Jurisprudential Regimes : The Supreme Court, Civil Rights, and the Life Cycle of Judicial Doctrine [1 ed.] 9781593326623, 9781593324421

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Jurisprudential Regimes The Supreme Court, Civil Rights, and the Life Cycle of Judicial Doctrine

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Marcella Marlowe

LFB Scholarly Publishing LLC El Paso 2011

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Marlowe, Marcella, 1974Jurisprudential regimes : the Supreme Court, civil rights, and the life cycle of judicial doctrine / Marcella Marlowe. p. cm. Includes bibliographical references and index. ISBN 978-1-59332-442-1 (hardcover : alk. paper) 1. United States. Supreme Court. 2. Judicial process--United States. 3. Civil rights--United States. I. Title. KF8742.M275 2010 347.73'26--dc22 2010038566

ISBN 978-1-59332-442-1 Printed on acid-free 250-year-life paper. Manufactured in the United States of America.

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To Albert A. Hellman

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Table of Contents

List of Tables ........................................................................................ix Acknowledgements...............................................................................xi CHAPTER 1: Introduction To Jurisprudential Regimes........................1 CHAPTER 2: Regimes & Phases – Telling a Story.............................27 CHAPTER 3: The Jim Crow Era.........................................................45 CHAPTER 4: The Civil Rights Era .....................................................69 CHAPTER 5: The Affirmative Action Era........................................ 101 CHAPTER 6: Bringing It All Together ............................................. 131 Bibliography ...................................................................................... 141

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Index .................................................................................................. 169

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List of Tables

TABLE 1: Supreme Court’s Civil Rights Jurisprudence Regimes ......22 TABLE 2: Projected Criteria for Identifying Regime Phases .............43 TABLE 3: Voting Patterns for the Post-Governance Cases................96 TABLE 4: Changing Justice Vote Combinations .............................. 109

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TABLE 5: Final Criteria for Identifying Regime Phases .................. 134

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Acknowledgements

So very many people were critical to the progress and completion of this project; I cannot hope to thank everyone. Of course, any remaining failings are mine alone. I must first convey my gratitude to Patrick Beals, Michele Ficks-Hellman, Mark Hellman, and Dr. Steven Horn for research, administrative, and editorial assistance with earlier drafts of this manuscript. Personal affection and gratitude to Judith Boros, Michele Ficks-Hellman, Lois Hellman, Mark Hellman, Shelley Hellman, Dr. Steven Horn, Kattie Johnson, Brian Luster, Dr. Julie Silvers, Dr. Deborah Wallace, and Addie Winter. I have been influenced by many brilliant authors, too numerous to name, but most notably Derrick Bell, Catharine MacKinnon, Charles Lawrence III, and Kimberlé Crenshaw. However, my passion for civil rights was first inspired over 20 years ago when I read And the Band Played On by Randy Shilts. That book, and his several others, personalized discrimination for me, and crystallized my commitment to equality. Over the years, I have enjoyed support, encouragement, mentorship, and insights from Dr. John E. Barnes, Erwin Chemerinsky, Dr. Ann Crigler, Dr. Mary Dudziak, Dr. AngeMarie Hancock, Dr. Mark Kann, Dr. Michael Preston, Dr. Alison Dundes Renteln, Dr. Terry Seip, and Alex Venegas. Ultimately, amidst all of the academic giants I have had the benefit of working with, I am most indebted to Dean Howard A. Gillman, whose impact on my teaching, thinking, and ideas cannot be overstated.

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CHAPTER 1

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Introduction To Jurisprudential Regimes

This book uses the Supreme Court’s civil rights jurisprudence to analyze changes in constitutional law doctrine. More specifically, it draws on literature in both American Political Development (APD) and institutionalist-based scholarship regarding the notion of jurisprudential regimes to argue that doctrine development follows a particular development pattern. If so, what is the “life cycle” pattern of jurisprudence? And, relatedly, yet secondarily, how does this life cycle inform an understanding of the quantitatively established concept of “jurisprudential regimes”? This discussion will be framed around the Court’s equal protection jurisprudence concerning racial classifications. As we know, constitutional change is most likely to result from change over time in a combination of two different areas: the direction of case outcomes and the legal doctrines utilized to get to those outcomes. As each of those two factors evolve, so will constitutional meaning. As we might expect, political scientists and legal scholars have developed several approaches to explaining constitutional change. However, although it seems relatively likely that change must have the two components, outcome and doctrine, current literature typically seeks only to explain the former, often seeing doctrine as the legal “cover” for desirable case outcomes. This school of thought, called judicial decisionmaking in political science, and empirical legal studies 1

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(ELS) in the legal community, seeks to explain judicial voting behavior.1 Although one popular model holds that Supreme Court justices are primarily unconstrained decisionmakers, most models currently en vogue hold that justices operate under some constraint, whether external or internal. From there, it is only a matter of differentiating each approach by which external or internal constraint directs the justices’ voting behavior. Some of the highlights and drawbacks to each approach are illustrated here, first discussing the unconstrained theory, then following with the constrained theories, divided into external constraint and internal constraint models. UNCONSTRAINED POLICYMAKERS

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The Attitudinal Model The only currently prominent model that theorizes the justices to be unconstrained by either external or internal factors is the attitudinal model, most prominently theorized by Jeffrey Segal and Harold Spaeth.2 Segal and Spaeth explain that because the Supreme Court is the highest appellate court in the nation, the justices are free to act as unconstrained policymakers. The essential framework of this model is that justices are free to make decisions that correspond to their optimal policy preferences. Justices’ political ideologies are ascertained from information about the justices prior to appointment to the Supreme Court, including newspaper articles, personal writings, or even, and least reliably, votes cast on a previous bench;3 from the ideologies, policy preferences are inferred. Those policy preferences are then used to predict the outcome of his/her vote. In order to predict the Court’s outcome, the votes of each individual justice are counted up. 1

Keck 2007, p. 512. Segal and Spaeth 1993; 1994; 1996, Spaeth 1995. 3 Using votes to determine ideology, which will then be used to predict votes, seems somewhat circular and, therefore, potentially moot. 2

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Applied to the idea of constitutional change, the attitudinal model holds that fundamental change occurs as new justices, with different policy preferences than the existing justices, are appointed to the Court; as this happens, the agenda and direction of the Court’s jurisprudence changes. They show that the evolution of the civil rights cases is attributable in no small amount to changes in the ideology of the justices. It should be noted that Segal and Spaeth are able to achieve a high degree of predictability: the model is powerfully accurate in predicting and explaining actual outcomes. Although simple, straightforward, and empirically testable, the attitudinal model has been subject to much criticism.4 Common critiques include the difficulty in accurately assessing a justice’s true policy preference,5 the fact that some other explanation(s) must account for the (albeit small) number of decisions that Segal and Spaeth cannot explain through the attitudinal model,6 and the fact that some other explanation could account for the same scenarios.7 Segal and Spaeth’s work relies heavily on quantitative analysis, which can also lead to critiques about the model’s inability to explain more nuanced questions about doctrinal evolution and the choice of particular forms of legal reasonings. Given the models level of success, and the rare occasion of decisions such as Bush v. Gore,8 that appear to only be

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Baum 1994, Knight 1994, Rosenberg 1994, Smith 1994, Brisbin 1996, Knight and Epstein 1996, Brenner and Stier 1996, Songer and Lindquist 1996, etc. 5 Baum 1994, p. 4. 6 Knight 1994, p. 5. 7 See Keck 2007, who points out that since justices are typically appointed because their policy-preferences and ideologies run parallel to the appointing political regime, any case in which the justice in question votes along the same lines of the regime that appointed him/her could be an example of unconstrained policy preference, but it could also be an example of the regime theory. The result of the vote alone may not be significant enough to determine the explanation. 8 531 U.S. 98 (2000). See Balkin and Levinson 2001 for a discussion of how Bush v. Gore is not legally or constitutionally defensible, nor is

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understandable as justices exercising pure policy preferences, the attitudinal approach, then, seems to be a factor, but perhaps not to the extent that its proponents claim. Charles Epp, for example, points out that the changes in the Court’s agenda started before the increasing number of liberal judicial appointments began and resulted less from the justices’ personal desires to press the newfound civil rights agenda and more from increased pressure from interested litigants and pressure groups.9 Further, Lee Epstein and Joseph F. Kobylka, in their extensive study, find that the law does, in fact, constrain justices.10 Both analyses pull into question the idea that judges are unconstrained by both external and internal factors. CONSTRAINED POLICYMAKERS As noted, almost all current thought regarding judicial behavior operates under the assumption that justices are constrained decisionmakers. For most current scholars, although there are a variety of features that might, on first glance, appear to insulate the justices from pressure (such as life tenure), in fact current research indicates that there are potentially a myriad of ways that the justices are affected and directed in their voting. Some theories contend that the Court is affected by external constraints, while other theories argue that the key constraints are internal.

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External Constraint Theories The Regime Model The regime model is quite prominent at the moment. It essentially holds when the Court acts, it does so in such a way as to legitimize, or further enhance, the existing governing regime’s authority and/or agenda. On an individual level, each justice is it even an acceptable exercise of “high politics” (p. 1061) that we might expect from the regime approach. 9 See Epp 1998, pp. 35-39. 10 Epstein and Kobylka 1992.

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likely to vote according to the regime, or conflation of regime factors, that appointed him or her.11 Robert Dahl is largely viewed as the intellectual originator of the regime theory.12 He claimed that the Court is most appropriately viewed as a majoritarian institution that acts to solidify the agenda of the governing elite; the cases he examined showed a tendency by the Court to defer to Congress. Constitutional change is explained by a change in the ideology of the person(s) controlling Court appointments. As new elected officials take office and justices retire, new justices are appointed that are more aligned with the new regime’s position. This, in turn, leads the Court in whatever direction the current power regime prefers. Mary Dudziak offers additional considerations within the regime model, showing that the rise of civil rights concern is due, in large part, to the Cold War imperative.13 She explains that, after World War II, the U.S.’s position in the international community as the only viable alternative to communism was threatened by the continued persistent racism and segregation occurring on the domestic front. The Court, then, bolstered the U.S.’s international standing by doing its part to rid the country of whatever legal vestiges of racism it could. According to her theory, this also explains why the Court does not seriously begin to evince dedication to the civil rights agenda until after the War. Dudziak’s account of the Cold War factor is very persuasive, especially as it relates to Brown. If Brown is re-understood as a need to legitimize the nation’s power and moral righteousness in the international community, the shine on popular

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Balkin and Levinson 2001 point out that a justice produced by nomination from a President in one party and confirmation from a Senate with its majority in the other party will likely evince a different ideological make-up than one produced by a President and Senate of the same party. 12 See generally Dahl 1957. 13 Dudziak 1988, basing her theory on Derrick Bell’s interestconvergence thesis that the civil rights movement only began to be successful when it was beneficial not only to blacks, but also to whites.

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understandings of Brown which assert that Brown was a triumph won by determined and committed social and political actors might be tarnished. On the other hand, this theory applies better to cases that bluntly rejected the Plessy-like doctrine (such as Brown); it might not explain why the Court was issuing raceprotective decisions prior to World War II. Michael Klarman has more recently argued that although the Court may not follow the will of the political branches, as Dahl posits, it instead may closely monitor, and take its lead from, dominant ideology.14 He argues that, due to society’s canonization of Brown, realistic analysis of the contextual forces at work is impossible; this is important because it will always impede our ability to accurately situate the case within the appropriate larger framework. He explains that, generally, the Court serves two major purposes: the first is to enforce the dominant ideology on a recalcitrant outlier and the second is to break the tie when the nation is closely divided on an issue.15 In either case, Klarman notes, the Court has the support of at least half of the nation, hardly qualifying it to be a heroic countermajoritarian institution. Either way, it follows that Brown cannot be seen as a countermajoritarian decision, no matter how much its prestige has grown. In his recent work, he exhaustively chronicles the history of the civil rights struggle on the Court in order to demonstrate the Court’s propensity to operate within the regime’s needs.16 Other scholars have also weighed in with their support of the regime model. Most notably, Terri Peretti points out that even when justices appear to be deciding cases according to their own preferences, the reality is that that particular justice has only been appointed to the Court and therefore able to exercise that preference because at least some part of the governing regime wanted it to be so.17 Mark Graber has also written a series of case studies, demonstrating the ways that the Court acts at the 14

Klarman 1996. Ibid., p. 6. 16 Klarman 2004. 17 See generally Peretti 1999. 15

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behest of the governing regime, sometimes even by deciding cases that the “political” branches prefer not to address.18 Jack Balkin and Sanford Levinson have written to articulate a more nuanced understanding of the way that whole areas of jurisprudence can be shaped by visionary politicians.19 Today, the common understanding of the Court is that it is definitively majoritarian, and cannot be counted on to protect the country from patterns of power encroachments from the regime in office. In the beginning, Dahl’s theory was a major blow for advocates of a “heroic countermajoritarian Court,” but was critiqued by Jonathan Casper, who pointed out flaws in Dahl’s findings and experimental design.20 Dahl is also critiqued for viewing judicial behavior in an overly simplistic fashion21 and for ignoring the Court’s role in shaping doctrine by its interpretation of laws, instead of just its ability to strike legislation down.22 He was also criticized for seeming to accurately explain the Court’s role as it pertained to the New Deal legislation, yet not accurately capturing the jurisprudence of later and recent Courts.23 There are other difficulties as well, depending on how literally one takes the regime model’s claims. For example, a strict reading of Dahl’s version of the theory might suggest that loyalty to the appointing Presidential regime is key to understanding votes, but the justices who unanimously decided Brown v. Board of Education were not unanimously appointed by presidents whose ideologies favored abandoning Jim Crow

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See generally Graber 1993, regarding the “non-majoritarian dilemma.” 19 See generally Balkin and Levinson 2001 and 2006. 20 Casper 1976. 21 Segal and Spaeth 1993, p. 303. 22 Ibid., p. 304. This is odd because Segal and Spaeth’s research also only focuses on outcomes, not the way that the legal doctrines evolve. They do consider federal Court-state legislature power relations and the results of statutory challenges that Dahl does not study, but their research is still about explaining outcome, not evolution. 23 Epstein and Kobylka 1992, p. 301.

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laws.24 This might shed some doubt on the model’s efficacy. On the other hand, a broader conception of the regime theory also suggests that justices will follow the existing majority’s will; it has been suggested25 that widespread U.S. support for ending segregation existed. This would support a regime theory reading and, ironically, leads to another critique of widespread commitment to that model. Given that some level of policy differences are likely, even among those in the same political party, it stands to reason that almost any decision that the Court hands down could claim support somewhere in one of the two elected branches. If this is all that is necessary, then it is unclear what this model brings to the table. Keck points out this conflict as well, stating that “[t]he Court’s decision in a given case may be supported by some members of the governing coalition, but if the opposite decision would have been supported by other members of the coalition, then…” we may well need to find an alternate theory.26 It should be noted that others maintain that the Court has handed down cases in other areas (school prayer, freedom of expression, and abortion) that did not legitimate the existing or appointing regime;27 if the Court’s sole motivation for its civil rights decisions was to legitimate the regime’s stance, then it would follow that the same would be true regarding other issues, but this is not the case. The Agenda-Setting Model I have elected to group several theories together under the category of an agenda-setting model. Each author is discussing external constraints, but what I mean by this is that these theories primarily focus on the extent to which these external forces pushed new issues onto the Court’s radar, as opposed to compelling any necessary result in a given area of law. Mark Tushnet details NAACP litigation strategies, Charles Epp 24

Ibid., p. 302. Klarman 1996. 26 2007, p. 517. 27 Epstein and Kobylka 1992, p. 305-306. 25

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explores financial support structures, and Bruce Ackerman follows the mobilization of the People, but all theories show how certain kinds of issues gained salience with the Court, and seem to have less weight in explaining how those factors affected case voting behavior once the issue had been taken on by the Court. Tushnet details the impact of the NAACP’s litigation strategies, as led by Thurgood Marshall, on the eventual outcome in Brown.28 There is little doubt that the NAACP played a major role in the Supreme Court’s willingness to hear civil rights cases and that the strategies employed by Marshall and other prominent lawyers of the NAACP were critical in persuading the Court to take steps toward the elimination of de jure and, in some cases, de facto racism and segregation. Tushnet’s purpose in writing the book is to recognize these contributions of the NAACP and Thurgood Marshall in the civil rights movement; his analysis in this area is quite helpful. For Charles Epp, the Court’s commitment to civil rights increased as social forces made possible a “support structure for legal mobilization, consisting of rights-advocacy organizations, rights-advocacy lawyers, and sources of financing.”29 Epp posits the appropriate and common-sense notion that the Court could only begin recognizing civil rights issues when cases were brought to it and that this was mostly impossible until the financial support network was in place. Although his model clearly articulates how and why the Court began focusing its agenda on civil rights, specifically criminal defendants’ and women’s rights, Epp’s work doesn’t explain the ways that the Court decided how to analyze such cases, which was critical, especially for women’s rights. Given the discussion at the time among the justices about the appropriate level of scrutiny for sex discrimination, which would have dramatic repercussions for the constitutionality of a myriad of destructive and affirmative action laws, it seems like a critical piece of the puzzle. It also may not account for cases in which the Court ruled differently when the same support structures 28 29

Tushnet 1994. Epp 1998, p. 3.

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were in place;30 because Epp’s project only includes the rights of women and of criminal defendants, it might not, for example, explain why the Court did not begin handing down racially protective decisions as soon as the NAACP support structure was in place. Keeping this in mind, Epp notes that the support structure might best be understood as a necessary, but not sufficient, condition for the rights revolution to occur. In fact, we should keep in mind that Epp and Tushnet are not arguing for the rejection or replacement of other existing models, only for the expansion of factors considered. Another third approach that can be included in this group is Ackerman’s dualistic theory, which posits that there are constitutional “moments,” in which “the People” are in such agreement that they are able to stage a constitutional revolution, sometimes without even going through the typical Article V amendment process.31 Ackerman states that there are three such constitutional moments in our history: the founding of the United States, resulting in the ratification of the Constitution; the Reconstruction period, resulting in the ratification of the 13th, 14th, and 15th amendments; and the constitutional revolution of 1937, resulting in the Court’s agenda shift from economic rights to civil liberties. This theory is powerful in that it notes decisive moments in constitutional history.32 Ackerman, however, is essentially positing the notion of constitutional regimes, where the Court is primarily focused on and monopolized by a particular broad issue (i.e. consolidation of national power) flowing out of each of its three constitutional moments. It can be considered an agenda-setting model, because it seeks to explain why and how a particular set of issues drives the Court during a particular time. His project intentionally lacks an analysis of particular legal issues (such as civil rights, religious freedom, etc.) and does not examine the evolution of doctrine, as it develops between constitutional moments. 30

Epstein and Kobylka 1992. Ackerman 1991, see especially Chapter 10. 32 However, see Griffin 1996, pp. 46-53, for a critique of some of Ackerman’s points. 31

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Given the self-conscious limitations of these agenda-setting approaches, they can only serve to demonstrate the various ways that issues can increase their visibility to the Court. The models have little to say regarding judicial behavior. Internal Constraint Theories The New Institutionalism Model New institutionalism contends that the Court imbues its members with a set of internalized constraints and that the internalized constraints are constitutive, rather than external.33 That is, that the choices that justices make may be shaped internally by institutional norms. Those institutional norms may constrain judges by only allowing certain options to even be visible; options that are not in keeping with the internalized norms34 are not even seen as such by the actors. Although the institutional constraints are viewed as primary in this perspective, other factors (such as relationships with other political institutions, intra-Court bargaining, and societal pressures) are also considered. In fact, one of the most valuable features of new institutionalism is the attempt to combine and incorporate all of the other models into one coherent explanation. For example, Epstein and Kobylka35 tried to synthesize the various parts of those theories in their study of abortion and death penalty litigation. They posited that the behavioral, regime, and interest group mobilization models cannot alone explain constitutional change in their case studies and that they must be added together to get a convincing story. In addition to those three components, Epstein and Kobylka consider the

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See Orren and Skowronek 1996, Skowronek 1982 & 1993, Barrow 1993, Skocpol 1985 & 1992, Sinclair 1989, among others, for new institutionalism approaches in general; see Gillman 1993 & 1999, Smith 1994, Clayton 1999, McCann 1994 & 1999, and Graber 1993, 1994, & 1995, Kahn and Kersch 2006, among others, for new institutionalism approaches to understanding the Supreme Court. 34 Gillman 1999 calls this the “mission” of the institution. 35 Epstein and Kobylka 1992.

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impact that legal arguments had on the evolving outcomes in their case studies: they look at the arguments put forth by the lawyers and in the various amicus briefs. They conclude that while the Court’s personnel, political context, and interest group mobilization were important, it was the way that the legal arguments were presented and either embraced or rejected that was decisive. The emergence of new institutionalism as a legitimate field of inquiry began with the notion that institutional norms constrain Supreme Court decisionmaking. While there are various institutional norms that might be studied (the Court’s discretion over its agenda, the lack of enforcement power of unpopular decisions, etc.), law as one of those norms could not be ignored. The law might matter in different ways (e.g. the perceived necessity of grounding decisions in precedent, etc.), but it certainly matters. This, in turn, allowed for the possibility of legal constraints.36 Most new institutionalists believe that legal constraints are a legitimate part of the constitutive effect on judges, making an analysis of legal factors essential to a nuanced understanding of judicial behavior. As Richards and Kritzer put it, “(l)eaving jurisprudence out of the analytic framework fails to recognize ... the distinctive nature of courts.”37 This movement therefore makes it possible to bring the law back into the picture, reflecting the critical understanding that the singular feature that separates the Court from the other branches of government is its reliance on the somewhat fixed nature of the law. Congress, the President, and the Supreme Court all make decisions that affect the United States and all three change their decisions, sometimes rarely, sometimes often, but the Court is the only institution that is bound by certain legal constraints - it is not enough for the Court to simply say that it has changed its mind. Leaving out an analysis of jurisprudential development relegates the Court to being only a political actor. Robert McCloskey, although being an early proponent of the regime 36

See Kritzer, Pickerill, and Richards 1998 for a discussion of how legal constraints differ from institutional constraints. 37 Richards and Kritzer 2002, p. 306.

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model, also pointed out that “the judges have usually known… that their tribunal must be a court, as well as seem one, if it is to retain its power.”38 The Jurisprudential Regime Model39 Although “[t]he construct of jurisprudential regime fits squarely within the neoinstitutional perspective on politics generally and within recent institutionalist approaches to the study of the Supreme Court,”40 I have elected to discuss it separately as a result of the key role it plays in my project. This recent approach41 posits that the internal constraint on the justices’ behavior comes in the form of a “jurisprudential regime,” which refers “to a key precedent, or a set of related precedents, that structures the way in which the Supreme Court justices evaluate 38

McCloskey 2000 (3rd Ed), p. 13. As Richards and Kritzer, the pioneers of this research, have clarified the jurisprudential regime approach, the language that they have used has evolved, leading to confusion about which terms have which definitions. For example, they often use the term “regime” in two separate ways - to refer to the entire time period that a given method of analysis is in place (sometimes they also refer to this with the term “doctrine”) and to refer specifically to the case or cases that established the doctrine. For another example, time period regimes are referred to either by the name of the case containing the governing doctrine (e.g. “the Lemon regime”) or by the area of caselaw in question (e.g. “the search and seizure regime”). In order to alleviate the confusion of multiple words used in multiple and similar ways, it is important to note that I have consolidated their language. First, I use the term “regime” to mean the entire time period where the Court used a particular doctrinal test to analyze similar cases, including the periods of time where the Court is developing the doctrine and when the Court grows less enamored of it. Second, I refer to those regimes by the doctrine established (e.g. “the separate but equal regime”). 40 Richards and Kritzer 2002, p. 308, Clayton and Gillman 1999, and Epstein and Knight 1998. 41 Kritzer, Pickerill, and Richards 1998; Richards and Kritzer 2002, 2003, and 2005.

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key elements of cases in arriving at decisions in a particular legal area.”42 The model posits that judicial voting behavior is constrained by these judicial regimes, when they exist, so that justices may even vote against their likely policy preferences or regime affiliations to stay within the confines of the jurisprudential regime. The jurisprudential regime concept opines that, during any given time, the Supreme Court will generally analyze similar cases the same way, even if the outcome is different – for example, free speech cases concerning incitement will be analyzed under the Brandenburg test, symbolic speech cases will be analyzed under the O’Brien test, establishment of religion cases will be analyzed under the Lemon test, and the like. When the Court uses a particular doctrine - or legal test - for a prolonged period of time, the Court can be said to be operating under a particular “jurisprudential regime.” The jurisprudential regime concept is still relatively new. Existing scholarship related to the validation of the constraining ability of model has all been quantitative in methodology.43 Using logistic regression analysis, Richards and Kritzer, et al, have demonstrated the efficacy of such a model in demarcating the point in time at which the Court begins analyzing cases differently. Repeatedly, they have shown that the Court uses different doctrinal analyses before and after a given regime “point.” Jurisprudential regimes have now been used to analyze Court behavior in multiple areas of caselaw, including incitement speech,44 free expression,45 establishment clause,46 obscenity,47 and search and seizure.48 Given this statistical support, it is fair to say that the concept of jurisprudential 42

Richards and Kritzer 2002, p. 308. Kritzer, Pickerill, and Richards 1998; Richards and Kritzer 2002, 2003, and 2005; Buchman 2005. 44 Kritzer, Pickerill, and Richards 1998. 45 Richards and Kritzer 2002. 46 Kritzer and Richards 2003. 47 Buchman 2005. 48 Richards and Kritzer 2005.

