesting and a potentially powerful development.

Third, this opinion is a repudiation of Shelby County.  The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County.  On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965."  From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection.  The Fourth Circuit restored it. 

Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact.  The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent.  But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent.  But the biggest factor is discriminatory impact.  If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination.  This process goes a long way toward restoring section 5's burden-shifting framework.

Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court.  It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing.  Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis.  The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety. 

With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort.  NC can cry as much as it wants, but its omnibus law is now dead.  It will be buried after the appeals have been exhausted.

Lastly, big win for the plaintiffs.  Total victory.

Fourth Circuit Court of Appeals Strikes Down North Carolina Voting Law

I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law.  North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent.  After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose.  The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional. 

First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites.  The legislature requested racial data on early voting.   The data revealed that African Americans disproportionately used the first seven days of early voting.  The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting.  For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted.  The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans.  When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices  it made . . . we cannot ignore the choices the General assembly made with this data in hand."

Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction.  But as importantly, the Court made an important link between partisan discrimination and racial discrimination.  The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination.  See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute[] racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense.  This is very interesting and a potentially powerful development.

Third, this opinion is a repudiation of Shelby County.  The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County.  On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965."  From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection.  The Fourth Circuit restored it. 

Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact.  The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent.  But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent.  But the biggest factor is discriminatory impact.  If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination.  This process goes a long way toward restoring section 5's burden-shifting framework.

Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court.  It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing.  Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis.  The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety. 

With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort.  NC can cry as much as it wants, but its omnibus law is now dead.  It will be buried after the appeals have been exhausted.

Lastly, big win for the plaintiffs.  Total victory.

Fourth Circuit Court of Appeals Strikes Down North Carolina Voting Law

I have a few thoughts on the Fourth Circuit's decision today, which struck down NC's omnibus voting rights law.  North Carolina's law required voters to show a a photo ID when voting at the polls; it eliminated same date registration; it reduced the number of early voting days; it eliminated pre-registration, among its more notorious accomplishments. The Court concluded that the State enacted the law with a racially discriminatory intent.  After finding discriminatory intent, the Court shifted the burden to the State to show that the law would have been enacted in the absence of a racially discriminatory purpose.  The Court concluded that NC could not meet that burden and it struck down the law as unconstitutional. 

First, the most compelling part of the Fourth Circuit's opinion is its argument that the legislature requested racial data on how voters used various election procedures; after receiving the data the legislature decided which voting procedures they were going to change; the voting procedures that they changed "target[ed] African Americans with almost surgical precision." For example, the legislature requested racial data on voter ID and excluded many of the types of photo IDs used by African Americans but permitted the types of photo IDs used by whites.  The legislature requested racial data on early voting.   The data revealed that African Americans disproportionately used the first seven days of early voting.  The Court noted that "[a]fter receipt of this racial data, the General Assembly amended the bill to eliminate the first week of early voting, shortening the total early voting period from seventeen to ten days." This was also true for same-day registration and provisional voting.  For the race and law nerds, the Fourth Circuit's analysis here is similar to the Supreme Court's analysis in Gomillion v. Lightfoot: the way that the voting restrictions affected African Americans is only explainable if African Americans were being intentionally targeted.  The Fourth Circuit concluded: "In sum, relying on this racial data, the General Assembly enacted legislation restricting all--and only--practices disproportionately used by African Americans.  When juxtaposed against the unpersuasive non-racial explanations the State proffered for the specific choices  it made . . . we cannot ignore the choices the General assembly made with this data in hand."

Second, the Fourth Circuit also made clear that partisan discrimination is not a compelling defense or justification to a charge of vote denial or franchise restriction.  But as importantly, the Court made an important link between partisan discrimination and racial discrimination.  The Court said, "intentionally targeting a particular race's access to the franchise because its members vote for a particular party" is racial discrimination.  See also pages 40 and 56 where the Court is explicit that "targeting voters who, based on race, were unlikely to vote for the majority party[,] [e]ven if done for partisan ends, . . . constitute[] racial discrimination." This line of reasoning essentially eliminates the "it was not race it was party" defense.  This is very interesting and a potentially powerful development.

Third, this opinion is a repudiation of Shelby County.  The opinion is clear that just as "African American registration and turnout rates had finally reached near-parity with white registration" and that "African Americans were poised to act as a major force," the State tried to curtail the voting power of African Americans. The opinion strongly intimated that the State was able to do so only because of the Supreme Court's decision in Shelby County.  On page 32 of the opinion the Fourth Circuit take's Shelby County head-on and essentially refutes Shelby's claim that "history did not end in 1965."  From the perspective of the Fourth Circuit, NC has not stopped discriminating ("state officials continued in their efforts to restrict or dilute African American voting strength well after 1980 and up to the present day"). Moreover, they would have been more successful in their discriminatory attempts were it not for "the robust precautions of section 5 and suits by private plaintiffs under section 2 of the Voting Rights Act [which] prevented those efforts from succeeding." Shelby County removed that protection.  The Fourth Circuit restored it. 

