Capital Tonight: Previewing Some Major Cases This Supreme Court Term

CAPITAL TONIGHT

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Trump's Justices: Gorsuch to Date (Part 3)

Pandemic restrictions, transitioning to remote teaching, exams, grading, other projects, preoccupation with breaking news, etc. Now back at last.

In the first post in this series, we took a look at Justice Niel Gorsuch's voting record immediately following his appointment in the final few months of the 2016-17 term. As shown in that post, Gorsuch voted for the politically conservative side of every politically charged issue in cases involving the death penalty (pro), campaign finance restrictions (con), gun rights (pro), gay rights (con), workers' rights (con), separation of church and state (con), President Trump's travel ban (pro), and similar politically divisive matters.

Yes, there were legitimate (or semi-legitimate) arguments that supported each side in these cases. A reasonable, good-faith judge might have voted either way. But Gorsuch always chose arguments that supported the politically conservative side. Never the other side. In short, connect the dots! Moreover, Gorsuch's 100% politically conservative record was more than double the 41% conservative decisional record of the Court as a whole.

Juxtaposing his record with that of the other conservatives on the Court, as well as of the Court as a whole, in that spring of 2017 looks like this (click to enlarge).


Then, in the second post in this series, we saw that Gorsuch continued to amass a very politically conservative record throughout the 2017-18 term, his first full term on the Court. As noted in that post, in cases involving highly charged matters, Gorsuch voted for the politically conservative side virtually every time: Trump's travel ban (again, pro), immigrant rights (con), abortion rights (con), gay rights (con), union representation (con), worker rights (con), voting rights (con), ending gerrymandering (con), search and seizure protections (con), and international human rights (con). Again, connect the dots.

And again, let's juxtapose Gorsuch's voting with that of the other conservatives on the Court, as well as of the Court as a whole. His record for the first full term on the Court, the 2017-18 term, looks like this (click to enlarge).


Now, let's take a look at Gorsuch's record for the last completed term, 2018-19, his second full year on the Court. Among the cases involving those "hot-button" or politically charged issues, these were his positions:

• American Legion v. Amer. Humanist Assn. (2019) [re: the 40 Foot Cross maintained by Maryland state government]--the majority approved the cross; Gorsuch's separate concurring opinion would have lowered the separation of church and state even more by disallowing concerned groups even to complain.

• Dept. of Commerce v. New York (2019) [re: the Trump administration's proposed citizenship question on the census form]--the majority, in an opinion by the Chief Justice, disallowed the question because the administration's claimed justification was a lie; Gorsuch joined the dissenters' argument that the administration did have some legitimate reasons.

• June Med. Servs. v. Gee (2019) [re: the Louisiana abortion services restriction law]--the majority summarily blocked the law from going into effect; he joined the dissenters to approve the law until it actually resulted in unduly burdening the right to choose.

• Rucho v. Common Cause (2019) [re: partisan gerrymandering]--he voted with the majority which held that the Court should do nothing about it.

• Bucklew v. Precythe (2019) [re: lethal injection]--he authored the majority opinion to approve the use of a method of execution on an inmate, despite the inmate's particular's medical condition that would make that method excruciating.

• Moore v. Texas (2019) [re: intellectual disability of a death row inmate]--in this and several similar cases, the majority (which included Chief Justice Roberts and Justice Kavanaugh) halted the execution because the state applied outdated mental health standards which the Court had previously invalidated; he joined the dissent in each case to nevertheless allow the executions.

• Murphy v. Collier (2019) [re: the Buddhist chaplain case]--the majority (which again included Roberts and Kavanaugh) halted an execution until the state honored the inmate's request to be visited by a chaplain of his faith; he joined the dissent to excuse the state and allow the execution to go forward.

• Garza v. Idaho (2019) [re: ineffective counsel]--the majority (once more including Roberts and Kavanaugh) ruled that the defense counsel's failure to file an appeal violated the defendant's right to effective counsel; he joined the dissent arguing that the defendant's waiver of appeal upon his guilty plea disposed of the question.

• Flowers v. Mississippi (2019) [re: race-based juror discharges]--the majority (which this time included Roberts, Alito, and Kavanaugh who authored the opinion) condemned as unconstitutional the “relentless” use of peremptory challenges by the prosecution to strike all black jurors, throughout 6 trials and retrials; he joined the dissent which declined to condemn the pattern.

Well, speaking of patterns, Gorsuch's voting pattern should be quite evident. Whether it's church and state, abortion rights, the death penalty, race-related questions, the Trump administration's initiatives, and other politically charged issues, Gorsuch voted like a conservative Republican partisan. And he did so even more than some other conservatives on the Court.