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43

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regimes has achieved legitimacy as a way to understand Supreme Court decisionmaking. The notion of jurisprudential regimes also offers an understanding of the role that law plays for the Court; it is the doctrine that guides and constrains other and future decisionmakers, not outcomes.49 Other institutions bind decision makers with legal language (i.e. legislation, treaties, executive orders, etc.); in that respect, the Supreme Court is no different. For courts, “... [legal language] at the Supreme Court level is to be found in the structures the justices create to guide future decision making: their own, that of lower courts, and that of nonjudicial political actors.”50 Given that, this model begins with the supposition “that law establishes decisional principles that guide ... justices’ ... decisions [and that] ...a key decision can establish a doctrinal principle that changes the [analysis] process.”51 Moreover, “[t]he decisions enunciating these key [doctrines] serve to demarcate jurisprudential regimes that are established for a particular period of time.”52 They do note that not all cases reach this operational level. Some case decisions only offer narrow analyses of an issue and/or are blunt about having no precedential value; these cases do not qualify as regime establishing cases. Bush v. Gore53 is a prime example of an important case that yet would not qualify as a candidate for establishing a jurisprudential regime since the majority opinion clearly states its intention to be viable for this case only.54 In Richards and Kritzer’s words,

49

Richards and Kritzer 2002, p. 306. Ibid., p. 306. 51 Kritzer, Pickerill, and Richards 1998, p. 14. 52 Richards and Kritzer 2002, p. 308. 53 121 S. Ct. 525 (2000). 54 See the majority opinion’s statement that the Court’s “consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

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50

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...the Supreme Court establishes specific doctrines to guide judicial decisions in a particular area of law. We are concerned with doctrine in this sense, which we define as a specific formulation of the analytic principle which should guide Court decisions in a particular area. Thus, [a regime reflects] a decisional principle established in caselaw which is expected to influence judicial decisions through a structuring process. ... The [regime] is established [based on] a principle which should apply to the adjudication of all cases within a substantive area, so it is less likely to be distinguished than is an ordinary precedent.55 For approximately ten years, the jurisprudential regime theory as a constraining model gained support. Over the course of those ten years, as noted earlier, repeated quantitative analysis persuasively showed the guiding force of the jurisprudential regimes, and also appeared to successfully hone in on the case marking the beginning of that regime’s governing heyday. Recent scholarship, however, has cast some doubt on the results put forth by Kritzer and Richards, et al. First, Segal and Spaeth note that a shift in judicial voting behavior could be attributed to new Court personnel, not a ground-shifting precedent.56 Second, the empirical findings have come under serious fire, as well.57 These issues have led one set of critics to say “we find only weak evidence that major Supreme Court precedents affect the way the justices themselves vote in subsequent cases.”58 Coming full circle, we can note that studying constitutional change almost always implicates an analysis of judicial voting patterns and a heavy focus on evaluating changing case outcomes on the Court over time. However, we have already stated that there is another side of the coin – the development of 55

Kritzer, Pickerill, and Richards 1998, p. 9. Segal and Spaeth 2003, p. 33. 57 Ibid., Lax and Rader 2008, and Bartels and O’Geen 2008. 58 Lax and Rader 2008, p. 22. 56

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legal doctrine. As we have seen, all of the above approaches to understanding constitutional change have merit, but they each only explain a piece of the puzzle; there consistently are exceptions. Additionally, and more importantly for the purposes of this project, they each focus generally on explaining outcomes, without focusing in on doctrine itself. Even most new institutionalists, who are typically acknowledged as advocates for bringing the law back into the discussion, use law primarily as one of the explanations for outcomes.59 I believe there is much to be gained by leaving this discussion aside for the moment and exploring doctrine for its own sake. After all, it is “...the opinions themselves, not who won or lost, [that] are the crucial form of political behavior by the appellate courts, since it is the opinions which provide the constraining directions to the public and private decision makers who determine the 99 percent of conduct that never reaches the courts.”60 Therefore, I reject none of the earlier-mentioned approaches outright because I believe they all explain a piece of the puzzle; however, I argue that a complete understanding of constitutional change needs to include a conversation about doctrine – specifically, the ways that different reigning doctrine emerge and fade away, to be replaced by new doctrine. In the beginning of this chapter, I noted the seemingly common-sense notion that constitutional change must be a product of both outcome change and doctrine change. Traditionally, political scientists have developed several approaches to explaining constitutional change. Typically, most scholarship regarding constitutional change focuses on case outcomes, and the way that those outcomes, over time, shift our understanding of what is constitutionally acceptable and unacceptable in any given area of law. It is important to note that I believe each to offer valuable contributions to 59

See Kritzer, Pickerill, and Richards 1998, two of whom are the leading proponents now of the jurisprudential regime approach, for a paper arguing that law matters in the sense of being part of the reason Supreme Court Justices decide cases the way they do. 60 Richards and Kritzer 2002, p. 306.

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understanding why a certain issue becomes important or how a justice might be motivated to vote in a particular way. I also believe that each approach yields an important piece of the whole answer about how agenda-setting on the Court might occur or about how specific issues get decided. However, all of the approaches, even by most of the proponents’ own concessions, must be combined in order to arrive at a fullynuanced explanation of judicial decisionmaking. Although each of these approaches has significant merit, none of them explain the whole picture and too many of them define constitutional change solely in terms of change in outcome, without incorporating a corresponding understanding of change in doctrine. These approaches seek more to explain how the Court was “won over” by particular outcomes, or a pattern of outcomes, rather than how legal doctrine evolved over time. As a result, I believe that none of them focus adequately on this question of how doctrinal development is a part of the constitutional change process. My work attempts to take a step toward re-balancing the scales by focusing more attention on the development of the Court’s legal doctrine and filling that hole in the existing literature. This research emanates out of new institutionalist scholarship and interests. As noted, although still largely concerned with the ways in which law constrains decisionmaking, the work of new institutionalists has made a compelling case for refocusing attention on the role of doctrine in Court analysis. Bartels and O’Geen point out that, in addition to the Supreme Court producing “disposition[s] on a given case… [t]he second output is the legal policy that the Court produces. The result of a Supreme Court decision is not only the resolution of the individual case or conflict but also the dissemination of broader legal policy for other political actors to consume.”61 In their work, Bartels and O’Geen examine two models of doctrine development, eschewing the more common trend of looking at

61

Bartels and O’Geen 2008, p. 1.

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the Court’s legal language as only peripheral to the decisional outcome. In another endorsement from the new institutionalism school about why the study of doctrinal development is legitimate despite the push to evaluate competing methods of understanding judicial behavior, Gillman states, “Judges, lawyers, law professors, even political scientists routinely make predictions about how certain cases or issues will be resolved, on the basis not only of the idiosyncratic attitudes of the particular judges, but also using standards or precedents that are perceived to be external to particular judges; if existing standards or precedents had no such force, there would no reason for anyone to worry about what judges say in their opinions.”62 It should be pointed out that legal constraints are currently understood to be internal constraints, because they relate to internal Court issues and norms. Utilizing this argument, my position is that because doctrine has this “force,” it is worthy of further exploration. My focus, then, is not to evaluate, critique, or refine current theories on judicial behavior as it relates to decisionmaking; excellent scholars produce thoughtful work on this subject, further refining, consolidating, and expanding holistic assessments on this subject. My goal is examine the development of legal doctrine in two related ways, described below. Does doctrine matter enough on its own to warrant independent investigation? Put bluntly, “[t]he fact that legal ideologies shape the way judges interpret their world makes them legitimate objects of study in their own right.”63 If, in fact, the doctrinal aspects of a case constrain the decisionmaking process, as the new institutionalists posit, then it follows that investigation should turn to the question of how those doctrines emerge in the first place. The evolution of doctrine, especially within common law systems, is traditionally understood as a mostly-seamless pattern of ever-developing rulings, each of which builds on the last and continually clarifies 62 63

Gillman 1993, p. 17. Ibid., p. 16.

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our understanding of the law in a given area.64 While it is accepted that previous decisions do get overturned, this is largely viewed as an unusual and often undesirable exception to the rule, even by Supreme Court justices.65 Although it is true that issues do arise which highlight a hole in legal understanding and that the Court does have a responsibility to fill those holes, I argue that this understanding of a Court continually developing a given area of law with occasional reversals misses the bigger picture of the process of doctrinal growth and change as a whole. In order to explain the overall development pattern of legal doctrine building, my position is that our understanding can be enhanced by drawing on research in the area of American political development and extending some of its concepts. A popular approach66 describes the process of state building as change occurring when a structure already exists; this is quite parallel to the Court’s process of changing and developing legal interpretations when some sort of understanding already exists. I argue that the Court’s equal protection jurisprudence contradicts the usual understandings of a common law system in which courts fill in the blanks of statutory law. This model predicts that, as courts decide cases, future and lower courts are bound by those precedents, bound to follow what has come before. This explains why it can be easily assumed that common law jurisprudence evolves in a continual stream, constantly developing, building upon, and continuing the doctrines established by previous courts in previous cases. As already noted, overruling precedent is understood as a necessary, but rare part of the system; it is assumed to be an unusual occurrence, used to eliminate unique, singular, intolerable case outcomes.

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64

See Abraham 1998 for a discussion of the differences between common law and civil law systems and Morag-Levine 2003 for a specific application of the distinction in the environmental arena. 65 See the majority opinion stressing the importance of adherence to precedent in Planned Parenthood of Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992). 66 Skowronek 1982.

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However, instead of this understanding, I posit that the Supreme Court’s jurisprudence, at least as exemplified in the civil rights cases, is less like a seamless flow of developing legal interpretation with occasional overrulings, and more like a repetitive pattern of doctrine creation and doctrine destruction – as it turns out, a cyclical ebb and flow pattern, whereby doctrines are created, entrenched, and then torn down, at which point the cycle begins again. I argue that the Court first struggles to fix legal problems in the least disruptive way(s) until it becomes apparent that the existence of a variety of case-by-case solutions is only exacerbating the situation, then capitulates and creates a cohesive doctrine and/or legal test that it spends a period of time entrenching, applying, and building upon, and then finally moves to a complete rejection of that doctrine or test, only to cyclically begin the process again with a series of case-by-case solutions.67 As I will discuss in more detail later, each complete cycle can be referred to as a jurisprudential regime. Emanating out of the new institutionalist school of thought and utilizing the concept of jurisprudential regimes, my primary purpose here is to illustrate this pattern using the three apparent such cycles of regimes since the ratification of the 14th Amendment: the Jim Crow era, civil rights era, and affirmative action era. Each time period, in its heyday, was governed for a time by a jurisprudential regime: separate but equal, strict scrutiny for classifications disadvantaging racial minorities, and strict scrutiny for classifications benefiting racial minorities, respectively. This life cycle pattern is fluid. However, for informational purposes, the three jurisprudential regimes, as well as the approximate timelines of each phase, can be summarized as follows:

67

See Richards and Kritzer 2005, generally, and Kritzer, Pickerill, and Richards 1998 (p. 9), foreshadowing this idea by pointing out that “doctrine can be overturned or substantially limited in principle. If this happens to a doctrine, then it loses its status as doctrine.”

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TABLE 1 Supreme Court’s Civil Rights Jurisprudence Regimes

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Regime #1: Jim Crow Era Separate but Equal Regime #2: Civil Rights Era Strict Scrutiny Regime #3: Affirmative Action Era Strict Scrutiny

PreGovernance

Governance

PostGovernance

1868 - 1896

1896 - 1938

1938 -1954

1938 -1964

1964 -1976

1976 Î

1978-1989

1989 - 2003

2003 Î

As discussed earlier, the concept of jurisprudential regimes has recently come under some fire. Although Kritzer and Richards, et al, use their work to demonstrate quantitatively that there are certain key cases that mark a clear shift in judicial decisionmaking and doctrine, emerging research has cast doubt on the strength of that claim.68 Lax and Rader use the same datasets used by Kritzer and Richards and run other tests. In one randomization test series, they claim that the results achieved by Kritzer and Richards cannot be strongly corroborated because of the degree to which the randomization test is able to yield the same results. In another test, Lax and Rader chose to run the same logistical regression test as Kritzer and Richards, but instead of focusing on a test case, they simply focused on odd years versus even years – and they found that “the standard jurisprudential regimes test would conclude that Supreme Court justices use a different legal regime in odd years than they do in even years.”69 This obviously undercuts the efficacy of the jurisprudential regime model. Undoubtedly, more research will continue on the quantitative side to evaluate the strength of the claim that certain cases act as “triggers” in altering the voting 68 69

Lax and Rader 2008. Ibid., p. 14.

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behavior of Supreme Court justices or even the way they think about relevant issues, but these emerging questions present the first assault on the model. Since holes in the jurisprudential regime theory are emerging from the quantitative school, it is logical to turn to the qualitative approach to examine the idea as well, which is what this book seeks to do, applying the theoretical concepts of jurisprudential regimes to the area of equal protection and civil rights. To their credit, Kritzer and Richards, et al, seem to have envisioned this approach at some point, and even detailed some of the more qualitative criteria that we might use to locate whether or not a trigger case and/or regime exists.70 Chapter 2 will discuss those criteria in more detail, as well as their applicability to my overall project. The literature on jurisprudential regimes, it seems to me, stands for the proposition that we should “think of Supreme Court decisionmaking over time as consisting of stable regimes.”71 From there, we can identify two specific subarguments. First, the regimes come into being at a discrete point in time. Second, the regime shift simultaneously shifts judicial voting behavior. Since current scholarship is already evolving on the latter, my evaluation will ultimately end up relating to the former, although I will evaluate the regime theory using its own criteria.72 For now, my claim is that there have been three jurisprudential regime cycles so far with respect to the civil rights issue; that is, three time periods that were governed by particular analytical methods. Those regimes can be described and abbreviated as: (1) separate but equal – or the Jim Crow era, (2) strict scrutiny for classifications that disadvantage racial minorities – or the civil rights era, and (3) strict scrutiny for classifications that benefit racial minorities – or the affirmative action era.

70

Kritzer, Richards, and Pickerill 1998, p. 10 Lax and Rader 2008, p. 2. 72 See Chapter 2. 71

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In sum, therefore, even if new studies purporting to undercut the claim that the concept of jurisprudential regimes constrain voting behavior, an examination of those regimes is still legitimate. As Gillman argues, “ [i]t is often the case… that the meanings extracted from texts (or associated with certain principles) settle into consistent patterns which, for a time anyway, are considered relatively coherent and controlling by members of a particular ‘interpretive community.’”73 I argue that a complete understanding of constitutional change must incorporate the implications of jurisprudential regimes as relatively enduring (and cyclical) features of the Court’s policymaking, regardless of whether the regimes constrain the justices’ decisionmaking ability. By this point, I hope it is clear that rather than analyzing the development of a particular type of jurisprudence by focusing on the outcome of a particular case or group of cases, or even time periods where bodies of case outcomes are similar, I analyze the type of doctrine promulgated by the Court, regardless of the outcome. I extend the work of the new institutionalists by focusing specifically on the development cycles of, not case outcomes, but jurisprudential regimes - specific time periods whereby the Court can be identified by its commitment to evaluating civil rights claims by particular doctrinal tests. I support existing research by positing that these regimes are relatively accurate descriptions of the Court’s behavior, but critically analyze the assertion that regimes can be traced to one trigger case or group of cases. Moreover, I extend the current work of jurisprudential regime scholars by relating the governance periods of those regimes to the periods of time directly before and directly after it: the periods within the overall developmental cycle of the regime’s emergence and deterioration.74 73

Gillman 1993, p. 16-17. It is also intriguing; both for explanatory and predictive purposes, to gain an understanding of the factors at play that can trigger a move from one phase to the next. There are several such possibilities, suggested strongly even by the competing constitutional approaches

74

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I utilize historical-interpretive methodology. Since I am telling a story about the way that law should be conceptualized and the manner that jurisprudential regimes grow and shift over time, it is appropriate to use such a methodology. Historical approaches focus on temporal, holistic, and conjectural features, meaning that the selected issue for analysis is “understood only in relation to other events and by taking into account their position in time and in a unique historical context.”75 As Gillman puts it, …the issue of whether a particular legal result at a particular time can best be explained as a matter of principle, policy, unmediated class interest, perceived functional necessities, or even bribery can only be clarified through the use of historical, reconstructive, and interpretive methods - methods that bring us closer to both the social and political contexts within which participants acted and to the webs of meaning embedded in those contexts.76

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Even Klarman’s 1996 assessment of Brown as specifically endorsing a regime reading of judicial power has, as one of its primary purposes, the goal of encouraging scholars to situate “past decisions within their historical context”77 and to “create a detailed in Section II. For example, based on the models discussed earlier, we can surmise that they might play into jurisprudential regimes in the following ways: a change in Court personnel might signal that a doctrinal shift might soon emerge, as Segal and Spaeth point out; domestic and international political pressures on the Court, shifts in public opinion, or dramatic changes in funding for a given issue might also indicate that a change in jurisprudential regimes is likely. Once the triggers are sufficiently strong enough, the Court will begin its transition from one phase to the next. Although an analysis of the trigger factors is beyond the scope of this project, it is a natural next step of this research trajectory. 75 Schutt 1999, p. 334. 76 Gillman 1993, p. 17. 77 Klarman 1996, p. 27.

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richer and more credible account of the twentieth century’s civil rights and civil liberties revolutions.”78 The article is devoted to showing that a more contextual approach may revise and will certainly enhance our understandings of important cases. As I understand Klarman, this applies to large-scale constitutional change, as well; it is only by embracing more interpretive methods that constitutional change can be fully understood. In this vein, then, my research certainly builds on his call for a more contextually rich understanding of doctrinal change and situates Brown, in addition to other cases, in a more detailed history for a longer period of time.

78

Ibid., p. 67.

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CHAPTER 2

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Regimes & Phases – Telling a Story

As discussed, current jurisprudential regime scholarship focuses on the period of time that the regime appears to be dominant. Because the work is quantitative, its motive is to determine whether or not a given case marks a turning point in the way that the Court considers the types of issues brought up by that case. By the very structure of these methodologies, investigations like those are binary (i.e. justices are constrained or are not constrained by this factor) and single-focused (i.e. does this case mark the turning point in case evaluations or does that case mark the turning point). However, the very nature of doctrine is that it is the product of negotiation and compromise among people with competing views of constitutional interpretation.79 As such, doctrine cannot possibly simply spring, fully formed, in whatever trigger case quantitative scholars have identified. The arrival of a governing doctrine must have a story – a beginning and an end. Quantitative analysis is ill-equipped to tell this story of doctrinal change. The story of how a governing doctrine developed, emerged, coalesced, and declined is best suited for a narrative format. The language and concepts of American Political Development (APD) are well-suited to take on the narrative. Situated in the historical-interpretive methodology, APD scholars are predominantly focused on 79

Balkin 2004, p. 1563-1568. 27

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situating a key political moment or dynamic in a longer contextual viewpoint, precisely the kind of story that this book is telling. I argue here that jurisprudential doctrine is a governing authority and that each new regime cycle represents shifts in that governing authority. Political development is defined by two of the leading APD scholars as “a durable shift in governing authority.”80 According to Orren and Skowronek, “authority” can be determined by four criteria: (1) it is designated to be authoritative in advance; (2) it works through institutions; (3) its mandates are enforceable; and (4) it has the perception of legitimacy.81 Jurisprudential doctrine clearly meets all four criteria. The Court has long since been designated the final arbiter of constitutional meaning; its doctrine is authoritative, especially when governing the jurisprudence of lower courts. Doctrine, by its very nature, must work through the institution of the Court. The mandates of any given doctrine are enforceable, both by police-type enforcement of the Court’s rule and the lower courts’ reliance on its guidance. Finally, the Court and its jurisprudence have long been perceived as legitimately credible overall by the general population, even when it issues controversial decisions. Therefore, by its own nature and through the Court as its vehicle, jurisprudence represents the kind of governing authority that APD language can be applied to. In the beginning portion of that original definition of political development, “shift... implies rearrangement, redirection, reconstruction.”82 Since the very core of this project is on these three aspects, political development and its associated literature can be directly applied to notions of a life cycle in jurisprudence in incredibly useful ways. Moreover, the study of APD is primarily focused on the identification and explanation of patterns and change over time.83 80

Orren and Skowronek 2004, p. 123. Ibid., p. 125. 82 Ibid., p. 127. 83 Ibid., Chapter 1, for a particularly thorough explanation of this predominant focus. 81

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In fact, pattern identification is often the defining feature of work in the APD arena.84 Additionally, APD research does more than identify such individual patterns; it also highlights cyclical patterns, much like the one I articulate here.85 Returning to my methodology, APD scholars maintain that without contextual historical examination, true understandings about the nature of shifts and development are suspect, which validates the study of cycles and patterns. For many academics, “change is usually regarded as an interlude between relatively permanent settlements.... Conversely, in APD, change is something inherent in politics as such; it is an integral feature of the juxtaposition of patterns that construct politics historically.”86 APD research puts the concept of change, especially change over time, center stage, identifying it and exploring how and why it comes about. Third, as already discussed, this book serves, in part, to tell both a story, and then a story within the story. The overall story builds on the jurisprudential regime literature and seeks to examine and apply the jurisprudential regime concept to the civil rights jurisprudence of the equal protection clause, as it pertains to race. Even a cursory glance over constitutional law textbooks will quickly demonstrate that the jurisprudence in this era can be divided into three time periods: the period governed by legal segregation and Jim Crow laws, the period marked by the civil rights movement of the 1960’s, and the affirmative action era. The main story, then, is whether there are three corresponding jurisprudential regimes, per the definitions established by the pioneers of this regime theory. More importantly, the story within the story is to better explain the emergence and decline of those regimes, should they exist. Again, APD literature has similar concepts to the ones needed for this project, instead using the terms “paths” and “critical junctures.” “Path” concerns the long term trajectory of 84

See Orren and Skowronek 2004 and Burnham 1994. Other studies on such cyclical patterns have run the intellectual gamut in subject matter - see Ackerman 1991, Skowronek 1993, Morone 1998, Huntington 1983, Smith 1997, Sanders 1986. 86 Orren and Skowronek 2004, p. 14. 85

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a given element of political development and “junctures” are those critical points along the way that re-direct development onto a new path.87 In terms of my own research, it should be a relatively straightforward analogy that the “path” represents the main story – the full cycle of a given jurisprudential regime from start to finish. If the jurisprudential regime criteria hold true, there should be three overall “paths.” The type of critical junctures that Orren and Skowronek discuss parallel either the points at which either the entire jurisprudential regime is rejected or a new jurisprudential regime begins, or could easily refer to the points along the way that push the Court from one phase of the jurisprudential regime cycle to the next. The APD literature also provides a point of departure for identifying key features of jurisprudential regimes. Kritzer, Richards, and Pickerill, in their foundational jurisprudential regime piece,88 lay out a qualitative framework for analyzing jurisprudential regimes, but since their sole purpose was to prove the existence and constraining power of the regime, they provide no guidance in identifying the time periods before and after the regime’s governing period. The work that has continued on jurisprudential regimes has not sought to address this issue either. As a result, although it seems like a common-sense notion that such bookending phases must exist, there is no framework within existing jurisprudential regime literature to point the way. However, Stephen Skowronek, one of the leading members of the APD movement, has used concepts which may be adapted to this end. Skowronek,89 writing about state building in a sampling of policy areas from 1877 through 1920, posits that state building has two patterns - initial patchwork solutions, followed by reconstitution of policy. It is his patchwork phase that is particularly useful. The patchwork phase represents a period of time in which there might be simultaneous voids in governance90 87

Ibid., p. 103-104, 117. Kritzer, Richards, and Pickerill 1998. 89 Skowronek 1982. 90 Ibid., p. 41. 88

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and obstacles to overarching change from outdated structures. During this period, state building in one cohesive framework is impossible because the voids can only be filled by band-aid-like solutions as a result of the inability to accomplish a more holistic change. For the purposes of jurisprudential regimes, Skowronek’s patchwork phase is an amalgam of what this project refers to as the pre-governance and post-governance phases; state building, as discussed earlier in the chapter, is parallel with doctrine development. By applying and adapting some of his concepts for the pre- and post-governance phases, and examining Kritzer, Richards, and Pickerill’s qualitative assessment of the governance phase, we can see the beginnings of a framework of criteria by which to assess each. We can use the language and ideas presented by APD to develop a preliminary framework of what the beginning and ending chapters of regimes might look like. After applying that framework to multiple case studies, more criteria will emerge and existing criteria may not be borne out by the evidence. It is, however, a useful starting place.

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PRE-GOVERNANCE PHASE According to Skowronek, “[s]hort of revolutionary change, state building is most basically an exercise in reconstructing an already established organization of state power.”91 Typically, some existing precedent exists. Even if a case is not directly on point, clever justices are capable of taking a distantly applicable doctrine and bending it so that it sheds a guiding light on the matter at hand. Therefore, when justices are ready for a new method of analysis, as Skowronek points out, there is almost always an existing doctrine to somehow contend with. Regardless, once the Court eliminates the pre-existing hurdle, either by overturning it or carving out its new dilemma as resolvable by previous analysis methods, it finds itself in a vacuum, searching for a (new) coherent methodology with which 91

Skowronek 1982, p. ix.