Fourth and relatedly, the Court's analysis essentially shifts the burden on to the state to prove that it was not discriminating where there is a strong discriminatory impact.  The Court is explicit about its burden-shifting framework, but says it applies only where there is discriminatory intent.  But discriminatory intent here is basically shown with discriminatory impact. Yes, the Court uses NC's history of discrimination and some other factors to infer intent.  But the biggest factor is discriminatory impact.  If other courts follow this opinion, plaintiffs can get the burden shifted to the state where there is a strong discriminatory impact and a history of discrimination.  This process goes a long way toward restoring section 5's burden-shifting framework.

Fifth, I don't think this opinion would have been written the same way and I'm not sure if it would have come out the same way if Justice Scalia were still on the Court.  It is easily conceivable that this panel, given its makeup, might have struck down the most vulnerable provisions of the law but maybe not the whole thing.  Moreover, they would probably have done a disparate impact analysis instead of a discriminatory intent analysis.  The discriminatory intent finding allowed the Fourth Circuit to avoid sending the case (specifically the voter ID portion of the case) back down to the district court, which had upheld the law in its entirety. 

With a 4-4 split on contentious issues, Court of Appeals are functionally courts of last resort.  NC can cry as much as it wants, but its omnibus law is now dead.  It will be buried after the appeals have been exhausted.

Lastly, big win for the plaintiffs.  Total victory.

What's happened to us (or, what explains the allure of a Donald Trump candidacy)?

The candidacy of Donald Trump takes me back to law school.  I will never forget the day we discussed Shaw v. Reno -- the North Carolina racial gerrymandering case -- and the professor called on the guy in the back.  The guy in the back had not done the reading.  And upon every question, his answer was the same: "I don't know."  But there was something about the way the guy in the back answered the questions.  He must have seemed convincing enough.  And the case must have been confusing enough.  The professor liked those answers just fine.  

I bet the guy in the back must be a successful litigator somewhere.

This is the way I think about the Trump candidacy.  How could any of this happen? I don't know.  How could a person with no political experience get this far?  I don't know.  How could a person with such a checkered past get this far?  I don't know.  How could a person with as many bankruptcies and divorces speak for the "moral majority"?  I don't know.  How could a person recently labeled a racist by an influential columnist get this far?  I don't know. 

I could go on.

These are the questions that journalists and political scientists are now asking.  They are interesting questions.  As I think about the Trump candidacy, however, my mind goes back to the founding of the United States and the many fears and concerns that occupied the minds of the founding generation.  They feared precisely this, populism and what might amount to mob rule.  They feared direct democracy.  They feared the union of citizens "actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community."  This is where checks and balances came in, and federalism, and separation of powers, and the Senate, and the Electoral College.  You can add to this list the rise of the party system and its disciplining influence on the impulses and passions of the masses.  

You can read many accounts of what has happened to the Republican party to get us to where we are today. I am more interested in a separate question: isn't Trump's the very candidacy that our constitutional structure is designed to avoid?  It is tempting to go back through time and compare the 2016 election cycle  with prior cycles (1964 is a popular example, and the Goldwater candidacy).  But I agree with those who argue that Trump is sui generis. His candidacy is unique.  And it raises the question:  What has happened to us?  Is this who "We the People" are, at out core?  Is the Trump candidacy a reflection of our basest instincts?  

Unlike the guy in the back, we know the answers to these questions.  

What the reaction to Justice Ginsburg's words teach us about judicial supremacy and critiques of the Court

In recent days, Justice Ruth Bader Ginsburg offered some very candid remarks about the presumptive Republican nominee Donald Trump.  She noted, quite correctly, that she could not imagine what the country would be with Trump as president.  She called him inconsistent, “a faker,” and egotistical.  She joked that her late husband would have wanted to move to New Zealand if Trump were elected.

Nothing about the substance of these comments should strike us as odd or misconceived.  Yes, Trump is inconsistent.  Yes, he is a “faker.”  And yes, he has an outsized ego.  Further, few of us can imagine what the country would be like under a Trump presidency.  And many of us might consider moving to New Zealand after the election.  But what rankled so many people was the source of these comments.  Justice Ginsburg was out of line, or so the reaction goes.  Her comments were “understandable but injudicious.”  As a Supreme Court Justice, she must not enter political debates, nor may she compromise our perception of justices as constitutional animals who reside outside the world of politics.  Justice Ginsburg caved by the end of last week, and offered a half-hearted apology.