Take a look (click to enlarge):

Gorsuch's 89% politically conservative voting record for the 2018-19 term contrasts dramatically with the 50% decisional record of the Court as a whole. And remember, this is a Court where a majority of the Justices are political conservatives--who worked in politically conservative Republican administrations before being appointed by Republican presidents. It is compared to just such a politically conservative Court that Gorsuch's record is so extreme!

Indeed, Gorsuch's record for the 2018-19 term is not only significantly more politically conservative than that of conservative Chief Justice Roberts, 89% to 58%. But his record is notably more politically conservative than that of the second Trump appointee to the Court, Brett Kavanaugh.

The difference between the two Trump appointees, 89% politically conservative for Gorsuch, 74% for Kavanaugh, is underscored by the sorts of politically charged issues on which they disagreed. Take a look at some of them (click to enlarge):

Church and state, racial discrimination, the death penalty, an accused's right to effective counsel--these are among the critical areas of constitutional law in which Gorsuch took the more politically conservative side of the issue than did Kavanaugh.

To be sure, there are many many other areas of constitutional law, as well as non-constitutional but still highly charged political issues, about which we do not yet have Supreme Court decisions in which both Gorsuch and Kavanaugh participated. There are some of those in cases to be handed down by the Court within the next few weeks. That will give us more evidence of the individual and the comparative ideological leanings of the two Trump appointees. Stay tuned!

Gorsuch--Yes, Backward and Extreme (Part 2)

It's now Justice Neil Gorsuch, having been confirmed by the Senate following the Republicans' deployment of the nuclear option. I've been tied up with (over)commitments--not that I could have affected the outcome--but let's continue with this series because Gorsuch's record is at least as important now as it was when he was a nominee.

We saw how Judge, now Justice Gorsuch's avowed approach to judicial decision-making is "focusing backward, not forward." It's viewing constitutional rights in accordance with "what a reasonable reader at the time...would have understood the law to be." Judicial decision-making is "not a forward-looking but a backward-looking authority." Those are his words. That is his judicial creed. That is what he has reaffirmed repeatedly in speeches and writings, and applied in cases.

At first blush, Gorsuch's approach might sound perfectly reasonable. You know, it's a specie of the bromide that "judges should just apply the law and not make it." But any thoughtful consideration exposes Gorsuch's judicial creed as drastically reactionary. As a prescription for undoing our nation's cherished advances in fundamental constitutional protections.

That is no exaggeration. That is just plain fact and history. That might be his and others' preference. But that is what it is.

Gorsuch's judicial creed, which had been famously professed by his predecessor, Antonin Scalia, is part of a tradition that has opposed constitutional advances and has condemned those advances after they have been made. Yes, opposed them and condemned them--at least until those advances have become part of our culture, a cherished part of our culture, and to oppose them any longer is too embarrassing.

So, for  example, as mentioned previously [See Part 1.], the Gorsuch-Scalia creed would have precluded the landmark protections of equal rights for African-Americans, for women, for gays and lesbians, etc. Consider again the consequences if the Supreme Court had adopted the Gorsuch-Scalia approach to decision-making--i.e., looking "backward" to what the constitutional provisions meant "at the time":

•  Racial segregation would have been upheld, not outlawed--the Supreme Court in Brown v. Board of Education (1954) deliberately re-construed the 14th Amendment to prohibit segregation, contrary to what had long been permitted and to what that amendment meant "at the time" it was ratified in 1868.
• State laws preventing women from owning property or running a business or going to law school, etc., would have been upheld, not overruled--the Supreme Court in Reed v. Reed (1971) extended "equal protection" beyond what it meant "at the time" of ratification and invalidated laws that treated men better than women.
• State laws that discriminated against and even criminally punished gays and lesbians would have been upheld, not declared unconstitutional--the Supreme Court in Lawrence v. Texas (2003) held that "equal protection" and "due process" protected gays and lesbians, even though those constitutional provisions certainly did not mean that "at the time."
• And so many others, such as Loving v. Virginia (1967) [invalidating laws that prohibited inter-racial marriage]; Griswold v. Connecticut (1965) [invalidating laws that prohibited birth control]; Heart of Atlanta Motel v. U.S. and Katzenbach v. McClung (1964) [upholding civil rights laws that prohibit racial discrimination in privately owned lodging and restaurants]; West Virginia v. Barnette (1943) [upholding the right of religious-objecting Jehovah Witnesses not to salute the flag].

In every one of those landmark cases, and so many others, the Supreme Court rejected the Gorsuch-Scalia approach. Instead of confining constitutional provisions to what might have been their narrow, specific meanings "at the time" they were written and ratified, the Court gave life to the overriding, fundamental principles that those provisions reflected.