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to approach its cases. In extremely rare scenarios, an area of law is pure and untouched, and no Court action is required to thrust the Court into its void. We will see such an instance in this project. Regardless of how it arrives there, in the pre-governance phase, the Court is grappling with the particular issue (civil rights, in our case), unconvinced in any ongoing manner of how to evaluate constitutional claims. During this time period, the Court may evaluate similar claims differently, lacking a commitment to any particular doctrine and floundering by trying to address issues in whatever way seems workable in the moment. Although Courts across time do not necessarily avoid addressing issues during the pre-governance phase, they rarely yield consistent guidance to lower courts. Although individual justices may have strong feelings on how to analyze cases, those feelings often do not build a coalition to govern the Court. As Skowronek describes a theoretical pre-governance phase, “[n]ew institutions emerged to meet the most immediate new demands on government, but governmental elites could not sustain support for any effort that threatened to undermine longestablished political and institutional relationships.”92 We can adapt his assessment and understand that this phase sees multiple doctrinal analyses, but none that can garner a majority over time – sometimes, not even within a given case. 93 The Court is always looking for a method of evaluation that will generate buy-in from enough justices to set a significant precedent, and then maintain that buy-in over time. Unfortunately, this doesn’t happen in the pre-governance phase, which is consistent with two of Skowronek’s examples. In the first, he describes a Congress “stymied by [its] task and” therefore opting “for the largest possible coalition of support with the most ambiguous measures.”94 In the second, specifically referring to the passage of the Interstate Commerce 92

Skowronek 1982, p. 16. This will be particularly visible in the Affirmative Action regime. 94 Ibid., p. 138. 93

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Act, he notes that the problem with it “was not that it served any one interest but that it ventured into inconsistency and ambiguity in failing to choose among the interests.”95 It is a hallmark of the pre-governance phase that justices sometime settle on methodologies that they do not sincerely subscribe to only because none are virulently opposed to it - the lesser of all known evils. As a result of not having any cohesive guiding doctrine, it is also to be expected that vagueness emerges in the form of multiple plurality opinions, rather than one majority opinion. Another unfortunate side-effect of the pre-governance phase is that loopholes are often left in the doctrinal tests. Without an eye toward coherency, gaps remain that can be exploited. In the civil service system, we have this example: “The Pendleton Act applied to ‘classes’ of offices that had been specified in law in 1853. The federal service had at that time been divided into classes based on salaries received.”96 Skowronek goes on to detail the specifics of the Act’s classifications and affiliated salary ranges, ultimately pointing out that “spoilsmen could easily circumvent the merit system by hiring a partisan under an unclassified division, say as a manual laborer, and having him do the work of a clerk who had been classified. Without coherent and binding relationships among salaries, positions, qualifications, and duties performed, there could be no semblance of order among the employees in the new merit service. They were little more than a hodgepodge of officers in a number of services intruding almost indiscriminately into the patronage system.”97 This same situation can happen with legal doctrine, allowing appellants to continually bring forward cases that they claim are distinguishable from the cases that have come before. The advantage of the pre-governance phase, however, is that it often leads to “notable institutional adaptations”98 since the 95

Ibid., p. 149. Ibid., p. 80. 97 Ibid., p. 80. 98 Ibid., p. 46. 96

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Court is not bound by existing conventional wisdom. And, of course, the ideas tossed around during this time period will eventually lead the Court to a more coherent position, much like an extended brainstorming period. We can glean many potential criteria for identifying the pregovernance phase. First, and most obviously, there is no established doctrine by which to evaluate similar constitutional claims. Cases that raise parallel claims are often treated differently, leaving appellants to wonder how their arguments will be assessed or opening the door to claims that one case should be treated differently from another even when the facts seem similar. Second, when no jurisprudence exists in a given area, we are dealing with a pre-governance period. Especially with regard to constitutional issues, these scenarios are rare. True formal constitutional change is difficult to achieve; as a result, times where there are provisions that have simply never been evaluated are rare. Although rare, Plessy’s pre-governance era marked the first time the Court gave meaning to the equal protection clause. Third, we may see frequent closely-divided decisions, with the majorities reversing back and forth frequently as they negotiate and compromise on what the Constitution means. In addition to or instead of complete ambiguity, we may also see instances where there are two clear camps regarding interpretation and neither has yet garnered a consistent majority. Fourth, pre-governance opinions contain language that will be incorporated into the eventual governing doctrine. Although it is sometimes the case that an analytical method moves unscathed through the pre-governance process and emerges “victorious” in the governance phase relatively untouched, the more common route is for the eventual doctrine to be an amalgam of the cases that have come before. This means that the pre-governance cases must, by default, contain either wording or concepts that will eventually get combined with other pre-governance case elements to arrive at a coherent whole method.

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GOVERNANCE PHASE

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Ultimately, the Court elects to move beyond band-aid solutions and settles on some doctrinal test that it commits to consistently applying. Once that happens, the Court enters the governance phase. During this phase, generally speaking, the Court’s commitment to a particular doctrine or test is established, and consistently applied as further cases come along. Decisions made during the governance phase also largely tend to have similar outcomes, although this is not a necessary feature of a governance phase, since it is intellectually feasible that some laws will pass constitutional muster and some will not, even when the test is the same. Here, a sidenote about terminology is important. As discussed, the way that term “regime” has been used so far in the relevant literature is to describe a period of time where cases that concern similar issues are evaluated relatively consistently in similar ways. Existing research typically flags one case (or very closely related group of cases) and, using logistic regression analysis, shows that while judicial behavior can likely be explained by the attitudinal model before that case, it is clearly constrained afterwards by whatever doctrine is created in that test. So far, it has mostly been statistically shown that regimes do affect judicial decisionmaking. Once each key case occurs, the justices’ behavior becomes more consistent and decisionmaking more predictable. In the area of free expression, after the companion cases of Grayned and Mosley,99 the Court uses a model of content-neutrality to evaluate cases.100 Regarding Establishment Clause jurisprudence, after 1971, the Court consistently applied the so-called “Lemon101 test,” consisting of three identifiable prongs.102 For

99

Chicago Police Department v. Mosley 408 U.S. 92 and Grayned v. City of Rockford 408 U.S. 104 (1972 companion cases). 100 Richards and Kritzer (2002). 101 Lemon v. Kurtzman 403 U.S. 602 (1971). 102 Kritzer and Richards (2003).

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search-and-seizure, six 1983-1984 cases103 carving out specific exceptions demarcate a turning point in the Court’s staunch “liberal” enforcement of the exclusionary rule.104 Miller105 signals the Court’s establishment of, and subsequent reliance on, a three-prong test for obscenity.106 Finally, administrative law issues take a marked turn, with a two-step inquiry, toward deference to regulatory agencies after Chevron107 was decided.108 Each of the time periods after the key case (or cases) have been defined by Kritzer, Richards, Smith, and Buchman as the regimes because they govern the way that claims are evaluated. It should be reiterated that the focus of the previous scholars is simply to prove the existence of the regime. As noted in Chapter 1,109 I use the term “regime” differently. Because the term generally will refer to the doctrinal test being applied (i.e. the Lemon regime), it can also be extrapolated out to encompass the entire life cycle period, from pre- to post-governance of that particular doctrine. In the Lemon regime example, the term “regime” would refer to the time period beginning when the Court first begins struggling with deciding Establishment Clause cases to the moment they vote to reject such a test. Reaching back to the APD language, the term “regime” is synonymous with the concept of “path.” Given all of that, I have elected to refer to the time period where the doctrine is being consistently utilized and applied as the governance phase. The governance phase is the primary time period discussed by the existing literature, although that

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103

Illinois v. Gates 459 U.S. 1028 (1983), Massachusetts v. Upton 466 U.S. 727 (1984), U.S. v. Leon 468 U.S. 897 and Massachusetts v. Sheppard 468 U.S. 981 (1984 companion cases), and Nix v. Williams 467 U.S. 431and Segura v. U.S. 468 U.S. 796 (1984 companion cases). 104 Kritzer and Richards (2005). 105 Miller v. California 413 U.S. 15 (1973). 106 Buchman (2005). 107 Chevron v. Natural Resources Defense Council 467 U.S. 837 (1984). 108 Richards, Smith, and Kritzer (2006). 109 Infra, Chapter 1, note 39.

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terminology is not used. As the articles are written, the governance phase begins once the key case has occurred. Occasionally, the demarcation date is fuzzy. For example, in their work related to search-and-seizure jurisprudence,110 Kritzer and Richards struggle to determine the date at which the governance phase (called the regime by them) begins. They note: “One dilemma in our analysis was how to operationalize the regime break: We could use Gates as the split point for the jurisprudential regime because it represents the beginning of the shift that took place over a period of about 12 months, we could use the last case over that period, Segura, or we could use something in between.”111 Because they were using a quantitative model and coding data, the break point seemed significant. As we will see even throughout this project, break points between phases are often relatively easy to identify. However, when the ability to code hard data is less critical, as it is here, rare dilemmas involving solving break points with concrete dates is less necessary. As Kritzer and Richards saw,112 narrowing in on the precise date did not significantly shift their findings regarding the validity of the model, so perhaps it is not as critical in the quantitative work either. In short, then, the governance phase described here is parallel in concept to one of the usages of the term “regime” utilized in the relevant literature so far. As we already know from the jurisprudential regime literature, before the governance phase begins, it is not always clear how a particular case will be handled and, to a lesser degree, what the outcome will be; once the governance phase has started, there is a clear shift in decisionmaking and predictability on the Court. The governance phase, then, is the period of time where the justices have agreed on a method for evaluating cases, apply it in relatively consistent

110

Kritzer and Richards 2005. Ibid., p. 43. 112 As it turned out, they “actually conducted the analysis several different ways and found that the results were very similar.” (Ibid., p. 43). 111

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ways, achieve some level of predictability, and provide guidance to lower courts and the public. Once we know how the phase is expected to operate, we need to know how to identify it, if not with the data, coding, and logistic regression method used by previous scholars. According to Kritzer, Richards, and Pickerill, there are three qualitative guidelines for identifying jurisprudential regimes, in addition to the statistical modeling noted earlier. As explained above, they use the term “regime” as I use the term “governance phase,” so their three-pronged test is appropriate to use as the benchmark evaluation of whether any given time period is functioning as a governance phase: First, a [regime] should present a formulation of an analytic principle. A precedent which establishes only a narrow holding that is particular to one case fails to establish [such] a decisional principle. By contrast, a [regime] is formulated to identify the relevant case facts or decisional principles (i.e., level of scrutiny) that should structure decisions in an area of law.

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Secondly, [the] doctrine [offered by the regime] should have been used to guide adjudication in subsequent cases. It needs to be cited in future decisions. If it is never mentioned in subsequent cases, it has not achieved [regime] status. Thirdly, a [regime] should be recognized by scholars as [encompassing] a precedent which is a formulation of an analytic principle and has guided the decision making of subsequent cases. If scholars have recognized the doctrinal character of a particular precedent, this provides more evidence of its influential status.113 Those criteria can be summarized as follows: (1) a governance phase must include at least one key case that 113

Kritzer, Richards, and Pickerill 1998, p. 10.

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contains a broadly applicable legal doctrine; (2) the doctrine, or the case(s) it emanated from, must be cited liberally in future relevant decisions, likely both at the Supreme Court and lower court levels; and (3) scholars, contemporary or otherwise, must validate the existence of a set period of time whereby that doctrine or its establishing case(s) serve(d) as the authoritative method to evaluate relevant cases. POST-GOVERNANCE PHASE Eventually, consensus about the efficacy of the doctrine deteriorates and the Court enters a post-governance phase. During this phase, application and overall utility of the doctrine declines. Often, time has marched on (not to mention new understandings of constitutional meaning), and the Court’s attempts to modify doctrine without overturning precedent are often “caught in the unresolved tension between the governing demands of a new age and the triumph of this old governmental order… only to be held in an awkward state of suspension.”114 Outcomes that were originally expected by the application of the doctrine begin to fluctuate.115 Additionally, the justices often use their opinions to voice their dissatisfaction about the particular doctrine, and not just in dissenting opinions. Sometimes, the displeasure comes in the form of a direct assault on the test itself; other times, the displeasure is evidenced by a “bending” of the test or a slight (or even major) modification of the wording. As the deterioration phase draws to a close, the Court will either tacitly or bluntly make it clear that the guiding doctrine is no longer valid. At this point, the Court finds itself back in its 114

Skowronek 1982, p. 46. “Paradoxically, to the extent that the underlying political dynamics of central administrative reform in America followed the cosmopolitan pattern of the consolidation of a governmental order, the substantive results were actually quite different, and to the extent that substantive results of central administrative reform in America resembled the cosmopolitan pattern of professionalism, the underlying political dynamics diverged dramatically.” (Skowronek 1982, p. 83.)

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115

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initial position, with no clear and consistent way to analyze cases in a given area. The pre-governance phase then begins anew, starting a new cycle, or a new path.116 According to Skowronek, we can extrapolate that the primary reason the post-governance phase occurs is that the doctrine and its application simply become outdated. The way that he puts it is “[a]n impasse in the evolution of relations … began to form out of the unintended consequences of an old governing formula. Institutions and procedures once created to serve [that purpose] now appeared as self-perpetuating perversions of that purpose.”117 We can also note that the Court often lags behind society, or the rest of the governing elite, in its ideas, largely as a result of the lag time between new political regimes coming into power and those new regimes’ appointments of enough justices to turn the jurisprudential tide of the Court. This adaptation gap can easily translate sometimes to mean that certain solutions are finally actualized just after the point at which they finished being needed in the first place. Skowronek comes to this same conclusion in his discussion of parties, noting that “[t]he preestablished state organization was revealing the full extent of its particular strengths and capacities just as society was moving beyond the point at which those particular strengths and capacities were still pertinent to the maintenance of order and control.”118 Especially with the Plessy era’s post-governance phase, we will see that the doctrine had become a stumbling block for a Court wanting to transcend previous understandings of the equal protection clause, that “[i]ts very strengths had become its most

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116

See Richards and Kritzer (2002, p. 316), presaging the existence of cyclical jurisprudential regimes, stating that, “as with any organizational framework, the anomalies and contradictions of a regime may become increasingly apparent, leading the justices to seek out a different approach to dealing with cases in a given area.” 117 Skowronek 1982, p. 40. 118 Ibid., p. 45.

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serious liabilities; its mode of operations had become a threat to further … development.”119 All of this begs the question: why does the Court not choose to simply eliminate the offending doctrine? Why does the Court instead go through a sometimes protracted process of trying to make the “old” solution work? It is possible that Pierson’s path dependence argument provides a relevant way to explain what pushes the Court into the deterioration phase, instead of a quicker, complete rejection of the whole regime.120 In his discussion of increasing returns, he states that once an institution commits to a path, it becomes exponentially more difficult to reverse course. In his words, “[p]olitical arrangements are unusually hard to change,” “change-resistant,” and “difficult to overturn”121 and we know that achieving consensus on doctrine is most certainly a political arrangement. As a result, it seems intuitive that it would be difficult for the Court to simply reject a doctrine before gathering a similar consensus, built over time, that the doctrine has run its course. Using this discussion as a jumping-off point, we can hone in on criteria for identifying the post-governance phase. First, if general unanimity existed during the governance phase, it typically breaks down at this point. This deterioration could be attributed to a number of reasons, but ultimately results in an increasing number of justices being less committed to the existing method of analysis. This is usually visible by a proportionally increasing number of 5-4 or 6-3 decisions. Second, and most dramatically, the Court may make alterations to the doctrine. We often expect dissenting opinions to poke at the majority’s chosen method of analysis, but in the post-governance phase, we see even the majority revising its jurisprudence by narrowing it, carving out exceptions, etc. The prime example of this is the significant narrowing, but not

119

Ibid., p. 162. See generally Pierson 2000a. 121 Ibid., p. 262. 120

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outright overturning, of Roe v. Wade122 that has occurred over the last 35 years. Third, following along that same logic, the majority opinion may contain language undermining the doctrine, even if it doesn’t carve away at it. This language usually comes in the form of dicta, hinting at the Court’s growing displeasure with the current guiding doctrine. Fourth, mobilized parties (interest groups, other political elites, etc.) begin to take a vocal and different position than before on a given issue. Skowronek discusses this scenario as well, using the development of the military as his case study. In that scenario, “[a]ggressive linesmen had served notice to the staff bureaus of the War Department that they were not willing to accept existing institutional arrangements.”123 If we substitute “interested parties” for “linesmen” who attempt to insert their desire for change, we can see another hallmark of the postgovernance phase, as consensus among the key players deteriorates. Fifth, different outcomes occur than were likely originally conceptualized by the “framers” of the test. Although outcome is not an inherently determinant factor in evaluating doctrine, a significant consistent reversal in the outcomes of cases can be indicative of the problem that Skowronek refers to – that the method of analysis is outdated and no longer serves contemporary needs. The dramatic change in outcome is usually also indicative of a significant shift in the way the doctrine is being understood and utilized. Sixth, cases with seemingly similar factors yield fluctuating results, despite the expectation that they might be decided in a complementary manner. Again, case outcome is not the focus of this project, but inconsistency where we would expect to see consistency is a sign that agreement is breaking down.

122 123

410 U.S. 113 (1973). Skowronek 1982, p. 120.

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TABLE 2 Projected Criteria for Identifying Regime Phases • • PreGovernance Phase

• • • • • •

Governance Phase

• • •

PostGovernance Phase

• • • •

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•

No settled doctrine for evaluation of the issue/area Cases that raise parallel claims are handled differently No previous Supreme Court jurisprudence exists Closely-divided decisions Switching “winning” majorities Frequent plurality opinions Language or concepts in opinions that is/are later used to weave the doctrinal test A settled, broadly applicable doctrinal “test” for a given area of caselaw Repeated citations either to test or establishing case in future relevant cases Legal and/or academic validation of that test or establishing case as settling the matter of doctrine in that area of law A break-down of any unanimity that may have existed during the governance phase Alterations to the doctrinal test Dicta in majority opinion, undermining the test Mobilized parties take a new and aggressive position on the issue with the Courts Different outcomes occur than were initially envisioned at the doctrine’s creation Cases with similar factors are decided differently

43

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CHAPTER 3

The Jim Crow Era

By now, the story is familiar. The 13th, 14th, and 15th Amendments were passed and ratified in the years following the Civil War in what we now commonly understand as an attempt to offer some measure of equality to Southern black Americans. The 14th Amendment, and its equal protection clause specifically, were designed to apply to states (as opposed to the federal government), although there is reason to believe that the original intent of at least some of the framers might have been to reach into private discriminatory behavior as well. Later interpretation would incorporate the equal protection component to the federal government via the 5th Amendment’s due process clause. Reconstruction held great promise for black equality in the South, but was discontinued as a result of the Compromise of 1877 that granted the presidency to Republican Rutherford B. Hayes, rather than Democrat Samuel Tilden. Once the political option of enforcement and action had been foreclosed by the compromise, this area was relegated to the judiciary to clarify.

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PRE-GOVERNANCE PHASE (1868-1896) The Slaughter-House Cases124 marked the first time the Supreme Court was faced with a 14th Amendment challenge. Although the challenge did not directly implicate the Equal Protection 124

83 U.S. 36 (1873). 45

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Clause, it is no exaggeration to say that the Court’s decision seriously affected the course of civil rights jurisprudence. In that case, relating to butchers and the regulating of meat slaughter, the Supreme Court severely curtailed the reach of the new amendment, stating that it could only grant individuals national citizenship rights, not state citizenship rights. Although the majority opinion notes that the history of the 14th Amendment makes it clear that its intention was to confer protection on black Americans, the Court does not rely on that language or opening in subsequent cases. Similarly, U.S. v. Cruikshank125 only involved the Equal Protection Clause insofar as the Court determined that it did not apply to cases concerning racially-motivated violence by individuals. The Court made it clear that its reach only extended to state action and, unlike in later years,126 was unwilling to look hard to find state action in an attempt to protect black Americans. Hall v. DeCuir127 showed the Court’s early unwillingness to offer an expansive reading of the 14th Amendment, especially on the issue of segregation. At issue was a Louisiana statute requiring public conveyances to provide integrated accommodations to black and white passengers. Ultimately, the Court unanimously determined that this was an unconstitutional infringement on Congress’s commerce power, since it unduly burdened the conveyance while in the state of Louisiana to behave in a certain manner which stood in opposition to that of other state requirements. The Court next faced a series of challenges regarding local governments’ unwillingness to include black Americans on juries. In the first case, Strauder v. West Virginia,128 the Court was confronted with a statute which explicitly stated that only 125

92 U.S. 542 (1875). See Shelley v. Kraemer 334 U.S. 1 (1948) for an example of the Court proactively seeking state action in order to find unconstitutional discrimination. 127 95 U.S. 485 (1878). 128 100 U.S. 303 (1879). 126

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white males would be permitted to serve on juries. The Court again relied on the history of the 14th Amendment’s ratification, noting that its purpose was to guarantee black Americans to privilege of legal access; this was, therefore, a relatively easy case for the Court to dispense with by overturning the statute. Virginia v. Rives129 put the Court on the opposite conceptual side of the issue. In this case, the Court reaffirmed Strauder in that any law facially stating a racial classification with regard to jury service would be overturned, but allowed a facially neutral law with clearly discriminatory implementation patterns to stand. In Ex Parte Virginia,130 the Court struggled again, reversing its qualitative decision. This case concerned a petition for a writ of habeus corpus filed by a local county judge who was being held for refusing to include black Americans on juries. The Court denied his petition, holding him responsible for refusing to abide by the law of the land, as noted in Strauder. Finally, in Neal v. Delaware,131 the Court again straddled the fence, finding that Delaware had no actionable law, statute, or state constitutional provision that limited jury service to white males, but expressing skepticism that the complete lack of black Americans being called to such service could be related to anything other than clear discrimination. Alabama v. Pace132 saw the Court uphold anti-miscegenation statutes. The Court offered its opinion, indicating that interracial sexual relationships and/or interracial marriage should be avoided, and was comfortable with statutes discouraging its occurrence. “The Court in Pace v. Alabama reasoned that so long as both parties to the fornication were subjected to similar criminal penalties, the races were being treated equally, and thus the Equal Protection Clause was satisfied. Analytically, Plessy’s [later] endorsement of separate but equal was a straightforward application of Pace.”133 129

100 U.S. 313 (1879). 100 U.S. 339 (1879). 131 103 U.S. 370 (1880). 132 106 U.S. 583 (1883). 133 Klarman 1998, p. 330. 130

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Although U.S. v. Harris134 did not deal with jury selection, the Court again reiterated the point that the 14th Amendment did not authorize Congress to reach non-state actors. Harris struck down portions of the 1871 Congressional Ku Klux Klan legislation designed to protect blacks from conspiracies of violence that were racially motivated and reminded Congress that only the states had the power to penalize such violent crimes as murder and assault. Also that same year, the Court consolidated and addressed the Civil Rights Cases.135 The Court continued the now-familiar refrain that the 14th Amendment, and its Equal Protection Clause, could only confer upon the newly-freed slaves the right of national citizenship and a small measure of protection from state-sponsored discrimination. The almost-unanimous Court agreed that Congress did not possess authorization to reach into private accommodations, businesses, transportation, etc. in order to prohibit private discriminatory action. In 1886, the Court resolved a case in a manner that would not re-emerge until the Warren Court, almost 65 years later. In Yick Wo v. Hopkins,136 a unanimous Court surprisingly announced that a facially neutral law that had obviously racially discriminatory impacts violated the equal protection clause. Louisville, New Orleans & Texas Railway v. Mississippi137 was not argued on Equal Protection grounds, but set the stage for the later Plessy decision. At issue was a Mississippi statute, requiring separate cars for black and white passengers. The case was argued as a Commerce Clause matter since the railway company alleged that this was an unconstitutional infringement on its ability to operate intra-state. Although this case was virtually identical in fact to Hall v. DeCuir, the Court upheld the law this time, finding no encroachment on Congressional power.

134

106 U.S. 629 (1883). 109 U.S. 3 (1883). 136 118 U.S. 356 (1886). 137 133 U.S. 587 (1890). 135

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During this time period, the Court tested the bounds of the equal protection clause and the justices’ own convictions about what it stood for and what it would be permitted to stand for. In looking at the criteria for identifying the pre-governance phase, we can see a few of them highlighted here. No settled doctrine for evaluation of the issue/area. There is no settled evaluative method during this period of the Court’s jurisprudence. The justices seem to apply a measure of reasonableness; that is, assessment of the rule, policy, or law in question turns on whether or not the regulation makes sense to them, but that is not a useful explanatory method for lower courts or future justices to utilize. Cases that raise parallel claims are handled differently. In this arena, the Court addressed a broad variety of issues as the justices and the legal community tried to understand what the equal protection clause could and could not be used to accomplish. In one instance, as noted above, Hall v. DeCuir and Louisville, New Orleans & Texas Railway v. Mississippi contain virtually identical fact patterns, yet the cases were decided with conflicting outcomes and conflicting rationales. The jury selection cases also raise similar issues, but the Court was not able to coalesce around a cohesive answer or method of analysis to assess such questions. No previous Supreme Court jurisprudence exists. Most obviously, this period must be a pre-governance phase, insofar as no Supreme Court jurisprudence existed on the issue. To be sure, other courts were piecing together answers, and the jurisprudence of pre-14th Amendment Supreme Court and lower court decisions might be useful later in properly reading public, political, and legal opinion on the general issue of race and rights, but to the extent that the 14th Amendment had arrived on the scene and potentially informed the issue in new ways, there was little precedent the Court could rely on. During this time of vagueness, the Court also struggled with creating a stand-alone niche for the equal protection clause. Because this Court had no judicial history to rely on in shaping its understanding of what a pure equal protection challenge might look like, it sometimes conflated equal protection issues

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with other issues. The three most common combinations in this area during this time period were commerce clause issues (typically litigated under Article I, Section 8), criminal procedure claims (typically litigated under the 4th-8th Amendments, depending on the nature of the claim),138 and economic rights (which came to be litigated also under the 14th amendment, but via the due process clause, not the equal protection clause).139 Perhaps as a result of this conflation so early on or perhaps simply because the rights really are intertwined, this combining of issues has persisted through time. Language or concepts in opinions that is/are later used to weave the doctrinal test. Eventually, in Plessy, the Supreme Court would draw on many sources, including primarily a Massachusetts state supreme court case called Roberts v. City of Boston140 for its articulation of the separate but equal test. However, even during this period, traces of what would later evolve into the Plessy doctrine can be spotted. “Perhaps the .

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138

“Ironically, the most vigorous early statement of the antidiscrimination principle had come in a criminal procedure case. The state statute struck down in 1880 in Strauder v. West Virginia had excluded blacks from grand and petit juries. Between Strauder and the passing of Chief Justice White in 1921, all but one of the sixteen decisions handed down by the Supreme Court concerning racial discrimination in the criminal process involved the exclusions of blacks from juries. Pace v. Alabama in 1882 was the exception, an unsuccessful challenge to a statute that provided greater punishment for interracial adultery or fornication than it did for intraracial adultery or fornication. Though peonage cases involved the criminal process and had important racial consequences, no explicit racial discrimination was at issue in them, and the Supreme Court downplayed the racial impact.” (Schmidt, Jr. 1986, p. 1693.) 139 “In subsequent decisions, however, the Court began to uphold state economic regulations that explicitly discriminated against Blacks or women, even when such laws violated economic liberty principles.” (Bernstein 1990, p. 726, discussing Yick Wo and interpreting the victory as being more about economic rights than equal protection, a theme that will re-appear later in Buchanan v. Warley.) 140 Mass. 5 Cush.198 (1850).

