Thursday, May 22, 2014

(Part 10--Alito's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Not quite Scalia or Thomas.
Far different from Ginsburg and Breyer.
Not Kennedy either.
But identical to Roberts.
Justice Alito's record and theirs, that is.

White complainants win Alito's votes.
Racial Minority complainants, not so frequently. But more often then they win Scalia's or Thomas's vote.
Those advocating simple equal treatment--i.e., race neutrality, color-blindness, same rights regardless of race--have won his vote about half the time.
Those advocating more specifically for the protection of Racial Minorities have not fared well with him.

Let's look at Alito's record graphically.
(click graphs to enlarge)
 As shown in graph 1, Justice Alito--just like the other 4 Republicans on the Court--has voted in favor of the White complainants in every case involving an issue of racial discrimination. By contrast, he usually voted against Racial Minority complainants--again, like the other Republican Justices.

Now, to sharpen the focus, let's limit our consideration to those cases that resulted in non-unanimous decisions.
In those closer cases where the Justices were divided, Alito's voting in support of complaints brought by Racial Minorities drops to 29%. His record contrasts sharply with that of Ginsburg and Breyer who voted for the Racial Minority complainant in every one of those cases.

On the other hand, Alito has still been more sympathetic to Racial Minority complaints than Scalia and Thomas. Unlike those 2, who never sided with Racial Minorities in these cases, Alito did so at least sometimes.

Like Chief Justice Roberts, Alito voted with the majority in CBOCS West v Humphries (2008) to hold that it was a civil rights violation (Civil Rights Act section 1981) to retaliate against an employee for complaining about racial discrimination, and that an employer would be liable for doing so. And in Snyder v Louisiana (2008), again like Roberts, he voted with the majority to condemn the prosecution's exclusion of jurors based on their race. Scalia and Thomas dissented in both of those cases.

Let's now look at Alito's record on simple equal treatment.
 As shown in graph 3, Alito has been more supportive of race-neutral, colorblind, simple equality than Scalia and Thomas, not nearly as supportive as Ginsburg or Breyer, and similar to Roberts and Kennedy.

Notably, like the other Republican Justices, Alito has consistently voted to dilute the equal voting rights protections of the Voting Rights Act (e.g., Shelby County v. Holder (2013) and Bartlett v. Strickland (2009)), and has voted to make it more difficult for racial discrimination claims to succeed (e.g., Vance v. Ball State Univ. (2013) and University of Texas SW Med Ctr v. Nassar (2013)).

Related thereto, but with the focus somewhat altered, let's look at Alito's record in protecting Racial Minorities. Not unqualified equal treatment of the races. But insuring the protection of Racial Minorities. That might mean equal treatment in some cases and special consideration in others.
Overwhelmingly, Alito voted against the position that would have provided protection for Racial Minorities. Whether the particular case was instituted by a White or Racial Minority complainant, whether the relief sought was for simple equal treatment and rights or for special protection or preference, whether the case involved voting or employment or education, Justice Alito rarely supported a Court decision that would have favored Racial Minorities.

Once more, his record is not as stark as that of Scalia or Thomas, who voted 100% of the time against the pro-minority position. On the other hand, it is far different from that of Ginsburg and Breyer, who have both been extremely strong supporters of the pro-minority positions.

As previous noted, Alito supported the Racial Minority complainants in the CBOCS and Snyder cases--Scalia and Thomas did not. But other than those 2 cases, Alito, like Roberts, always voted against the position advocated for the protection of Racial Minorities in these non-unanimous cases. Indeed, as stated at the outset, Alito's record is identical to that of Roberts.

Next in this series, we'll take a look at the voting of the Court's 2 newest members: Obama appointees Sotomayor and Kagan.