[Show abstract][Hide abstract] ABSTRACT: Marriage is in the air at One First Street, N.E. Within the next few Terms, the Supreme Court seems likely to face head-on the question whether same-sex couples have a constitutional right to marry. Last Term, the Court faced a trilogy of cases skirting the edges of the question. In Hollingsworth v. Perry, the Court overturned a district court’s decision to allow closed circuit televising of the trial challenging California’s ban on same-sex marriage. In Doe v. Reed, the Court rejected a challenge to Washington State’s Public Records Act by opponents of Washington’s domestic-partnership law who wanted to keep private their signatures on a referendum petition. And in Christian Legal Society v. Martinez, the Court upheld a public law school’s refusal to fund a student group that restricted its membership to individuals who agreed that sexual intimacy was permissible – and that they would engage in it – only within a “marriage between a man and a woman.” Each time, the Court was sharply, indeed angrily, divided. None of these cases tells us directly how the Justices will resolve the marriage question bearing down upon them, although each offers some hints. But both before and after that question reaches the Court, it will shape, with a sort of gravitational pull, the development of constitutional law more broadly. Just as questions of racial justice provided a lens during the Warren and Burger Courts for viewing issues ranging from constitutional criminal procedure to the state action doctrine to the scope of libel law under the First Amendment, the Court’s confrontation with claims involving sexual orientation serves as a lens through which to view a variety of constitutional law issues – for example, television in the courtroom; standing doctrine; tthe distinction between facial and as-applied challenges; the scope of rationality review and of “exacting scrutiny”; the continuing vitality of antidiscrimination law and the relationship among status, conduct, and belief; and adherence to originalism as an interpretive method in the face of rapid social and technological change. Hollingsworth, Doe, and Christian Legal Society are not only cases about gay rights and how to reconcile the competing claims of supporters and opponents of marriage equality. They are also cases about technology. The rights to communicate about political issues, to associate with like-minded people, and to retain one’s privacy touch core constitutional values. The internet has transformed the nature of information, simultaneously enhancing and threatening these values and posing new problems for constitutional interpretation. Ironically, the interaction of rapid social and technological change meant that in all three cases the group invoking claims of constitutional protection was not gay people, but defenders of traditional sexual mores.
[Show abstract][Hide abstract] ABSTRACT: This review essay discusses Laughlin McDonald’s book, American Indians and the Fight For Equal Voting Rights (2010), to explore questions of disenfranchisement, dilution, and constitutional design. McDonald examines the barriers to full political equality faced by Indians in communities in five Western states and describes litigation under the Voting Rights Act of 1965 attacking these barriers. In many ways, the Indian voting rights cases resemble the cases brought, often a generation earlier, by black citizens in the South and Latino citizens in the Southwest. But as McDonald explains, Indians occupy a distinctive status within the American political order. Indians are citizens not only of the United States and the state where they reside but often also (and particularly in those regions where they are most likely to bring voting rights claims) of a separate sovereign as well – their tribe. This fact has inflected both the history of Indian disenfranchisement and the course of litigation under the Voting Rights Act. Part I describes the history of Indian disenfranchisement in light of their distinctive constitutional status. Indians’ exclusion from the political process reflected profound racism as pernicious and pervasive as the discrimination facing blacks in the South and Latinos in the Southwest. But it also involved complex constitutional and conceptual issues unique to Indians, who were excluded from citizenship, even after passage of the Fourteenth Amendment and who remained subject to distinct treatment even after citizenship was conferred. Part II then turns to the relatively recent vote dilution litigation that forms the heart of McDonald’s book. Indian voting rights cases have followed a clear path blazed by earlier cases involving blacks and Latinos. Nevertheless, themes related to Indians’ distinctive political status crop up within the litigation at various points. Finally, Part III looks beyond Indians’ claims under the Voting Rights Act to discuss issues related to internal tribal elections. Like other elections, these contests involve fundamental questions about enfranchisement and electoral design. Tribal answers to these questions sometimes depart dramatically from the rules governing federal, state, and local elections. I talk about two such departures, one related to voting by non-residents and the other related to nonequipopulous voting districts, to show how they that tie into ongoing debates extending far beyond Indian law.
