Vol. 127 No. 1 Equal protection law today is divided. When minorities challenge laws of general application and argue that government has segregated or profiled on the basis of race, plaintiffs must show that government acted for a discriminatory purpose, a standard that doctrine has made extraordinarily difficult to satisfy. In discriminatory purpose cases, the ways that citizens experience state action is not constitutionally significant. By contrast, when members of majority groups challenge state action that classifies by race – affirmative action has become the paradigmatic example – plaintiffs do not need to demonstrate, as a predicate for judicial intervention, that government has acted for an illegitimate purpose. Strict scrutiny doctrine imposes restrictions on affirmative action that expressly take into consideration the ways citizens experience state action.
Equal protection cases appeal to Brown v. Board of Education and the special harms that racial classifications inflict to justify this divided framework of review. These appeals to Brown function much like appeals to Martin Luther King; they imbue claims about civil rights with foundational authority. But the divided equal protection framework that today governs claims of discrimination was not “in” Brown or Loving v. Virginia. It was forged in decades of conflict over the civil rights project, as judges invoked precedents of the civil rights era, first, to justify new forms of judicial deference in reviewing minority claims of discrimination and, then, to justify new forms of judicial scrutiny in reviewing claims of discrimination brought by whites.
This Foreword demonstrates how a body of constitutional law that began in the aspiration to protect “discrete and insular minorities” has been profoundly transformed by the conflict that enforcing equal protection provokes.
Vol. 126 No. 1 Sometimes the Justices seem barely able to hide their disdain for the other branches of government. Take the oral argument three Terms ago in Northwest Austin Municipal Utility District No. One v. Holder. Justice Scalia pointed to the overwhelming congressional vote in favor of amending and extending section 5 of the Voting Rights Act of 1965 – the “crown jewel” of the Second Reconstruction – as a reason not for deference, but for suspicion:
JUSTICE SCALIA: . . . What was the vote on this 2006 extension – 98 to nothing in the Senate, and what was it in the House? Was –
MR. ADEGBILE: It was – it was 33 to 390, I believe.
JUSTICE SCALIA: 33 to 390. You know, the – the Israeli Supreme Court, the Sanhedrin, used to have a rule that if the death penalty was pronounced unanimously, it was invalid, because there must be something wrong there.
In this Term’s argument in Arizona v. United States, an important immigration case, Chief Justice Roberts cut off Solicitor General Donald B. Verrilli Jr. before Verrilli was able to utter a complete sentence. And during argument in National Federation of Independent Business v. Sebelius (NFIB), Justice Kennedy speculated that when the political branches take a step beyond what the Court’s existing cases “have allowed,” the presumption of constitutionality disappears, to be replaced by “a heavy burden of justification to show authorization under the Constitution.” The Justices are becoming umpires in the tradition of Bill Klem, who when asked whether a particular pitch was a ball or a strike, replied that “It ain’t nothin’ till I call it.”
Vol. 125 No. 1 Why is the “neutrality” of Supreme Court decisionmaking a matter of persistent political disagreement? What should be done to mitigate such conflict? Once the predominant focus of constitutional law scholarship, efforts to answer these questions are now widely viewed as evincing misunderstandings of what can be coherently demanded of theory and realistically expected of judges. This Foreword attributes the Court’s “neutrality crisis” to a very different form of misunderstanding. The study of motivated reasoning (in particular, cultural cognition) shows that individuals are predisposed to fit their perceptions of policy-relevant facts to their group commitments. In the course of public deliberations, these facts become suffused with antagonistic meanings that transform utilitarian policymaking into occasions for symbolic status competition. These same dynamics, this Foreword argues, make constitutional decisionmaking the focus of status competition among groups whose members are unconsciously motivated to fit perceptions of the Court’s decisions to their values.
Vol. 124 No. 1 In this Foreword, Professor Gerken argues that constitutional theories of federalism remain rooted in a sovereignty account, and they remain disconnected from the many parts of “Our Federalism” where sovereignty is not to be had. In these areas, she notes, institutional arrangements promote voice, not exit; integration, not autonomy; interdependence, not independence. Minorities do not rule separate and apart from the national system, and the power they wield is not their own. Minorities are instead part of a complex amalgam of state and local actors who administer national policy. And the power minorities wield is that of the servant, not the sovereign; the insider, not the outsider. They enjoy a muscular form of voice – the power not just to complain about national policy, but to help set it.
Vol. 123 No. 1 A system effect arises when the properties of an aggregate differ from the properties of its members, taken one by one. Familiar examples include Condorcet’s paradox, and the Prisoner’s Dilemma. Public law is rife with system effects that are more important and less familiar. Although such effects are sometimes recognized in local contexts, they have a common analytic structure and can profitably be analyzed in global terms. The failure to recognize system effects leads to fallacies of division and composition, in which the analyst mistakenly assumes that what is true of the aggregate must also be true of the members, or that what is true of the members must also be true of the aggregate. Examples are (1) the fallacious assumption that if the overall constitutional order is to be democratic, each of its component institutions must be democratic, taken one by one; and (2) the fallacious assumption that if judges are politically biased, courts must issue politically biased rulings. In these cases and many others I will discuss, system effects are an indispensable analytic tool for legal theory.
Vol. 122 No. 1 It is morning, June 28, 2007, in the august amphitheater of the United States Supreme Court. Three prominent black civil rights lawyers wait expectantly....
Vol. 121 No. 1 For several centuries, an approach to the foundation of basic political principles that draws its key insights from Aristotle and the ancient Greek and...
Vol. 120 No. 1 "Government by judiciary” is the traditional warning from those who seek to limit the power of the courts. Policymaking in a democracy, so the argument goes, should be left to officials more responsive to popular will than judges, who because of their comparative nonaccountability to the public should keep their policymaking to a minimum. Government by judiciary, it is said, is the antithesis of democracy.