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earliest enunciation of the doctrine occurred in the dictum of the United States Supreme Court in the case of Hall v. De Cuir. The case involved a public carrier, but the court stated obiter that segregation in public schools did not violate the Fourteenth Amendment if equal facilities were provided.”141 Pace offered an early understanding of the separate but equal doctrine as well, since that decision was predicated on the assumption that criminalization of interracial relationships was constitutional so long as it punished participants of both races equally.

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GOVERNANCE PHASE (1896-1938) In 1896, after grappling with, and avoiding, any consistent approach on the subject of race and the newly-ratified equal protection clause, the Court established the doctrinal test of “separate but equal” in Plessy v. Ferguson.142 Plessy concerned a Louisiana statute that mandated segregation for its railway car passengers. Homer Plessy was one-eighth black and was prosecuted by Louisiana officials for violating the statute. The Court relied on the concept of formal equality to arrive at its decision, stating that since the seating mandate meant that neither whites nor blacks had the liberty to sit wherever they wanted, there was no unequal treatment because both whites and blacks were burdened equally. Over the sole dissenting opinion of Justice Harlan, the Court ultimately announced that “separate but equal” laws would be judicially permissible. Plessy represented the idea that if a classification were drawn on the basis of race, the Court would not reject it on its face, but would rather look to be sure that both races were impacted by the separation. It is important to point out that the separate but equal doctrine represented the general consensus among the public, political, and legal community.143 It is also important to note 141

Seegert 1948, p. 640. 163 U.S. 537 (1896). 143 For a particularly thorough and excellent treatment of the jurisprudence of this era, see Klarman 1999. 142

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that the turn-of-the-century period covered a time when the Court was far more concerned about the due process clause than the equal protection clause and the fierce battle that was waged in that area did not allow much extra energy for rigorous analysis of allegedly racist activities. However, when such cases did arise, the Court did not hesitate to demonstrate its commitment to the newly articulated separate but equal test. As early as 1898, the Court decided Williams v. Mississippi,144 concerning voter registration requirements. Although the particular requirements generally worked to disenfranchise blacks, the Court affirmed the state’s requirements using the separate but equal framework, saying that “[t]hey reach weak and vicious white men as well as weak and vicious black men.”145 Cumming v. Richmond County Board of Education,146 although not citing Plessy, clearly relies on the separate but equal theory147 to uphold the Georgia County’s practice of using public funds to operate an educational facility for the area’s white students, but not for the black students; it is this case that is eventually officially overturned by Brown v. Board of Education. This case raised an unusual aspect, however; at issue was Richmond’s desire to convert its only public black high school that had approximately 60 students into a black primary school that would be able to serve a few hundred students. Although the challenge rested on the fact that there would be no public black high school when there were public white high schools, the utilitarian argument that more black children would be served by a primary school than a high school seems to have won out. Berea College v. Kentucky148 was a strong victory for the Plessy construction. Berea College had been convicted for violating a state law that prohibited integration in schools. Over 144

170 U.S. 213 (1898). Ibid., p. 222. 146 175 U.S. 528 (1899). 147 Chemerinsky 1997, p. 559. 148 211 U.S. 45 (1908). 145

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two dissents, the Court upheld the conviction and the right of the state to mandate separate educational facilities. In the same vein, Gong Lum v. Rice,149 indeed cites Plessy as, in fact, a much more difficult case to decide than this one,150 and approves separate schools for blacks and whites, classifying Martha Lum, a Chinese-American nine-year-old as “colored.” Outside the educational arena, the court returns to the railway industry in McCabe v. Atchison, Topeka and Santa Fe Railway Co,151 where the Court chides the railway companies in question for providing diner, sleeper, and other luxury cars for white passengers, but not for black passengers. “McCabe was the first time the Court gave weight to the equality side of the separate but equal equation;”152 however, the Court expressly reiterates that separate cars are constitutionally permissible, per Plessy. Also concerning railway travel and interstate commerce, Chiles v. Chesapeake O.R. Co.,153 relied on Plessy reaffirming that the separation of races in this manner was an acceptable action for the railway company. Finally, “[f]or the first time, in Buchanan v. Warley in 1917, it found in the Fourteenth Amendment constitutional limits on the spread of laws requiring racial separation, and, also … put some teeth in the equality side of the “separate but equal” doctrine.”154 This case has presented a dilemma to many Court observers, given that the unanimous decision opposing an ordinance mandating racial segregation seems awfully raceprotective at a time when the Court was not overly concerned with that goal. However, the tension seems resolved if the case is examined as one of those cases noted above where race issues crossed paths with economic and property rights issues. In fact, a sweep of contemporary comments shows that “…the law reviews saw the decision as mainly about property rights rather 149

275 U.S. 78 (1927). Ibid., p. 86. 151 235 U.S. 151 (1914). 152 Schmidt, Jr. 1982, p. 492-493. 153 218 U.S. 71 (1910). 154 Schmidt, Jr. 1982, p. 445. 150

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than about a baseline principle of nondiscrimination.”155 That view has persisted. “Both at the time and later, most legal scholars have seen Buchanan as a decision of property rights. …It is easy to see why this view of Buchanan has taken hold. Day’s opinion makes no mention of equal protection, other than in the course of general recitals of the Fourteenth Amendment. He focuses throughout either on the amendment at large or on the due process clause and rights of property.”156 Given the caselaw, it should be readily apparent that this time period is relatively representative of the consistent application of the separate but equal doctrine. By utilizing the criteria that Kritzer and Richards, et al, describe, we can see if it might pass that test, as well. A settled, broadly applicable doctrinal “test” for a given area of caselaw. Plessy very clearly articulated a standard, and was able to draw from earlier cases, both at the state level and at the Supreme Court level from earlier points in time, that supported the test the Court wanted to use. The first section of the statute enacts “that all railway companies carrying passengers in their coaches in this state, shall provide equal but separate accommodations for the white and colored races, by providing two or more passenger coaches for each passenger train, or by dividing the passenger coaches by a partition so as to secure separate accommodations: provided, that this section shall not be construed to apply to street railroads. No person or persons shall be permitted to occupy seats in coaches, other than the ones assigned to them, on account of the race they belong to.”157 … [W]e think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges or immunities of the colored man, deprives him of his property without due process of law, nor 155

Schmidt, Jr. 1982, p. 509. Ibid., p. 518. 157 Majority opinion, p. 540. 156

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denies him the equal protection of the laws, within the meaning of the fourteenth amendment…158 [W]e cannot say that a law which authorizes or even requires the separation of the two races in public conveyances is unreasonable.159

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Repeated citations either to test or establishing case in future relevant cases. Plessy quickly became the standard. Although the case technically only applied to railway segregation, it was treated as applicable to education. This is not surprising, given that the Court had drawn a large part of its inspiration from the earlier Roberts case involving education. Regardless, as time rolled on, the separate but equal doctrine was applied to and referenced by many more Supreme Court cases. As we have seen through the case history, virtually all of the caselaw in this area turns on understandings of Plessy and the separate but equal type of analysis. Legal and/or academic validation of that test or establishing case. Even Justice Harlan, the only dissenter in Plessy (Justice Brewer did not participate in the case), knew that the decision would be pivotal and warned his brethren that history would not look kindly on their choice to move jurisprudence in this direction. Other scholars have agreed that Plessy marked a turning point in legal consistency, even if the Court was only following the most likely understanding of the equal protection clause at the time. Specifically about Plessy, the community has contributed the following: This bedrock opinion establishing the “separate but equal” principle said nothing whatever about equality, and indeed, in its reasoning, rejected equality as a condition to the constitutionality of Jim Crow.160

158

Ibid., p. 548. Ibid., p. 550-551. 160 Schmidt, Jr. 1982, p. 468. 159

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The Supreme Court adoption of the “separate but equal” doctrine in Plessy v. Ferguson was not a turning point or point of departure in the legal history of race relations, as many commentators have suggested. It was rather an affirmation of the dominant legal concept of equal rights in public accommodations in the federal courts all across the country after the Civil War. The Supreme Court’s decision established it unquestionably as the supreme law of the land.161 (emphasis added) The decision on the Plessy case has frequently been cited as a definite ruling on the constitutionality of segregation in public schools.162 [Plessy] institutionalized what had been developing in state courts for almost fifty years. What began in Roberts v. Boston as law for Massachusetts now became legalized by the Supreme Court for the entire nation.163 Plessy v. Ferguson became the leading case in nearly all segregation litigation.164 The Plessy case introduced several enduring legal principles and metaphors into the constitutional discourse about race, civil rights, and models of the ideal democratic public. 165

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The Fourteenth Amendment became firmly encrusted with the separate-but-equal interpretation adopted in the Plessy case.166

161

Riegel 1984, p. 39. Gauerke 1953, p. 16. 163 Ficker 1999, p. 310. 164 Hobbs 1952, p. 491. 165 Elliott 2001, p. 288. 166 Kauper 1954, p. 1137. 162

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Discussing Plessy’s application to education and beyond: It was not surprising … that the Supreme Court in Gong Lum v. Rice, decided in 1927, upheld racial segregation in a public school system on the authority of Plessy v. Ferguson and other earlier state court decisions dealing with the same question.167 So, without ever having been pleaded, argued, or determined, the separate but equal rule as applied to education was now declared to be the settled law of the land [in Gong Lum].168 In [the school segregation cases of the early twentieth century] the court followed the Plessy case as a precedent. Several present-day cases raising the issue of segregation in public schools have come into the federal courts. From the decisions, the influence of the Supreme Court on the policy and practice of segregation of the two races in public schools is clearly discernible.169

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Note … that the Court [in the educational arena segregation cases of the twentieth century] expressly refrained from passing upon the more fundamental question of the applicability of the separate but equal principle itself in the field of public education[, electing to leave it in place].170 During the years following the Plessy decision, the rule of that case was interpreted and applied in a wide variety of situations, some differing more or less sharply from intrastate passenger transportation, with the effect of 167

Ibid., p. 1145. Ransmeier 1951, p. 219. 169 Gauerke 1953, p. 17. 170 Ransmeier 1951, p. 218. 168

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giving substantial judicial support to legally enforced race separation.171 This decision, which was immediately interpreted to regulate every conceivable aspect of life, presented the Negro with a racial future in which he would happily live among “his people.”172 Finally, even passing commentary pointed out that the doctrine was applicable over time, noting that “…Chiles was a routine decision on the level of doctrine…”173 and that “[t]he White Court did not repudiate the essential principles of Jim Crow laid down by the Fuller Court in Plessy v. Ferguson and Louisville, New Orleans & Texas Railway v. Mississippi.”174 In sum, separate but equal was a dominant theme during the early twentieth century. Although it is difficult to see how the Court could have decided its cases any other way at the time, given the very widespread consensus on the acceptability of de jure segregation,175 Plessy and the Court’s approval of the doctrine certainly played some significant role in the emergence and prominence of southern Jim Crow laws. POST-GOVERNANCE PHASE (1938-1954) During and after the New Deal, however, attitudes of the political and legal elite were beginning to change. The Court’s 171

Ibid., p. 215. Roche 1951, p. 1951. 173 Schmidt, Jr. 1982, p. 479. 174 Ibid., p. 523. 175 “Unlike original intent, however, legal precedent strongly supported the constitutionality of de jure railroad segregation. The Justices in Plessy were not writing on a blank slate simply because the Supreme Court had yet to consider the permissibility of racial segregation under the Fourteenth Amendment. Roughly three decades worth of lower court decisions tilted strongly toward sustaining de jure racial discrimination.” (Klarman 1998, p. 328.)

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172

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earlier McCabe decision almost seemed prescient about the direction that the Court would next follow, as it attempted to cling to its established doctrine, but adapt it to changing needs and times.

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McCabe was thus a breach in the aura of permanency that surrounded the regime of Jim Crow in the second decade of the twentieth century. It was not so from any explicit doctrinal innovation, for the decision was not inconsistent on its face with the doctrine of separate but equal. However, by insisting on principled adherence to the equality side of the doctrine, McCabe revealed a judicial attitude that cast doubt on the future of the doctrine itself, because realistically the separate but equal doctrine was incompatible with itself in most situations, and if courts approached the doctrine in a rigorous rather than excusing way, it could not long survive.176 To that end, the Court first signaled that change was coming in State of Missouri ex Rel. Gaines v. Canada,177 which considered an all-white law school, where no black alternative existed within the state. The Court applied the separate but equal test, and determined, a la McCabe, that that “equal” portion mandated that the state either needed to admit black students to the all-white school, or create an in-state black alternative. Although Missouri stated an intention to build and open a black law school, the Court was not convinced that an intention satisfied the requirements of the Plessy test. Hale v. Kentucky178 relied on the earlier Neal v. Delaware decision, and continued the line of jurisprudence related to jury selection. In Hale, the Court found that there was a systematic pattern of excluding blacks from juries for a period of over fifty years. Although this case was partially decided on Equal 176

Schmidt, Jr. 1982, p. 493. 305 U.S. 337 (1938). 178 303 U.S. 613 (1938). 177

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Protection Clause grounds, Plessy was not relevant nor mentioned. Again citing Neal, Pierre v. Louisiana179 reminded states that it was impermissible to exclude blacks from serving on juries. Grand juries were the issue in this case, but the Court made it clear that the same rule governs. Smith v. Texas180 continued to drive the jury selection point home. On behalf of the Court, Justice Black even wrote, “ [i]f there has been discrimination, whether accomplished ingeniously or ingenuously, the conviction cannot stand.”181 Given that in most of its “cases, however, the Court largely nullified Strauder by making such discrimination virtually impossible to prove,”182 this newfound commitment on the Court is notable. The facts of Sipuel v. Board of Regents of University of Oklahoma183 were virtually identical to those of Gaines v. Canada, concerning a black woman denied admission to the state’s single and all-white law school. The Court stayed consistent with precedent, writing a brief per curium decision, reminding Oklahoma that Gaines was still good law. In a different type of case, the Court revisited and extended Buchanan v. Warley. In Shelley v. Kraemer,184 the Court was faced with race restrictive covenants between private property owners. Although keeping with its commitment to private property rights by holding that covenants alone were permissible, the Court also unanimously held that the covenants could not be judicially enforced because that would amount to unconstitutional discriminatory state action. Sweatt v. Painter185 challenged the Court’s commitment to Plessy. At issue was a black law school applicant denied admission to Texas’ all-white law school. The novel feature of this case was that Texas actually had a black law school that the

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179

306 U.S. 354 (1939). 311 U.S. 128 (1941). 181 Ibid., p. 132. 182 Klarman 1998, p. 376. 183 332 U.S. 631 (1948). 184 334 U.S. 1 (1948). 185 339 U.S. 629 (1950). 180

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applicant could have attended. The contention was that the law school did not fulfill the “equal” prong of the Plessy test, and the Court agreed. They were not ready to dismiss Plessy fully, however, stating that it was unnecessary to “reach petitioner's contention that Plessy v. Ferguson should be reexamined in the light of contemporary knowledge respecting the purposes of the Fourteenth Amendment and the effects of racial segregation.”186 McLaurin v. Oklahoma State Regents,187 decided in conjunction with Sweatt, pushed the limits of the Plessy test even further. Mr. McLaurin had been eventually admitted to a doctorate program at the all-white University of Oklahoma, pursuant to Gaines v. Canada and Sipuel. However, once admitted, he was segregated as a result of his race, and required to attend classes, eat lunch, and study in the library in a different location, and sometimes at a different time, than his white counterparts. Although the Court could find no discrete inequality in the tangible aspects of education he was receiving, the justices unanimously stretched their understanding of the “equal” prong of separate but equal to include the intangible disadvantages suffered by Mr. McLaurin as a result of the segregated learning and affiliated facilities. “[The Court] was able to avoid the issue [of overturning Plessy] in these two cases by finding that the Negro students here involved suffered unlawful discrimination within the framework of the segregation pattern established by the state since they did not in fact enjoy equality in the educational opportunities offered by the state.”188 These two cases were the Court’s last-ditch attempt to preserve its half-century precedent. We can see that the Court is struggling with a doctrine that seems to have outlived its usefulness. The signs that APD literature suggest in order to identify the post-governance phase of a regime are useful ways to understand what is transpiring on the Court.

186

Ibid., p. 636. 339 U.S. 637 (1950). 188 Kauper 1954, p. 1138. 187

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Alterations to the doctrinal test. Although the test formally remains “separate but equal,” during this period, the Court begins articulating the standards in ways that were not consistent with the original understanding of the doctrine. Originally, the “equal” prong only stood for the proposition that conditions had to be reasonably similar and not completely offensive. Contrary to what it seemed in the late 1930s and 1940s, the Plessy court almost certainly did not envision the “equal” portion of the test as having any teeth. The way that Klarman puts it is that “[w]hile modern courts and commentators generally have Plessy as requiring segregated facilities be equal to be constitutional, a close reading suggests that the Justices probably understood their decision differently.”189 In the beginning, Court observers were not sure what to make of the Court’s new direction. In 1939, the Chicago Law Review’s Note sadly concluded the following:

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In view of the traditional delicacy with which the Court has handled the problem of southern race relations, the instant decision represents a bold and laudable affirmation of Negro rights. The possibility of judicial action, however, is limited and the far-reaching consequences claimed for the decision are not to be expected. The principle of segregation is preserved. Aside from the limitation that equal facilities must be provided by and within the state, no hint is given that the court will further whittle the doctrine.190 As time passed, some tried to be hopeful while remaining cautious: “Since that time a discussion has raged on the implications of these two decisions with some commentators maintaining that the Court in effect undermined the precedent of Plessy v. Ferguson and others of a more cautious bent holding

189 190

Klarman 1991, p. 229. p. 305.

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that the Court did no more than reemphasize the principles enounced ten years ago in Missouri ex rel Gaines v. Canada.”191 However, as the caselaw proceeded, the re-interpretation and clear decline of the Plessy doctrine that the Court was engaged in was quickly noticed by contemporary scholars, writing prior to Brown. While giving lip-service to Plessy v. Ferguson and purporting to act within in the confines of the separatebut-equal doctrine, the Court had effectively devitalized the doctrine in at least one area of public education.192 Plessy v. Ferguson still stands, but not with its former vigor and certainty. Like an ancient fort, it shakes upon its foundations and the wind whistles through gaps in its walls. Some may claim it is still defendable, but others, with a better understanding of the imperatives of modern democracy, realize that its walls are but hollow shells.193 Plessy v. Ferguson can be overruled in either of two ways. It can be outrightly, explicitly reversed by the present Supreme Court, or it can be subverted in an indirect fashion. It appears, for reasons that I have elaborated elsewhere, that the “separate but equal” rule is to be given the latter treatment. … The process of erosion has already proceeded some distance.194

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Although the Court carefully avoided a reconsideration of Plessy v. Ferguson and the separate-but-equal doctrine derived from it, it is clear that these two cases sounded the death knell for legally imposed racial

191

Roche 1951, p. 949. Kauper 1954, p. 1147. 193 Roche 1951, p. 959. 194 Ibid., p. 219. 192

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segregation in the field of higher education under state auspices.195 Any doubt that might have remained as to the validity of racial segregation in the enjoyment of residential property was dispelled by Shelley v. Kraemer which held that enforcement by a state court of a restrictive covenant precluding the use of residential property by Negroes was state action that amounted to a denial of the equal protection of the laws. The opinion in this case was notable not only because it equated judicial enforcement of restrictive covenants with residential segregation ordinances for the purpose of determining whether there was “state action,” but also because the Court in finding that enforcement of these covenants resulted in unconstitutional discrimination against Negroes advanced arguments that were basically incompatible with the reasoning of Plessy v. Ferguson.196

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Thus, though the decision of Plessy v. Ferguson remains on the books and though it yet supports at least the trappings of a system of caste and encourages decisions such as that of Judge Hayes in North Carolina, its vitality would seem to be waning, its decision less a comfort to those unable to understand Justice Harlan’s uncompromising plea for total democracy.197 Mobilized parties take a new and aggressive position on the issue with the Courts. “Shelley v. Kraemer was the first of the post-World War II civil rights cases in which the United States decided to participate as amicus curiae.”198 In addition, a couple 195

Kauper 1954, p. 1147. Ibid., p. 1144. 197 Groves 1951, p. 72. 198 Elman and Silber 1987, p. 817. 196

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of years later, the U.S. Government very clearly and publicly stated its opposition to segregation in Henderson v. United States,199 a case that was ultimately decided on statutory, rather than constitutional, grounds. Philip Elman, one-time clerk and all-time confidante to Justice Frankfurter, recalled the way the federal government began their involvement in the segregation cases: “The Court noted probable jurisdiction, the ICC argued the case in support of separate but equal, and we wrote a brief in which – this was in 1949 - for the first time, a party before the Court asked it to overrule Plessy v. Ferguson. We wrote a long brief arguing the psychological effects of segregation, the sociological effects, as well as law. We took a flat, all-out position that segregation and equality were mutually inconsistent, that separate but equal was a contradiction in terms.”200 Different outcomes occur than were initially envisioned at the doctrine’s creation. The decision reached during this time period can generally be described as race protective. Although the outcomes of cases are not my focus, it bears noting that when a pattern of case outcomes is so clearly at odds with the original understanding of the framers of the doctrinal test. We must consider the possibility that the Court is applying either a different test, or has so fundamentally re-interpreted the test as to render it anew. Two legal observers, writing in 1951, before they had seen what the Court would do in Brown, phrased it like this: It is, however, true that the philosophy of government implicit in the decision of Plessy v. Ferguson has been increasingly under legal attack in recent years. … In addition, many observers see, through a synthesis of the holdings of those three cases – arguments of which were heard concurrently and the opinions of which were

199 200

339 U.S. 816 (1950). Elman and Silber 1987, p. 821.

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handed down on the same day - what amounts, in fact, to an overturning of the doctrine of “separate but equal.”201 Legal development often proceeds in this manner with new wine being poured into old bottles, old words being given new meaning, until occasionally a concept which one had content in the minds of its originators may end up being interpreted in a diametrically opposed fashion by later exegetes. The “separate but equal” rule is apparently fated to die of reinterpretation.202 Separate from these factors is the observation that the Court was even willing to protect race issues by going outside the equal protection clause or the Plessy test, as need be. Assuming that this was a conscious decision, the motivation is difficult to assess. One possibility is that the justices realized that they were pushing the envelope too quickly on race issues, given where the rest of the country seemed to be. Another possibility is that this willingness to resort to extra-equal-protection methods reflected the Court’s ever-growing impatience with the constraints of the separate but equal test. One key example of such a circumvention occurred in the Scottsboro cases.203 The Court analyzed most of these related cases as criminal due process cases, where it would not be bound by the separate but equal regime,204 even though, ultimately, the Court did come around to base race-protective decisions in this 201

Groves 1951, p. 71. Roche 1951, p. 225. 203 See Lazarus 1998, pp. 77-80, for a narrative of the story. 204 Powell v. Alabama 287 U.S. 45 (1932) concerned a group of young black men who were convicted and sentenced to death for allegedly gang-raping two white women. The Supreme Court reversed the men’s convictions on the grounds that inadequate counsel had been provided and was therefore a denial of their due process rights. It is significant to reiterate that the decision was not based on equal protection grounds, even though the defendants had raised an equal protection claim (see p. 49).

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202

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matter on the equal protection clause.205 Another example is Shelley v. Kraemer, where “[t]he Supreme Court’s ultimate decision in Shelley reached the “right” result, but on a dubious premise.”206 There are a variety of other examples during this time period.207 CONCLUSION – HOW DOES IT ALL FIT? This first Jim Crow regime follows the cyclical model well. The Court first experiences the pre-governance phase, considering cases in a variety of arenas and applying a variety of methods to evaluating them. Plessy moves the Court into the governance phase by pulling from its own prior caselaw and that of lower courts to establish the separate but equal test, with its focus on the “separate” prong. Finally, the Court signals its turn to the post-governance phase by focusing on the “equal” prong, marking a definitive turn in its jurisprudence as it carved away at its doctrinal test. The middle part of this regime is a model example of the governance phase. Plessy outlines a clear test for evaluating challenges to the 14th Amendment’s equal protection clause when that challenge involves a racial classification. It is general in principle, not limited to certain circumstances, and is applicable to such disparate subject areas as railway commerce

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205

The Scottsboro cases came back to the Court again a few years later in Norris v. Alabama 294 U.S. 587 (1935) and Patterson v. Alabama 294 U.S. 600 (1935), where the boys had been re-tried and reconvicted. The Court based this decision on the fact that, in practice, no black was or had been allowed to serve on juries in that region. 206 Silard 1966, p. 858. 207 For criminal procedure cases, see Chambers v. Florida 309 U.S. 227 (1940) and White v. Texas 310 U.S. 530 (1940). For voting rights cases, see Lane v. Wilson 307 U.S. 268 (1939), Smith v. Allwright 321 U.S. 649 (1944), whose impact was lessened because the federal government retreated from enforcing it due to political pressure (see Lawson 1976, p. 47), and Terry v. Adams 345 U.S. 461 (1953). For due process cases, see Hansberry v. Lee 311 U.S. 32 (1940) and Mitchell v. U.S 313 U.S. 80 (1941).

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and education. For Plessy, even though the case and doctrine have been long overturned, both are still cited as representative of that era and as the examples of what current jurisprudence and practice has replaced, while most of the other cases have faded into casebook footnotes, or paragraph mentions at best.208 This regime also highlights another feature of the post-governance phase not described by APD literature. As the Court becomes less interested in using a particular doctrine, it sometimes will resort to options outside the relevant analytical method. In this period, we see that happen with Court turning to concepts from criminal procedure, voting rights, and liberty and property rights. But what about jurisprudential regimes? From a qualitative perspective, the Jim Crow era reinforces the central holding of the jurisprudential regime literature – that there is one case or group of cases that serves as a turning point in the Court’s doctrinal analysis of a given area of law. Contemporary and current scholars agree that Plessy marked that turning point in cases concerning race and equal protection. The analytical construction has informed the way that jurists think about equal protection today, and it certainly governed a long line of cases. It is likely that quantitative analysis would also yield confirmation that Plessy is the trigger for this new regime.