So the 14th Amendment's guarantee of "equal protection" in those cherished landmarks was not confined to "separate but equal" treatment for the newly freed black slaves. Instead, overruling Plessy v. Ferguson (1896) and breaking from the "backward-looking" "at the time" meaning of the 14th Amendment, the Court in Brown gave life to the overriding principle of equality under the law to put an end to legalized segregation of the races. Likewise, repudiating a long series of precedents that permitted disparate treatment of women, including some then-recent decisions, the Court in Reed expanded "equal protection" to invalidate gender as well as racial discrimination. And so forth.

Historically, the Gorsuch-Scalia brand of "backward-looking," "at the time," so-called "originalist-textualist" jurisprudence has always reared its head--yes, its ugly head--whenever the Supreme Court has advanced equal rights for minorities or women. Whether the Court was outlawing segregation, or protecting inter-racial marriages, or upholding the civil rights laws, or requiring that women have the same rights as men, or invalidating laws that discriminated on the basis of sexual orientation, the jurisprudence embraced by now-Justice Gorsuch has always been used to oppose those advances and to denounce them as illegitimate.

Yes, the repeated condemnation of all those cherished landmarks and so many others has been the same: "That's not what the constitutional provision meant at the time; that's not its original meaning." Fortunately for our country, that "originalist-textualist" approach has historically been rejected whenever the Court has understood that fundamental equality and fairness and decency were far more important constitutional principles than some avowed method of interpretation.

And it's not just the equal rights and privacy rights landmarks. The same is true for those landmarks that gave life to the rights of the accused. The Gorsuch-Scalia jurisprudence would have precluded those advances in criminal justice as well. We'll take a look at some of those in the next part of this series.

Gorsuch--Yes, Backward and Extreme (Part 1)

The Democrats in the Senate are right on this one. Judge Neil Gorsuch, President Trump's nominee for the Supreme Court, is indeed backward and extreme. Not necessarily him personally--I don't know him nor do I know others who do. But to be sure, his jurisprudence, as he himself has explained it and as he has applied it in deciding cases, is backward and extreme.

In fact, that is why he is supported so strongly by conservative Republicans, and other social conservatives. That is why he was placed on the list of recommended nominees from which Trump picked him. That list was produced by the Federalist Society and the Heritage Foundation, They are two very ideologically conservative organizations. They do their homework. They know his record.

Those strong supporters may not prefer the labels "backward" and "extreme." But no doubt, that is why they really like him.

Let's consider Gorsuch's own words.
Judges, he has said, should apply the law "focusing backward, not forward," in accordance with "what a reasonable reader at the time...would have understood the law to be."
And again, "judicial power" is "not a forward-looking but a backward-looking authority." In short, apply what the words originally meant.

Ah, no wonder social conservatives like him so much. Looking "backward," applying what constitutional provisions meant "at the time," as Gorsuch urges, just happens to produce decisional results that social conservatives would prefer. It's also no wonder why some of the most socially and politically conservative judges--and politicians and commentators who support them--embrace this so-called "originalism" and "textualism."

So, for example, consider the Constitution's "equal protection of the laws" guarantee. That provision has long been a major battleground between conservatives and liberals. It became part of the Constitution after the Civil War, with the ratification of the 14th Amendment in 1868.

Looking "backward," to what it meant "at the time," would certainly exclude equal rights for gays and lesbians. Certainly, in 1868, the ratification of the 14th Amendment was not meant to protect gays and lesbians. Applying the equal protection guarantee in a "backward""at the time" manner, as Gorsuch urges, would still permit laws that criminally punish private, consensual, same-sex intimacy between adults--let alone same-sex marriage. It would also permit laws that intentionally discriminate against gays and lesbians in employment, housing, restaurants, hotels, etc., etc.

That's right. The Constitution's equal protection guarantee says nothing about gays or lesbians or transgenders. And those persons were absolutely not--looking "backward"--what equal protection was about "at the time" in 1868.

Indeed, Judge Gorsuch's hero, the late Antonin Scalia--the foremost proponent of this so-called "originalist-textualist" approach that Gorsuch has ardently embraced--took exactly that position. The Supreme Court modern era decisions that have extended equal protection to gays and lesbians and same-sex couples were among the most hated and denounced by Scalia. What was Scalia's claimed reason? That the equal protection guarantee did not mean that in 1868. [Scalia on gay rights.]

But this looking "backward" and "at the time" approach goes well beyond allowing discriminatory treatment of gays and lesbians. How about women?

The equal protection guarantee was certainly not intended, in 1868, to insure equal rights for women. It would never have been ratified in 1868 if its purpose was to require that women be treated equally with men. That laws treating women differently and unequally were no longer valid. Looking "backward," equal protection of the laws for women was not what was meant "at the time." In fact, it was not until 100 years later that the Supreme Court finally did give equal protection that meaning and outlaw gender discrimination.

