Friday, March 11, 2016

Justice Scalia's Record (Part 4: Racial Justice)

We have previously explored Justice Antonin Scalia's positions on 1st Amendment religious liberty, 2nd Amendment gun rights, and women's rights and gay rights both as a matter of equal protection and fundamental liberty. Let's now turn our attention to the positions he took on issues of race. The cases involve claims of racial discrimination, racial preferences, race-based conduct, and racism.

photo: Rex Shutterstock
As with women's rights and gay rights, Scalia's record on issues of racial justice is not terribly surprising to those who follow the Court. His opinions and votes evince little support for laws or other government action intended to protect racial minorities and, in fact, precious little sympathy for the interests of racial minorities generally. Whatever the issue, he invariably sided with the competing interests or concerns.

Let's take a look at cases in which he authored an opinion.

Racial Justice
Alabama Legislative Black Caucus v. Alabama (2015): the majority held that racial gerrymandering in specific voting districts cannot be excused by considering the state "as a whole." The majority ordered the lower court to re-evaluate the claims of racial gerrymandering, this time by considering individual districts.
In his dissenting opinion, Scalia protested that the majority had undermined "the primacy of the State in managing its own elections." He also argued that the complainants had not clearly "proved (or even pleaded) district-specific claims," that the Court's majority had refocused the complainants' "flawed litigation strategy," and that, by doing so, the majority was "discourag[ing] careful litigation."

Schuette v. Coalition to Defend Affirmative Action (2014): the majority upheld a voter adopted state law prohibiting the use of race-based preferences in state university admissions.
In the opinion for the Court, a plurality of the Justices took the position that voters are free to end race-conscious policies. Such policies may be constitutionally permissible, but they are not required.
In her dissenting opinion, Justice Sotomayor protested that the law effectively established "two very different processes" for admissions to the state's universities: "one for persons interested in race-sensitive admissions policies and one for everyone else."
Justice Scalia sided with the plurality to uphold the law, but he did so in a separate concurring opinion. He argued that the only issue in the case was whether the law "reflects a racially discriminatory purpose," and he insisted that the challengers "do not have a prayer of proving it here." His explanation was that any law requiring state universities "to afford all persons equal protection of the laws...does not--cannot--deny" equal protection of the laws.

Fisher v. University of Texas (2013): the Court reversed the decision of the lower court that had approved the state university's race-conscious admissions process. The majority opinion held that the university has the burden to demonstrate that the consideration of race as a "plus factor" is actually necessary to achieve a diverse student body.
In her dissenting opinion, Justice Ginsburg argued that the admissions process was correctly approved by the lower court, because state universities "need not be blind to the lingering effects of 'an overtly discriminatory past,' the legacy of 'centuries of law-sanctioned inequality.'"
Scalia joined the majority opinion to reverse the lower court's approval of the admissions process. But he penned a short concurring opinion of his own to repeat his unqualified view that "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception."

League of United Latin American Citizens v. Perry (2006): among other things, the majority held that the state's redistricting plan violated the Voting Rights Act. The plan diluted the voting strength of Latino voters in a congressional district in which they had become increasingly powerful.
Dissenting from that part of the majority opinion, Scalia took the position that the voter-dilution claim should be dismissed, because there is no such legal claim specifically recognized by the Voting Rights Act. In his view, the sole purpose of the relevant provision of the Act was to "ensur[e] minority voters equal electoral opportunities," not to protect the electoral strength of any group.
With regard to the race-based equal protection claims (which the majority opinion did not need to discuss), Scalia dismissed them as well. He explained that "Congressional redistricting is primarily a responsibility of state legislatures, and [w]e presume, moreover, that legislatures fulfill this responsibility in a constitutional manner. Although a State will almost always be aware of racial demographics when it redistricts, it does not follow from this awareness that the State redistricted on the basis of race."

To be sure, there have been other significant cases involving issues of race during Scalia's tenure on the Court. In virtually all of those, he joined someone else's opinion rather than writing his own.

Here are a few such cases in recent years:
Texas Dept. of Housing v. Inclusive Communities Project (2015): the majority ruled that the Fair Housing Act protects against practices that have racially discriminatory consequences.
Scalia joined the dissenting opinion which argued that the law's protection was narrower: it only prohibits housing practices where an intent to discriminate has been proven.

Davis v. Ayala (2015): the majority upheld a death penalty conviction in a case where the prosecutor had dismissed all seven potential Hispanic and Black jurors. (The prosecutor was using his "peremptory challenges"--i.e., discretionary strikes permitted to each side, but not on the basis of race or other forbidden categories.) The trial judge had conducted hearings for the prosecutor to explain his actions, but the judge did not permit the defendant's lawyers to attend and, thus, they had no opportunity to challenge the prosecutor's explanations.
The majority of the Justices took the position that the trial judge's exclusion of the defense counsel was a harmless error--i.e., it did not prejudice the defendant.
The dissenters argued that, given the strong indications that the prosecutor's actions were racial, there is little doubt that the defense lawyers' "exclusion from [the] hearings substantially influenced the outcome."
Scalia joined the majority's holding of harmless error.

Walker v. Texas Sons of Confederate Veterans (2015): the majority upheld the state's decision to reject the proposed Confederate Flag design for a vanity license plate. The state had decided that the design was offensive to many citizens, and a majority of the Justices ruled that the state was within its right to pick and choose designs for the vanity plates it produces.
The dissenters argued that the state, which had accepted many proposed vanity plates, violated the free speech rights of those who proposed the Confederate Flag design.
Scalia joined the dissenters opinion that the state must accept the Confederate Flag proposal.