208

Chemerinsky 1997, pp. 558-559, and Bell 2004, generally.

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CHAPTER 4

The Civil Rights Era

The civil rights era, of which Brown usually stands as its centerpiece, was a critical test of America’s commitment to protect all of its people. Especially as the New Deal ideology had settled in with permanence and the need for the U.S. to be able to assert an unassailable position in the global community emerged, the judiciary was willing to do its part to entrench new notions of racial equality. Helped, in large part, by a very active Warren court, the political parts of the civil rights movement achieved success, as codified in the 1964 Civil Rights Act. Although many of the gains of the civil rights heyday have been reversed or nullified, the shining period remains a beacon of hope to many.

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PRE-GOVERNANCE PHASE (1938-1964) In the late 1930s, the Courts articulated a vision that would later be used as a foundation for its civil rights jurisprudence. The case at issue in U.S. v. Carolene Products209 was, unrelatedly, a statute prohibiting the distribution of “filled milk.” The challenge was presented on due process and Commerce Clause grounds and was decided along those same lines. However, within Justice Stone’s majority opinion, the famously cited Footnote Four laid the groundwork for the Court to use to justify its later jurisprudence. Footnote Four is represented here:

209

304 U.S. 144 (1938). 69

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There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments, which are deemed equally specific when held to be embraced within the Fourteenth. It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation.

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Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious… or national… or racial minorities… whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry. 210 Although the Court does not take action at this point under this philosophy, it does revisit it later. Similarly, Skinner v. State of Oklahoma Ex Rel. Williamson,211 which concerned the mandatory and involuntary sterilization of certain criminals, marks the first time that the Court articulates the term “strict scrutiny of the classification.”212 There is no further explanation, however, of what the test is and how it is to be applied. This articulation goes essentially unnoticed, especially because, although decided under the equal protection clause, it does not concern a racial classification. 210

Ibid., n. 4, p. 155. 316 U.S. 535 (1942). 212 Ibid., p. 540. 211

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Korematsu v. United States,213 concerning the internment of Japanese Americans during World War II, also uses similar wording. In fact, it is common for scholars to refer to Korematsu as the first articulation of the strict scrutiny test in a racial discrimination case, citing the following language: It should be noted, to begin with, that all legal restrictions which curtail the civil rights of a single racial group are immediately suspect. That is not to say that all such restrictions are unconstitutional. It is to say that courts must subject them to the most rigid scrutiny. Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.214

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Unfortunately, like Skinner, the Court gives no guidance on how to actualize the test, which renders it rather hollow. In fact, research contemporaries at that time make it seem clear that nothing was particularly notable about that wording; scholarship focused instead on the limited scrutiny the issue was given, a far cry from expressing hope about a new heightened standard. Korematsu only begins to become important a full ten years later, when, in Bolling v. Sharpe,215 the Court cites Korematsu for the principle that “[c]lassifications based solely upon race must be scrutinized with particular care, since they are contrary to our traditions and hence constitutionally suspect.”216 However, the actual strict scrutiny test is still not explained, explored, or articulated in any of these cases and, in fact, in Brown v. Board of Education,217 the decision widely held to be

213

323 U.S. 214 (1944). Ibid., 215 (1944). 215 347 U.S. 497 (1954). 216 Ibid., p. 499. 217 347 U.S. 483 (1954). 214

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the first real victory for minority rights,218 Carolene Products, Skinner, and Korematsu are not even mentioned. Looking at this portion of the pre-governance phase, it is clear that we have a different kind of model. Given my interpretation that the Gaines, Sipuel, Sweatt, and McLaurin cases represent a decline in the Plessy standard, rather than the rebuilding of a new doctrine, these three cases may seem disparate and out of place. Yet, even applying the standard criteria yields persuasive results, depending on the interpretation. No settled doctrine for evaluation of the issue/area. This criterion presents an interesting challenge. During this period of time, the Court is focusing its attention on unraveling the Plessy test. As a result, it is difficult to believe that they are focusing any deliberate attention on creating something to replace the separate but equal test if or when they eventually overturn it. It can therefore be noted that the Court’s post-governance phase of the Jim Crow era clearly overlaps with this portion of the Civil Rights era’s pre-governance era. This is consistent with another feature of APD literature. Orren and Skowronek219 posit the notion of intercurrence, which

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proceeds on the observation that at any given time, institutions, both individually and collectively, juxtapose different logics of political order, each with their own temporal underpinnings. Separate institutions and institutional arrangements, operating according to distinctive ordering principles, structure the passage of time - the sequences and cycles, the changes and lulls at varying rates.220 At any one time, they believe that there are several timelines in effect that weave together to form intercurrence, “an analysis of the multiple, incongruous orders that are formative of politics 218

Although, see Klarman 1996 for a critique of this widely held assumption. 219 Orren and Skowronek 1994, 1996, and 2004. 220 Orren and Skowronek 1994, p. 311-312.

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at any given moment.”221 Intercurrence helps to explain why, for example, the Court might be engaged in the pre-governance phase regarding substantive due process issues, but in the postgovernance phase for Establishment issues, and so on. And it clearly provides a description of what is happening in the Court’s jurisprudence in this era where the post-governance phase of the previous regime overlaps with the pre-governance phase of this one. The three cases here do not all deal directly with equal protection and race, and yet all provide pieces of the later doctrine, as we see below. As a result, while the Court is devoting most of its attention to dismantling Plessy, there is a void in this area. Language or concepts in opinions that is/are later used to weave the doctrinal test. As noted earlier, the primary indication of this pre-governance phase is the observation that each case contains either concepts or wording that show up later in the eventual finalized doctrine. Several commentators noted the early use of relevant language and the fact that it transitioned into usage later. The first use of the phrase “strict scrutiny” in an equal protection challenge to a race-based classification appears in the Japanese-American internment cases during World War II, and the concepts underlying strict scrutiny can be traced back to the famous footnote 4 of the Carolene Products case.222

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Despite its outcome, we do teach Korematsu as the case announcing the equal protection principles of suspect classifications and strict scrutiny.223 We already see the glimmerings of this idea in the famous Carolene Products footnote. In the midst of expounding the highly deferential standard that will 221

Orren and Skowronek 1996, p. 137. Bhagwat 1997, p.307. 223 Rubin 2006, p. 1892. 222

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become the rational basis test, the Court suggests that it may abandon the traditional presumption of constitutionality where the Bill of Rights is affected, where the democratic process is adulterated, or whether “discrete and insular minorities” are harmed.224 Carolene Products was part of the Court’s dramatic change of course in the late 1930s, in which it abandoned strict scrutiny of economic regulation and adopted a new role for itself in protecting civil rights and liberties.225 …Korematsu undeniably employed language suggesting that racial classifications were presumptively objectionable and thus subject to the most rigorous judicial scrutiny. Yet in both cases, not withstanding the grandiose rhetoric, the Court actually applied its most deferential brand of rationality review.226 The present strict scrutiny test has its origins in Korematsu…227

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We do not mean to suggest that Ely was wrongheaded in pointing out Carolene Products provides a theory to bolster Brown and its progeny, or that Carolene Products considerations are not a major part of the text or subtext in many cases, or even that the Court ‘got it right’ in each of the cases.228

224

Balkin 2005, p. 117. Farber and Frickey 1991, p. 689. 226 Klarman 1991, p. 232. 227 Meyers 1986, p. 1186 n.15. 228 Farber and Frickey 1991, p. 694. 225

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The Perplexing Matter of Brown Brown v. Board of Education229 and its direct progeny present a doctrinal dilemma, especially for the model of jurisprudential regimes. By now, the story of Brown is well-known. In a unanimous opinion, the Supreme Court explicitly rejected the separate but equal test, proclaiming that “[s]eparate educational facilities are inherently unequal.”230 Although the Court did not officially overturn Plessy until two years later,231 Plessy’s jurisprudential regime was unquestionably finished, replaced by the Brown philosophy. Many cases in the school arena carried out Brown’s mandate. McNeese v. Board of Education,232 Goss v. Board of Education,233 Green v. County School Board,234 U.S. v. Montgomery County Board of Education,235 Alexander v. Holmes County Board of Education,236 Swann v. CharlotteMecklenburg Board of Education,237 Davis v. School Commissioners of Mobile County,238 McDaniel v. Barresi,239 North Carolina State Board of Education v. Swann,240 Keyes v. School District No. 1, Denver, Colorado,241 and Norwood v. Harrison242 all related to segregation issues in the educational forum; all were handled consistently, by citing Brown and each subsequent relevant case. 229

347 U.S. 483 (1954). 347 U.S. 483, p. 495. 231 Gayle v. Browder 352 U.S. 903 (1956). 232 373 U.S. 668 (1963). 233 373 U.S. 683 (1963). 234 391 U.S. 430 (1968). 235 395 U.S. 225 (1969). 236 396 U.S. 19 (1969). 237 402 U.S. 1 (1971). 238 402 U.S. 33 (1971). 239 402 U.S. 39 (1971). 240 402 U.S. 43 (1971). 241 413 U.S. 198 (1973). 242 413 U.S. 455 (1973).

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230

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That Brown controlled decisionmaking seems beyond question, but, unfortunately, that decisionmaking philosophy was less an affirmative doctrine, and more of a rejection of what had come before. The ten-year period following Brown is characterized by an overriding clarity that any sort of segregation or classification drawn in a manner understood to disadvantage minorities will be treated to a high level of skepticism by the Court. Brown unquestionably articulates a clear vision, but does not articulate a clear doctrine. Apparently, however, the vision was enough, at least for awhile, even in areas other than education. In the immediate aftermath of Brown, the Court decided a series of cases, striking down segregation in a variety of areas; all of the decisions were handed down with no explanation and simply cited Brown as the controlling precedent. Holmes v. Atlanta243 struck down segregation in public golf courses. Mayor and City Council of Baltimore v. Dawson244 struck down segregation in public swimming pools. Gayle v. Browder245 desegregated the bus system, formally overturning Plessy. New Orleans City Park Improvement Assn. v. Detiege246 also focused on golf courses and, more generally, city park facilities as a whole. Turner v. City of Memphis247 focused on a publicly-operated restaurant facility and Johnson v. Virginia248 addressed a segregated courtroom. As noted, each case cited Brown, and then also cited whichever of the other cases had already been decided. At no point, however, did the Court explain how its decision in Brown, which had pointedly focused on the fundamental nature of education, could be applied to the use of city parks, golf courses, swimming pools, restaurants, or buses. The vision of Brown thus became dominant enough that its statement that “[s]eparate 243

350 U.S. 879 (1955). 350 U.S. 877 (1955). 245 352 U.S. 903 (1956). 246 358 U.S. 54 (1958). 247 369 U.S. 350 (1962). 248 373 U.S. 61 (1963). 244

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educational facilities are inherently unequal” was read to mean that separate facilities of any kind were inherently unequal. “[T]he effects of the Brown opinion were not limited to simply education – Brown stood for the idea that racial discrimination would no longer be tolerated anywhere in America. And, it was extended to other areas such racial gerrymandering, employment, and equal housing opportunities.”249 Although the life cycle model of jurisprudence that I am positing is relatively fluid and could easily allow for a transitional period, the validation of the jurisprudential regime literature requires that we place the Brown era in one of two options. Brown is clearly a turning point of some kind, so we could treat it as the beginning of the governance phase or, since no doctrinal basis for the decision is announced, we could treat it as part of the pre-governance phase. Since it has components of each period, we will look at both sets of criteria to show that, from a doctrinal viewpoint, Brown and its progeny are better understood as pre-governance cases. A settled, broadly applicable doctrinal “test” for a given area of caselaw. As already discussed, Brown did not articulate a doctrinal support system for its decision. The opinion discussed the fundamental importance of education, but even that was ignored, as the case was used to strike down segregation in other areas. The most that can be said of Brown is that it established a broadly applicable vision in any case concerning segregation. Brown, as the potential establishing case of the governance phase, also does not cite any of the doctrinal pieces that would make up a doctrinal test. “Th[e] flurry of commentary … obscured the fact that Carolene Products [was] not even cited, much less relied upon in any axiomatic way, in Brown or any of the other traditional racial discrimination cases. … Even more surprisingly, Carolene Products was not cited in cases where the Court was more overtly concerned with perfecting the pluralistic political process.”250 If we assume that it is correct that Carolene Products, Korematsu, and Skinner are all pre-governance cases, 249 250

Bauman 2008, p. 1025. Farber and Frickey 1991, p. 691-692.

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it must at least raise a question that Brown does not weave them into its opinion. Repeated citations either to test or establishing case in future relevant cases. Ironically, in 1951, just prior to Brown, there was reason to believe that segregation would die a slow death. As one Court observer wrote, “[i]n short, the ‘separate but equal’ enunciated in Plessy v. Ferguson was almost automatically broadened to regulate every possible relationship between Negroes and whites, but the present Court will supply no similarly automatic counter-agent. Every area of segregation must be litigated on its merits before the shade of Plessy will be exorcised from American life and constitutional law. Presumably the Court looks forward to years of peeling layers off the onion and at last arriving at the place where nothing remains.”251 However, as we know from history, three years later Brown was decided. Although it might have been treated as a case relating only to education, this was not to be the case; Brown was applied to segregation in a variety of arenas over the next nine years, just as had happened with Plessy before. Despite the lack of reference to a cohesive doctrine, those cases do refer to Brown’s principle of desegregation. Given that parallel, there is support for treating Brown as the governance-triggering case. Legal and/or academic validation of that test or establishing case. Civil rights observers often refer to Brown as changing the landscape on race issues; however, legal commentators offer a more reserved insight, and rarely about doctrinal impact. Jack Balkin points out that “[i]n the years between Brown v. Board of Education and Grutter v. Bollinger, courts construct a new doctrinal framework for articulating claims about equal citizenship,”252 generously acknowledging that the overall process began sometime around Brown; but, we should note that this is not the same as saying that in Brown, courts construct a new doctrinal framework.

251 252

Roche 1951, p. 950. Balkin 2005, p. 124.

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In 1969, it was noted that “[t]he Court’s decision brought to an end the eroded doctrine that a state could separate students in public schools solely because of their race so long as ‘equal’ facilities ere provided,”253 but does not identify what doctrine took its place. Later, this understanding broadly summarizes the way that Brown functioned as a turning point, but even this analysis notes that Brown’s impact was largely rhetorical and requires reference to Loving to make a serious doctrinal argument:

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Thus, early on, the Supreme Court moved, if only in its rhetoric, beyond the original understanding of equal protection toward a broader understanding, one embracing the principle that any law predicated on the view that one person is by virtue of race inferior to another offends equal protection. It was not until Brown v. Board of Education that the Court was able, or willing, to enforce this broader understanding. Brown and the subsequent per curiam opinions disestablishing, with a simple citation to Brown, segregated beaches, buses, golf courses, and parks, plainly stand as the major vindication of the principle, implicit in the Court’s thinking as early as Strauder and Plessy, that state action predicated on the supposed moral inferiority of a particular racial group is unjust. Loving v. Virginia, in which the Court struck down an anti-miscegenation law, represents another significant vindication of this principle. Both Brown and Loving firmly establish the understanding of equal protection defended by Justice Harlan in Plessy.254 Mark Tushnet attempts to make a strong doctrinal case for Brown, stating, “[w]e might understand Brown as designed not to accomplish actual integration, but to establish a fundamental

253 254

Vieira 1969, p. 1553. Perry 1979, p. 1030.

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principle of constitutional law.”255 However, he follows that sentence by showing the doctrinal ambiguity of the case, allowing “[t]he precise content of that principle has become controversial: It might be that race is an impermissible basis for government decisions, or that race is an impermissible basis for government decisions that subordinate African Americans.”256 Finally, we have the strongest statement noting Brown as a turning point in race relations law:

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When Chief Justice Warren assumed his post in October 1953, the underpinnings of the ‘separate but equal’ concept had become unmoored beyond restoration. Fullscale argument on the validity of apartheid in public education was only weeks away, and the portent of change in the constitutional doctrine governing American race relations was unmistakable. Although the groundwork had been carefully prepared for the Chief Justice’s announcement in Brown v. Board of Education that fundamental principles forbade racial segregation in the nation’s public schools, the decision, when it was delivered on May 17, 1954, was more than a break with the past. In interpreting the fourteenth amendment as guaranteeing and securing to Negroes equality in substance rather than in mere form, the Brown decision was a revolutionary statement of race relations law.257 Some of the foundations are present to treat Brown as a governance-beginning case; however, many are missing or weak. Turning to the criteria for adding the Brown era to the pregovernance phase, it can be quickly conceded that Brown and its progeny provided no evidence for the criteria of closely-divided decisions, switching “winning” majorities, and/or frequent plurality opinions. Other criteria, however, seem persuasive.

255

Tushnet 1994, p. 176. Ibid., p. 176. 257 Carter 1968, p. 237. 256

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No settled doctrine for evaluation of the issue/area. Although Brown and its progeny are cited for the proposition that segregation is constitutionally impermissible, there is no doctrinal test established by this case. Michael Klarman establishes “that the Court throughout the pre-Brown era (and indeed until the mid-1960’s) never espoused the notion that racial classifications were presumptively unconstitutional (hereinafter, a ‘racial classification rule’).”258 Instead, we have the following observations about the Court’s lack of doctrine, and lack of the doctrine we know will later emerge, in Brown: Ironically, but perhaps appropriately, Brown v. Board of Education does not use the language of scrutiny. It is a case about harm to black schoolchildren, although today many people, I suspect, instinctively identify it with the doctrinal proposition that racial classifications are strongly disfavored and will be viewed by courts with the most searching scrutiny. 259 Rather, Brown is at the start of creating a new way of organizing concepts of citizenship, one that will eventually use concepts like scrutiny rules, classifications, and fundamental rights. Of course, Brown does not tell us anything about this theory, because it has not been developed yet.260

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Prior to McLaughlin v. Florida, the Justices struggled to reconcile a general rationality approach to equal protection with an intermittent intuition that racial classifications were objectionable even when not irrational.261

258

Klarman 1991, p. 220. Balkin 2005, p. 119. 260 Ibid., p. 121. 261 Klarman 1991, p. 316. 259

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The decisions in Brown and the companion case of Bolling v. Sharpe are doctrinally awkward. 262

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Brown v. Board of Education is decided after World War II when the old model had dissolved but before a new model of constitutional citizenship had fully emerged to replace it. There is one reason - although certainly not the only one - why Brown says so little about its theoretical justifications for jettisoning Plessy. Quite apart from the need to maintain unanimity, the details of the new theory simply had not been worked out. That required the efforts in succeeding decades by lawyers, judges, politicians, legal scholars, and members of social movements. Later on, people attributed elements of the theory of citizenship that developed in the 1960’s and 1970’s to Brown. In hindsight, Brown has come to represent this second theory of citizenship, even though that theory was not yet articulated in 1954 and would not be fully articulated for several decades.263 Cases that raise parallel claims are handled differently. With Brown and the cases that followed it, it was not so much that parallel cases were handled differently; quite the opposite, it was actually that cases that raised very different issues were handled the same with no intellectually coherent explanation. The justification for opposing segregation in Brown was because of the fundamental importance of education, not an overarching theory about the evils of segregation in general. Therefore, when the Court used Brown to strike down segregation in other areas, it seemed a bit intellectually dishonest, even if socially and progressively desirable. Another way of putting it is that, after 1954, “[t]he remaining question is whether racial classification is permissible under the School Segregation Cases. Most commentators agree that the decisions did not foreclose such classification. The 262 263

Balkin 2005, p. 121. Ibid., p. 102.

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opinions were limited in terms to education, and the explicit reason for not applying Plessy was that separate facilities were seen as inherently unequal in that field. If Brown had imposed a general ban on racial lines, Plessy would have been obliterated rather than ‘out of place,’ and the discussion of separation and inequality which comprised much of the opinion would have been wholly gratuitous.”264 Similarly, based on a case in which the Supreme Court had denied review,265 one observer claimed that “…legislation requiring racial segregation with respect to the enjoyment of public parks, swimming pools and golf courses is not directly affected by the holding in Brown v. Board of Education, but the facilities made available to the two races on a segregated basis must in fact be equal.”266 Of course, Brown was not read this way by all; some immediately saw where the Court would go, noting, “[a]lthough, on its merits, the holding applies only to segregation in secondary public education, it is inconceivable that segregation in transportation, theatres, railroad stations, etc., can long survive.”267 One more perspective offered that “an honest reading of Brown, given its emphasis on the importance of education, did not support invalidation of segregated recreational facilities. Some additional explanation, such as candid avowal of a racial classification rule, was required to justify convincingly the results in the post-Brown per curiams. Yet the Court provided none. Especially during the hegemony of the ‘reasoned elaboration’ school of jurisprudence, for the Court significantly to expand Brown’s holding without a word of explanation was deemed wholly indefensible.”268 In fact, related to this strange doctrinal happenstance is the fact that the Court commanded an unnerving amount of unanimity around these decisions. Given that there was no 264

Vieira 1969, p. 1560. 347 U.S. 974 (1954), denying certiorari of Beal v. Holcombe (5th Cir. 1951) 193 F. (2d) 384. 266 Kauper 1954, p. 1154. 267 Roche 1954, p. 48. 268 Klarman 1991, p. 248 265

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strong jurisprudential underpinning to the logic, we would expect to see closely-divided decisions or even plurality opinions. Given that the unanimity cannot really be explained by legal means, it must be that the justices understood the highly politicized nature of the case. No previous Supreme Court jurisprudence exists. Obviously, since the Slaughter-House Cases, jurisprudence had existed interpreting the 14th amendment. Even the Plessy regime had serious ramifications of pre-14th Amendment legal doctrine to contend with. But with Brown and its progeny’s final revocation of separate but equal, the Court appears to be starting from a blank slate, representing “the moment at which the old forms have cracked and new ones are yet to be prepared. Brown is like a child, full of future hopes and future possibilities.”269 While the Court is triumphant in ushering in a new age and engaging in a systematic dismantling of the Jim Crow system, the justices are too focused on that goal to cement the legal underpinnings. As Jack Balkin put it, referring to Plessy as the first act, “Brown, the second act, occurs after it has passed away, but nothing has clearly emerged to replace it.”270 That the Court feels like it has started from scratch can also be deduced from the fact that the justices do not appear to realize that Carolene Products, Korematsu, or Skinner might provide a useful legal foundation. It would have been relatively easy for the Court to pull from these cases, but, as noted in the pregovernance section of this chapter, there is no mention of any of these cases in Brown. Language or concepts in opinions that is/are later used to weave the doctrinal test. If we revisit the arguments for treating Brown as the beginning of the governance phase, it is clear that the pivotal nature of Brown really lies in its conceptual attack on classifications intending to separate the races in ways that are obviously discriminatory or motivated by discrimination. It is this concept that acts as the foundation for the strict scrutiny level of analysis later. 269 270

Balkin 2005, p. 141. Ibid., p. 102.

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Brown and its historical meaning is still the subject of much debate. The year it was decided, it was heralded as a great victory. This epochal decision of May, 1954, far outdistances in its impact even such massive acts of judicial legislation as The Insular Cases and Erie v. Tomkins…271 The result of the Court’s decision announced May 17, 1954, was the complete demolition of the Plessy doctrine in its application to public schools.272 Regardless, the debate mostly focuses on its political efficacy in stopping segregation and/or underlying the success of the civil rights movement of the 1960’s. Although its prime position in the political and social landscape is assured, we should not confuse this with the legal trajectory the Court was on. In 1954, the Court rejected separate but equal and spent the next few years ensuring that this new judicial policy was clear to all. Unfortunately, the legal underpinnings of such a position were lacking, which was pointed out even by contemporaries of the decision. From a political and social perspective then, we may easily consider Brown the beginning of the civil rights heyday; however, from a jurisprudential perspective, the Court was only beginning to clarify its doctrinal position. The governance phase arrives when the Court merges Brown’s vision with the doctrinal strands from the earlier pre-governance phase cases.

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GOVERNANCE PHASE (1964-1974) Beginning in the mid-1960’s, the Court actually fashions the doctrinal analytical test that underscores the Brown vision. To do this, it reaches back to cases decided in the earlier pregovernance phase and pulls useful terminology and concepts 271 272

Roche 1954, p. 47. Kauper 1954, p. 1147.

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from the Carolene Products footnote, Skinner, and Korematsu. Bolling v. Sharpe273 (the companion case to Brown, but utilizing the 5th Amendment because the case concerned schools in the federal District of Columbia) also has language that the Court utilizes, in addition to citations all the way back to pre-Plessy concepts. McLaughlin v. Florida and Loving v. Virginia appear to be the first cases that articulate the early versions of the strict McLaughlin274 concerned a state antiscrutiny test. miscegenation law directed at cohabitating couples and provided the insight that “[s]uch classifications275 bear a far heavier burden of justification.” A few years later, the Court went further, striking down a state anti-miscegenation law directed at married couples in Loving,276 specifically noting “the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.”277 Hunter v. Erickson,278 a case that rarely draws scholarly attention, concerned a fair housing ordinance passed by the City of Akron which was repealed once a charter amendment was passed requiring the Akron City Council to get majority approval from its citizens before implementing the ordinance. The Court struck down the charter amendment, continuing the strict scrutiny vision and, for really the first time, pulls from all of the past casts to draw together the familiar language: “Because the core of the Fourteenth Amendment is the prevention of meaningful and unjustified official distinctions based on race,279 273

347 U.S. 497 (1954), p. 499. 379 U.S. 184 (1964). 275 Referring to racial distinctions in the law. 276 388 U.S. 1 (1967). 277 Ibid., p. 9. 278 393 U.S. 385 (1969). 279 Slaughter-House Cases 16 Wall. 36, p. 71 (1873); Strauder v. West Virginia 100 U.S. 303, p. 307-308 (1880); Ex parte Virginia 100 U.S. 339, p. 344-345 (1880); McLaughlin v. Florida 379 U.S. 184, p. 192 (1964); and Loving v. Virginia 388 U.S. 1, p. 10 (1967).

