This election season was disappointing, to put it mildly. Infuriating, even. But not for the obvious reasons. The election of Donald Trump did not infuriate me or disappoint me as much as it embarrassed me, for what I take to be obvious reasons. The presidency always stood for something much bigger than all of us. That is no longer true. This is not what I want to write about today, however.
The 2016 election cycle took me back to my law school days, a time when I first came upon the Rodriguez case. This is San Antonio Independent School District v. Rodriguez, decided in 1973. The case challenged a Texas funding scheme for its public schools that both set a minimum funding threshold for every school in the state but also relied on local property taxes for supplemental revenue. This reliance on property taxes led to vast and obvious inequalities among schools, since richer schools had a much more robust property tax base than poorer schools. This was obvious to anyone who cared to pay attention. Thus the question that reached the Supreme Court in 1972: does this obvious and severe funding inequality violate the equal protection clause, that is, the principle that all persons must be treated equally? Put a different way: could such severe funding inequality possibly conform with the constitutional norm of equality?
This was not a crazy question, nor was it a question with an obvious answer, not in 1973 and not today. Reasonable minds can disagree. The three-judge panel held that the funding scheme violated the Constitution, both because wealth was a suspect class and education was a fundamental right. This meant that the state must provide a compelling reason for its funding scheme but it could not do so. The panel struck down the plan yet gave the state ample time to come up with a new funding scheme. The US Supreme Court disagreed, in a 5-4 decision authored by Justice Lewis Powell, and upheld the Texas scheme.
I remember reading the case and trying to make sense of it. It was easy enough to make sense of the case as a legal issue. Once the Court decided the threshold questions -- whether wealth was a suspect class or education a fundamental right -- the rest of the opinion followed as a matter of course. There was nothing there. But that was precisely the point. Why in the world was wealth not a suspect class or education a fundamental right? On the wealth issue: how could the state pick winners and losers from the moment a child steps on public school grounds? How could such stark inequalities in funding meet constitutional norms? On the education issue: whatever happened to Brown and its language about the importance of public education in modern society? This was another way of asking, whatever happened to the Warren Court?
And that was the point. The Nixon election in '68 had brought about the expected change in the Court's composition. This is what follows when a president nominates 4 new justices in the span of four years. This is another way of saying that elections matter. As others have written, this is the most direct way to affect constitutional change outside the amendment process. Nixon did that. Faced with a chance to extend Brown to its logical resting place, or to continue the trend begun by the Warren Court to recognize wealth as a suspicious category, the Burger Court chose neither. And poor children, whom in the Rodriguez case were mostly children of color, lost again. No surprise there.
The Rodriguez case offers two lessons worth remembering. The first is implied in the prior passage: judicial nominations matter and the worldviews of those who take to the bench. Too often, we speak of courts as a faceless monolith, but doing so serves to hide the real faces and ideologies of those who make some of the most important decisions in our society. Take Rodriguez, for example. Earlier, I referenced the lower court panel, which sided with the plaintiffs. What I did not say was that two of the members of that panel were nominated by President Johnson, and the third was nominated by President Kennedy. And that matters. These three judges read the same record facing the Supreme Court yet interpreted it differently. Where the lower court saw the stark inequalities in the state scheme and demanded a compelling state interest in accordance with recent Warren Court cases, the Supreme Court saw the same facts and could not find "any evidence that the financing system discriminates against any definable category of 'poor' people" and concluded that "the Texas system does not operate to the peculiar disadvantage of any suspect class." Importantly, Rodriguez was a 5-4 decision. The Supreme Court was itself closely divided on these questions.
The question was obvious to me then, and it is obvious to me today. I agree with the lower court in Rodriguez that the Texas scheme violates the equal protection clause. The poor are a suspect class and education is a fundamental right. Maybe this makes me an activist, or a liberal, or a believer in a living constitution. If so, I find myself in good company. This is Heller, the Second Amendment case. This is Citizens United, the campaign finance case. This is any race case decided by the Rehnquist or Roberts Court. So there is really no need for sanctimony.
As for the bigger question, and the second lesson in Rodriguez: who speaks for the poor? We are asked to believe that the Republican Party, and its plutocratic flag-bearer, speak for the poor. We are asked to believe that the party of Trump speaks for the poor. We are asked to believe that the same man who paid no taxes, created Trump University and swindled many, and bankrupted myriad properties in order to achieve his own financial gain, speaks for the poor. We are asked to believe that Trump read Michael Harrington and found religion.
We are asked to believe the unbelievable.
So this is what we have left. A few generations ago, the Democratic Party spoke for the poor and we could dream of a Great Society. Judges appointed by Democratic presidents sought to understand the Constitution thusly, but Republican judges thwarted that effort. Yet the Republican nominee rode that very issue all the way to the White House.
It is hard not to be disappointed, and infuriated.
And the question remains: who, then, speaks for the poor?
Nobody.
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