Again, Gorsuch's hero, the "originalist-textualist" Scalia, openly insisted that constitutional equal protection did not apply to women. And why? Because that's not what it meant when it was ratified. [Scalia on women's rights.]

Then there's racial segregation.

Equal protection was certainly not intended to end racial segregation when added to the Constitution in 1868. It would never have been ratified if its purpose was to require that African-Americans be allowed to share the same schools, restaurants, hotels, spaces on the bus and railroads, etc., with white persons. At most, "separate but equal" was as far as equal protection was intended to go "at the time." Indeed, it was not until 1954 that the Supreme Court expanded the meaning of equal protection to abandon "separate but equal' and to outlaw segregation.

So, should the Supreme Court really have looked "backward" and applied the law according to what it meant "at the time"--really? And allowed racial segregation to continue? And should judges today look "backward" and restore the racial segregation that was allowed "at the time" the 14th Amendment was ratified in 1868?

Well, of course, almost all self-avowed "originalist-textualist" judges, politicians and commentators are far too embarrassed to endorse a return to racial segregation. They will attempt to rationalize how their approach would not necessarily support that result. But it does do just that. Just as that "originalist-textualist" approach would deny equal protection of the laws to women. And--as most "originalist-textualist" devotees still do acknowledge--would undo all the gay rights and same-sex rights decisions of the Supreme Court in recent years. That "originalist-textualist" approach, looking "backward," supports a return to allowing racial segregation because it was allowed "at the time."

Of course, the same could be said for so many other constitutional guarantees--e.g., the right to the assistance of counsel, search and seizure protections, free "speech," the right to private sexual choice (even between married couples), etc., etc. Looking "backward" to what they meant "at the time," these were not the rights we enjoy and cherish today as Americans. They were much narrower, much more limited, and didn't mean then what they mean now.

We'll look at some of them in the next post.

But for now, even without looking further, it should be clear that Judge Gorsuch's approach to the law is backward--the term he himself uses--and extreme.

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.

The Supreme Court's Last Term: Review & Implications (PPT)

Having now presented several reviews of the Supreme Court's 2014-2015 Term ["October 2014 Term"] since that term concluded in June, it's perhaps time to post and retire the power point.

The presentations ranged from 1 to 3  hours; the power point and corresponding remarks were tailored to the time requirements. Here is the unabridged version of  the power point, including  the most recent updates I used today as part of New York State's Annual Legislative Continuing Legal Education Program. It includes all the graphs on decisional and voting patterns prepared to help underscore the implications of the past term.

_____________________________
To view the complete slide presentation, open HERE.
(Then, for the best view, click File + Download, and Open the download.)

Obamacare Subsidies Decision: Recap (part 2: the video)

As an appendix to the Recap on the immediately preceding post from earlier today, here's an interview with Liz Benjamin on her Capital Tonight.

Liz questions me about the Obamacare subsidies decision and about the housing discrimination case the Court decided the same day. She then turns to the recently announced retirement of New York Court of Appeals Judge Susan Read, and the dramatic change in the high court over the course of a few years--with Governor Andrew Cuomo being able to remake its entire membership.

Here's the link:

The US Supreme Court delivered a huge victory to President Obama today, upholding a key part of the Affordable Care Act.  That decision means millions of Americans across the country who enrolled through state health exchanges will not lose their insurance. Vin Bonventre from Albany Law School joined us to discuss.

Link:  http://www.twcnews.com/nys/capital-region/capital-tonight-interviews/2015/06/25/vin-bonventre.html

Supreme Court, 2013-14 Term: Quick Recap (Part 1: civil rights and liberties)

The Court finished its term Monday. The decisions announced that morning, in the cases dealing with the contraceptive mandate and union dues, were the final two in a veritable whirlwind the past few weeks.

Out of the 70 or so decisions rendered this term, let's take a quick look at some of the most significant. "Quick" as in a very brief bare-bone recap of each. And "significant" as in cases involving issues of liberty and order, rights and responsibilities, equality and justice that are basic to a free society--the ones most of us are interested in, not just lawyers and businesses.

We'll do this quick recap in 2 parts, civil and criminal. Later, we'll look at these cases more closely. I.e., votes, meaning, impact, precedential ramifications, etc.
(We'll also be reviewing some of the significant decisions rendered by the New York Court of Appeals this year .)

(Part 13--Vin's Hypothetical Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Purely in the interest of full disclosure.