[Show abstract][Hide abstract] ABSTRACT: In Democracy and Distrust and War and Responsibility, John Hart Ely advanced a participation-oriented, representation-reinforcing approach to judicial review that addressed problems of entrenchment, discrimination, and legislative delegation. This essay, which was written as the foreword to a symposium honoring Ely held at Stanford Law School in April 2004, discusses four recent Supreme Court decisions that map onto the central preoccupations in Ely's work: McConnell v. Federal Election Commission; Lawrence v. Texas; Vieth v. Jubelirer; and Hamdi v. Rumsfeld. McConnell raises important questions about how the Court ought to approach campaign finance legislation, given cross-cutting concerns with problems of entrenchment. While there are anti-entrenchment arguments on both sides of the debate over campaign finance reform, we suggest that, given the way in which Ely's anti-entrenchment theory focused on incumbent holders of government power, courts should be especially wary of restrictions that limit the speech of challengers. Lawrence offers an intriguing variation on judicial protection of discrete and insular minorities. Ely was a harsh critic of substantive due process. While the Court's opinion rests as a formal matter on substantive due process, rather than equal protection, a close reading suggests that Lawrence gives perhaps the first known Elysian reason for a substantive due process ruling: that it was necessary to invalidate a discriminatory law as if it applied to all persons in order to prevent the aftereffects of discrimination that would linger if it were not. Vieth shows how questions of political gerrymandering lie at the intersection of Ely's concerns with entrenchment and discrimination. While the Supreme Court has seen political gerrymandering as a species of discrimination, the larger problem is one of entrenchment, rather than the mistreatment of discrete and insular groups. The problem with the contemporary approach is not just that it is factually ill grounded: whatever else may be the case, it is hard to view the adherents of the two major political parties as discrete and insular minorities incapable of protecting themselves and victimized by prejudice. Rather, the problem is that the failure to recognize the issue as one of entrenchment can actually exacerbate political channel clogging and undercut effective and accountable representation. Finally, Hamdi confronts the question of how judicial review can reinforce congressional responsibility with respect to the use of military force and the protection of civil liberties given a world in which our most threatening enemies are no longer other nations. We show how War and Responsibility fleshes out one of the often-overlooked sections of Democracy and Distrust - its proposal to revive some version of the nondelegation doctrine - as a tool for ensuring accountability in decisions regarding the decision to go to war and identify echoes of Ely's theory in the three opinions in Hamdi that reject the government's sweeping assertion of executive power.
[Show abstract][Hide abstract] ABSTRACT: In Democracy and Distrust, John Hart Ely articulated a "participation-oriented, representation-reinforcing approach to judicial review" that advanced both an anti-entrenchment and an antidiscrimination rationale for judicial intervention. This essay, prepared for a symposium honoring Ely held at Yale Law School in November 2004, explores the implications of his work for a central issue of democratic governance: legislative apportionment. Part I shows that although Ely celebrated the Warren Court's Reapportionment Revolution as a paradigmatic example of the anti-entrenchment approach, he essentially ignored the ways in which the Burger Court's jurisprudence of racial vote dilution, with its focus on geographically discrete minority groups subjected to majority prejudice, exemplifies the antidiscrimination approach. Part II looks at the implications of Ely's theory for contemporary controversies over race-conscious redistricting. Ely's final work - a trilogy defending the Rehnquist Court's Shaw jurisprudence as a wedge for attacking political gerrymandering more broadly - reveals an implicit tension within his approach: while the anti-entrenchment and antidiscrimination rationales may have dovetailed during the years of Democracy and Distrust, today they can operate at cross purposes. The protection of minority interests is now often best served not by judicial skepticism of legislative outcomes, but by judicial deference to plans that allocate power to politicians elected from minority communities. In the end, Ely's trilogy may reflect his romance with the Warren Court, which saw discrete and insular racial minorities as essentially objects of judicial solicitude, rather than efficacious political actors in their own right.
[Show abstract][Hide abstract] ABSTRACT: A striking feature of the post-2000 redistricting is not only the continued - indeed, ever-increasing - vigor of partisan line drawing, but the array of doctrinal tools litigators and courts have invoked in attempts to rein it in: Article I; the First Amendment; the equal protection clause of the Fourteenth Amendment in a wide range of flavors; the Voting Rights Act of 1965; and a variety of state-law principles.We offer a preliminary reaction to the Court's decisions in Vieth v. Jubelirer, 124 S.Ct. 1769 (2004), and Cox v. Larios, 124 S.Ct. 2806 (2004), that places those decisions in the broader context of the Court's failure to confront ends-oriented redistricting practices. In Vieth, four justices declared claims of excessive partisanship nonjusticiable. And yet, three of those justices were soon part of an eight-Justice majority that agreed in Larios to summarily affirm a lower court decision striking down a plan on the grounds that relatively small population deviations were constitutionally impermissible because they reflected blatantly partisan protection of Democratic incumbents while undermining Republican-held seats.Our central claims are two-fold. First, no matter how difficult judicial review of political gerrymandering claims may be, it is impossible actually to render such claims nonjusticiable. The availability of a range of unavoidable doctrinal claims means that a significant number of the partisan gerrymanders that courts find constitutionally offensive - whatever that term means, and whether it even has any agreed-upon meaning - will come before courts, and lack of candor about what courts are doing may carry its own costs.Second, the treatment of political gerrymander cases as a species of antidiscrimination claim obscures a central issue of democratic theory. The Supreme Court's initial refusal to enter the political thicket rested on its view that malapportionment suits challenge not a private wrong, but a wrong suffered by [the state] as a polity. The Warren Court Reapportionment Cases responded by declaring that malapportionment claims are individual and personal in nature. Ironically, both courts were half right. Claims of malapportionment are really not individual rights claims; they are claims about governmental structure. And yet, these claims are especially appropriate for judicial review. Forty years of doctrinal development has failed to take into account this central point. Partisan gerrymandering claims are treated as an assertion that a political party has been unfairly denied some number of seats. But given the near-universal practices of single-member legislative districts and incumbent protection, partisan gerrymandering cases seek essentially a reallocation of safe seats. The Court's recent opinions ignore almost entirely the question whether judicial intervention should be directed at entrenchment itself, rather than the question of who gets to be entrenched. If the Court's intervention is prompted by these latter sorts of claims, it may simply exacerbate the pathologies of our current redistricting process.