For the life of me, I cannot understand why she would have to do that.

There is something intriguing (and even interesting) about Ginsburg’s comments and the immediate reaction that ensued.  To be sure, we could say that Justice Ginsburg violated no laws or rules of ethics.  We could also say that she is on the side of history and John Stuart Mill: this is not new, as justices have campaigned before, and more speech is always better.  We could even say that she wouldn’t have to recuse herself in a future hypothetical case involving Trump.  We could go even further: Trump is no ordinary candidate; these are not ordinary times; and Ginsburg did a very courageous thing.

All these arguments remain at the margins of a much more important debate.  How did we end up in a place where the Supreme Court can decide presidential elections on purely political grounds, thrust itself into the most pressing questions of our day, take sides in policy debates and issue opinions that need not make any sense whatsoever (I am looking at you, Shelby County v. Holder) and yet we stand back and defend a myth of the justices as apolitical creatures?  In other words, how did we arrive at a place in our constitutional history where the Court can neuter the Voting Rights Act on specious legal grounds, take up continuous challenges to the Affordable Care Act, and  deadlock over President Obama’s immigration directive on ideological grounds, yet suffer no apparent damage, constitutional, political or otherwise?

In this vein, I cannot help but ask, whatever happened to the countermajoritarian critique that so attracted conservatives scholars and pundits in the 1960’s?  The difficulty was not as difficult as it once appeared, is it?

What we need, instead of opprobrium against Justice Ginsburg, is an argument for why this is a Court worth defending.  And no, vacuous rhetoric about the value of judicial independence will not do.

It is much harder than it sounds.

The Wisdom of Eight

In the recent Zubik v. Burwell, the “Little Sisters” contraceptive mandate case, the U.S. Supreme Court took the unusual step of the sending the lawsuit back to the lower federal courts and instructed them to try to “arrive at an approach going forward that accommodates the petitioners’ religious exercise while at the same time ensuring that women covered by petitioners' health plans “receive full and equal health coverage, including contraceptive coverage.” Reactions to the Court’s order have been mixed, though largely negative. Critics generally complain that the Court must be able to provide definitive and final answers to legal questions. According to these critics, the ability to resolve legal differences and lend clarity to the law is central to the Court’s role. This is something that an 8-member Court is not able to do. More damningly, an 8-member Court is “Not So Much Deadlocked as Diminished.” The obvious solution is for the Senate to confirm a ninth justice.

This is puzzling on many fronts. As a question of constitutional history: the Court hasn’t always had an odd number of justices. Under the Judiciary Act of 1789, in fact, the Court would have one chief justice and five associate justices. The Court also had an even number of justices (ten) during the Civil War. This history suggests that a focus on mere numbers misses the larger story. The focus should not be on the need for a new justice to break all ties when the Court is closely divided, but on why there is a need for such a justice at all. In other words, the focus should be on the rise and fall of the norm of consensus and its lessons about the Court, constitutional law, and judicial behavior. What does the need for a tie-breaking justice tell us about the institution, the justices, and constitutional interpretation? These are not idle questions.

As a question of constitutional law: The Court is not the final constitutional arbiter that critics of Zubik wish it to be. This is largely a myth fostered by the legal culture and the Court itself. The justices are keenly aware of the impact of their decisions on the relevant publics and acts accordingly. This is true across the Court's history, from the time of Marbury to Brown and the present day. Think about the last time the Court valiantly took on democratic majorities in the name of constitutional law.

I can't think of many either.

Whether we like it or not, the Supreme Court is generally in line with public moods and trends. This is particularly true for the notable cases that occupy the public’s attention, and about which the justices care deeply. These are the politico-moral issues, which are perceived as having right/wrong answers and thus have the potential to polarize a nation. These are the issues that opinion polls track, the issues that the public follows and understands, the issues about which most of us care deeply, including the justices. These are the classic “litmus test” issues, such as abortion and affirmative action, which Senators are sure to ask about during confirmation hearings, and which the public wants to know about prior to confirmation. These are the issues that define judicial eras. For the issues that matter, then, constitutional meaning is deeply influenced by public opinion. As a result, the Court is only as final as the public wants it to be.

As a question of constitutional theory: think about the amount of ink spilled in the last generation over the proper role of the Court in a democratic society. The debate has been deafening. To date, the critics might have the upper hand. It is difficult to reconcile judicial review with democratic theory. This is why the end of this Term offers a simple yet brilliant answer to Bickel’s famed difficulty: a diminished Court. And yet, critics of Zubik take the opposite view, and wish for a muscular and aggressive Court to take on existing majorities. What lies behind these arguments? Is constitutional theory no more than a question of whose ox is being gored?