No particular significance to how I would have voted in these cases. But just to see what my biases might be. As I put in in an earlier post:

I've previously noted my agreement with Justice William O. Douglas's view that legal analysts and commentators ought to disclose their predilections. At least from time to time. In this way, the reader or listener has a better idea of the possible biases that might be influencing what is being presented. (See William O. Douglas, Law Reviews and Full Disclosure, 40 Wash. L. Rev. 227 [1965]. And see, e.g., a recent post on New York Court Watcher: Supreme Court: Highlights...(Disclosure--How I Would Have Voted in the Free Speech Values Cases), Oct. 29, 2010.)
Also, readers of this blog seem to respond to the "disclosure" posts more than any others--those and the post-season "Saratoga Highlights" posts. And, yes, like the "Saratoga Highlights," I have fun doing the "Disclosures." Self-therapy? [From Supreme Court: Highlights...(Part 15--Full Disclosure in Pics: How I Would Have Voted ).]

So without further delay, here goes. My hypothetical record on complaints brought by Whites raising issues of racial discrimination:

(click graphs to enlarge)

GRAPH 1

I would definitely not have voted, as did every Republican Justice, to support every complaint brought by Whites in the close, non-unanimous cases. But I would have voted that way more frequently than the Democrats on the Court.

[E.g., I would have voted with the White complainants--and the Republican Justices in the majority--in Ricci v. DeStefano, where White firefighters in New Haven who performed well on an exam were nevertheless denied promotion in favor of Black firefighters who did less well. That exam was supposed to be the basis for promotion, and it had been pre-approved as being non-discriminatory. The treatment of those firefighters who did well on the exam seemed blatantly unfair.]

What about complaints by Racial Minorities?

GRAPH 2

In most of the cases commenced by Racial Minorities complaining about some matter of racial discrimination, I would have sided with them. So I would usually have cast my vote with the Democratic Justices, and rarely with the Republicans.

[E.g., in University of Texas SW Med Cntr v. Nassar, I would have voted withe the Democratic Justices in dissent in support of the employee who claimed retaliation for complaining about racial discrimination. I would uphold such complaints as long as retaliation was a significant reason for the adverse treatment--as opposed to being the specifically definitive "but for" reason, which is what the Republican Justices voted to require before such a claim could be sustained. In League of United Latin American Citizens v. Perry, I would also have voted with the Democratic Justices, this time in the majority with Justice Kennedy, to uphold the Racial Minority complaint against the redistricting in Texas which deliberately diluted Latino voting strength for partisan Republican advantage.]

(Part 12--Summary w/ Update) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Before disclosing my own hypothetical voting, perhaps it makes sense to offer a quick recap. And we'll update the figures to include the recent decision in Schuette v. Coalition to Defend Affirmative Action, where the divided Court upheld a Michigan law prohibiting racial preferences in college admissions. So the updated summary now, and next post we'll do my full disclosure.

For this recap, let's reorganize the graphs a bit. They've probably become a bit too cluttered. Also, let's update the data thru May 2014. The figures and graphs will now reflect all the Court's decisions involving issues of racial discrimination, from the time John Roberts became Chief Justice in September 2005 to the present day. [The pool of cases is further described at the end of this post.]

So here is a summary of the Court's decisional record and the Justices' voting. We'll begin with those cases brought by White complainants--whether they were claiming to be victims of racial discrimination, or objecting to racial preferences for Minorities, or otherwise arguing that some race conscious or remedial policy adversely affects them.

(click graphs to enlarge)

GRAPH 1

There it is. The Court itself, as well as all 5 Republican Justices, supported every complaint about racial discrimination brought by Whites. The Democratic Justices voted to uphold the White complaints much less frequently. [N.B., the newest Justices, Sonia Sotomayor and Elena Kagan, participated in only a small number of these cases, so the figures for them may well be misleading.]

Let's contrast that with the Court's and Justices' records in cases where those complaining were Racial Minorities.

GRAPH 2

Well that's different!

(Part 11--Sotomayor's & Kagan's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Justices Sonia Sotomayor and Elena Kagan, both appointed by President Obama, are the Court's newest members. Sotomayor joined the Court in August 2009. Kagan in August 2010. Consequently, unlike the other Justices whose records we have already reviewed, Sotomayor and Kagan have participated in only a few of the racial discrimination cases decided by the Court under Chief Justice Roberts.

Sotomayor has participated in only 7. Kagan in only 5. That's not much of a record for either Justice. Indeed, the sample is simply too small to tell us anything meaningful for some of the categories of voting we've been considering.

On the other hand, for some categories, the voting patterns for Sotomayor and Kagan are so consistent and so clear that even the relatively small samples are revealing. Let's take a look.

We'll begin with voting on what I've been categorizing as "racial equal protection." As explained in previous posts, this category of voting reflects the degree of support for equal treatment regardless of race--e.g., support for measures to eliminate unequal treatment, whether racial discrimination or racial preferences; support for the enforcement of equal rights and benefits; support for strict equal treatment regardless of whether Whites or Racial Minorities favor the result or may be the beneficiaries in any particular case.