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274

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racial classifications are ‘constitutionally suspect,’280 and subject to the ‘most rigid scrutiny.’281 They ‘bear a far heavier burden of justification’282 than other classifications.”283 The strict scrutiny test, as it originated in McLaughlin and Loving, provides the vehicle by which the Court continued its years of commitment to the Brown vision. The language of the Carolene Products footnote, Skinner, and Korematsu are woven into the fabric of the new doctrine, despite the fact that the authors of those cases likely did not envision this utilization, and, the doctrine clearly carries out the mission of Brown and its progeny. From this time on, although the exact term “strict scrutiny” does not appear frequently in cases concerning invidious racial discrimination, the test is used frequently. Adickes v. Kress & Co.284 concerned a white teacher who had been refused service in a food establishment because, she contended, she was accompanied by several of her black students. Among other issues, lower courts had narrowly construed the proof she would have to submit to document a custom of discrimination. The Supreme Court reversed and remanded the case, contending that “[f]ew principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions, or in any way act to compel or encourage racial segregation.”285 With the emergence of the strict scrutiny test formulation, the Court has finally developed a vehicle for its vision, as we see when we apply the criteria for the governance phase. A settled, broadly applicable doctrinal “test” for a given area of caselaw. After searching for a doctrinal foundation that could underscore its jurisprudence in Brown, the Court crafted the 280

Bolling v. Sharpe 347 U.S. 497 (1954) , p. 499. Korematsu v. United States 323 U.S. 214 (1944) , p. 216. 282 McLaughlin v. Florida 379 U.S. 184 (1964) , p. 194. 283 393 U.S. 385, p. 392. 284 398 U.S. 144 (1970). 285 Ibid., p. 150. 281

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strict scrutiny test. Later formulations would shorten it to mean that classifications at issue have to be necessarily related to a compelling government interest. In its original form, however, the doctrine was more verbose, but clearly marked a departure from the Plessy jurisprudence, while providing the guiding doctrinal method of analysis. In McLaughlin, the Court announced the following: But we deal here with a classification based upon the race of the participants, which must be viewed in light of the historical fact that the central purpose of the Fourteenth Amendment was to eliminate racial discrimination emanating from official sources in the States. This strong policy renders racial classifications "constitutionally suspect," and subject to the "most rigid scrutiny," and "in most circumstances irrelevant" to any constitutionally acceptable legislative purpose.286

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Our inquiry, therefore, is whether there clearly appears in the relevant materials some overriding statutory purpose requiring the proscription of the specified conduct when engaged in by a white person and a Negro, but not otherwise. Without such justification the racial classification … is reduced to an invidious discrimination forbidden by the Equal Protection Clause.287 That a general evil will be partially corrected may at times, and without more, serve to justify the limited application of a criminal law; but legislative discretion to employ the piecemeal approach stops short of permitting a State to narrow statutory coverage to focus on a racial group. Such classifications bear a far heavier burden of justification.288 286

McLaughlin majority opinion, p. 191-192. Ibid., p. 192-193. 288 Ibid., p. 194. 287

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There is involved here an exercise of the state police power which trenches upon the constitutionally protected freedom from invidious official discrimination based on race. Such a law, even though enacted pursuant to a valid state interest, bears a heavy burden of justification, as we have said, and will be upheld only if it is necessary, and not merely rationally related, to the accomplishment of a permissible state policy.289 In Loving, the Court honed its language more. In the case at bar, however, we deal with statutes containing racial classifications, and the fact of equal application does not immunize the statute from the very heavy burden of justification which the Fourteenth Amendment has traditionally required of state statutes drawn according to race.290

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At the very least, the Equal Protection Clause demands that racial classifications, especially suspect in criminal statutes, be subjected to the "most rigid scrutiny," and, if they are ever to be upheld, they must be shown to be necessary to the accomplishment of some permissible state objective, independent of the racial discrimination which it was the object of the Fourteenth Amendment to eliminate.291 The broadly applicable nature of the strict scrutiny test is clear, given the applicability to equal protection cases in other arenas, noted above, as well as its later appropriation into the area of affirmative action. Repeated citations either to test or establishing case in future relevant cases. In addition to the cases noted in the overview, it 289

Ibid, p. 196. Loving majority opinion, p. 9. 291 Ibid., p. 11. 290

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should be pointed out that additionally, over the next roughly nine years, the Court grappled with different types of discrimination in the equal protection arena. It is in this way that the scrutiny analysis really shows its entrenchment. Instead of crafting completely new doctrine, the strict scrutiny formulation was so entrenched that the only question for the justices was which level of scrutiny to assign, leaving aside the complicated origins of this area of caselaw. The first major application concerned sex discrimination,292 but more groups were seeking protection by the Court for still other types of classifications, including wealth,293 mental retardation,294 alienage,295 and age.296 Although most of the new classifications were not awarded strict scrutiny review, it is undeniable that the Court’s formulation of this standard served as a model and guide for the other standards of review. Pre-governance phases in those areas predominantly focused on which level of review they would be assigned, as opposed to the creation of completely new doctrinal methods. The widespread applicability of the strict scrutiny doctrine and the understanding of how it works in contrast to rational basis review is a testament to its usage by later and lower courts. Legal and/or academic validation of that test or establishing case. Writing with the benefit of hindsight, Jack Balkin points out that “[i]t is hard to assess [the originating case] for the model of scrutiny rules because it was not inaugurated at a single point in time.”297 Today, we know that the strict scrutiny analysis level exists, and we know, generally speaking, what factors

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292

Frontiero v. Richardson 411 U.S. 677 (1973) and Craig v. Boren 429 U.S. 190 (1976). 293 James v. Valtierra 402 U.S. 137 (1971) and San Antonio School District v. Rodriguez 411 U.S. 1 (1973). 294 Cleburne v. Cleburne Living Center, Inc. 473 U.S. 432 (1985) and Heller v. Doe 509 U.S. 312 (1993). 295 Graham v. Richardson 403 U.S. 365 (1971), Sugarman v. Dougall 413 U.S. 634 (1973), and In re Griffiths 413 U.S. 717 (1973). 296 Massachusetts Board of Retirement v. Murgia 427 U.S. 307 (1976) and Vance v. Bradley 440 U.S. 93 (1979). 297 Balkin 2005, p. 140.

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trigger the test. Conventional wisdom puts the origination point somewhere during the civil rights era, but contemporary Court observers did not know what they were looking for. Direct evidence, therefore, is scant for this criterion, but some observations are possible. While individual Justices may have arrived there earlier, the full Court first stated a presumptive rule against racial classifications in McLaughlin v. Florida where it struck down on equal protection grounds a state law criminalizing cohabitation by unmarried interracial couples. For the first time the Court in McLaughlin both articulated and applied a more rigorous review standard to racial classifications, requiring as justification an ‘overriding’ state purpose as well as showing that the classification was ‘necessary,’ rather than just rationally related, to the proffered governmental interest. This racial classification rule subsequently was reaffirmed in Loving v. Virginia.298 Reliance on McLaughlin is also called into question by the fact that the Court actually applied the restriction against classification by race far more rigorously in that case than it had in the past. Earlier opinions characterized racial distinctions as “suspect” and subject to “rigid scrutiny.”299

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POST-GOVERNANCE PHASE (1976-PRESENT) By the mid-1970’s, it was clear that any time a law was subjected to the strict scrutiny test, the law would fail the constitutionality test and be struck down; the only reported case of the Court applying strict scrutiny where the law was upheld was Korematsu, but there is debate about whether the Court 298

Klarman 1991, p. 255. Vieira 1969, p. 1594, noting that Loving represented an even further tightening of the strict scrutiny standard that was first in McLaughlin.

299

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actually applied the strict scrutiny standard or just happened to use language that later got incorporated into the test. The first signal that the Court is retreating from its hardline enforcement of racial remedies triggered by strict scrutiny comes in Milliken v. Bradley,300 where the Court backs away from inter-district school integration, unless historical segregation could be proven in all affected districts. This case concerned segregated schools in Detroit. The Detroit district had such a high black concentration that successful desegregation could not be accomplished within the boundaries of its limits alone. Instead, the court determined that the only way to successfully balance the student population was to bus in white children from neighboring suburban school districts. The Supreme Court found this unconstitutional, stating that discrimination must be documented in the locations contributing to the remedy. The Court was split 5-4, and it seems likely that it would have reached this decision one year earlier in School Board of Richmond v. State Board of Education,301 but Justice Powell did not participate in that case, so the Court split 4-4, along the same lines as in Milliken.302 Although the strict scrutiny test was still left formally intact (perhaps because it wasn’t directly at issue), it is clear at this point that a major directional shift had occurred, since the concept of the opinion is squarely opposite the rationale in Brown and most of its progeny. Washington v. Davis303 marked the first serious exception carved into the strict scrutiny test, and therefore, the “official” beginning of the post-governance phase. The case concerned the employment practices of the Washington D.C. police

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300

418 U.S. 717 (1974), striking down a busing program that would have ensured integrated schools. 301 412 U.S. 92 (1973) 302 Four years later, in Milliken v. Bradley 433 U.S. 267 (1977) (Milliken II), the Court reviewed the district’s court’s response, which was to fashion a high detailed and specific four-part plan to address the segregated schools within the district. The Court unanimously upheld the unusual components of the plan. 303 426 U.S. 229 (1976).

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department, who required a verbal test of its applicants which was disproportionately failed by black candidates. However, the Court held that impact was not enough to trigger the strict scrutiny test; the challenger must also prove that intent to discriminate was present. Because such intent was not proven in this case, strict scrutiny was not triggered, and the practice easily passed what was now known as rational basis review. This case marked the Court’s first formal exception to its governing doctrine, holding that intent must be proven in order to trigger strict scrutiny and rejecting the contention that impact alone is sufficient. This case articulates the intent vs. impact standard which meant that in order to trigger strict scrutiny, a facially neutral law had to be proven to have both discriminatory impact and intent. The intent standard established was, and has proven to be, nearly impossible to meet. In a reaffirmation of the intent standard, the Court extended it in McCleskey v. Kemp,304 a death penalty case. Although death penalty cases were, and are, often litigated under criminal procedure amendments, this particular challenge alleged that the death penalty was being applied to black Americans in a racially discriminatory way that violated the equal protection clause. In a decision with far-reaching ripple effects, the Court refused to consider evidence presented that purported to prove the discriminatory impact on convicted blacks, saying that no intent to apply the death penalty in a racially discriminatory way could be proven. The existence of a clear statistical impact alone could not trigger strict scrutiny. Missouri v. Jenkins305 concerned an ambitious, expensive, and multi-district remedy for one largely-segregated school district. The lower court had ordered a plan whereby a magnet school would be created, including so many learning amenities, that non-minority students would voluntarily want to attend, and required the funding to come from a state-wide tax. The Court unanimously ruled that this exceeded their remedial authority. It is important to note that the Court decided the issue on taxation 304 305

481 U.S. 279 (1987). 495 U.S. 33 (1990).

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grounds and did not reach the constitutional issue of the desegregation plan itself, but it seems likely that at least a majority would have found the plan unconstitutional, based on the vote configuration in Milliken. Board of Education of Oklahoma City v. Dowell306 concerned a terminated desegregation court-order. The Court’s decision made it easier to discontinue such orders and allow the return to predominantly one-race schools that were becoming more common as a result of “white flight” to the suburbs. Missouri v. Jenkins307 was the return of the earlier 1990 case, modified as the lower courts had now ordered increases to teacher salaries and to funding for remedial programs. The Court determined that the lower court had exceeded its authority on all fronts. City of Cuyahoga Falls v. Buckeye Community Hope Foundation308 concerned a low-income housing complex which triggered a referendum process that resulted in stalled construction. Buckeye Community Hope Foundation claimed, among other things, that it had been denied equal protection by the referendum process. However, the Court unanimously disagreed, finding, per Washington v. Davis, that no discriminatory intent had been proven and that, therefore, no heightened review would occur. Turning to an analysis of the relevant criteria for the postgovernance phase, the pattern is relatively easy to see. A break-down of any unanimity that may have existed during the governance phase. An extraordinary level of unanimity existed during the governance period. Indeed, even during the pre-governance phase, the justices worked together to create a new constitutional vision as it pertained to segregation and the educational arena. Specifically, during the governance phase, all of the cases mentioned were either purely unanimous (McLaughlin and Loving), or essentially unanimous on the 306

498 U.S. 237 (1991). 515 U.S. 70 (1995). 308 538 U.S. 188 (2003). 307

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doctrinal issue (the decision in Hunter was 8-1, with Black dissenting, but only on the grounds of state power, not based on a difference of opinion about equal protection analysis; the decision in Adickes was virtually unanimous, with Marshall not participating, and both Douglas and Brennan dissenting, but only in part). In the post-governance phase, that agreement breaks down. “Just one year after Swann, and nearly twenty years after Brown, the first dissents were registered in a Supreme Court desegregation case (Wright v. City Council of Emporia 1972), when Nixon’s appointees voted as a bloc to loosen judicial control. A year later, in the Denver case, the justices, again divided, made numbers rather than principle the heart of their first ruling on segregation in the North (Keyes v Denver School District 1973).”309 The cases in this time period were characterized by a marked increase of disagreement among the justices. Notwithstanding two cases of unanimity, the conflict among the justices has clearly heightened. The voting patterns in these cases are illustrated by Table 3.

309

Kirp 1997, p. 446.

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TABLE 3 Voting Patterns for the Post-Governance Cases Case School Board of Richmond v. State Board of Education

4-4 Powell not participating

Milliken v. Bradley

5-4

Washington v. Davis

7-2

McCleskey v. Kemp

5-4

Missouri v. Jenkins

unanimous

Board of Education of Oklahoma City v. Dowell Missouri v. Jenkins (II) City of Cuyahoga Falls v. Buckeye Community Hope Foundation

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Vote Split

5-3 Souter not participating 5-4 unanimous

Alterations to the doctrinal test. Earlier criteria notwithstanding, there are two fundamental indications that this doctrine is in its post-governance phase. The first is the major exception carved out by Washington v. Davis, which “adopted the narrowest plausible interpretation of Brown.”310 In fact, “Brown was tamed by being reduced to discriminatory intent... [and] the consequence of the taming is a degree of infidelity to the great principle.”311 As he had noted about the decline of the Plessy doctrine, Jack Balkin returned to wonder about the fate of strict scrutiny, 310 311

Strauss 1989, p. 955. Ibid., p. 955.

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saying that “[i]t too has been debated, elaborated and modified over time, and it is interesting to speculate about whether, after some fifty or so years of intellectual dominance, it too is slowly coming apart at the seams.”312 Different outcomes occur than were initially envisioned at the doctrine’s creation. The other fundamental indication that this doctrine is in its post-governance phase is that the outcomes during this time period are notably at odds with what the originators of the vision and doctrine intended. For example, “Davis … suggest[s] that the Court is struggling to shift the balance between the two standards so as to reduce the gross disproportion in the burdens of proof heretofore placed on defendants as contrasted with plaintiffs,”313 when the originators clearly felt that it was the strict scrutiny test, as formulated, that leveled the playing field for minorities. Or we can note “Board of Education of the Oklahoma City Public Schools v. Dowell, … reversing and remanding the 10th Circuit is judgment for further consideration, in a five to three decision (Justice Souter did not participate in the case), [in which] the court dissolved the desegregation order that had been in place since 1972.”314 Reversing the course of twenty years of history is a clear sign that the direction has shifted. Some were taken aback by what was perceived as a sharp turn: “In an abrupt departure from previous rulings, especially Swann, the Supreme Court determined that lower courts could not order multidistrict or interdistrict relief for de jure discrimination, absent a showing that all school districts to be included had practiced such discrimination, that racial practices in one district had deleterious effects on other school districts, or that district lines had been drawn with the understanding that students would be separated by race (Milliken, 1974).”315

312

Balkin 2005, p. 102, talking about strict scrutiny in the context of racially discriminatory challenges. 313 Lerner 1976, p. 268. 314 Russo 2004, p. 176. 315 Daniel 2004, p. 263.

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Indeed, above and beyond the criteria, there was a clear sense among Court observers that Milliken and Washington were a turning point in civil rights jurisprudence. One article title blurb read “Milliken v. Bradley: The First Step in Overturning Brown v. Board of Education”316 Another noted, “Washington v. Davis, was an employment testing case, the third such case to reach the Court. It seems to mark the start of a major shift in the Court’s approach in this area…”317 And yet another asserts that “[t]he turnabout came in Washington v. Davis.”318 More generally, one summarized it this way: “[a]fter a busy twenty-year period during which the U.S. Supreme Court resolved more than two dozen cases on school desegregation, the first twenty two of which resulted in unanimous rulings in favor of proponents of equal educational opportunities, the Court’s attitude underwent a dramatic shift beginning in the mid1970’s.”319 CONCLUSION – HOW DOES IT ALL FIT?

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With the overturning of Plessy, the Court needed to stake out a new position on race policies that might violate the equal protection clause. With the decision in Brown, the Court makes its hostility to racial classifications known, establishing a vision for racial equality. Ten years later, in McLaughlin and Loving, the Court finally pulls from early pre-governance cases and articulates the doctrinal analysis that will be used to anchor its vision from Brown. About another ten years later, the Court signals a retreat in the long-settled school desegregation arena in Milliken and carves a major exception into its test for application into broader subject areas in Washington v. Davis. The sum total results in a current state of jurisprudence in which the strict scrutiny test can still be triggered for laws that are facially 316

The Journal of Blacks in Higher Education 2001, p. 39. Lerner 1976, p. 266. 318 Ibid., p. 267. 319 Russo 2004, p. 175. 317

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discriminatory, but intent must be proven in order to trigger it for facially neutral laws. Given the nature of race and unconscious racism, laws that are facially discriminatory rarely occur; it is the facially neutral laws that are most dangerous and that the Court is now the least willing to engage. This latest time period of this regime is a model example of the post-governance phase, as detailed above. In addition to the standard criteria for identifying a post-governance period, this regime seems to indicate that we may add one more: legal or academic scholars will often provide validation for the Court’s shift away from its existing doctrine. In addition to the standard criteria for the governance phase, we may add that cases decided during that period often have a high degree of consensus or unanimity among the justices, although it is important to note the caveat that consistent consensus could be simply a byproduct of lack of turnover in Court personnel. But what about jurisprudential regimes? From a qualitative perspective, the civil rights era does not reinforce the central holding of the jurisprudential regime literature – that there is one case or group of cases that serves as a turning point in the Court’s doctrinal analysis of a given area of law. This regime is characterized by a more fluid evolution of doctrine than Kritzer and Richards, et al, would likely posit. Based on their work, should Kritzer and Richards turn their attention to equal protection, it is likely that they would hypothesize that Brown triggered a jurisprudential regime. Based on recent critiques, noted in Chapter 1, we also know that it is likely that their quantitative methodology would yield “proof” of such a regime change. However, by applying qualitative methods, without even needing the randomization tests applied by Lax and Rader,320 it is likely that the results would show a false positive. As we have seen, the key case triggering regime change is supposed to be the precedent cited for the articulation of the doctrine. Brown, as related to the strict scrutiny test, does not fit that pattern. Again, as discussed, Brown articulated a vision that 320

Lax and Rader 2008.

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separate (meaning any sort of classification) could never be equal and would therefore be struck down; it took the Court several years to pull from approximately 25 years of jurisprudence to coalesce around a legally coherent test by which to achieve this vision. Although it is beyond the scope of this work to examine the driving forces behind such a method of detaching the vision from the doctrine, we can speculate. The Court in Brown, under the leadership of Chief Justice Earl Warren, was determined to achieve victory; most of the supporting evidence marshaled in Brown, however, was drawn from the social sciences and engendered criticism from the legal and academic community.321 We may possibly surmise that the Court needed to have the country embrace its vision before it could impose a doctrine. Regardless, while this era clearly follows the life cycle pattern, it presents serious problems for the model of jurisprudential regimes.

321

See generally Wechsler 1959 for the best known critique.

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CHAPTER 5

The Affirmative Action Era

Although the caselaw on affirmative action could be considered an extension of civil rights law, by now it seems generally accepted that it has taken on a life of its own and can certainly be engaged as its own line of jurisprudence. Early on, there was some thought that cases related to the remedial efforts requested by Brown could be treated as the predecessors to the affirmative action challenges, but now that enough caselaw has accumulated, we can separate the later attempts of the Court to sort through the fallout of Brown from early attempts to flesh out a strategy for affirmative action programs stemming from generalized aftereffects of historical discrimination.

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THE PRE-GOVERNANCE PHASE (APPROXIMATELY 1978-1989) Although the Court is in the post-governance phase of the previous cycle during this time period, the new issue of affirmative action programs created a new question. The Court, therefore, began a separate and overlapping pre-governance phase to determine the appropriate level of analysis to fill the void in this new area. Beginning with University of California Regents v. Bakke,322 the Court struggled extensively on the appropriate analytical framework to use for classifications benefiting minorities. In Bakke, the Court completely fragmented on how to approach a 322

438 U.S. 265 (1978). 101

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claim of unconstitutionality against a policy designed to benefit racial minorities. At issue was an affirmative action program at U.C. Davis’s medical school that held separate admission slots for minority competition and had resulted in Bakke, a white male applicant, being rejected twice. The justices split on everything from how to examine this type of claim to whether affirmative action was ever acceptable to whether this particular program was acceptable. With no majority opinion in any direction, a total of five justices believed that affirmative action programs could be constitutionally acceptable under the right circumstances, five felt that the U.C. Davis program in particular was impermissible, and one advocated applying the same strict scrutiny analysis to affirmative action programs that the Court applied to classifications that disadvantaged minorities. Two years later, the Court again was faced with an affirmative action program, but this time outside of the educational arena. In response to the Court’s opinion in Bakke, and particularly Powell’s, since he had cast the deciding vote in both directions, governmental agencies at all levels (federal, state, and local) had worked diligently to craft affirmative action programs for their contracting work that might pass constitutional muster. Fullilove v. Klutznick323 concerned a Congressional public works set-aside program for Minority Business Enterprises. Again, the Court was deeply divided on this issue and no majority opinion was written. Six justices, however, agreed that the program was a legitimate exercise of Congressional power, especially insofar as it was remedying past discrimination. One threesome opinion upheld the program on the basis of the 14th Amendment’s enforcement clause and the Commerce Clause powers, deferring to Congress’s ability to evaluate the need for such a program and applying a standard of review that utilized language from the strict scrutiny test, but undermining it simultaneously with language from the rational basis review test. The other trio comprising the six votes to uphold the plan evaluated the issue primarily on the basis of so323

448 U.S. 448 (1980).

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called intermediate scrutiny, finding that the program passed that test. Either way, the case’s outcome flip-flopped from Bakke’s, and the Court had still not managed to give clear direction on how to evaluate these types of cases. Wygant v. Jackson Board of Education324 reversed the Court’s sentiment yet again. At issue was a reduction in staff that preserved less senior minority teachers while laying off more senior white teachers; the reduction had been voluntarily agreed to by the school board in an attempt to increase minority representation among teachers. Again, there was no majority opinion. The plurality opinion, representing four justices, felt that strict scrutiny should be applied, and determined that the affirmative action policy failed this test. Justice White simply did not address the level of scrutiny issue, and almost appears to be applying the rational basis test, but ultimately agrees that the program is unacceptable. Without receiving Justice White’s critical fifth vote, the Court could still not establish any particular method of analysis for affirmative action cases. In United States v. Paradise,325 the Court again switched outcome directions, returning to the race-protective side of the affirmative action melee. At issue was the last in a long line of court-ordered promotional programs for Alabama’s department of public safety designed to increase the number of blacks occupying the upper ranks. Yet again, there was no majority opinion. The plurality opinion of four justices held that the orders were permissible because the program was crafted in such a way that it met even strict scrutiny.326 By concluding thus, the plurality was able to sidestep the issue of establishing a level of scrutiny and secure Justice Powell’s vote. Justice Stevens concurred with the judgment, but elected to analyze the case from a desegregation perspective, as opposed to an affirmative action perspective. Given that, he did not feel it necessary to evaluate the issue of scrutiny review because he concluded that judges remedying obvious cases of discrimination had broad 324

476 U.S. 267 (1986). 480 U.S. 149 (1987). 326 Ibid., p. 166-167. 325

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latitude, as well as a mandate to consider race, which would, essentially, exempt them from affirmative action-type review. Despite the plurality’s success in obtaining Powell’s vote, the fact that there was no majority and the method of analysis was still not established, this case did little to provide better guidance for future cases. Not until 1989 did the Court manage to speak with one voice on the issue of affirmative action program analysis. By applying the criteria of the pre-governance phase, it is apparent which ones are predominantly applicable. No settled doctrine for evaluation of the issue/area. This period of time clearly shows that no doctrinal test was established or agreed to during this era. As we have seen, a variety of possibilities were articulated. One possibility was to simply treat the affirmative action caselaw as an extension of the Swann body of law regarding remedying past discrimination. However, this philosophy was rejected, as Justice Powell noted in Footnote #2 of his concurring opinion in Paradise, “[a]lthough these cases are broadly relevant, they differ significantly from the Court's subsequent affirmative-action decisions. … the position of bused pupils is far different from that of employees who are laid off or denied promotion. Courtordered busing does not deprive students of any race of an equal opportunity for an education.” A second possibility was to delay the constitutional question as long as possible, deciding cases on the narrowest ground possible, as four of the justices wished to in Bakke. A third possibility was to utilize strict scrutiny, a fourth was to utilize intermediate scrutiny, and a fifth was to utilize rational basis review. Beginning with Bakke, even contemporary legal scholars were quite aware that clear guidance had not arrived. A sampling of both current comments and opinions at the time is instructive. In Bakke, the Court established analytical framework for its future affirmative action jurisprudence in the muddled, fragmented opinions that split the differences

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The Affirmative Action Era

between proponents preferences.327

105

and

opponents

of

racial

It would be foolhardy to attempt to derive too much meaning from Bakke’s message in the area of equal protection.328 The Bakke decision was a long time in coming, and one may well wonder whether it was worth the wait. The Supreme Court has now given some guidance with respect to the role of race in higher education, although at least as many questions have been raised as have been answered.329 In Regents of the University of California v. Bakke, the Justices discussed much and ultimately decided little… [Bakke] was perhaps the grandest finesse of a searing legal issue in Supreme Court history, but it rests neither on a Supreme Court consensus nor on a clear doctrinal foundation.330 But insofar as the compromise rests neither on clear doctrine nor Court consensus we are in more of a “bricks without straw” situation than ever before.331

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To be fair, one might expect the first case in a particular type to have some ambiguity attached to it. However, the next several years saw the Court retain its ambiguity as it attempted to reach some sort of credible conclusion on the issue. This view is shared by multiple Court observers.

