IIm mppoorrttaanntt S Suupprreem mee C Coouurrtt D Deecciissiioonnss D Deeaalliinngg w wiitthh D Diissccrriim miinnaattiioonn Please note: Between 1865 and 1937, during the Reconstruction and the Industrial Revolution, the dominant political controversy revolved around balancing regulatory interests and those of business, and the Court defended the interests of American capitalism and private enterprise. Only after 1937 did the Court begin to assume the role of guardian for civil liberties and civil rights in defending the rights of minorities. The Court’s role has changed with constitutional politics, as Harvard Law School professor Paul Freund nicely expressed by analogy in his article entitled “My Philosophy of Law” published in the Connecticut Bar Journal: As Hamlet is to one generation a play of revenge, to another a conflict between will and conscience, and to another a study in mother-fixation, so the Constitution has been to one generation a means of cementing the Union, to another a protectorate of burgeoning property, and to another a safeguard of basic human rights and equality before the law (1965:220). Since world war II, legal scholars have turned not only toward moral and political philosophy as a guide for constitutional interpretation and the Court’s exercise of judicial review, they have also called for the development of a “political jurisprudence,” combining normative theory (what should be) with empirical studies 1 (research that tests theories using quantitative or qualitative data collection methods and analyses); an economic approach to law, which would make rights turn on cost-risk-benefit analysis;2 and drawn on theories of literary criticism.3 Still others in the Critical Legal Studies movement attack theories of liberal legalism in an effort to deconstruct legal reasoning and law to show its drawbacks for minorities, women, and the poor.4 Since this revolution in constitutional politics, the Court has evolved a proverbial double standard: it gives economic regulation only minimal scrutiny, requiring only that it have some rational basis, while giving that affecting civil liberties heightened scrutiny, often upholding legislation only if the government’s interest in regulation is compelling. And since 1937 the Court has assumed a special role in overseeing voting rights and access to the political process; the freedom of speech, press, and association; and invidious forms of racial and nonracial discrimination. Understanding the development of law is an important concept when looking at how the Supreme Court intervenes in this area. The table on the following page will help you to understand this more clearly. T TH HE ED DE EV VE EL LO OP PM ME EN NT TO OF FL LA AW W T TH HE ES SU UP PR RE EM ME EC CO OU UR RT T’’S ST TE ES ST TS SA AN ND DS ST TA AN ND DA AR RD DS SF FO OR RA AP PP PL LY YIIN NG GE EQ QU UA AL LP PR RO OT TE EC CT TIIO ON NC CL LA AU US SE E Tiers of Analysis Upper Tier Applies to suspect classifications and fundamental rights Upper Tier Applies to quasi-suspect categories Lower Tier Applies to economic regulation and nonsuspect classifications Standard of Judicial Review Legislative Classifications Strict Scrutiny Test: Race See Brown v. Board of Is there a compelling Education of Topeka, state interest to a Kansas and City of legislative Richmond v. J. A. classification? Cronson Alienage But see Phyler v. Doe Exacting Scrutiny or Strict Gender See Craig v. Brown Rationality Test: Is there a substantial Affirmative Action See Regents of the relationship in fact University of California between the means v. Bakke and ends of legislation Illegitimacy Alienage See Phyler v. Doe Minimal Scrutiny Rational Indigency See San Antonio Basis Test: Independent School Is there a rational basis, District v. Rodriguez reasonable basis for legislation? Age Alienage Where an essential governmental function is implicated Claims of Fundamental Rights Right to vote Right to Interstate Travel See Shapiro v. Thompson Education, Housing, Welfare See San Antonio Independent School District v. Rodriguez The Fourteenth Amendment guarantees “the equal protection of the laws.” The principle of equality embodied there might be interpreted to bar only discrimination against blacks, because in the historical context of the post-Civil War period the Thirtyninth Congress was indisputably primarily concerned with ensuring that states did not deny certain rights of newly freed blacks. However, the principle of equality has been given broader application and a higher level of generality so as to bar other kinds of racial discrimination against, for example, Hispanics, Native Americans, or Asians, the amendment has been construed to forbid forms of nonracial discrimination against women, children, and aliens. But how and on what basis may this broader application of the equal protection clause be defended and d the Court’s exercise of judicial review in this way justified? In sum and in Judge Bork’s words, “The question is always the level of generality the judge chooses when he states the idea or object of the Framers.” Interpretivists, no less than noninterpretivists, cannot evade making basic constitutional choices in their conceptions and formulations