Friday, November 20, 2009

Supreme Court: Fighting Discrimination...Remedies That Is (Part 2: Minority /Vulnerable Discrimination Claims)

When it comes to supporting minorities and the vulnerable against discrimination, the Supreme Court scores zero. Yes, a big fat 0.

To be fair, let me explain. At the least, let me offer one of the reasons for my assertion now. (I'll get to another later.)

Last term, the Court heard 5 close cases involving alleged discrimination against a minority or member of some vulnerable class. The cases were "close" in the sense that the Justices could not agree. They were divided. There were legitimate, competing arguments in each case. Some Justices adopted some arguments; some Justices adopted others.

Again, there were 5 such cases last term. The Court did not support the discrimination claimant in any one of them. Not once. In no case did the Court find merit in the discrimination claim.

Yes, some Justices did. Usually 4 of them. But in none of the cases did a majority of them--i.e., the Court--side with the minority or vulnerable-class discrimination claimant.

Part 1 of this series on New York Court Watcher began an examination of the Court's treatment of last term's discrimination cases. (See Supreme Court: Fighting Discrimination...Remedies That Is (Part 1: Discrimination Claims), Nov. 15, 2009.) We first looked at the decisional and voting patterns in all 7 divided discrimination cases. Then we separated the 2 cases that involved claimed discrimination against Whites or in favor of Blacks. We concluded by taking an initial look at the 5 remaining cases where the claim was discrimination against a minority or vulnerable-class member.

Let's rearrange the last graph in that previous post to make the point a bit more vividly. Here is how the Justices voted in those 5 cases.
Minority/Vulnerable Discrimination Claims
OCT08 Term
(Justices Arranged by Voting Pattern)
(click to enlarge)
Chief Justice John Roberts, and Justices Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Samuel Alito sided with the discrimination claimant in none of the 5 cases. Let's be clear--and blunt--in not one of the cases brought by a minority or member of a vulnerable class did Roberts, Scalia, Kennedy, Thomas or Alito find merit.

On the other hand, the cases were close enough that 4 of the Justices found merit in most or all of them. Justices Ruth Bader Ginsburg and Stephen Breyer sided with the discrimination claimant in all 5 cases. (Ok, I admit that I love Justice Ginsburg. See Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 3), March 1, 2009.) Justices John Paul Stevens and now-retired David Souter did so in 4 of them.

These 5 cases involved claims of age, race, religion, ethnic, and gender-pregnancy discrimination. In each case there were competing interests. Perfectly legitimate competing interests. In any one of these cases, reasonable people of good faith could have gone either way. (I know that ideological purists and those with self-interests closely tied to these cases may adamantly disagree. But it's hard to deny that there are, in fact, good reasons supporting both sides in these cases.)

Hence, in each of the 5 cases, the Justices had to choose between anti-discrimination and some other competing interest or interests. As mentioned in the first post in this series, those competing interests included--as they typically do in such cases--the freedom to choose one's workers and other employment associates, the avoidance of frivolous lawsuits, the minimization of government interference, and the reduction of unnecessary costs and inefficiencies in business. In one of the 5 cases, there was also a claim of national security. Additionally, of course, in any particular case there's also the possibility that the discrimination defendant is actually innocent of any wrongdoing.

So there often are other interests. And in these close, divided cases there surely are. But the point here is that some of the Justices, and the Court itself, sided with those other interests in every case. Fighting discrimination was pitted against other interests in each case. And some of the Justices and the Court as a whole sided with the other interest every time. You know: connect the dots.

Let's look at a depiction of this. Justices voting in the interest of anti-discrimination versus those voting for other interests. Yes, perhaps legitimate and even strong interests, but interests other than fighting discrimination.
Minority/Vulnerable Anti-Discrimination vs. Other Interests
OCT08 Term
(click to enlarge)
As shown in Graph 2, Ginsburg and Breyer voted in the interest of anti-discrimination in every case. Stevens and Souter in 4 out of 5. The other Justices, not once. In each case, those other 5 Justices--and, thus, the Court--found the other interests more compelling or compelled than anti-discrimination.

Let's just rearrange this graph to emphasize the "other-interests" voting.

Minority/Vulnerable Anti-Discrimination vs. Other Interests
OCT08 Term
(click to enlarge)
Here it is again. For a majority of the Court, fighting discrimination was always outweighed by something else. For Roberts, Scalia, Kennedy, Thomas and Alito, there was always some opposing interest or concern that prevailed.

And yes, the voting records for the other Justices were lopsided as well. For them, fighting historic discrimination always--or almost always--won. Just awful, huh?

One need not agree in every case with these more liberal Justices--Ginsburg, Breyer, Stevens and Souter--to recognize that they, much more so than the others, view fighting discrimination as a paramount American value. They give it precedence in all, or virtually all, of the cases. The others usually--or, as in these 5 cases, always-- find something else to be more important.

In the next and final post in this series, we will identify the other interests. That is, the interests that prevailed over anti-discrimination in these cases. We will also add the 2 "pro-White" decisions back into the mix. Not surprisingly, they share a common thread with the other 5.

For now, let's conclude with a preview. Let's look again at all 7 divided discrimination cases as we did in part 1 of this series. But this time, let's look at them a bit differently. Previously they were viewed as discrimination claims, regardless of who brought them. Let's now look at them from the perspective of remedies for historic discrimination.

Each of the 7 cases, regardless of the nature of the claim or who brought it, presented the question of whether or not to support remedial efforts for discrimination against minorities or the vulnerable. In each case, the issue involved an effort to fight such discrimination or to ameliorate the lingering effects of such discrimination in the past. So every case required the Justices to choose between supporting the remedial efforts or siding with other concerns or interests.

Take a guess.

Then look at the choices made by each Justice and by the Court itself in the 7 cases. As depicted in the following graph, there are no big surprises.
Remedies for Past Discrimination vs. Other Interests
OCT08 Term
(click to enlarge)
Need it be said again? Connect the dots.

Which Justices care about what? Really care. Care enough that they consistently choose anti-discrimination efforts. And which Justices consistently do not?

In the concluding post in this series, we'll take a final look at all of this.