327

Ivers and O’Connor 1990, p.67. Tribe 1979, p. 865. 329 O’Neil 1979, p. 143. 330 Dixon 1979, p. 69. 331 Ibid., p. 74. 328

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The history of race-based affirmative action in the Supreme Court has been one of uncertain trumpets.332 The Supreme Court has long struggled over the issue of affirmative action. Throughout the 1980’s the Court endeavored to devise consistent standards for evaluating benign racial classifications, an endeavor that proved fruitless for quite some time.333 Not only have the Justices been bitterly divided on whether particular forms of affirmative action are compatible with constitutional principles of equality, they have also been unable to agree upon which constitutional test is appropriate for assessing the legitimacy of preferential treatment plans.334 It is easy to be skeptical about the Supreme Court’s affirmative action cases. From the standpoint of the rule of law, the cases are truly a mess. This was so from the very start. … [And r]emarkably, during the next nine years, the Court’s decisions developed no clear standard of review and seemed to turn not on rules…335 During the Reagan and Bush years, the Court’s decision making on affirmative action was indeterminate and often unintelligible.336 But although this Court has consistently held that some elevated level of scrutiny is required when a racial or ethnic distinction is made for remedial purposes, it has

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332

Mishkin 1996, p. 875, writing about the cases leading up to Adarand. 333 Day 2001, p. 82. 334 Rosenfeld 1989, p. 1729, discussing the Court’s affirmative action jurisprudence prior to Croson. 335 Sunstein 1996, p. 1185. 336 Devins 2003, p. 361.

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yet to reach consensus on the appropriate constitutional analysis.337 What is ironic about these long-time Court observers is the degree to which they seem to have expected the Court to issue cohesive rulings from the start. In 1989, one scholar noted, “[t]aken together, what is most remarkable about these [preCroson] decisions is their failure to establish authoritatively or clearly the constitutional boundaries of affirmative action.338 Another wondered aloud about “…the Supreme Court’s apparently odd behavior – its meandering course, its refusal to issue rules – in the affirmative action context.”339 However, if my thesis regarding doctrine development and deterioration is correct, the Court should only very rarely begin their jurisprudence in any given area of law with a settled pronouncement about the appropriate method of analysis. Instead, we should expect such “meanderings” for some period of time until the Court settles itself into an answer. Cases that raise parallel claims are handled differently. Although the justices took great pains to identify the issues in Bakke, Fullilove, Wygant, and Paradise as different from each other (or just from those cases they wanted to be freed from following), the argument can be made on the other side as well, depending on the degree of generalization one is willing to employ. All four issues concerned affirmative action programs, instituted by a state actor. The only important difference the justices could identify was the way each scenario set about implementing its affirmative action goals. It is not unreasonable to think that these cases should have been, or could have been, evaluated similarly and even could likely have yielded similar results. However, it must be noted that no two cases in a row followed the same method of analysis, and no two cases in a row resulted in a similar outcome – either for affirmative action or 337

U.S. v. Paradise 480 U.S. 149 (1987), p. 166. Rosenfeld 1989, p. 1735. 339 Sunstein 1996, p. 1179. 338

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against it. It was almost as if “[w]hat one finds is a Court molding and shaping remedies in order to conform with the exigencies of the times.”340 After the first decision in Bakke, the community seemed to expect that the next decision would either follow a similar pattern, or explain why it did not. However, “[i]n a six-to-three decision, the Supreme Court found the setaside [in Fullilove] facially constitutional but offered no single rationale for the statute’s validity.”341 Moreover, “[i]n Fullilove, the Court[’s]… reasoning was quite fragmented.”342 The second case in the series made it clear to the legal community that no cohesive doctrine was coming. No previous Supreme Court jurisprudence exists. As noted earlier, the Court had two options available to it. On the one hand, it could treat the affirmative action cases as arising out of the remedying-past-discrimination line of cases. The Court rejected this line of reasoning, perhaps understanding that not every affirmative action program would be tied to a distinctive discriminatory history. Once that decision was made, the Court’s other option was to treat affirmative action challenges as relatively uncharted territory. This meant that although the justices could pull bits and pieces from earlier decisions for their opinions, there would be no precedents that truly governed. Although they could rely on earlier cases concerning racial classifications in general, no decisions at the Supreme Court level really addressed head-on the question of whether those classifications would be constitutional if drawn for beneficial purposes, or, more importantly, how to analyze challenges to laws where race was treated as an advantage, rather than a disadvantage. As a result, with no directly on-point jurisprudence to guide the Court, it began piecing together solutions in baby steps. Closely-divided decisions. The affirmative action cases during this period were always closely divided. Bakke was a 5-4 340

Lamb 1981, p. 18. Lanoue 1992, p. 107. 342 Lamb 1981, p. 22. 341

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decision upholding the general constitutionality of affirmative action programs and a 5-4 decision, albeit with a different split of justices, to strike down the U.C. Davis program in particular. Fullilove was a 6-3 decision, which seems slightly more decisive, except that even the six justices that agreed on case disposition could not agree on the justification for that disposition. Wygant and Paradise were both 5-4 decisions. Table 4 shows the justice combinations of the four affirmative action cases. TABLE 4 Changing Justice Vote Combinations Case

Bakke

Fullilove

Wygant

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Paradise

“Majority” Configuration Powell, Brennan, White, Marshall, Blackmun

Dissent Configuration Powell, Stevens, Burger, Stewart, Rehnquist

OR

OR

Powell, Stevens, Burger, Stewart, Rehnquist Burger, White, Powell Marshall, Brennan, Blackmun Powell, Burger, Rehnquist, O’Connor White Brennan, Marshall, Blackmun, Powell Stevens

Powell, Brennan, White, Marshall, Blackmun Stewart, Rehnquist, Stevens

Marshall, Brennan, Blackmun, Stevens White, O’Connor, Rehnquist, Scalia

As we can see, the back-and-forth nature of these decisions continues, even with the turnover in Court personnel that occurs from the Burger/Rehnquist/Scalia change and the Stewart/O’Connor change. Although Justice White can be noted to switch sides, most of the outcome reversals can be attributed to Justice Powell. It is no small observation that “Powell’s balancing act in Bakke was typical for him, and over the next

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several years, he continued to lead the Court in straddling the fence on the question of affirmative action’s constitutionality.”343 Essentially, three of the four cases were decided by a 5-4 split. The only case decided by a 6-3 split is really best understood as a 3-3-3 split. It is hard to imagine a time period with a better record for more closely divided decisions. However, there is an important caveat in this section. Most of the affirmative action cases, regardless of what phase the Court was in, were decided by a 5-4 split. The breakdown of votes became more predictable as time went on, but there was never a time when affirmative action methodology reached a significant consensus. As a result, it is important to note the number of highly divided decisions during this period, but not to overstate its importance relative to the other phases. Frequent plurality opinions. As noted above, the importance of the 100% occurrences of closely-divided opinions should not be overstated. Far more significant is the fact that all were plurality opinions. All of the potential approaches discussed above were articulated during the nine-year period from Bakke to Paradise; however, none commanded a majority, not even once. This singular feature is difficult to overstate. There must be something significant about a period of caselaw where no guiding opinion was able to garner a minimum of five votes. The Bakke opinion was, essentially, written by a justice of one. Powell was unable to secure a majority for his entire opinion. Instead, four justices agreed with some parts of his opinion and the other four justices agreed with different parts. The Fullilove decision was made by a 3-3 combination, and the Wygant and Paradise decisions were made by a 4-1 group. Language or concepts in opinions that is/are later used to weave the doctrinal test. Given the number of competing methods of analysis proffered during this period, it might have seemed likely that the justices would eventually be forced to negotiate with each other in the interest of securing stability. In circumstances such as this, the justices have significant incentive 343

Keck 2006, p. 419.

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to compromise in order to avoid a less desirable outcome. However, this was not the case with the affirmative action issue. Over time, the language and concepts advocating strict scrutiny were able to secure a legitimate majority.

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THE GOVERNANCE PHASE (1989-2003) As we will see, by 1989, the Court appeared to come to a resolution on the issue, yet backslid a year later in an odd, but potentially justifiable exception. However, in 1995, the Court erased the 1990 exception, extended the 1989 resolution, and laid down a consistent doctrinal test, to be applied in all circumstances. As a result, the pre-governance phase could technically be understood as ending in 1995; however, I will consider 1989 the demarcation point, since many contemporary commentators believed it to be so, and the 1990 aberration was quickly overturned and can be understood, as we will see, as the last breath of a liberal perspective, led by Justice Brennan, who exited the Court about a month later. In 1989, the Court decided Richmond v. J. A. Croson Co.344 As we have already seen, in order to remedy previous discrimination, and its lingering effects, many municipalities and other government agencies had begun the practice of setting aside a certain percentage of construction and/or contracts for minority-owned businesses. Given the decision in Fullilove, agencies had proceeded, full speed ahead. The City of Richmond was one such agency, and, after losing its contract with the city, construction company J.A. Croson brought suit, claiming that the set-aside amounted to an unconstitutional classification on the basis of race. The Supreme Court agreed, and, although some of the justices disagreed on finer points raised by the case, a majority finally consolidated to establish strict scrutiny as the level of review for so-called affirmative action policies enacted by state and local agencies. The dissenting justices in Croson did not go down without a fight, however. One year later, the same Court decided Metro 344

488 U.S. 469 (1989).

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Broadcasting, Inc. v. FCC,345 in which two justices from the Croson majority joined with the Croson dissenters to form a new majority that held that federal policies designed to aid minorityowned business (radio or television broadcasters, in this case) only need to meet intermediate scrutiny, as opposed to the higher level of scrutiny required of state and local policies. Even though the Court appeared to have two different answers now, depending on where the law or policy originated, observers did not believe the difference would remain in force. To wit, in 1991, one article proclaimed “[a]t the time of this writing, the Court may have reached an (uneasy) equilibrium on affirmative action. … [But t]here is substantial reason to doubt that this pattern will hold.”346 Finally,347 the Court, somewhat unsurprisingly, eliminates the two-tiered evaluative system from Metro Broadcasting in Adarand Constructors, Inc. v. Pena.348 Here, the Court makes it clear that affirmative action programs will always trigger the strict scrutiny level of review, regardless of whether the law is passed by state, local, or federal policymakers. By the time of Adarand, there had also been significant Court personnel turnover, so it is not surprising that, based on the likely, more conservative, policy preferences of the new justices, the Croson model becomes the guiding doctrine.

345

497 U.S. 547 (1990). Farber and Frickey 1991, p. 717-718. 347 It should be noted that the Court did have occasion to re-emphasize Croson in a related case. Association of General Contractors v. City of Jacksonville 508 U.S. 656 (1993) generally concerned the issue of a local government set-aside policy; however, the particular issue that the Court had to decide was whether the case was moot. The Court ultimately determined that it was not and that the plaintiff had standing. The case was reversed and remanded and the Court made clear that Croson was assumed to be the guiding authority on the substantive matter. 348 515 U.S. 200 (1995).

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346

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Returning to the criteria established by Kritzer and Richards, et al, we can determine if this phase meets the definition of a governance phase. A settled, broadly applicable doctrinal “test” for a given area of caselaw. In Croson, a majority of justices finally agreed that the appropriate test for race-based classifications by local and state governments that advantaged minorities would be subject to strict scrutiny. In fact, the decision determined that race-based classifications of any kind – invidious, benign, or beneficial – would be subject to strict scrutiny. The plurality opinion, written by Justice O’Connor and joined by Chief Justice Rehnquist and Justice White, phrased it this way:

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Absent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are "benign" or "remedial" and what classifications are in fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to "smoke out" illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen "fit" this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.349 We thus reaffirm the view expressed by the plurality in Wygant that the standard of review under the Equal Protection Clause is not dependent on the race of those burdened or benefited by a particular classification. … Our continued adherence [is] to the standard of review employed in Wygant…350

349 350

Croson majority opinion, p. 493. Ibid., p. 494.

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Writing separately in a concurring opinion to underscore other issues, Justice Kennedy nonetheless provided the fourth vote for establishing strict scrutiny as the analysis method, as follows:

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On the assumption that it will vindicate the principle of race neutrality found in the Equal Protection Clause, I accept the less absolute rule contained in Justice O’Connor’s opinion, a rule based on the proposition that any racial preference must face the most rigorous scrutiny by the courts. My reasons for doing so are as follows. First, I am confident that, in application, the strict scrutiny standard will operate in a manner generally consistent with the imperative of race neutrality, because it forbids the use even of narrowly drawn racial classifications except as a last resort. Second, the rule against race-conscious remedies is already less than an absolute one, for that relief may be the only adequate remedy after a judicial determination that a State or its instrumentality has violated the Equal Protection Clause. I note, in this connection, that evidence which would support a judicial finding of intentional discrimination may suffice also to justify remedial legislative action, for it diminishes the constitutional responsibilities of the political branches to say they must wait to act until ordered to do so by a court. Third, the strict scrutiny rule is consistent with our precedents, as Justice O’Connor’s opinion demonstrates.351 Like Kennedy, Justice Scalia also wrote separately to underscore separate issues, but had no issue with subjecting racial classifications of all types to strict scrutiny. In fact, for Scalia, strict scrutiny was a gentler test that he preferred, but he was willing to consent to this level. He provided the crucial fifth vote, marking the first time a majority of justices agreed to the 351

Croson concurring opinion, p. 519.

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doctrinal test, or level of scrutiny, to be used when examining beneficial racial classifications. He said: I agree with much of the Court's opinion, and, in particular, with Justice O’Connor’s conclusion that strict scrutiny must be applied to all governmental classification by race, whether or not its asserted purpose is "remedial" or "benign."352 In Adarand, after overruling Metro Broadcasting, the Court reaffirmed that strict scrutiny was the appropriate method of inquiry, and extended that philosophy, via the equal protection component of the 5th Amendment, to the federal government. The O’Connor majority was very clear on the subject:

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Accordingly, we hold today that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests. To the extent that Metro Broadcasting is inconsistent with that holding, it is overruled.353 In addition, Justice Thomas registered his additional agreement in his concurring opinion, agreeing “with the majority's conclusion that strict scrutiny applies to all government classifications based on race.”354 In short, the Court was able to announce a clear doctrine, strict scrutiny, which was already generally understood by the legal community, and direct that it be applied to the general area of racial classifications, whether those classifications were developed by local, state, or federal governmental agencies. 352

Ibid., p. 520. O’Connor, majority, Adarand. 354 Thomas, concurring, Adarand. 353

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Repeated citations either to test or establishing case in future relevant cases. Typically, in order to see this criterion fulfilled, multiple cases decided during the governance period are necessary, with regular citations to either the doctrine or to the establishing case. Quite the opposite with this cycle, the affirmative action regime is significant for the complete paucity of direct affirmative action cases during the governance phase. Bluntly, “[f]rom its Metro Broadcasting decision in 1990 until Grutter was decided in the spring of 2003, the Court issued only one substantive ruling on the constitutionality of affirmative action: Adarand Constructors, Inc. v. Peña.”355 It is possible that the dearth of caselaw in this area stems from the Court’s unwillingness to venture back into the arena or the Court’s feeling that they had settled the matter. However, this is difficult to reconcile with the fact that two lower courts reached vastly different understandings on the issue during this time period;356 the Court usually understands that one of its critical institutional roles is to eliminate confusion among its lower courts. In any matter, this doctrine remained unchallenged and unassailed until 2003. The Court does, however, deal with classifications benefiting minorities in a different aspect: the minority-majority redistricting cases. In this area, the Court also used the Croson/Adarand standard consistently. Shaw v. Reno357 established that any redistricting that obviously occurs on the basis of race must meet strict scrutiny. Shaw v. Hunt,358 the continuation of the earlier Shaw case, saw a racial redistricting scheme struck down for failing to meet strict scrutiny. Miller v. 355

Devins 2003, p. 360. See especially Hopwood v. University of Texas (1996 - 5th Circuit), saying that Bakke is no longer good law and diversity is not a compelling government interest and Smith v. University of Washington (2000 - 9th Circuit), saying that Bakke is still good law and that diversity is a compelling government interest. 357 509 U.S. 630 (1993). 358 Shaw et al. v. Hunt, Governor of North Carolina, et al. 517 U.S. 899 (1996).

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356

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Johnson359 also concerned a redistricting plan struck down after failure to meet the strict scrutiny standard, as did Bush v. Vera.360 Abrams v. Johnson,361 the continuation of Miller v. Johnson, actually resulted in the redistricting plan being upheld by the Court, but apparently because the lower court, when designing the new districts, did not take race into account when drawing the boundary lines. And, finally, Hunt v. Cromartie,362 the third continuation of the original Shaw case, upheld the latest redistricting plan because the more likely justification for the district boundary was politically, rather than racially, motivated. However, the majority opinion very clearly re-emphasizes the point that any district that appeared to be drawn on the basis of race would be subject to strict scrutiny.363 And, although not reaching the constitutional issue of racial gerrymandering, other redistricting cases were addressed364 and none indicated an approach at odds with Shaw, or, by implication, Croson and/or Adarand. The majority-minority redistricting cases present an interesting puzzle. “From the beginning, the Court has characterized Shaw’s limitations on race-conscious districting as a routine application of long-standing principles of its equal protection jurisprudence,”365 but also “[f]rom the beginning, critics have charged that the limitations on race-conscious districting and its progeny have no foundation in the Equal Protection Clause. Justice White has accused the Court of ‘imagining an entirely new cause of action [that] the Constitution does not justify, much less mandate’ (Shaw I, dissenting). Justice Stevens has charged the Court with having invented a new right 359

515 U.S. 900 (1995). Bush, Governor of Texas, et al. v. Vera et al. 517 U.S. 972 (1996). 361 Abrams et al. v. Johnson et al. 521 U.S. 74 (1997) 362 Hunt, Governor of North Carolina, et al. v. Cromartie et al. 526 U.S. 541 (1999). 363 Ibid., p. 544. 364 See Johnson v. DeGrandy 512 U.S. 997 (1994) and United States v. Hays 515 U.S. 737 (1995). 365 Saunders 2000, p. 1608.

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– a ‘right to color-blind districting [that has] no basis’ in the Constitution (Shaw II, dissenting). Justice Breyer has said that he ‘do[es] not believe that the Constitution embodies the doctrine that the majority enunciates’ (Abrams v. Johnson, dissenting).”366 Given this, this series of cases can be treated as following the Croson/Adarand/strict scrutiny caselaw. More likely, however, these cases represent a nexus between race, as it pertains to equal protection, and a separate line of districting cases. It is not uncommon for the line of cases to be discussed as a separate body of law and Shaw, and its progeny, is usually thought of primarily as districting cases with racial overtones rather than race cases with districting overtones. As one observer noted, “[t]he United States Supreme Court’s 1993 decision in Shaw v. Reno marked a significant turning point in the legal construction of legislative districts.”367 Notice that Shaw was not viewed as one in a line of affirmative action cases. Regardless, given the consistency with the strict scrutiny doctrine, even without extensive dialogue, these cases fit nicely with the need for citations in future cases, and help to demonstrate the governing status of the jurisprudence doctrine. Legal and/or academic validation of that test or establishing case. The legal and academic community was clear that a consolidating decision had been reached by the Court. Contemporary writings in 1989, just after Croson was handed down, reveal excitement and relief at the apparent end to the earlier uncertainty.

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Croson is also a welcome clarification and coming together by this Court under its new leadership of some themes that have been troubling the Court for more than a decade.368

366

Ibid., p. 1604. Crain 2001, 193. 368 Fried 1989, p. 160, heralding the decision in Croson. 367

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Croson is significant. For the first time a majority of the Court holds unequivocally that all racial classifications… must pass strict scrutiny and be justified by a compelling governmental purpose.369 Emerging from this jurisprudence of dim uncertainties and fragile pluralities, the Court's ability to assemble a majority in its recent decision in City of Richmond v. J.A. Croson Co. therefore marks an important turning point.370

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A few years later, after Adarand is handed down in 1995, one scholar still finds Croson to be the turning point, noting that “[i]t was not until 1989 that the Court finally settled on a standard of review.”371 Another seems willing to understand that Adarand plays a role with Croson in the standardizing of the strict scrutiny doctrine, claiming that “[i]t is only in recent years that we have seen a consolidation of the Court’s doctrine regarding race-based affirmative action.”372 By the time of Croson, the Court had managed to consolidate a majority in favor of the application of strict scrutiny for affirmative racial classifications. By Adarand, the Court had assembled more than a majority. Croson clearly marked a turning point, however. “The Reagan administration, acting primarily through the Department of Justice, openly challenged race-conscious affirmative action programs implemented by public and private institutions within the reach of federal jurisdiction.”373 By Croson, these challenges had likely taken their toll, and, by Adarand, the Reagan/Bush regime had appointed new justices, fundamentally changing the judicial landscape.

369

Fried 1989, p. 156. Rosenfeld 1989, p. 1731. 371 Sunstein 1996, p. 1186. 372 Mishkin 1996, p. 876. 373 Ivers and O’Connor 1990, p. 65. 370

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Even from a legalistic point of view, Croson clearly signaled the beginning of a new era. “Croson does not read like Bakke. Gone is Powell’s nuanced reading of race and society, his recognition or the need to find ways to permit institutions to include historically excluded groups while reaffirming the potential harm of race-based classifications, and a balancing of the benefits to the preferred group against the norms imposed on the dispreferred.”374 Regardless, Adarand definitively makes the point that strict scrutiny is here to stay. In fact, “[t]o stress its focus on scrutiny, the Court in Adarand used the term scrutiny 89 times in its opinion.”375 THE POST-GOVERNANCE PHASE? (2003-PRESENT) For the first time since its pronouncements in Adarand, the Court constitutionally addressed affirmative action claims in 2003. Two cases handed down on the same day provide seemingly inconsistent results.376 Even more recently, in 2007, a very different Court composition has added one more piece to the puzzle.377 Although we are in very new and recent territory, these three decisions indicate that the Court may have shifted into a post-governance phase regarding its consideration of classifications that benefit minorities. Even with the small sample size of three cases, we can see some familiar signs: two decisions were 5-4 split decisions, while the third decision could 374

Aleinikoff and Issacharoff 1993, p. 599-600. Rice and Mongkuo 1998, p. 84. 376 See Gratz v. Bollinger (2003), striking down a University of Michigan affirmative action program using strict scrutiny (as we would expect given the Court’s previous jurisprudence on this issue), but then see also Grutter v. Bollinger (2003), upholding a different affirmative action policy at the same University also using strict scrutiny. 377 Parents Involved in Community Schools v. Seattle School District No. 1 (2007) was decided by a Court that included new Chief Justice John Roberts, who replaced William Rehnquist in 2005, and new Justice Samuel Alito, who replaced Sandra Day O’Connor in 2006.