(click graphs to enlarge)

GRAPH 1

The figures depicted in graph 1 reflect voting in 5 non-unanimous cases for Sotomayor, and 4 for Kagan. Notably, although the samples are relatively small, both Justices voted in support of strict equal treatment in every one of the cases in which they participated. These involved enforcing voting rights protections, supporting racial discrimination lawsuits, enforcing laws against retaliation, and prohibiting racial preferences in college admissions absent the showing of a compelling need.

Notably also, in all of these cases but one, the Court was divided 5-4, with the 5 Republican Justices on one side and the 4 Democratic Justices--including Sotomayor and Kagan--on the other. Stated otherwise, in every one of those cases but one, the 5 Republican Justices opposed the enforcement of equal treatment; the 4 Democratic Justices supported it.

(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)

GRAPH 1

 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.

GRAPH 2

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.

(Part 9--Breyer's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Now for Justice Stephen Breyer.

Like Justice Ginsburg, whose record we looked at in the immediately preceding post, Breyer is a President Clinton appointee. Meaning? A Democrat, and much more ideologically liberal than the Republican appointees on the Court.

So we would certainly expect that his voting has been more protective of Racial Minorities than that of Chief Justice Roberts and that of Justices Scalia, Kennedy, and Thomas, who we have focused on previously in this series. Let's see if Breyer's record bears that out. Take a look.

(click graphs to enlarge)

GRAPH 1

Breyer voted to uphold complaints brought by Whites (43% of the time) less frequently than did the Republican Justices (100%). But he did vote with them in Fisher v. University of Texas to require the strictest scrutiny of racial affirmative action in higher education admissions. That is, any racial preference can only be justified by proof of a compelling necessity. Breyer thus split, in that case, with Justice Ginsburg who dissented.

As for upholding complaints brought by Racial Minorities, Breyer's record is identical to Ginsburg's. His voting, like hers, evinces far greater support for the claims involving issues of discrimination suffered by Racial Minorities than that of any of the Republican Justices. And far greater support for complaints brought by Racial Minorities than for those brought by Whites.

Let's now zero in on those closer cases in which the Justices can't agree and must choose sides. Those cases that provide the insight gained from exposing the actual divisions on the Court that unanimous decisions conceal. Here, then, Breyer's record in the divided cases.

(Part 8--Ginsburg's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

This past week, in Schuette v. Coalition to Defend Affirmative Action, the Court upheld Michigan's recently adopted ban on affirmative action--i.e. race conscious decisions--in state university admissions. The vote was 6-2. (Justice Kagan did not participate.) Not surprisingly, all 5 Republican Justices supported the ban . Not a single one of them thought there was a problem with the voters of a state outlawing admissions programs that had sought, for compelling reasons (the only ones constitutionally allowed), to increase the college enrollment of racial minorities. Not one. Straight party line.

Among the Democratic Justices, Breyer wrote separately to agree with the Republicans, but on narrower grounds specific to this particular case. Justice Sotomayor dissented in a lengthy opinion joined by Justice Ginsburg.

For now, let's continue with our look at voting records compiled even before the Schuette decision.

Justice Ruth Bader Ginsburg's voting record in cases involving issues of racial discrimination?

A victim of gender discrimination early in her career. The nation's foremost litigant to eliminate gender discrimination. Appointed to the Court by Democratic President Bill Clinton. A predictably liberal vote on ideologically charged issued--e.g., civil rights, rights of the accused, campaign finance, etc.

So what about Ginsburg's voting on racial discrimination issues? Even before examining her record, what would be expected? Anything like Scalia's or Thomas's records? Or the polar opposite?

Of course it's just what would be expected. (I.e., the polar opposite of Scalia's and Thomas's record, for those who might not follow the Court.) And perhaps even more so.

Let's see.

(click graphs to enlarge)

GRAPH 1

As depicted in graph 1, Justice Ginsburg voted to uphold complaints brought by Whites much less frequently than did the Republican Justices we've looked at previously in this series--i.e., Chief Justice Roberts, and Justices Scalia, Kennedy, and Thomas. She supported White claimants in 2 out of 7 cases, or 29% of the time. That compared to 7 out of 7 cases, or 100% of the time, for each of the Republican Justices.

As for the complaints brought by Racial Minorities, she voted to uphold them much more frequently than did the Republican Justices. Her record: 9 out of 11 cases, or 82% of the time she supported the Racial Minority claimants. That compared to 2 out of 11 cases (18%) for Scalia and Thomas, 4 out of 11 for Roberts (36%), and 5 out of 11 (45%) for Kennedy.

But let's now focus on those closer, divided cases. What was Ginsburg's record in those cases where the arguments on both sides were strong, and a Justice would certainly have good reason to vote either way? Here it is. 

GRAPH 2

 Ah, in those closer cases, Ginsburg voted against the complaint every time it was brought by Whites. She voted to uphold the complaint every time it was brought by Racial Minorities. Exactly the opposite of Scalia and Thomas.

