Misremembering History: Will Plessy Ever Be Overruled?

Much of the oral argument in the abortion case currently being considered by the Supreme Court turned on the issue of when it is appropriate to overrule a precedent set by a previous decision of the Court.  In that context there were several references to Plessy v Ferguson, the 1896 case in which the Court determined the 14th Amendment did not eliminate all "distinctions based on color" and, in common parlance, upheld the provision of separate, but equal, facilities to different races.

Most references in the popular press, and surprisingly even in legal circles, refer to Plessy as being "overruled" and no longer applicable law, usually citing Brown v Board of Education (1954), the school desegregation case, for this proposition.  This is incorrect.  Plessy is still the law in the United States, as the Supreme Court has continually affirmed, even in recent decades, that differential treatment based on race meets constitutional standards (see, for instance, Grutter v Bollinger (2003)).

In Plessy the Supreme Court held that distinctions in treatment based upon race were constitutional when the Court determined such distinctions were appropriate.  Brown only held that such distinctions were inappropriate in the case of K-12 public education, but made no broader ruling regarding the reasoning behind Plessy.

What has caused this public confusion is since Brown the Court has struck down some racial distinctions while upholding others of a different character than those in Plessy ; the Court still maintains it can determine when a specific racial distinction passes constitutional muster.(1)

That the Supreme Court has refused to repudiate the reasoning of Plessy is astounding, particularly in light of the language of the 1964 Civil Rights Act prohibiting discrimination on the basis of race, color, religion, sex or national origin in hiring, promoting, and firing, public accommodation, and in federally funded programs.  Instead the Court has developed in a series of decisions its own rationale for ignoring the anti-discrimination provisions of the Civil Rights Act when it determines it appropriate to do so.

Most recently, the Court's approach has been supported by the Biden administration which recently urged the Supremes not to review the case filed by Asian Americans against Harvard University, taking the position the Court should not stop Harvard from continuing to use race in admissions with a disparate impact on Asian Americans.  That the administration is taking such a position should not be a surprise as the newly appointed head of the DOJ's Office of Civil Rights, Kristen Clarke, does not think the anti-discrimination provisions of the Civil Rights Act apply to all Americans, an interpretation also supported by Vanita Gupta, the #2 official in DOJ.

It is time for the Supreme Court to explicitly overrule Plessy and make the law of the land reflect the sentiment in Justice Harlan's famous dissent in that case:

"Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved."

For further background I recommend reading The Color-Blind Constitution by Andrew Kull (1992), a book I first mentioned in Readings on Slavery.  Kull's book covers the subject from 1839, when citizens of Lynn, Massachusetts unsuccessfully petitioned the legislature to repeal all laws "which make any distinction among its inhabitants, on account of COLOR", through the debates over the 14th amendment, Plessy, the post WW2 desegregation cases, and the many cases in which the Court failed to apply the language of the 1964 Civil Rights Act.  In his conclusion Kull writes, referring to black Americans:

"No other racial or ethnic group among America's immigrants has a comparable claim to special treatment, and the moral awkwardness of asking black Americans to be content with nondiscrimination should not stop us from giving that answer to everyone else.  Yet the breach in the antidiscrimination principle made in favor of African-Americans has led to a multiplicity of government-sponsored preferences for groups defined by race, ethnicity, or status as a "language minority".  The expanded claims to group entitlements could not rest on the unique circumstances of slavery and its aftermath.  The necessity of a more broadly applicable justification has led to the wide currency of a profoundly different rationale: a variety of arguments whose common core is the idea that a distribution of social benefits is presumptively just when made to racial and ethnic groups in proportion to their numbers.  Yet to the extent that a system of proportional entitlements becomes acceptable as an avowed premise of equality, the aspirations of American democracy will be profoundly altered."

Kull's words were prescient in light of what's happened in the thirty years since the publication of his book.  Since then we've had the strange spectacle of self-proclaimed civil rights groups attempting to overturn a 2006 amendment to the Michigan constitution banning discrimination based on race, color, sex, or religion in admission to colleges, jobs, and other publicly funded institutions on the grounds it was discriminatory, an argument rejected by the U.S. Supreme Court.  And in November 2020, we had a California ballot initiative to repeal the anti-discrimination provisions in the state constitution, an initiative backed by the Democratic party, tech oligarchs, and public employee unions.  Despite the proponents outspending the opponents 17-1 in a state where Biden beat Trump by five million votes, the initiative lost by double digits.  When voters have a choice, they pick antidiscrimination over discrimination.  

Much of what passes for education in K-12, as well as corporate diversity training with its focus on race essential and stereotyping is, in my view, violating the 1964 Civil Rights Act.  There are already lawsuits beginning to make their way through state and federal courts and the Supreme Court may eventually have the opportunity to undo the problems it has created.

