The Road from Texas to the End of the Second Reconstruction through the FHA

On October 2, the Court granted cert on a deceptively simple question: whether disparate impact claims are cognizable under the Fair Housing Act.  The case is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.  This is the Court's third attempt since 2012 to answer this question, having granted cert in two prior cases, only to see the parties settle their disputes before the Court could answer it.  The most recent case, Twp. Of Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., was dismissed on November 15, 2013.  Eleven months later, the Court is ready to try again.

One need not be terribly cynical to wonder why the Court is so insistent.  

I smell a rat.

A thought on Public Opinion, Marriage Equality and the Court

A few days ago, a student referred me to the following graph:

The graph raises two questions for me.  The first and most glaring question is the gap between the red lines, between public opinion on interracial marriage and the percentage of people who lived in states that allowed the practice.  To be sure, this explains Naim v. Naim and the Court's refusal to strike down anti-miscegenation laws as discordant with Brown and equal protection. But what it does not explain is the Court's decision in Loving, which struck down these laws in the 16 states that still had laws in the books against interracial marriage.  It seems the case cannot be explained by pointing to public opinion in 1967.  It also cannot be explained as a time when the Court rounded up a few remaining outliers.

Could the case be explained by invoking morality and constitutional principles?  If not, what is left?

The second question focuses on the lag between opinion on marriage equality the number of states approving the practice.  That the blue lines are about to meet sometime soon tells us something important about the rapidity with which the marriage equality debate has moved in the last few years.  To me, the question is: what accounts for that change?  Can we explain it simply by pointing to social movement theory?

This leads me to a third question, about which I will have much more to say in a future post: why did the Court hesitate last week and decide against entering the marriage equality debate?  To enter the debate would be to side with a majority of the American public.  It is also true that a majority of the population now live in states that issue marriage licenses to same-sex couples.  The writing is clearly on the wall.  So why wait?  How strong must public opinion be on this question?  How many outliers must remain?

Part of the answer must be that we misunderstand what the Court is, what it does, and what it can do.  We have a romantic view, fostered by the media and taught in many law schools, of the Court as a countermajoritarian hero.  This is not an accurate view of the Court and its work. The Court is far from a fearless defender of the rights of minorities.  In fact, the Court seldom leads public opinion but follows it.  Rather than looking at the Court's hesitation from last week and asking why it chose not to decide, the better question is: how much more will it take for the Court to get in the marriage equality debate?

Making Sense of Schuette; or, it might be time to give back the 14th Amendment

In the wake of Grutter v. Bollinger, Michigan voters approved Proposal 2, a measure designed to prohibit the use of race in admission to state universities.  It stood to reason that the Roberts Court would uphold this proposal, and so it did, in the recent Schuette v. BAMN.  According to the plurality opinion, authored by Justice Kennedy, this case involved a fundamental right held "by all in common:" "the right to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process."

I wonder what he means by that.  Assume that citizens of the state of Michigan return to the polls ten years from now and reverse Proposal 2.  Assume, that is, that they continue todebate, learn, and act once again through a lawful process.  What if the citizenry takes it further and in fact demands that state universities take race into account during their admissions processes?  What would the plurality say then?

This is when our bizarre constitutional world kicks in.  Opponents of race conscious policies can eliminate these policies through the political process and the Court stands aside.  Were supporters of these policies able to overturn this outcome through the same political process, the Court will be ready to stand in their way, in the name of constitutional justice.

This is a  perverse constitutional world.  If this is what the 14th Amendment demands in fact, it must be time to give the Amendment back.

How does anyone committed to an originalist jurisprudence make sense of this?

Better question: is there anybody left in the world who believes that our race jurisprudence is guided by law and not ideology and the justices' personal preferences?

Birthright Citizenship and the 14th Amendment: Part I

It's hard to believe that as midterm elections are slowly coming into view that Republican leaders, particularly those in Congress, have chosen birthright citizenship as the evil of the day, as opposed to the near 10% unemployment rate or anything else of merit to talk about.  I'm also miffed that Lindsey Graham, the Republican Senator from South Carolina is apparently one of this movement's leaders.  I've long regarded Senator Graham as a serious legislator; a Senator who tries hard to find the right mix between a politics of cynicism and principle. I can understand why he may be frustrated by our collective inability to find a legislative compromise of comprehensive immigration reform.  I can understand also why he may feel politically vulnerable.  (Though I cannot understand, if he feels so politically vulnerable, why he would vote to confirm Elena Kagan and make-up for past political transgressions(?) by taking up this birthright citizenship issue.  If you're going to take a stand on principle, then be consistently principled, especially about the things that really matter.)   And like President Obama, perhaps he does not get enough credit for reaching out across the political chasm and for his legislative achievements.  But this?  This?

To better understand what "this" is.  Let me give a little bit of background on the legal cases that have dealt with birthright citizenship.  Other bloggers have focused on the history of the 14th Amendment (see for example the usually insightful Sherrilyn Ifill here).  So, for the benefit of our non-legal readers, I will focus on the cases themselves, starting in this post with the central case.

The most significant case is United States v. Wong Kim Ark, 169 U.S. 649 (1898).  The facts of the  case are fairly simple.  Mr. Wong Kim Ark was born in the United States to parents who were Chinese nationals but legal United States residents. In 1894, he left the U.S. for a brief visit to China and was not allowed back in on the ground that he was not a United States citizen.  This was not the first time he had left the U.S. for a visit to China, but it was the first time he was denied re-entry.

Congress had passed the Chinese Exclusion Act, which denied anyone of Chinese descent entry to the United States.  Wong Kim Ark argued that the statute was unconstitutional in violation of the 14th Amendment.    The 14th Amendment provides in relevant part that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside."  The United States argued that because Mr. Wong's parents not citizens of the United and therefore "subject to the jurisdiction" of China, Mr. Wong was not a "natural born" citizen as that term is used in the 14th Amendment. Mr. Wong argued that by being born in the United States he was a natural born citizen and the phrase "subject to the jurisdiction thereof" only meant to exclude children of foreign diplomats born in the United States.  Because he was not a child of foreign diplomats, the exclusion did not apply to him.

Thus, the issue to be decided in the case was "whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subjects of the emperor of China, but have a permanent domicile and residence in the United States . . . and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the fourteenth amendment of the constitution."

The Court agreed with Mr. Wong and rejected the United States' argument.  Surveying English common law, European law, and domestic statutes, the Court concluded that the prevailing understanding at the time that the 14th Amendment was adopted was that "all children, born within the dominion of the United States, of foreign parents holding no diplomatic office, became citizens at the time of their birth."