[Show abstract][Hide abstract] ABSTRACT: The Supreme Court's decision in Lawrence v. Texas, 539 U.S. - (2003), resembles its earlier decision in Loving v. Virginia, 388 U.S. 1 (1967), in several interesting ways. Loving marked the crystallization of strict scrutiny for racial classifications under the equal protection clause. At the same time, it represented a turning point, as the Court moved from the completed project of suspect-classification strict scrutiny to a new project of strict scrutiny for limitations on fundamental rights as a matter of substantive due process. Lawrence may mark a similar turning point. Forty years of case law has established that the substantive reach of liberty under the due process clause extends to the way individuals choose to conduct their intimate relationships. But just as Loving was a case about inequality that informed the jurisprudence of liberty, Lawrence is a case about liberty that has important implications for the jurisprudence of equality. In fact, liberty and equality are more intertwined in Lawrence than they were in Loving. Loving could have rested entirely on the unconstitutionality of racial subordination without looking at the importance of marriage; by contrast, Lawrence's discussion of liberty would be incoherent without some underlying principle of equality for gay people. The Warren Court often espoused substantive equal protection; the Lawrence Court attacked a suspect deprivation of liberty. Lawrence relates to Loving in another important way. Loving drew a clear distinction between rationality review and heightened scrutiny. Lawrence, by contrast, sidesteps this conventional doctrinal framework. Lawrence does to due process analysis something very similar to what the Court's previous gay-rights decision, Romer v. Evans, 517 U.S. 620 (1996), did to equal protection analysis: it undermines the traditional tiers of scrutiny altogether. Both Lawrence and Romer express an analogical crisis. Gay rights cases can't be steered readily onto either the due process/conduct or the equal protection/status track. Given the interdependence of equality and liberty values, what accounts for Lawrence's resistance to grounding the decision in the equal protection clause as well as the due process clause, the way the Loving did? The simplest explanation may be the Court's concern with the potential reach of an equal protection decision. Lurking only slightly under the surface in Lawrence was the question that Loving finally addressed after a decade's evasion by a cautious Court: what limitations does the Fourteenth Amendment impose on state decisions about who can marry whom? The Court may have thought that fundamental rights/due process-based strict scrutiny offers the possibility of incremental expansions of liberty while suspect classification/equal protection-based strict scrutiny seems far more binary. But the Court cannot ultimately avoid the issue by grounding gay rights decisions in liberty interests rather than in antisubordination concerns. Whatever else it may be, marriage is certainly a practice that defines many individuals' conceptions of their own existence. Thus, either the Court or the political process ultimately will have to resolve the question whether gay people's fundamental liberty interest in strengthening enduring personal bonds includes a right to invoke the state's assistance through the institution of marriage.
[Show abstract][Hide abstract] ABSTRACT: The tenor of the debate over felon disenfranchisement has taken a remarkable turn. After a generation of essentially unsuccessful litigation, two federal courts of appeals have recently reinstated challenges to such laws. A number of states have recently made it easier for ex-offenders to regain their voting rights. Recent public opinion surveys find overwhelming support for restoring the franchise to offenders who have otherwise completed their sentences. On the international front, the supreme courts of Canada and South Africa issued decisions requiring their governments to permit even incarcerated citizens to vote. This essay discusses some of the causes and consequences for the way in which we now approach the question of criminal disenfranchisement. Parts I and II suggest that the terms of the contemporary debate reflect an underlying change both in how we conceive the right to vote and in how we understand the fundamental nature of criminal disenfranchisement. Once voting is understood as a fundamental right, rather than as a state-created privilege, the essentially punitive nature of criminal disenfranchisement statutes becomes undeniable. And once the right to vote is cast in group terms, rather than in purely individual ones, criminal disenfranchisement statutes are seen not only to deny the vote to particular individuals but also to dilute the voting strength of identifiable communities and to affect election outcomes and legislative policy choices. The 2000 presidential election and the popular and scholarly discussion that followed the debacle in Florida powerfully demonstrated the outcome-determinative effects of criminal disenfranchisement laws even as the 2000 census drove home other representational consequences of the mass incarceration that triggers much of the disenfranchisement. Felon disenfranchisement cases offer an attractive vehicle for courts concerned with the staggering burdens the war on drugs and significantly disparate incarceration rates have imposed on the minority community. The legitimacy of criminal punishment depends on the legitimacy of the process that produces and enforces the criminal law. The legitimacy of that process in turn depends on the ability of citizens to participate equally in choosing the officials who enact and administer criminal punishment. Lifetime disenfranchisement of ex-offenders short circuits this process in a pernicious and self-reinforcing way. Part III suggests that if we conclude that criminal disenfranchisement statutes are essentially punitive, rather than regulatory - as I think we must - this opens an additional legal avenue for attacking such laws beyond the equal protection- and Voting Rights Act-based challenges that courts are now entertaining. Blanket disenfranchisement statutes also raise serious questions under the Eighth Amendment, given the Supreme Court's recent decisions in Atkins v. Virginia and Ewing v. California.
