Sunday, November 15, 2009

Supreme Court: Fighting Discrimination...Remedies That Is (Part 1: Discrimination Claims)

It's kind of strange. What the Supreme Court is up to recently.

Most of us grew up believing that the Supreme Court was the ultimate guardian of our rights and liberties, the protector of unpopular minorities and the vulnerable. That was its loftiest role in our tripartite and federal form of government.

Of course, that may not have been an accurate reflection of the role actually played by the Court throughout much of its history. But we know it was the role served by the Court in its finest moments. Outlawing racial segregation. Safeguarding the free exercise of disfavored religions. Protecting politically and socially hated speech. Enforcing the rights of fair trial and humanitarian treatment for the detested criminally accused. Placing the powerful, whether private or public officials--including Presidents--under the rule of law. This is what we remember. These are the landmarks. This is what we cherish about living in America. (I have lamented the Court's altered role in the last few decades elsewhere, e.g., "Changing Roles: The Supreme Court and the State High Courts in Safeguarding Rights," 70 Alb. L. Rev. 841 [2007], also available at

But there were also times when the Court didn't play such a role. In fact, times when the Court did precisely the opposite. Such as after the Civil War. When the Court stripped the newly ratified14th Amendment's guarantees of liberty, due process, privileges and immunities of any substantive meaning. According to the Court, the amendment really didn't change anything. (See, e.g., the Slaughterhouse Cases, 1873.) Or, shortly thereafter, when it held that Congress had no power to pass laws outlawing racial discrimination in restaurants, hotels, movie theaters, or other public accommodations. (See the Civil Rights Cases, 1883.) Or, during the same period, when it upheld state-enforced racial segregation under the"separate but equal" doctrine. (See Plessy v. Ferguson, 1896.)

There was also the period when the Court persisted in invalidating virtually any social welfare legislation or public-benefit economic regulation enacted by Congress or the states. Child safety laws. Public health regulations. Labor laws. Minimum wage and maximum hours. Etc., etc. According to the Court, unsafe, unhealthy, and unfair workplaces and conditions were protected from government interference. (See any of a host of cases in the pre-New Deal and New Deal eras named for the infamous decision, rendered over Justice Holmes dissent, in Lochner v. New York, 1905. I offered a sampling of some of the Court's most unfortunate decisions, as well as some of its most laudable, in "Judicial Activism...and Nonsense," 68 Alb. L. Rev. 557 [2005], also available at

Virtually all of the Court's dreadful decisions from those eras have since been overruled. But the jurisprudence and sentiment underlying them have never been banished entirely. Indeed, it can scarcely be doubted that they are once again on the rise within the Court.

Among the areas in which this is most evident is discrimination law. It is not a solitary observation to say that the Court seems to be anti anti-discrimination. Actively opposing anti-discrimination efforts. At war with remedies for past discrimination.

This recent phenomenon was certainly in evidence this past year. Over the course of its 2008-2009 term, the Court issued decisions in 7 discrimination cases that divided the Justices. These cases--like divided cases generally--were the ones that were close enough that the Court could legitimately have gone either way. There were precedents and strong arguments supporting either position the Court might have adopted.

In short, the Justices had a choice in each of these 7 discrimination cases. So what did they choose? And what do the choices tell us?

Let's look at a tally of the Court's decisions and the individual Justices' votes.
Divided Discrimination Cases
OCT08 Term
(click to enlarge)
As Graph 1 shows, the Court rendered a decision supporting the claim of discrimination in 2 out of the 7 cases. These cases raised issues about the laws governing age, race, gender, ethnic, and religious discrimination. In only 2 did the Court take the side of the party complaining of discrimination.

As might be expected, the Justices were divided not only in each case, but also in the number of cases in which they found merit in the discrimination complaint. Some found merit in as many as 5. Some in 4. Some in no more than 2.

As might also be expected, the Justices divided along typical ideological lines. Let's rearrange the Justices in the graph and see.
Divided Discrimination Cases
OCT08 Term
(Justices Arranged by Voting Pattern)
(click to enlarge)
As depicted in Graph 2, the ideological lines are clearly drawn in discrimination cases. The four more liberal Justices were twice as likely to support the discrimination claimant as were the more conservative ones. Justices Ruth Bader Ginsburg and Stephen Breyer sided with the claimant in 5 of the 7 cases. Justices John Paul Stevens and now-retired David Souter in 4. Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito supported the claimant only twice.

It must be remembered that these cases presented issues that were close, difficult, not clearly or readily resolvable--except, perhaps, in the eyes of the most religiously ideological or closed-mindedly partisan. On the one side of each of these cases is the nation's legal dedication to eliminate invidious historic discrimination, and to take the extra step in doing so. On the other is the opposition to special treatment, the freedom to choose one's personal and employment associates, the avoidance of frivolous lawsuits, and the reduction of unecessary costs and inefficiencies in business. On both sides, there are weighty interests.

But there is one more aspect of discrimination cases that is important to note here. Indeed, it is crucial to understanding what is happening at the Court and among the Justices. It might well be the key. At the very least, it mightily underscores the nature of the division among the Justices and the overall direction the Court is taking.

Discrimination complaints by, or on behalf of, white persons. Yes, Whites claiming racial mistreatment. Or complaining about accomodations being made for Blacks, or for other minorities. Affirmative action. Reverse discrimination. Race conscious efforts to redress historic discrimination.

There were 2 such cases among the 7 we've been considering. 2 among the 7 divided discrimination cases decided by the Court last term. Recall that the conservative Justices sided with the discrimination claims in 2 cases. Yes, those were the 2. Not discrimination on the basis of age, gender, minority race, gender or religion. But discrimination against Whites. The only discrimination claims they found meritorious.

Yes, in each discrimination case there were strong competing interests. But only in the 2 cases involving claimed discrimination against Whites, or favoritism for Blacks, did 5 Justices--and the Court--find merit in the discrimination complaint. Connect the dots!

Let's close this post by removing those 2 cases from the graph. Let's take a look at the tally of decisions and votes when we consider the 5 cases involving discrimination claims by minorities or the vulnerable. Claims for redress or protection by, for example, racial minorities, the aged, and the pregnant.

Here's how the Court's decisions and the Justices' votes line up in those 5 cases.
Minority/Vulnerable Discrimination Claims
OCT08 Term
(click to enlarge)
For 5 of the Justices, not a single one of the claims brought by a minority or vulnerable class complainant was meritorious. Yes, the 2 cases involving complaints of discrimination against Whites or in favor of minorities had merit. But the 5 cases involving Blacks and the vulnerable did not.

And to top it off, the 5 Justices who found no merit in those latter 5 cases just happened to be the more conservative Justices on the Court, whose interpretations of the law just happened to disfavor Black and vulnerable claimants, but favor White ones. Hmmm!

Yes, it should also be said that the 4 more liberal Justices on the Court just happened to side most frequently with Black and vulnerable discrimination claimants, and not with the White ones. No doubt. And liberal Ginsburg and Breyer have voting records that are just as perfectly lopsided as the more conservative Roberts, Scalia, Kennedy, Thomas, and Alito.

Yep, the liberal Justices are applying the law to protect those who have historically suffered discrimination. The conservative Justices are doing so to protect Whites. Again, yep.

In the coming posts in this series on New York Court Watcher, we'll take a look at the 7 discrimination cases from different angles. We'll see how stark and transparent the Court's direction and the Justices' divisions are.

(New York Court Watcher will also be returning to the series on criminal appeal applications in New York. Coming posts will explore when and perhaps why the sharp drop in criminal appeals grants occured over the last several years, as well as what is happening now.)