(Part 7--Thomas's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Let's get to Justice Clarence Thomas.

We've already looked at the records of Chief Justice Roberts, Justices Scalia and Kennedy, and the Court as a whole. The next most senior Justice is Thomas. So let's see how he's been voting in these cases involving issues of racial discrimination.

First up, as in previous posts, is a look at his support for complaints brought by Whites versus his support for those brought by Racial Minorities. Here's Thomas's record alongside those of his 3 colleagues that we've seen in previous posts.

(click graphs to enlarge)

GRAPH 1

Like Roberts, Scalia, and Kennedy, Thomas voted to uphold all of the complaints in racial discrimination cases brought by Whites. Again like those others, he voted much less frequently to uphold complaints brought by Racial Minorities. Beyond that, Thomas's support for the complaints of Racial Minorities is, like Scalia's, the lowest we've seen.

Indeed, if we exclude those clearer, more straightforward cases, where the Court was in unanimous agreement, his record is even more striking. Let's look at Thomas's voting in the closer cases, where the Justices were divided.

GRAPH 2 

No change of course in the 100% support for complaints by Whites. As for the complaints brought by Racial Minorities, Thomas--again, like Scalia--did not vote to uphold any of them.

(Part 6--Kennedy's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Thus far in this series, we've focused on the records of the Supreme Court as a whole, of Chief Justice Roberts, and of Justice Scalia. We looked at how the Court decided and how those Justices voted in cases involving issues of racial discrimination.

Now let's turn to Justice Anthony Kennedy. In doing so, we'll juxtapose his voting record alongside that of Roberts and Scalia.

As in the last two posts, let's start with the bluntest voting breakdown we've been considering: how frequently Justice Kennedy supported complaints brought by Whites and how frequently he supported complaints brought by Racial Minorities. Here are the figures for Kennedy--again, depicted alongside those for Roberts and Scalia.

(click graphs to enlarge)

GRAPH 1

As depicted in graph 1, Kennedy voted to uphold every claim (7 out of 7) involving racial discrimination brought by Whites. As we've seen previously in this series for Roberts and Scalia, Kennedy's record in support of complaints brought by Whites was a perfect 100%. 

Regarding complaints brought by Racial Minorities, Kennedy supported roughly half of them. Notably, his record of 45% (5 out of 11) to uphold Racial Minority claims is higher than Roberts', and much higher than Scalia's. Kennedy's record would seem to be consistent with his reputation for being more ideologically moderate on many issues than the other conservatives on the Court.

That contrast is sharper when we exclude cases with unanimous decisions--i.e., cases where the issues seemed clear enough that all the Justices agreed, including Scalia. So, considering only the non-unanimous, closer cases--those where the Justices were divided--here's what Justice Kennedy's record looks like, alongside Roberts' and Scalia's.

GRAPH 2

Of course, the 100% pro-White claimant voting record of Kennedy, as well as that of Roberts and Scalia, does not change. The 3 of them voted to uphold the White complaint in every case, whether the racial discrimination issue was clear or close, whether the Court's decision was unanimous or divided.

As for Kennedy's voting on complaints brought by Racial Minorities, his record is virtually the same when the unanimous decisions are excluded. But the contrast between his record and that of Roberts and Scalia is even more stark.

(Part 5--Roberts' Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

In the last post in this series, we looked at Justice Antonin Scalia's record. We saw that his voting heavily favored complaints brought by Whites, and virtually never those by Racial Minorities.

We also saw that, regardless of the claimant's race, he rarely voted for the position that would help protect Racial Minorities. Moreover, we saw that his record did not correspond to support for race-blind equality either. Instead, his voting largely opposed measures and arguments for the promotion of race-blind equal treatment--except where the beneficiaries would be White.

[Disclosure: Yes, I find Scalia's record appalling--if not wholly surprising. But the description of Scalia's record is based on how he actually voted, not on my or anyone else's opinion of the Justice himself.]

Now let's turn to Chief Justice John Roberts. Let's look at his voting, and also look at how his record compares to Scalia's. First, what about voting in support of complaints brought by Whites versus those brought by Racial Minorities?

(click graphs to enlarge)

GRAPH 1

As depicted in graph 1, Chief Justice Roberts' record is somewhat less stark than Justice Scalia's. His voting has been just as supportive of complaints brought by Whites--as in perfectly so. But his voting has been more supportive than Scalia's of those brought by Racial Minorities.

Roberts' voting support of Racial Minority claimants has not been strong. But it has been double that of Scalia's. Indeed, if we exclude the unanimous decisions--where the issues were sufficiently straightforward to garner every Justice's vote, including Scalia's--the contrast becomes sharper. Take a look.