[Show abstract][Hide abstract] ABSTRACT: Section 5 of the Voting Rights Act of 1965 forbids covered jurisdictions from making any changes in their election laws unless and until the laws first receive federal approval and places the burden of proving that the new law will not lead to a retrogression with respect to minority voters' right to vote. The Supreme Court's 2003 decision in Georgia v. Ashcroft, 123 S. Ct. 2498 (2003), fundamentally altered the retrogression standard. Before Georgia v. Ashcroft, section 5 review of redistricting had focused consistently on how the proposed changes would affect the ability of minority voters to elect the candidates of their choice. In Georgia v. Ashcroft, however, the Court turned away from this consistent interpretation, and held that a plan could be precleared even if it reduced minority voters' ability to elect their preferred representatives, as long as it preserved a nebulously defined "opportunity to participate in the political process," an opportunity that was "not limited to winning elections." The Court held that the preclearance process should take into account such governance-related concerns as the overall partisan composition of a legislative body and the leadership positions within a legislative body held by minority elected officials and that maintaining or enhancing these factors might counterbalance decreasing minority voters' chances to elect the candidates of their choice. The Court's analysis was highly abstract, strikingly optimistic, and profoundly ahistorical. It improperly conflated three types of districts: safe districts; coalitional districts; and influence districts. Its understanding of coalitional and influence districts was further undercut by its failure to take into account the role of racial bloc voting. It provided no real guidance on how to analyze the tradeoff it seemed to permit. And it incorrectly equated the interests of minority voters with the interests of incumbent minority politicians, completely ignoring the presence of any conflict of interest between them. Ultimately, the Court's decision continued a trend towards a perverse asymmetry in voting-rights law. In Georgia v. Ashcroft, this asymmetry involves how questions of governance should inform the preclearance inquiry. In Presley v. Etowah County Commission, 502 U.S. 491 (1992), the Court had held that changes which affect only the distribution of power among officials are not subject to section 5 because such changes have no direct relation to, or impact on, voting. But if decreasing or diminishing legislative positions of power for minority voters' representatives of choice cannot show retrogression, it seems perverse to treat maintaining or increasing such power as evidence of nonretrogression.
[Show abstract][Hide abstract] ABSTRACT: Like Owen Fiss's foundational article, Groups and the Equal Protection Clause, this is an essay about the structure and limitations of the principles that control interpretation of the equal protection clause. In some ways, what's remarkable is how much of the current debate follows the tracks Owen laid down over a quarter-century ago. Groups and the Equal Protection Clause identified two mediating principles that might "stand between the courts and the Constitution to give meaning and content to an ideal embodied in the text." One, which Owen called the "antidiscrimination principle," saw the clause as primarily a limitation on the government's power to classify individuals (that is, to make discriminations among them). The other, the "group-disadvantaging principle" that Owen championed, saw the clause as essentially a prohibition on the creation or perpetuation of subordinate classes. Much of the contemporary debate over affirmative action, for example, plays out along precisely these lines. Opponents of affirmative action emphasize its use of a "suspect classification" (race) to deprive individuals of the right to be judged on their own merits. Supporters stress the continuing disadvantaged condition of blacks and Hispanics and argue that race-conscious action is necessary to bring members of traditionally excluded groups into the educational and economic mainstream.
[Show abstract][Hide abstract] ABSTRACT: The Supreme Court has recently devoted substantial attention to the question of what limits the Constitution places on the permissible amount of punishment. The Court has offered both substantive and procedural answers to this question. In decisions involving challenges to the length of criminal sentences, the Court has identified constraints that are doctrinally independent of one another: a proportionality principle under the Eighth Amendment that forbids a sentence grossly disproportionate to the defendant's crime and a due process principle requiring that any facts that increase the authorized sentence a defendant faces be proved beyond a reasonable doubt to a jury. By contrast, in cases involving challenges to the amount of a punitive damages award, the Court has taken a more doctrinally integrated approach. Substantively, the Court has again adopted a test that centers on proportionality, this time locating the requirement within the due process clauses. But with respect to damages, the Court's procedural solution takes power away from juries and provides for de novo review. This article looks at the sentencing and punitive damages decisions in tandem. Here, as in several other areas, the Court's approaches to similar questions in the civil and criminal arenas take very different turns. Part I considers the Court's articulation of proportionality tests under the Eighth Amendment (for criminal sentences and fines) and the due process clauses of the Fifth and Fourteenth Amendments (for punitive damages). It shows that proportionality is both an inherently alluring and an inevitably unsatisfactory measure of constitutionality, particularly with respect to a judicially enforceable rule. Part II looks at the Court's procedural decisions. Given the convergence of substantive constitutional principles in the sentencing and damages cases, what accounts for the sharp divergence in the role the Supreme Court accords juries, reallocating authority to them and away from judges in criminal cases, while doing exactly the opposite in civil ones? I suggest that differences between the two kinds of litigation may explain why proportionality review is relatively more attractive in punitive damages cases. First, the Court may perceive the existence of more objective indicia of excessiveness in the punitive damages cases. Second, the punitive damages cases may raise reverse federalism concerns that are absent from criminal prosecutions. Third, the Supreme Court may think the level of federal intrusion can be better controlled in the civil context. And finally, criminal cases may involve better oversight by politically accountable actors.