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(1)  The Court has held that racial distinctions to correct ongoing discrimination are constitutional.  That is a legally justifiable distinction I agree with, but it is not what we are talking about here.  It is the Court's insistent that, under certain circumstances, racial distinctions and classifications are constitutional even when there is no ongoing discrimination.

A Misunderstanding Or Projection?

 I am now reading that a number of Democratic Senators are stating they will not meet with any Trump Supreme Court nominee since "they already know how they will be voting".  Under normal circumstances nominees make the rounds to meet with Senators and answer their questions prior to a confirmation hearing.

The notion that any Senator knows how a Republican nominee will vote on key issues confronting the Court is simply false.  Is this notion a result of a misunderstanding of how justices think or is it a projection of how Progressives think about the law?  I think the confusion arises because it is a true statement for Democratic nominees and thus projection.  If you look over the Court decisions on the most contentious issues during the 21st century you will see Democratic justices voting together while Republican justices often split on these issues.  The reason why the press speculates in a contentious case whether a Republican justice will be a "swing vote" but never a Democrat is for this very reason - the Democrats are predictable, they stick together.

And even when the Republicans stick together they are more likely to issue concurring opinions than Democrats.  A concurring opinion means the justice agrees with the conclusion reached by their colleague writing for the majority but disagrees in whole, or in part, with the reasoning.  If a majority opinion is not joined in by a majority of those agreeing with ruling its precedential value is limited.  By not issuing concurring opinions even when it is clear from their other opinions that they disagree with the underlying reasons for the opinion of the justice writing for the majority, the authority of the opinion for precedential purposes is strengthened.  Probably the most notorious example is Justice Kennedy's opinion in Obergfell (the gay marriage case), an opinion in which all four Democratic justices joined even though they must have gagged at Kennedy's reasoning.

The Democratic strategy is no secret, Justice Ginsburg spoke openly of it to a New York Times reporter several years ago.  The idea was that on key cases the Democratic justices would vote as a bloc and not write any concurring opinions.

The reason for the lack of underlying diversity in Democratic nominee opinions versus those of their Republican counterparts derives from their differing legal philosophies and it also explains the frustration of many conservatives who complain that Republican appointed justices are "unreliable", a complaint you never hear from liberals and progressives about Democratic appointees.

While Republican appointees all express adherence to some form of originalism - trying to ascertain what the words in the constitution meant at the time of its adoption - they differ on the means by which they apply it.  In addition they differ on the role of precedent in rulings (Roberts and Thomas being at polar opposites on this) and the degree to which the institution of the Court itself must be protected.  They also disagree on the approach to statutory interpretation as well as the deference owed to administrative agencies.  The result is much more frequent splintering of the Republican appointees and even when they agree they are not shy about writing concurring opinions explaining alternative reasons for reaching the same conclusion.  Even on the most contentious issue facing the Court, the future of Roe v Wade, there are only two of the five Republican appointees who would support overturning it - Thomas and Alito.  It is also why you have Gorsuch recently writing a very non-conservative opinion for the court on the meaning of "gender" under the Civil Rights Act and both Kavanaugh and Roberts have frequently sided with the Democratic appointees who, as always, vote as a bloc.  Roberts in particular, has proven supportive of the new legal field of Trumplaw, writing opinions against the administration for acts that would have been legal under prior administrations.

Because of the approach of the Republican appointees you will often see them make rulings that are likely against their personal beliefs or politics.  There was no fiercer defender of the rights of citizens against illegal search and seizure and the rights of criminal defendants to fair jury trials than Justice Scalia.  And despite the strawman arguments against originalism and textualism by progressives ("the 2nd amendment only applies to firearms that existed in 1790!") it was Scalia who wrote the Court's opinion that the use by police of a thermal device as they drove by a house to detect the heat generated by a marijuana growing operation was an illegal search.

In contrast it is difficult to find opinions by Democratic appointees that appear to conflict with their beliefs and politics.  That is not hypocrisy on the part of the justices; it is consistent with their philosophy of Living Constitutionalism which is a results oriented judicial philosophy compared to the various approaches of Republican justices which are process oriented.  Living Constitutionalism converts the judiciary to becoming effectively just another legislative branch of government.  You just need to decide what policy outcome you want and then structure a legal argument to support it.  One could ask, if that is the right approach, why even bother with a Supreme Court?

If Amy Barrett is confirmed I think her opinions will in many cases be consistent with conservative policy but there are going to be instances where conservatives are disappointed..  Progressives never have to worry that one of "their" justices will disappointment them.

Fascism In Action

[Sarcasm alert]

Trump on the LGBT ruling: "They've ruled. I've read the decision. And some people were surprised. But they've ruled and we live with their decision. That's what it's all about. We live with the decision of the Supreme Court. Very powerful. A very powerful decision, actually."

— Daniel Dale (@ddale8) June 15, 2020