of the underlying principles of constitutional provisions. Equal Protection of the Law The Civil Rights Cases 109 U.S. 3, 3 S. Ct. 18 (1883)—At issue in five cases, coming from California, Kansas, Missouri, New Jersey, and Tennessee, which were consolidated and decided together, was the constitutionality of Congress’s passage of the Civil Rights Act of 1875. That legislation made it a federal crime for owners and operators of any public accommodation—schools, churches, cemeteries, hotels, places of amusement, and common carriers—to “deny the full enjoyment of the accommodations thereof” because of race or religion. Each of the cases involved challenges to the enforcement of the law against innkeepers, theater owners, and a railroad company. With only Justice John Marshall Harlan dissenting, Justice Joseph Bradley held for the Court that Congress had no authority under the 13 th and 14th Amendments to enact the Civil Rights Act of 1875, and had intruded on the powers reserved to the states by the 10th Amendment. Moreover, Justice Bradley narrowly read the 13th Amendment to only abolish slavery, but not private racial discrimination, and limited the 14th Amendment to bar only racial discrimination backed by state action. By contrast, Justice Harlan pointed out that the Court previously upheld Congress’s power to regulate the behavior of private individuals—notably, when upholding fugitive slave laws requiring the return of slaves to their owners. Also, in his view racial discrimination was a badge of servitude abolished by the 13 th Amendment and a matter on which Congress could legislate when enforcing the 13th and 14th Amendments. As a result of the majority’s ruling racist attitudes were reinforced and the basis was laid for states to pass Jim Crow laws, requiring the separate treatment of blacks and whites in public accommodations. Yick Wo v. Hopkins 118 U.S. 356 (1886)—In this case, the Court struck down San Francisco’s safety ordinance making it illegal to operate laundries in other than stone or brick buildings (and which was used to put Chinese laundries out of business), the Court observed that “though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unjust hand, so as practically to make unjust and illegal discrimination between persons in similar circumstances, material to their rights, the denial of equal justice is …within the prohibition of the Constitution.” At the same time, the equal protection clause has never been broadly construed to forbid all discrimination or inequities before the law. This is so because all laws—all legislative classifications—discriminate and treat people differently. The central problem for the court lies in giving content and application to the principle of legal equality—equality before the law. Just as controversial as whether the 14th amendment aimed to ensure equal voting rights, and whether it applied the guarantees of the Bill of Rights to the states, has been whether the amendment forbids racial segregation, as well as other kinds of nonracial discrimination. Justices, historians, and legal scholars, have long debated the legislative history of the 14th Amendment. Some contend that the 39th Congress, which drafted and adopted the amendment, aimed to give the federal government broad powers to ensure the rights of blacks and to advance the political idea of equality. 5 Others have marshaled evidence that the amendment was not designed to forbid racial segregation; indeed it neither granted voting rights to blacks nor prohibited racial segregation. Still others concede that the historical record “is not entirely consistent” and that the amendment is “so broad and general that it could be used to support almost anything. Plessy v. Ferguson 163 U.S. 537 3 S. Ct. 18 (1896)—Four years after the Supreme Court struck down the Civil Rights Act of 1875 in the Civil Rights Cases (1883), Florida enacted the first “Jim Crow” law, requiring separate but equal facilities for blacks and whites in railway passenger cars. Louisiana and other states in the Deep South followed with similar laws. Blacks were embittered by the passage of these laws, but the Court adapted the Constitution to support racial discrimination by white legislative majorities. In Louisville, New Orleans, and Texas Pacific Railroad v. Mississippi, 133 U.S. 587 (1890), the Court ruled that segregated railroad passenger cars traveling in intrastate commerce did not interfere with Congress’s power to regulate interstate commerce under the commerce clause. Louisiana’s Jim Crow law was challenged in a test case brought by Homer Plessy, who was one-eighth black. When he boarded a railroad train in New Orleans, which was headed for Covington, Louisiana, he refused to sit in the car reserved for “colored only” and sat in one reserved for whites instead. He was arrested, convicted, and appealed to the Supreme Court. Plessy’s attorneys contended that Louisiana’s law violated the 13th and 14th Amendments. By vote of eight to one, the Supreme Court rejected Plessy’s arguments. Note the sharply different interpretations of the Constitution and social attitudes in the majority’s opinion by Justice Henry Brown and in the sole dissenting opinion by Justice John