[Show abstract][Hide abstract] ABSTRACT: Part I of this article, which formed the basis for the 2002 William Howard Taft Lecture in Constitutional Law, focuses on the way in which the right to vote is a striking counterexample to the general proposition that civil rights and civil liberties contract during wartime. Looking at issues ranging from the abandonment of wealth requirements and poll taxes to the enfranchisement of blacks, women, and 18 to 21 year-olds, I show how war influences the scope of the franchise in several related but distinct ways. First, and most significantly, it has helped to determine who is entitled to vote. Sometimes, this flows from a direct equation of responsibilities and rights: those who fight, or contribute to the war effort, acquire a moral claim to full participation in self-government. Sometimes, the connection is more instrumental: in order to mobilize the necessary support for a war, the franchise has been extended to groups that were previously excluded. And sometimes, the connection has reflected war aims: wars fought to make the world safe for democracy abroad raise questions about democracy at home. Second, war has influenced how voting is conducted; absentee voting provides a paradigmatic example. Finally, Carrington v. Rash suggests that the intersection of military service and voting rights contributed in an important, and perhaps unnoticed, way to the development of heightened scrutiny for voting rights claims. Part II of the article turns to another connection between ballots and bullets. Today, the largest - and growing - group of American citizens who remain disenfranchised are people convicted of crimes. Courts have consistently rejected challenges to felon disenfranchisement based on the equal protection clause or the Voting Rights Act. I suggest an alternative claim, at least with respect to lifetime disqualification of persons who have otherwise finished serving their sentences: the cruel and unusual punishment clause of the Eighth Amendment. Doctrinal shifts since the Supreme Court last addressed the issue show that disenfranchisement is in fact punitive and not merely regulatory. Lifetime disenfranchisement as a punishment is grossly disproportionate to the gravity of the offenses for which it often imposed. Using the framework articulated last Term by the Supreme Court in Atkins v. Virginia, I argue that lifetime disenfranchisement does not comport with contemporary standards. Both the magnitude and direction of recent legislation undermines the use of lifetime disenfranchisement. National public opinion has shifted. Finally, consensus "within the world community" is uniformly against lifetime disenfranchisement. Whatever the merit of the arguments for disqualifying persons who are incarcerated or otherwise under supervision, they cannot justify permanent, lifetime disenfranchisement of all persons convicted of a felony.
[Show abstract][Hide abstract] ABSTRACT: This article discusses how recent Supreme Court decisions have created a significant regulation-remedy gap in civil rights laws by critically undercutting one of the primary mechanisms Congress has used for enforcing civil rights: the private attorney general. Board of Trustees v. Garrett offers a particularly striking example of the new "Eleventeenth" amendment. The Court offered a restrictive reading of congressional power under section 5 of the Fourteenth Amendment that left the Eleventh Amendment as a bar to private damages actions. At the same time, the Court revealed a preference for centralized enforcement that defies the central idea behind the private attorney general - that Congress might decide that decentralized enforcement better vindicates civil rights policies. In Alexander v. Sandoval, the Court refused to find a private right of action to enforce Title VI regulations. By posing the relevant question as whether the section authorizing the regulations creates individual rights, rather than whether the regulations give rise to a private right of action, the Court ignored a central feature of the private attorney general: her authority to sue is at least partially derivative of the broader public interest in vindicating important policies. Sandoval reflects another striking feature of the current Court: its ahistorical method of interpreting statutes enacted during a period in which Congress and the Court saw full enforcement of broad policy goals as more important than formal political accountability for discrete enforcement decisions. In Circuit City v. Adams, the Supreme Court upheld the use of compelled arbitration in cases involving employment rights. This, too, undercuts the concept of litigation which the private attorney general reflects: one in which courts not only resolve the particular dispute before them, but also give force to important public values. Lawsuits brought by private attorneys general not only bring a particular defendant into compliance but may also create binding precedent that will affect behavior more generally. Compelled arbitration undercuts this latter function. Here too, the Court mistakenly supposes that public agencies can provide a sufficient level of enforcement. Finally, in Buckhannon Board and Care Home v. West Virginia Department of Health and Human Resources, the Court dramatically reduced the availability of attorney's fees. The Court rejected the generally accepted "catalyst" theory, and held a plaintiff cannot be a prevailing party unless she achieves a court-ordered change in the legal relationship between her and the defendant. It is not enough to show that her lawsuit caused the defendant to change its behavior. The Court downplayed the negative effects of its decision, suggesting that the danger of defendants' unilaterally precluding plaintiffs from getting fees was limited to a small class of cases. But the risk is particularly acute in suits seeking only equitable relief and in cases where the Eleventh Amendment prevents damages and plaintiffs can seek only prospective relief under Ex parte Young. Because these cases are especially likely to vindicate the public interest, the Court's theory countenances cutting off fees in the cases that particularly motivated Congress to provide fees.