GRAPH 2

In those cases where the Justices divided--i.e., those closer cases where there apparently were strong arguments on both sides--Roberts did sometimes vote to uphold the complaint brought by Racial Minorities. As we've seen, Scalia never did.

(Part 4--Scalia's Voting) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Let's now turn our attention to the individual Justices' records. How have they voted in racial discrimination cases?

We start with Justice Antonin Scalia. He's been on the Court the longest and he's the most--well, colorful. His detractors will no doubt view the term as overly euphemistic; his fans, disparaging.

Be that as it may, Scalia is well-known as an outspoken proponent of "originalism." He says that he interprets constitutional and statutory provisions by adhering to their original meaning. Among other things, he argues that this methodology avoids injecting personal ideological preferences into the law.

[To be blunt, I don't buy it. Neither do many other judicial scholars, on and off the bench, who are brighter and more important than me--e.g., Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit. (Like Scalia, a Reagan appointee.)]

With that in mind, let's get to the task at hand: Scalia's voting record in cases involving issues of racial discrimination.
[The pool of cases--all those before the Court since John Roberts was appointed Chief Justice--was described in part 1 of this series. An abridged description is included at the end of this  post.]

First, take a look at what may be the most striking findings in examining Scalia's record.

(click graphs to enlarge)

GRAPH 1

Yes. In cases where Whites complained of racial discrimination or about some other civil rights issue, Scalia voted to uphold their claim every time. Whether claiming discrimination on the basis of their being White, or complaining about favoritism for minorities or the requirements of civil rights laws, White claimants always won Scalia's vote.

What about Scalia's record in cases where racial minorities were the ones complaining? Take a look.

GRAPH 2

Quite different!

(Part 3--White Wins vs Minority Wins) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

Yes, putting it bluntly: White Wins vs Minority Wins.
In cases involving complaints of racial discrimination or related civil rights issues, how often did the Court uphold claims brought by Whites? How often did it uphold claims brought by Racial Minorities?

In the previous installments in this series, we saw that the Roberts Court's record on racial equality, in the most general sense, has been about 50-50. That is, decisions favoring the side pressing for equal racial protection in about half of the cases--and, therefore, against that side in about half. (See part 1.)

We then looked inside those figures. They did not mean that the Court was protecting racial minorities half the time. No. What we saw was that the Court sided with racial minority protection in only a quarter of those cases. That is, it ruled against the side arguing for racial minority protection 3 times as often as it ruled for that side. (See part 2.)

Among the obvious questions:
So, who is winning in the racial equal protection cases?
If the Court is siding with racial equality half of the time, but with racial minorities only a quarter of the time, who is it siding with the rest of the time--i.e., in the remaining three quarters of the cases?

Well, some things seem evident from the numbers themselves:
The Court has been siding with the individuals, businesses or government entities that have been accused of racial discrimination more frequently than with the racial minorities making the accusations.
So too, the Court has been siding with the individuals, businesses or government entities that have opposed measures intended to protect racial minorities more frequently than it has enforced or upheld such protective measures.

But, again, let's just be blunt:
How often have claims brought by Whites been winning at the Roberts Court?
And, by contrast, how often have claims brought by Racial Minorities been winning?

To begin, take a look:

(click graphs to enlarge)

GRAPH 1

 Yes, 100%. Every case in which White claimants complained that they were the victims of racial discrimination or protested some governmental measure adopted to enforce civil rights, they won.

(Part 2--Protecting Racial Minorities?) The Supremes' Record in Racial Discrimination Cases: Decisional & Voting Figures for the Roberts Court

In part 1 of this series we took a general look at the Supreme Court's recent record on racial discrimination issues. We saw that, since John Roberts became Chief Justice in 2005, the Court has sided with and against the racial equality position in basically an even number of cases.

But what is behind those even numbers? Yes, favoring the racial equality position about half the time. But racial equality for whom? Meaning, protection from racial discrimination for whom?

Protecting racial minorities from discrimination? Protecting them from the consequences of discrimination? Protecting them from historic oppression?

Asking this somewhat differently: when the Roberts Court has applied the constitutional guarantee of equal protection and the civil rights laws, has it been doing so to provide protection or to deny it? And more specifically, to provide or deny protection to racial minorities?

Let's take a closer look at the Court's record. What do those even numbers--that basically 50-50 decisional record in racial discrimination cases--actually represent? In short, how often has the Court ruled in favor racial minorities or the position advocated on their behalf? Take a look.

(click graphs to enlarge)

GRAPH 1

Well, that's quite different than the Court's more general 50-50 record (again, that we saw in part 1). As compared to the population generally, racial minorities have not fared quite so well in racial discrimination cases. No they have not.

In contrast to the Court's more general 50-50 record, racial minorities have lost in 72% of the cases involving issues of racial discrimination. That's more than twice as often as they have succeeded.