Harlan. Whereas Justice Brown dismisses the claim the state’s action violates the 13th amendment as “too clear for argument,” Justice Harlan had no doubt that compulsory racial segregation imposed precisely the kind of badge of servitude that the amendment aimed to outlaw. Justice Brown’s treatment of the 14th Amendment claim is also far from cogent. Although allowing that the amendment “was undoubtedly to enforce the absolute equality of the two races before the law,” he adds that “in nature of things it could not have been intended to abolish distinctions based on color,” but rather a reasonable exercise of state police power “for the promotion of the public good, and not for the annoyance or oppression of a particular class.” By contrast, Justice Harlan conceived of all forms of racial discrimination to constitute invidious discrimination under the 14th amendment. Shelley v. Kraemer 334 U.S. 1, 68 S. Ct. 836 (1948)—Louis Kraemer and his wife sought and obtained an injunction against J. D. Shelley, a black, from taking possession of a parcel of land in their St. Louis, Missouri neighborhood. Shelley bought the land from one of Kraemer’s neighbors without knowing that it was covered by a restrictive covenant, barring owners from selling their land to members of “the Negro or Mongolian race.” A state trial court found the covenant technically faulty, but was reversed on appeal by the Missouri State Supreme Court, which held that the covenant did not deny Shelley’s constitutional rights. Shelley’s appeal to the Supreme Court became a test case for the NAACP and was argued by the NAACP’s leading counsel, Charles Houston and Thurgood Marshall. The NAACP sought to persuade the Court to reconsider an earlier ruling, Corrigan v. Buckley, 271 U.S. 323 (1926), upholding restrictive covenants. Eighteen briefs, including one by Democratic President Harry Truman’s solicitor general, supported the NAACP’s position. With three justices (Reed, Jackson, and Rutledge) not participating in the decision, the Court unanimously held that judicial enforcement or restrictive covenants constituted state action and ran afoul of the 14 th Amendment. But note that Chief Justice Fred Vinson neither overrules Corrigan nor explains why and how far the state action doctrine extends to bar private racial discrimination not forbidden by the states. Palmore v. Sidoti 466 U.S. 429, 104 S. Ct. 1879 (1984)—The facts of this case, involving the issue of interracial adoption, are stated at the outset of the opinion for the Court by Chief Justice Warren Burger. Chief Justice Burger indicates: When petitioner Linda Sidoti Palmore and respondent Anthony J. Sidoti, both Caucasians, were divorced in May 1980 in Florida, the mother was awarded custody of their three-year-old daughter. In September 1981 the father sought custody of the child by filing a petition to modify the prior judgment because of changed conditions. The change was that the child’s mother was then cohabitating with a Negro, Clarence Palmore, Jr., whom she married two months later…After hearing testimony from both parties and considering a court counselor’s investigative report, the court…concluded that the best interests of the child would be served by awarding custody to the father. The court’s rationale is contained in the following: The father’s evident resentment of the mother’s choice of a black partner is not sufficient to wrest custody from the mother. It is of some significance, however, that the mother did see fit to bring a man into her home and carry on a sexual relationship with him without being married to him. Such action tended place gratification of her own desires ahead of her concern for the child’s future welfare. This Court feels that despite the strides that have been made in bettering relations between the races in this country, it is inevitable that Melanie will, if allowed to remain in her present situation and attains school age and thus more vulnerable to peer pressures, suffer from the social stigmatization that is sure to come.”… The core purpose of the 14th Amendment was to do way with all governmentally imposed discrimination based on race…The State of course, has a duty of the highest order to protect the interests of minor children, particularly those of tender years. In common with most states, Florida law mandates that custody determinations be made in the best interest of the children involved. The goal of granting custody based on the best interests of the child is indisputably a substantial government interest for the purposes of the Equal Protection Clause. It would ignore reality to suggest that racial and ethnic prejudices do not exist or that all manifestations of those prejudices have been eliminated. There is a risk that a child living with a stepparent of a different race may be subject to a variety of pressures and stresses not present if the child were living with parents of the same racial or ethnic origin. The question, however, is whether the reality of private biases and the possible injury they might inflict are permissible considerations for removal of an infant child form the custody of its natural mother. We have little difficulty concluding that they are not. The Constitution cannot