Shelby County, Ala. v. Holder (2013): the majority invalidated the pre-clearance provision of the Voting Rights Act which required certain states to obtained federal approval before enacting changes to their election laws and procedures. The majority reasoned that the data on which the pre-clearance provision was based were outdated.
The dissenters argued that the pre-clearance provision was recently renewed because the discriminatory conditions that led to its initial enactment persisted.
Scalia joined the majority opinion that the pre-clearance provision was no longer justified.

CBOCS v. Humphries (2008): the majority ruled that civil rights law (sec. 1981) not only protects employees from racial discrimination in hiring, firing, and promotion, but it also protects them from retaliation for making a civil rights complaint. The majority thus upheld the retaliation claim of an African-American employee who was fired after he complained that another employee had been fired for race-based reasons.
In his dissenting opinion, Justice Thomas argued that the civil rights law did not protect against retaliation.
Scalia joined Justice Thomas in taking the view that the law is a "straightforward ban on racial discrimination," but "[r]etaliation is not discrimination."

There are still others, but the pattern is the same. Indeed, over the past ten years since John Roberts was appointed Chief Justice, it is difficult to find a case in which Scalia favored protecting racial minorities. As noted at the outset, Scalia invariably sided with the interest or concern that opposed that of racial minorities.
[In my review of divided decisions involving an issue of race over the past ten years, I found that Scalia took the position opposite that of racial minorities in every case.] 

[Disclosure: I disagree with virtually every position taken by Justice Scalia in these cases.
So, for example, in the Alabama Legislative Black Caucus case, eliminating racial gerrymandering seems far more important than Scalia's interest in promoting careful litigation strategy.
In Schuette, Scalia was simply wrong that the law prohibiting the consideration of race in university admissions was nothing more than equal protection. That law was a mean-spirited reaction to attempts to redress a long history of racial discrimination. It was disguised as promoting admission-by-merit. In fact, the law had little to do with either equality or merit in admissions. Racial preferences were prohibited, but a myriad of other preferences were not: legacies (a family connection to the university), wealth (the family generously donated to the university), athletics (the applicant could help one of the sports teams), geography (the applicant might come from an underrepresented state or a foreign country), influence (the applicant's family might be politically or otherwise influential), fame (the applicant might bring some celebrity to the university), etc., etc., etc. None of those preferences were outlawed. Any one of those preferences were still permitted to outweigh actual merit. So, again, the law had little or nothing to do with promoting equality or merit. Only distaste for any consideration of minority race.
In Fisher, the Court was presented with the very difficult issue of the constitutional validity of affirmative action. Ideologues on both sides of the issue insist that it's easy and that their respective opposing positions are clearly correct. Scalia was on one ideological side of the issue. To him the issue was easy and the answer clear: equal protection means equal treatment, period; at least with regard to race; no exceptions. I strongly disagree. No constitutional right or guarantee is absolute. There are exceptions to every one: free speech, religious liberty, free press, gun rights, etc. When there is a legitimate reason of the highest order that necessitates an exception--a "compelling government interest" is the term of art--then some compromise of the right or guarantee is justified. That is a basic and essential principle of constitutional law. Scalia would treat racial equality as an absolute--at least as an instrument to oppose preference or protection for racial minorities. Yes, affirmative action is a very difficult matter. But, in my view, some compelling reasons do justify the consideration of race--as the majority opinion held.
In League of United Latin American Citizens, I disagree with Scalia's contention that diluting the voting strength of racial-minority voters is not a violation of the Voting Rights Act. Such dilution seems clearly to contravene the overarching purpose of that law.
In the Texas Dept. of Housing case, I disagree with Scalia's opposition to claims based on disparate racial impact, and his insistence that claims must be based on demonstrated discriminatory intent. Sometimes it is only the consequences of an activity that evince its discriminatory nature.
In Davis v. Ayala, I disagree with Scalia that a prosecutor's dismissal of racial minorities from a jury, combined with a judge's exclusion of the defense counsel from the hearing to investigate the prosecutor's action, should be treated as a mere technical error that may be overlooked.
In Texas Sons of Confederate Veterans, I think that a state may reject hateful designs and slogans on the vanity license plates that it produces--e.g., "Heil Hitler" or a swastika or "Bring Back Slavery" or the N word--and that includes the Confederate Battle Flag which symbolizes somethings just as heinous for many people. So I disagree with Scalia--who again took a rather absolutest position, this time in support of a free speech right to have a Confederate Battle Flag design on a vanity plate.
In Shelby County, Ala, I actually agree with the majority opinion which Scalia joined--but only to an extent. I do agree that the pre-clearance provision of the Voting Rights Act should not stand when it is based on data that is long overdue for updating. But because pre-clearance is still a necessary antidote to discriminatory changes in voting laws, I would not have discarded the pre-clearance provision then in existence until it could be updated with more current data.
In CBOCS, I think the argument made in the dissenting opinion joined by Scalia was absurd. I.e., racial discrimination in employment is prohibited, but retaliation for seeking to enforce that prohibition is permitted. Again, in my view, that's absurd.]

Well there it is. Scalia in cases involving issues of race.
Connect the dots.
His record shows little or no sympathy for the interests of racial minorities. Indeed, it does show hostility for laws and practices intended to benefit them.

Next, we'll look at Scalia's position on cruel and unusual punishment.