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375

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not even garner a majority; consensus on the utility and the test’s meaning have begun to break down; and the outcomes seem contradictory, although there are attempts to smooth the discrepancies over. It is difficult to project where the Court will take this issue next, especially with the continuing changes in the Court’s personnel, but this preliminary information certainly implies that we are witnessing at least the early stages of the decline of this third jurisprudential regime. Gratz v. Bollinger378 was one of two companion cases handed down by the Court that dealt with two University of Michigan affirmative action programs. The program at issue in Gratz was for admission to the undergraduate program of study in the College of Literature, Science, and the Arts, which gave under-represented minorities a set number of “points” toward admission that virtually guaranteed admission for anyone qualified; white students did not receive the same automatic point grant and, therefore, qualified white applicants were often turned away for not having the requisite point totals. The Court, commanding a majority, applied strict scrutiny and found that portion of the program unconstitutional because the guidelines were not narrowly-enough tailored. Grutter v. Bollinger,379 decided the same day as Gratz, reached the opposite conclusion, yet the Court still maintained that it applied the strict scrutiny level of review. At issue in Grutter was still a University of Michigan admissions program, but this time for their Law School. The admission program had the same objective as the undergraduate program – to increase diversity in its student body by reaching out to traditionally under-represented minorities. However, the Law School program had a less formalized system, instead requiring individualized evaluations of each applicant’s profile, yet directing reviewers to give special consideration to candidates from the unrepresented groups. The Court upheld this program, determining that that individualized consideration and the

378 379

539 U.S. 244 (2003). 539 U.S. 306 (2003).

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conceptual affirmative action was narrowly-enough tailored to meet the requirements of the strict scrutiny standard. It is possible that Grutter signals that the Court is growing impatient with its current doctrine. As Jack Balkin puts it, “[t]he … possibility is that Grutter’s doctrinal awkwardness signals that the model of scrutiny rules has become increasingly unwieldy, and it is in the process of breaking down, to be replaced in succeeding decades by a new and as yet undetermined model of constitutional citizenship.”380 Regardless, it must be noted that “Grutter, to be sure, is only one case.”381 It should also be noted that in both cases, there does seem to be some consensus that “the Court reaffirmed its application of the strict scrutiny test.”382 More time and more cases are needed to determine whether the Court is indeed getting increasingly exasperated with its own doctrine. For now, “Grutter could signal the beginning of the end, or it could mean nothing, just a blip on the screen.”383 Parents Involved in Community Schools v. Seattle School District No. 1384 was a consolidated case concerning school districts in both Seattle, Washington, and Jefferson County, Kentucky. Both communities had created school assignment plans for K-12 education that took racial balancing into account when making school assignments. Both communities had undertaken these race-conscious programs voluntarily, although the Jefferson County district had been previously subject to a desegregation order that had been lifted in 2000. In sum, both programs were found unconstitutional. The new Chief Justice wrote the opinion of the Court, but it was only a plurality opinion of four justices; he was unable to persuade Justice Kennedy to join the full opinion. Although all five agreed to apply strict scrutiny, Justice Kennedy was only willing to find the program unconstitutional on the grounds that 380

Balkin 2005, p. 130. Ibid., p. 138. 382 Johnson 2008, p. 95. 383 Balkin 2005, p. 140. 384 551 U.S. 701 (2007). 381

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neither district had narrowly-enough tailored their efforts. As a result, the complete reasoning behind the plurality opinion was not able to muster the full force of law. Justice Kennedy did not formally join in any part of the main dissent, written by Justice Breyer, which called for more jurisprudential respect to the spirit of the Brown precedent. It is important to note, however, that the Breyer dissent received four votes, and that on certain issues, Justice Kennedy’s swing vote is more closely aligned with the dissent than the majority.385 Again, there are only three cases; it is unclear where the Court will go from here. It is possible that this most recent case in 2007 signals a shift; at least one contemporary has offered that

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[a]lthough a plurality, Parents Involved in Community Schools v. Seattle School District No. 1 is the newest opinion in a line of cases demonstrating the Court’s gradual aversion to affirmative action and to using race as a criterion for determining school placements. The opinion is not a complete departure from previouslydecided cases, but it is a strong statement by the Roberts Court.386 As a result, it is an interesting exercise to apply the criteria of the post-governance phase to see how these cases fit in. A break-down of any unanimity that may have existed during the governance phase. Since the affirmative action caselaw never really had any significant unanimity, the lack of it in these three cases can hardly be considered determinant. In fact, as we have already seen, “[f]ar from the unanimity of Brown, … affirmative action cases have sharply divided the Court, and often decisions are dependent on the Court’s composition.”387 However, what is significant is that the two majorities in the Michigan cases are completely different from each other, with 385

Daniel 2010, p. 83. Bauman 2008, p. 1023. 387 Ibid., p. 1025. 386

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the exception of Justice O’Connor. This means that only one justice really believed in this interpretation of the strict scrutiny doctrine and eight did not. While this should not be described as a breakdown in unanimity, it does say something interesting about the way that almost every justice viewed these issues. Moving on from Gratz and Grutter, what is striking about the Parents Involved decision is that the amalgam of opinions very closely resembles the mish-mash of Bakke. Much like Bakke, in Parents Involved, the Court was again unable to speak in a majority voice, even a hotly contested majority voice, as in the Michigan cases. Again, the decision rests on the one swing vote, Justice Kennedy in this case, concurring in part with the plurality, but writing separately. It is as if the Court has come full circle. The first thing likely to strike any reader of the [Parents Involved] decision is that it requires some effort to determine which of the opinions actually controls. A close reading reveals that only the portions of the Roberts opinion in which Justice Kennedy concurs are controlling law, as they are the only portions of any of the opinions that garnered the votes of a majority of the Court.388

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[Kennedy’s] concurrence is both the controlling precedent of the case by casting the deciding vote, while at the same time representative of only Justice Kennedy’s view.389 Alterations to the doctrinal test. Although there is no direct alteration to the existing doctrine, as we saw with the exceptions carved out in Chapter 4, the Court in Grutter is criticized for the lack of intellectual fidelity to the typical meaning of strict scrutiny.390 “Like Brown v. Board of Education and Bolling v. 388

Daniel 2010, p. 82-83. Ibid., p. 95. 390 Hutchison 2008, p. 1078-1079. 389

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Sharpe, Grutter v. Bollinger is doctrinally awkward. … Grutter does not fit easily into a well-developed edifice of equality law that mostly conservative courts had created over the course of three decades. Instead… Justice O’Connor’s opinion in Grutter tends to paper over rather serious doctrinal difficulties.”391 Indeed, “[t]he fact that the Court engages in … deference [to the University in Grutter] is a tell-tale sign that it is not applying a scrutiny as strict as it claims. When courts apply strict scrutiny, they do not usually defer to the judgments of government decisionmakers, especially when the government decisionmakers have deliberately made racial classifications.”392 Parents Involved does not necessarily give us clear guidance on this issue either. In the first place, many contemporaries, and the Chief Justice in particular, are remarkably clear that strict scrutiny is unquestionably the test to apply in this situation. Since both school districts were using racial classifications to determine a student’s eligibility, the Court applied the well-established strict scrutiny test.393 The Court easily determined that strict scrutiny was the appropriate standard for the consolidated cases because it was a racial discrimination case.394 It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny.395

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The only potential crack in the doctrinal stability comes in the dissent, and even it is not a strong assault.

391

Balkin 2005, p. 130. Ibid., p. 136. 393 Johnson 2008, p. 87. 394 Bauman 2008, p. 1034. 395 Roberts, plurality, Section III(A), Parents Involved. 392

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Indeed, Justice Breyer’s willingness to grant deference to local school districts was so great that he even advocated a different level of scrutiny for race-based student assignment plans. This lower level of scrutiny would result in relatively little judicial evaluation of student assignment plans based on efforts of racially [sic] inclusivity.396

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Although some Justices … might prefer to apply a less stringent standard of review, and although Justice Breyer is unwilling to concede the issue, the dissent seems unwilling to launch a full frontal attack on the application on the application of strict scrutiny review. Instead, the disagreement between the plurality and the dissent on this issue centers upon what that standard means in this context and how to apply it.397 Cases with similar factors are decided differently. Most of the justices that heard Grutter and Gratz believed that reaching both decisions using the strict scrutiny vehicle was intellectually impossible. “The obvious question [about Grutter and Gratz] is whether there is a reasonable basis for the distinction. [Many critics] doubt it, and so do at least six of the nine Justices. Those Justices most favorable to racial and ethnic preference policies (Stevens, Souter, and Ginsburg) were joined by those most opposed (Rehnquist, Scalia, and Thomas) in suggesting that the cases are not distinguishable: Either both preference schemes pass constitutional muster (as Stevens, Souter, and Ginsburg believe) or both fail (Rehnquist, Scalia, and Thomas think).”398 The Court took another turn in Parents Involved, but the Chief Justice was careful to distinguish this case from Grutter, explaining that the diversity benefit that was compelling in higher education was not present in K-12 levels.

396

Daniel 2010, p. 90. powell and Menendian 2008, p. 635-636. 398 George 2003, p. 1634. 397

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As I have already noted, it is difficult to tell if the Court is moving toward a different jurisprudence into the postgovernance phase. Although one scholar claims that, “[f]or the Rehnquist Court, Grutter is a testament to continuity, not change,”399 there appears to be other support for seeing the Court as pushing into a different direction. Now that the Roberts Court is beginning to take shape, it is difficult to see where the new justices will take the Court’s jurisprudence, especially in this area. In addition to meeting the above criteria, there appears to be a general sense that the Court is just… doing something different. The … possibility … is that the awkwardness of Grutter’s doctrinal compromise reflects something far larger: it suggests that the system of implementing rules that supported the model of scrutiny rules has been stretched to the breaking point, and that the model has outlived its usefulness.400 Grutter suggests that the present system of constitutional citizenship, which rationalizes equal citizenship through scrutiny rules, has become increasingly complicated and unwieldy.401 [I]f we are indeed on the cusp of significant social change … we might be in a period of transition like the years before and after Brown, in which the doctrine is fairly ad hoc and does not make too much sense.402

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Careful analysis shows that [Parents Involved] leaves much open for interpretation and potential ambiguity.403 399

Devins 2003, p. 349. Balkin 2005, p. 138. 401 Ibid. p. 138. 402 Ibid., p. 139. 403 Daniel 2010, p. 82. 400

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CONCLUSION – HOW DOES IT ALL FIT? As we have seen, the affirmative action caselaw (which could have simply been an extension of the Brown era, since at issue are still classifications drawn on the basis of race), is a separate body of jurisprudence, even if the Court did ultimately choose the same doctrinal test. This regime period follows the life cycle pattern of initially struggling to establish a governing doctrine, then announcing a doctrine that stood for between eight and fourteen years, then showing some signs of deterioration. As we know, Bakke began the Court’s back-and-forth debate about the proper nature of judicial analysis into this new model of racial classifications. Croson established that strict scrutiny would be the level of review ascribed to racial classifications benefiting minorities. Although Metro Broadcasting appeared to be a blip in that doctrinal philosophy by adding an exception, Adarand quickly remedied the confusion by overturning that case without it ever becoming a controlling precedent. Grutter potentially indicates a Court that is growing restless with the structure that strict scrutiny imposes, although Parents Involved might indicate that the newly-appointed conservative members of the Court are willing to hold onto the structure for a little while longer. The early period of this regime is the textbook model example of the pre-governance phase. In addition to the criteria extrapolated from APD literature, one other feature of the governance phase also seems relevant, based on the affirmative action regime. As we have seen, once the law appears clearly settled, in a governance phase, sometimes few cases are appealed or accepted due to the potentially settled nature of the issue. But what about jurisprudential regimes? From a qualitative perspective, the affirmative action era also reinforces the central holding of the jurisprudential regime literature – that there is one case or group of cases that serves as a turning point in the Court’s doctrinal analysis of a given area of law. Croson and Adarand, to the extent that it brought the federal government into the fold, serve that purpose. Over the course of this chapter, we have seen the way that those cases were a catalyst for a different understanding of affirmative action case evaluation

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methodologies. As with Plessy, it remains for someone else to validate this claim quantitatively, but it seems likely to be reinforced.

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CHAPTER 6

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Bringing It All Together

The primary purpose of this book has been to argue that the doctrinal aspect of constitutional change has an overall change process that parallels a life cycle. Doctrine develops, reigns, and then deteriorates; the complete life cycle is referred to as a regime.404 By discussing three regimes within the same relatively narrow area of law, I have also made the argument that this life cycle pattern is repetitive and cyclical, as opposed to an occasional one-time occurrence. Secondarily, I have taken the opportunity to examine the related and helpful notion of jurisprudential regimes, a concept that can be simplified for the purposes of this project as meaning that during certain periods of time, the Supreme Court’s analysis of cases in a particular area of law will be governed by a particular method of analysis, or doctrine. A second, related feature of the notion of jurisprudential regimes is that they emerge in the form of clearly understood doctrine in one or two specific cases. The generalized former concept is unquestionably accurate; however, in this project, while discussing the phases of my hypothesized regimes, I applied qualitative criteria to determine if the latter assertion is borne out. In terms of the life cycle pattern, each of the three regimes follows the pattern we would expect. The first, the Jim Crow 404

An analysis of the factors that push said doctrine from one stage to the next was repeatedly very tempting to get drawn into, but has been left for future research. 131

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era, covers the period of time from the ratification of the 14th Amendment, through Plessy, until Brown, and is known for the separate but equal test. The second regime, the civil rights era, covers the period of time beginning with Footnote Four in Carolene Products in 1938, through Brown, through the antimiscegenation cases of 1964 and 1967, takes a turn in the mid1970’s, until the present, and is known for establishing strict scrutiny as the method of review when classifications are drawn that disadvantage minorities. The third regime, the affirmative action era, covers the period of time beginning with Bakke in the late 1970’s, through the government set-aside cases in 1989 and 1995, appears to have taken a turn in 2003 with Grutter, until the present, and is known for establishing strict scrutiny as the method of review when classifications are drawn that benefit minorities – also known as “benign” classifications. In the pre-governance phase of all three regimes, the Court either had no binding precedent or elected on its own to start with a clean slate; there was no settled evaluative method governing case areas; decisions were often split and sometimes could not command majorities; similar cases were handled differently or different cases were handled the same with no explanation; and language and concepts were taken from these early cases to weave the eventual doctrinal test. The affirmative action regime case study provides an excellent example of a pregovernance phase. In the governance phase of all three regimes, the Court establishes a clear doctrine to use in reviewing cases; other courts or future Courts either consistently apply the test or refer back to the deciding case as representing the doctrine; and respected Court observers are aware that a coherent governing legal reasoning has been articulated. The Jim Crow regime case study provides an excellent example of a governance phase. In the post-governance phase of all three regimes, consensus among the justices begins to deteriorate sometimes resulting in an increase of split decisions (especially when unanimity was frequent in the previous phase); the doctrinal test is altered or undermined; similar cases are again handled differently or vice versa; important interest groups (often the U.S. government)

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begin to take an aggressive position to persuade the Court to change directions; and different outcomes than the doctrinal test’s originators envisioned occur. The civil rights regime case study provides an excellent example of a post-governance phase. In fact, as a result of the analysis contained herein, additional factors have come to light. Table 5 brings back the list of criteria from Chapter 2, adding, in italics, criteria that emerged as a result of my inquiry.

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TABLE 5 Final Criteria for Identifying Regime Phases • • PreGovernance Phase

• • • • • • •

Governance Phase

• • • • • • •

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PostGovernance Phase

• • • •

No settled doctrine for evaluation of the issue/area Cases that raise parallel claims are handled differently No previous Supreme Court jurisprudence exists Closely-divided decisions Switching “winning” majorities Frequent plurality opinions Language or concepts in opinions that is/are later used to weave the doctrinal test A settled, broadly applicable doctrinal “test” for a given area of caselaw Repeated citations either to test or establishing case in future relevant cases Legal and/or academic validation of that test or establishing case as settling the matter of doctrine in that area of law Few cases appealed or accepted, reflecting the settled nature of the jurisprudence High degree of consensus or unanimity among the justices A break-down of any unanimity that may have existed during the governance phase Alterations to the doctrinal test Dicta in majority opinion, undermining the test Mobilized parties take a new and aggressive position on the issue with the Courts Different outcomes occur than were initially envisioned at the doctrine’s creation Cases with similar factors are decided differently Cases are decided by methods outside the expected area of jurisprudence (e.g., a case of one type will be analyzed using the methodology of another type) Legal and/or academic validation that the Court is undergoing a shift away from its understood doctrine

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Regarding the specific tenet of jurisprudential regimes, that there is one case or group of cases that “trigger” a new regime, the results are mixed. Recently, like me, Bartels and O’Geen have focused attention on “how the Court’s legal policy in a given issue area changes over time. Specifically, what explains the dynamics of legal doctrine and policy?”405 We all agree that the Kritzer and Richards argument, when taken seriously, goes beyond a conceptual plea for understanding Courts as represented by governing regimes and instead also articulates something of development hypothesis itself: that, from the Kritzer and Richards perspective, “a jurisprudential regime represents a ‘revolutionary’ perspective to legal change on the Court. There is a clear break from existing policy and the beginning of a new policy and mode of decision making that is colored by the new regime.”406 Bartels and O’Geen posit an alternative, which seems reminiscent of the understanding of common law as a seamless web that I have already stated my disagreement with.

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A contrasting view of dynamics is that legal change on the Supreme Court is evolutionary. Under this approach to dynamics, legal policy on the Court changes not in a revolutionary way, as assumed by [jurisprudential regime theory], but through gradual and incremental alterations to case law.407 However, to the degree that they note that one case or group of cases is not always central to a regime change, we agree. On the one hand, both the Jim Crow era and the affirmative action era follow the model well. Separate from the life cycle pattern, what we would be looking for is a clear “break point,” at which the Court stops analyzing cases one way and starts analyzing them a different way. In Plessy and later in Croson and Adarand, the Court eliminates the uncertainty of its prior 405

Bartels and O’Geen 2008, p. 1. Ibid., p. 3. 407 Ibid., p. 3. 406

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jurisprudence in the relevant area, establishes a clear doctrinal test, and that test informs decisionmaking for a period of time. The civil rights era, however, does not follow this model. In Brown, the Court eliminates the uncertainty of its prior relevant jurisprudence, but it does not establish a clear doctrinal test. Instead, Brown’s vision seems to govern for a period of time, until a suitable doctrine is fashioned, at which point both the doctrine and the vision govern. The civil rights area thus appears to have two break points, occurring too far apart and with too many pertinent cases decided in between to be taken as companions, as Croson and Adarand are. The civil rights era makes clear how inextricably linked doctrine is to outcome, but this regime does not match up with the “revolutionary” development process posited by Kritzer and Richards. Although this examination of three regimes yields two that conform to the model and only one that does not, given that the one non-conforming regime is one so central to America’s legal, political, and social identity, it seems like a rather serious failing. In the end, perhaps I must agree with Bartels and O’Geen, that “whether legal change is revolutionary or evolutionary is not so clear cut.”408 By the very nature of this project, I have deconstructed the process by which we, as a legal community, have understood race and equal protection over time. In order to make and prove my argument that three separate cycles exists, it has been necessary to pull each regime apart from each other, and detach it from the larger picture. This is necessary, considering that my focus is on doctrine, not the outside forces or internal constraints that were at work at any given time. At this point, however, it may be advantageous to re-construct the body of law as a cohesive whole. As noted in the earlier portions of this book, as a result of intercurrence, multiple phases, even within the same general type of caselaw, may be happening simultaneously. I should therefore note that it is likely no coincidence that the Carolene 408

Ibid., p. 26.

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Products footnote is written at the same time that Missouri v. Gaines first indicates a Court growing hostile to Plessy. Similarly, it is also likely no coincidence that the conservative wing of the Court begins to wage a battle to apply strict scrutiny to affirmative action programs in 1978 through 1989 at the same time that it undermines strict scrutiny in Washington v. Davis in 1976 and McCleskey in 1987 – both actions evince a parallel growing hostility to civil rights as understood in the 1960’s. Although deconstructing the leaves is sometimes necessary in limited circumstances, we should never lose sight of the forest. In sum, my project emanates from the idea that a complete understanding of constitutional change must include theories of doctrinal change, in addition to case outcome changes. I have argued that doctrinal change is neither seamless, nor unprincipled; instead, it is patterned and cyclical. Expanding on work in the area of American political development and jurisprudential regimes, my argument has been that doctrinal change in the area of equal protection race jurisprudence can be explained as multiple regimes developing and decaying via lifecycle patterns. This type of research fills important holes in existing literature, in four distinct areas. First, it extends the work in the area of jurisprudential regimes in two ways. This book focuses on equal protection in the race arena, an area as yet unanalyzed by jurisprudential regime scholars. It also evaluates the jurisprudential regime concept from a qualitative perspective when all current study has utilized only quantitative methods. Second, it extends the work in the area of American political development in two ways. Current scholarship does not generally apply its development (state-building) principles directly to jurisprudence; this project is such an endeavor and, therefore, provides a framework for others and a bridge between the disciplines. Also, it furthers understandings of development cycles by adding the notion of a deterioration post-governance phase as a component of the entire process. Even Bartels and O’Geen, realizing that jurisprudential regime theory needs more focus on evolutionary processes, do not appear to understand that

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“[c]onstitutional orders are not only created and maintained. They decay as well.”409 Third, although not my focus here, it extends the work of new institutionalists who are interested in examining law’s constitutive effect on decisionmaking. Current literature in this field treats law as an already-existing constraint on the justices; my explanation of how doctrine evolves will enable new institutionalists to tell more nuanced narratives about decisionmaking in a given context of what phase the Court appears to be in at that particular time. More interestingly, from my perspective, further study might focus on the transition periods between phases. Fourth, it expands the story of civil rights in the U.S. from its beginning to its present to its current most natural end. Current constitutional change scholarship containing comprehensive studies of any given caselaw area are rare; when they do exist, the narratives tend to focus almost exclusively on telling the story in terms of outcomes. While these stories are unquestionably valuable, insightful, and interesting, they do not account for the ways that doctrinal development was, and is, part of the process; this project, hopefully, provides that complementary piece for such stories in this area.410 If my hypotheses that Court behavior in a given subject matter can be loosely understood by jurisprudential regimes and that those regimes follow the pre-governance, governance, and post-governance phase structure are correct, then it is clear that 409

Tushnet 2004, p. 1713. In the area of race and civil rights specifically, Michael Klarman (2004) has published an exceptional book that traces the Supreme Court and racial equality. He carefully discusses the Court’s history, explaining both the impact of the Court’s decisions as well as the way that changing times pushed the Court to become more and/or less interested in advancing the claims of racial minorities. His work is a major step forward in the overall conceptual understanding of the movement for racial equality. He does not, however, focus on the developmental pattern of doctrine. I consider and intend for my work to be a useful and necessary companion to such a story.

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410

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the law matters in a more important way than simply as the rationalization for a given justice’s policy preference, that the common law is not simply a system of ever-developing laws, and that institutional and legal constraints do matter. Furthermore, having gained clarity on what each phase looks like, we have likely gained some predictive value in ascertaining where the Court appears to be relative to any particular constitutional issue, and can potentially predict the impending downfall of an existing jurisprudential regime. In short, through this project, I hope that I have extended the claim of APD scholars of “bringing the state back in”411 to truly “bringing the law back in.”412

411 412

Evans, Rueschemeyer, and Skocpol 1985. Kritzer, Richards, and Pickerill 1998, p. 10.

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Index

14th Amendment, 21, 45, 46, 47, 48, 49, 67, 84, 102, 132 1964 Civil Rights Act, 69 Ackerman, Bruce, 9, 10, 29, 141 Affirmative action, 9, 21, 23, 29, 89, 101, 102, 103, 104, 106, 107, 108, 109, 110, 111, 112, 116, 118, 119, 120, 121, 122, 123, 128, 132, 135, 137 Agenda-setting model, 8, 10 American Political Development (APD), 1, 27, 28, 29, 30, 31, 36, 61, 68, 72, 128, 139, 150, 152, 158, 159, 162 Attitudinal Model, 2, 164 Balkin, Jack, 3, 5, 7, 27, 74, 78, 81, 82, 84, 90, 96, 97, 122, 125, 127, 142 Bartels, Brandon, 16, 18, 135, 136, 137, 142 Casper, Jonathan, 7, 144 Compromise of 1877, 45 Constitutional change, 1, 3, 11, 16, 17, 18, 24, 26, 34, 131, 137, 138 Countermajoritarian, 6, 7 Dahl, Robert, 5, 6, 7, 146

Dualistic theory, 10 Dudziak, Mary, 5, 147 Epp, Charles, 4, 8, 9 Epstein, Lee, 3, 4, 7, 8, 10, 11, 13 Equal protection, 1, 15, 20, 23, 29, 34, 40, 45, 46. 47, 48, 49, 50, 51, 52, 54, 55, 60, 64, 66, 67, 68, 70, 73, 79, 81, 88, 89, 90, 91, 93, 94, 95, 98, 99, 105, 113, 114, 115, 117, 118, 136, 137 Gillman, Howard 11, 13, 19, 24, 25 Governance phase, 24, 30, 33, 34, 35, 36, 37, 38, 41, 43, 51, 67, 73, 77, 78, 80, 84, 85, 87, 90, 94, 99, 111, 113, 116, 123, 128, 132, 133, 134, 138 Graber, Mark, 6, 7, 11, 150 Intermediate scrutiny, 103, 104, 112 Judicial behavior, 4, 7, 11, 12, 19, 35 Jurisprudential regime(s), 1, 13, 14, 15, 16, 17, 21, 22, 23, 24, 25, 27, 29, 30, 31, 37, 38, 40, 68, 75, 77, 99, 169

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170

72, 73, 77, 80, 84, 85, 94, 98, 101, 104, 111, 128, 132, 138 Rational basis review, 90, 93, 102, 104 Redistricting, 116, 117 Regime model, 4, 5, 6, 7, 13 Regime theory, 3, 5, 8, 23, 29 Rehnquist Court, 127 Richards, Mark, 12, 13, 14, 15, 16, 17, 21, 22, 23, 30, 31, 35, 36, 37, 38, 40, 54, 99, 113, 135, 136, 139 Roberts Court, 123, 127 Segal, Jeffrey, 2, 3, 7, 16, 25 Separate but equal, 13, 21, 23, 47, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 61, 62, 63, 65, 66, 67, 72, 75, 78, 80, 84, 85, 132 Skowronek, Stephen, 11, 20, 28, 29, 30, 31, 32, 33, 39, 40, 42, 72, 73 Spaeth, Harold, 2, 3, 7, 16, 25 Strict scrutiny, 21, 23, 70, 71, 73, 74, 84, 86, 87, 88, 89, 90, 91, 92, 93, 96, 97, 98, 99, 102, 103, 104, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 124, 125, 126, 128, 132, 137 Tushnet, Mark, 8, 9, 10, 79, 80, 138

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100, 121, 128, 131, 135, 137, 138, 139 Klarman, Michael, 6, 8, 25, 47, 51, 58, 60, 62, 72, 74, 81, 83, 91, 138 Kobylka, Thomas, 4, 7, 8, 10, 11 Kritzer, Herbert, 12, 13, 14, 15, 16, 17, 21, 22, 23, 30, 31, 35, 36, 37, 38, 40, 54, 99, 113, 135, 136, 139 Levinson, Stanford, 3, 5, 7 Life cycle, 1, 21, 28, 36, 77, 100, 128, 131, 135 McCloskey, Robert, 12, 13 New institutionalist, 11, 18, 21 O’Geen, Andrew, 16, 18, 135, 136, 137 Orren, Karen ,11, 28, 29, 30, 72, 73 Peretti, Terri, 6, 7 Pickerill, J. Mitchell, 12, 13, 14, 15, 16, 17, 21, 23, 30, 31, 38, 139 Post-governance phase, 31, 36, 39, 40, 41, 42, 58, 61, 67, 68, 72, 73, 91, 92, 94, 95, 96, 97, 99, 101, 120, 123, 127, 132, 137, 138 Precedent, 12, 13, 16, 20, 31, 32, 38, 39, 49, 57, 58, 60, 61, 62, 76, 99, 123, 124, 128, 132 Pre-governance phase, 31, 32, 33, 34, 40, 45, 49, 67, 69,

Index

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