[Show abstract][Hide abstract] ABSTRACT: In an earlier article, Two Concepts of Judicial Independence, 72 So. Cal. L. Rev. 535 (1999), I developed a taxonomy of meanings for the idea of "judicial independence" that draws on Sir Isaiah Berlin's distinction between negative and positive concepts of liberty. The constraints on judicial action range along a rough continuum ? from those that raise concerns even under an exclusively negative conception of judicial independence, such as freedom from physical intimidation or freedom from direct pecuniary consequences, to those that pose problems only under an extremely robust positive conception, such as freedom from review by higher courts, freedom to ignore precedents, and freedom to pursue a conception of the good or the just that flies in the face of enacted statutes. In this essay, prepared for a symposium at Ohio State, I apply that framework to the litigation surrounding the presidential election of 2000. I show how that litigation implicated a number of aspects of judicial independence. With respect to the justices of the Florida Supreme Court, I discuss questions such as the effect of their status as popularly elected officials, the peculiar relationship among the branches of government in presidential election cases, and their position within the judicial hierarchy. With respect to the members of the United States Supreme Court, I discuss the implications for judicial independence of potential personal stakes in the outcome of the litigation; individual Justices' desire to influence the future composition of the Court; and the Court's freedom from direct political control. Finally, I discuss the ways in which the U.S. Supreme Court's decision in Bush v. Gore reflects two particularly assertive and troubling assertions of judicial independence. First, the Court saw itself as free to determine the meaning of Florida law for itself, without regard to the views of the Florida Supreme Court. Second, the per curiam opinion asserted the Court's freedom from the pervasive constraints on an individual judge's ability to pursue her own ends that precedent and stare decisis normally impose. The litigation surrounding the presidential election of 2000 illustrates a central point about judicial independence: we need to ask quite carefully what constraints judges ought to be free from, and what constraints judges ought to be bound by. In the end, judicial independence is not a single concept, but a constellation of different sorts of autonomy. Not every assertion of judicial autonomy is equally justifiable. Particularly when courts adopt aggressively independent stances, we must measure assertions of judicial autonomy against the competing claims of other actors within our system of democratic self-government.
[Show abstract][Hide abstract] ABSTRACT: This is a review essay of Bruce Ackerman and Ian Ayres' book, "Voting with Dollars: A New Paradigm for Campaign Finance." The book combines two distinct proposals ? Ackerman's for decentralized public funding of political campaigns through "Patriot Dollars" and Ayres' for requiring anonymity in political contributions. Although the authors focus on explaining why political spending should be more like voting, their proposal will also make voting more like spending. This review examines three assumptions about voting and how they shed light on the proposal. First, Ackerman and Ayres characterize voting as anonymous. I suggest that the pedigree and extent of anonymity are complicated in important ways. The secret ballot reflected a change in American politics from a "democracy of partisanship" to a "democracy of information." It is not entirely coincidental that participation declined sharply as voting became more private. More broadly, the secret ballot entrenched existing political parties. Even aside from tainted origins and entrenching effects, secrecy in voting is not an unalloyed good. While secrecy protects free choice, it also can lessen a voter's sense of accountability. It is worth pausing before extending anonymity even further. This should be especially true for Ackerman, given another strand of his current project: the establishment of "Deliberation Day," a national holiday on which citizens will engage in face-to-face discussion and debate. Deliberation Day reflects an equally important "core attribute" of voting: its public dimension. Moreover, as a descriptive matter, while it is difficult to determine how any particular individual has voted, it is not difficult to make informed estimates about group behavior. Thus, if politicians want to know where their financial support is coming from, there are ways for them to find out. The decline in practical anonymity suggests that the authors may be overoptimistic in believing that they can produce an anonymous donation booth. Second, Ackerman and Ayres assume voters are badly informed. They aspire to create a more informed electorate. I suggest some skepticism about whether Patriot dollars will produce the engaged electorate they expect. Moreover, to the extent that the authors are right about the beneficial effects of Patriot dollars, the donation booth becomes more troubling. Third, Ackerman and Ayres recognize that representation today rests on a geographic basis. I show how Voting With Dollars creates a de facto species of cumulative voting for Congress and may create a variant of the national presidential primary. Voters who live in states whose delegate election processes take place late in the nomination process can cast their Patriot "votes" early. At the same time, candidates who want late-state voters to send them Patriot dollars to deploy in early-state primaries may have to devote more attention to voters in late states, thereby requiring them to run a campaign that is not so heavily targeted toward the unrepresentative early electorates. In light of the vast literature and experience with cumulative voting, I suggest some possible modifications of the authors' proposals. Traditional voting is only partially anonymous. In deciding which candidates to support with his Patriot dollars, an engaged citizen can consider information about the likely base of a candidate's traditional electoral support. By contrast, the authors' model statute fails to provide analogous information about the source of a candidate's haul of Patriot dollars. At the very least, Patriot dollars ought to be "tagged" with the same kind of information that accompanies votes ? for example, identification by the donor's voting precinct. Moreover, if Patriot dollars and votes come to be seen as substantially interchangeable, as the authors sometimes suggest, this may have unfortunate citizenship effects. The message sent by a world in which most Americans participate in politics only by writing a check, rather than casting a vote, is an ominous one. The physical act of voting carries significant social meaning. I suggest that a citizen's Patriot account should be replenished after an election only if she actually votes as well. To the extent that this creates an incentive for armchair participants to perform the central civic act of voting, such a requirement might create a powerful citizenship effect of its own.