control such prejudices but neither can it tolerate them. Private biases may be outside the reach of the law, but the law cannot, directly or indirectly, give them effect…The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody. The judgment of the District Court of Appeal was reversed. Brown v. Board of Education of Topeka, Kansas (Brown I) 347 U.S. 483, 74 S.Ct. 686 (1954)—This case challenging the constitutionality of racially segregated public schools arrived on the Supreme Court docket in 1951 and was consolidated with three other cases (from Delaware, South Carolina, and Virginia) and another Bolling v. Sharpe attacking the federal government’s segregated school system in the District of Columbia. On such a politically explosive issue, Justice Tom Clark recalled, the Court wanted “to get a national coverage, rather than a sectional one.” Oral arguments were heard in December 1952. Instead of the decision coming down as expected in the spring, however, the Court decided to hear rearguments in its next term. The Vinson Court was split and deeply troubled by the prospect of white southern opposition to its striking down racially segregated public schools. Justice Felix Frankfurter persuaded his colleagues to carry the cases over to the next term because 1952 was an election year. “When you have a major social political issue of this magnitude,” timing and public reactions are important considerations, and, Frankfurter told a law clerk, “we do not think this is the time to decide it.” By holding the cases over, the Court was able to receive the views in the brief of the incoming administration of Republican President Dwight Eisenhower. Public education must be considered in the light of its full development and its present place in American life throughout the Nation. Only in this way can it be determined if segregation in public schools deprives these plaintiffs of the equal protection of the laws. Today, education is perhaps the most important function of state and local governments. Compulsory school attendance laws and the great expenditures for education both demonstrate our recognition of the importance of education to our democratic society. It is required in the performance of our most basic public responsibilities, even service in the armed forces. It is the very foundation of good citizenship. They concluded that in the filed of public education the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, they held that the plaintiffs and others similarly situated for whom the actions have been brought were; by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the 14 th Amendment. This disposition makes unnecessary any discussion whether such segregation also violates the Due Process Clause of the 14th Amendment. Because these are class actions, because of the wide applications of this decision, and because of the great variety of local conditions, the formulation of decrees in these cases presents problems of considerable complexity. On reargument, the consideration of appropriate relief was necessarily subordinated to the primary question—the constitutionality of segregation in public education. We have now announced that such segregation is a denial of the equal protection of the laws. In order that we may have the full assistance of the parties in formulating decrees, the cases will be restored to the docket, and the parties are requested to present further argument… ENDNOTES See Martin Shapiro, “Political Jurisprudence,” 52 Kentucky Law Review 294 (1964); Harry Stumpf, Martin Shapiro, David Danelski, Austin Sarat, and David O’Brien, “Whither Political Jurisprudence?: A Symposium,” 36 Western Political Quarterly 533 (1984); and Rogers Smith, “Political Jurisprudence, The ‘New Institutionalism,’ and the Future of Public Law,” American Political Science Review 89 (1988). 1 2 See, for example, Richard Posner, Economic Analysis of Law, 2nd Ed. (Boston: Little, Brown, 1977). 3 See William Bishin and Christopher Stone, Law, Language, and Ethics (Mineola, NY: Foundation Press, 1972); John Brigham, Constitutional Language (Westport, CT: Greenwood Press, 1978); Leif Carter, Contemporary Constitutional Lawmaking (New York: Pergamon, 1985); James White, When Words Lose Their Meaning (Chicago: University of Chicago Press, 1973); Richard Posner, Law and Literature: A Misunderstood Relation (Cambridge: Harvard university Press, 1988); and James White, Justice as Translation (Chicago: University of Chicago Press, 1990). 4 See David Kairys, Ed., The Politics of Law (New York: Pantheon, 1982); and Editors of the Harvard Law Review, Essays on Critical Legal Studies (Cambridge: Harvard Law Review Association, 1986). 5 See Horace Flack, The Adoption of the Fourteenth Amendment (Baltimore, MD: Johns Hopkins University Press, 1908); Jacobus tenBroek, The Antislavery Origins of the Fourteenth Amendment (Berkeley: University of California Press, 1951); William Wiecek, The Sources of Antislavery Constitutionalism in America (Ithaca, NY: Cornell University Press, 1977); and Howard Graham, Everyone’s Constitution: Historical Essays on the Fourteenth Amendment, the “Conspiracy Theory,” and American Constitutionalism (Madison: State Historical Society of Wisconsin, 1968).