[Show abstract][Hide abstract] ABSTRACT: In his famous concurrence in Railway Express Agency v. New York, Justice Jackson offered a powerful vision of the relationship between equality and liberty. The two major strands of existing case law and scholarship about the relationship between the equal protection clause and the (substantive) due process clause find their roots in Justice Jackson's observations. One strand treats the clauses as virtually fungible - different verbal formulations that produce essentially identical results. The other strand stresses the differences between the two clauses and argues that a court faced with a constitutional challenge should apply one clause rather than the other, either because the claim is intrinsically better addressed under one rubric or because, as a tactical matter, precedent forecloses resort to the other clause. This essay builds on Justice Jackson's concurrence to offer a different approach. It examines the possibility of looking at questions "stereoscopically" - through the lenses of both the due process clause and the equal protection clause - and suggests that this approach can have synergistic effects, producing results that neither clause might reach by itself. I begin with two cases where the Supreme Court viewed the issue stereoscopically. Harper v. State Board of Elections shows how this approach can trigger doctrinal development - in that case, the articulation of a heightened standard of review for cases involving restrictions on the franchise. M.L.B. v. S.L.J., by contrast, reflects a doctrinal area - the access of indigent litigants to the courts - in which the Court's jurisprudence remains anchored in simultaneous reliance on principles of due process and equal protection because fundamental rights analysis can provide a limiting principle for claims of equality. I then turn to two cases where the Court failed to view the issue before it stereoscopically. In Romer v. Evans, recognizing the liberty interests at stake would have put the Court's equal protection decision on a firmer footing, by providing a conceptual underpinning for the holding that singling out gays, lesbians, and bisexuals constituted impermissible animus, rather than a legitimate distinction. By contrast, in Bush v. Gore, the Court's failure to see the due process-based dimensions of the right to vote blinded it to two fatal flaws in its equal protection analysis of the Florida recount. Thus, we might revise Justice Jackson's observation in Railway Express to say that just as courts can take no better measure to assure that laws will be just than to require that laws be equal in operation, so too, they often can have no better measure of how to achieve the requirements of equality than to understand the underlying claims of justice embodied in the due process clause's concept of liberty.
[Show abstract][Hide abstract] ABSTRACT: This essay explores "exit strategies" in constitutional law - ways that the Supreme Court retreats from entanglement in an area of law in which it is already involved. It offers five examples. First, the Court can announce that the difficulty that prompted intervention has been solved, thereby removing the need for further adjudication, as the Court did when it reversed National League of Cities v. Usery in Garcia v. San Antonio Metropolitan Transit Authority. Second, the Court can announce a standard that devolves responsibility onto another actor. I trace here the move from Redrupping to the Miller standard for judging obscenity. Third, the Court can announce rules that have an aura of mechanical application, thereby avoiding the appearance, if not the reality, of judicial policymaking or entanglement, as it did in the one-person, one-vote cases. Fourth, the Court can relax substantive constraints to the point at which cases disappear, because litigants lack any real incentive to bring them. This may describe the commerce clause from 1942 to 1995 and economic due process after the New Deal. Finally, a Court wary of its ability to avoid deeper immersion can announce such factbound rules that it enables future courts to scramble back to the banks. This may describe the Court's opinions in Romer v. Evans and Bush v. Gore. In addition to cataloging and comparing exit strategies, this essay considers the possible utility of each exit strategy in enabling the Court to extricate itself from the mess it has created in one particularly tangled part of the political thicket: the racial redistricting cases. From among the techniques I examine, only two seem plausible. The Court could recast the form of review in highly deferential terms, and leave enforcement of the constitutional constraint to the political branches, as it did in the areas of economic due process and the commerce clause pre-Lopez. Or it could declare victory and go home, leaving the field to the political branches, as it did in the case of the Tenth Amendment. Focusing on exit strategies as a genre can be useful. Exit and entry can be quite asymmetric: sometimes it can take decades to put up an edifice and only minutes to demolish it; other times getting in can take but an instant while divorces can drag on forever. Exit poses distinct challenges. The techniques that Alexander Bickel celebrated in his discussion of the "passive virtues" may be useful in keeping a court out of trouble in the first place without providing much of a roadmap for retreat. For example, if the Supreme Court were to refuse to hear redistricting cases (practicing the passive virtue of "declining the exercise of jurisdiction which is given") but were to leave in place the existing legal rules, this would exacerbate current problems. Except for rendering a previously litigable claim nonjusticiable, exit strategies are almost bound to require some revision of substantive legal standards.
[Show abstract][Hide abstract] ABSTRACT: This article is a response to a piece by Robinson Everett, principal lawyer for the plaintiffs in a series of challenges to North Carolina?s post-1990 congressional redistricting collectively referred to as the Shaw cases. In it, I argue that the Shaw cases reflect a ?structural? notion of equal protection, in which the clause is detached from the protection of any identifiable injury to a particular individual and is instead used to regulate the political process itself. In particular, I focus on the concept of standing to show how incongruous the Shaw cases are. I then argue that Bush v. Gore is also a structural equal protection case. It raised quite similar issues of standing, remedies, judicial respect for the states and the political branches, and the frame within which to assess equal protection claims. In particular, using the resources of the Stanford Law Library's Election 2000 website, which contains virtually all the legal documents filed in the Florida recount cases, I show that Bush v. Gore raises serious questions of standing with respect to the equal protection clause claim with which the Supreme Court ultimately disposed of the case.
[Show abstract][Hide abstract] ABSTRACT: As W.E.B. DuBois predicted, the problem for American democracy in the twentieth century was the problem of the color line. The color line is still one of the thorniest aspects of the political thicket, becoming more perplexing, if in some ways less stark, as society becomes increasingly multiracial and multiethnic. How might the online affect the color line? Much of the speculation up to this point has focused pretty narrowly on the "digital divide" - the gap between white and minority access to the internet. The digital divide means that minority citizens have less access to web-based sources of political information and may be less able to use voting techniques, such as online voting, that require a computer. We suggest that there's not much particularly new or interesting here. Socio-economic disparities and differential access to "politically salient resources" have always affected the political prospects of minority voters. The current focus on online voting and the digital divide is simultaneously too concrete and too abstract. It is too concrete in how it thinks about the internet: essentially as a mechanism for recording votes, rather than as a social practice that helps to shape our understanding of "community." But it is too abstract in how it thinks about democracy: it asks questions about the relationship between the internet and "the public sphere" or "free participation in democratic deliberation," rather than asking how the internet might change specific aspects of the political system. In this essay, we suggest two ways in which people's experience with the internet may affect how they think politics ought to be organized, and we consider the consequences for the political aspirations of minority communities. First, the notion of virtual communities - that is, communities that affiliate along nongeographic lines - may provide new support for alternatives to traditional geographic districting practices. As Americans become more comfortable with the idea that people can belong to voluntarily created, overlapping, fluid, nongeographically defined communities, which may be as important as the physical communities in which they live, they may become more interested in election methods that recognize such communities. This possibility offers new political opportunities to minority voters, especially Asian Americans and Hispanics, as well as to nonracially defined minority groups. At the same time, however, the internet may give added strength to the appeal of unmediated expression - that is, the ability of individuals to express their preferences directly, rather than through institutional filters. This may further fuel pressures for direct, rather than representative, democracy. And this possibility poses new threats to minority rights, which are often better protected through a less purely majoritarian, less populist process.
[Show abstract][Hide abstract] ABSTRACT: In Adarand Constructors v. Pena, 515 U.S. 200 (1995), the Supreme Court held that all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. Since then, the Court has been essentially absent from the battle over affirmative action, but it has decided a series of cases involving race-conscious redistricting that may potentially change the way strict scrutiny actually operates. Faced with the prospect of applying a standard of review that would resegregate state legislatures and congressional delegations, the Supreme Court was unwilling to apply strict scrutiny strictly. First, it constricted the domain in which strict scrutiny comes into play at all, permitting race to be taken into account when it is one factor among many and its inclusion produces districts that do not deviate too greatly from those created for other groups. Second, it broadened the interests that can justify race-conscious redistricting, by holding that compliance with the Voting Rights Act's results and effects tests can serve as a compelling state interest. The understanding of political equality embodied in the Act goes beyond what the Constitution itself demands. It requires states to arrange their electoral institutions to minimize the lingering effects of prior unconstitutional discrimination not otherwise chargeable to them, as well as to mitigate the impact of racially polarized voting that involves otherwise constitutionally protected private choice. In short, the theory of strict scrutiny yielded to the need for an electoral system that is equally open to members of minority groups. Having explored the redistricting cases, this article then turns to the question whether, and how, the Court might translate its doctrinal innovations here into its consideration of affirmative action in higher education. It identifies ways in which the admissions process more closely resembles redistricting, and therefore calls for a softer form of scrutiny, than it resembles the competitive bidding process at issue in cases like Adarand. And it suggests that Title VI-based disparate impact standards may perform a role similar to the Voting Rights Act in defining what counts as a compelling state interest.
[Show abstract][Hide abstract] ABSTRACT: Most of the scholarly commentary about Bush v. Gore, at least so far, has been quite scathing. A common thread has been that the Court's equal protection analysis "had no basis in precedent." I argue that criticism misses the mark. Unfortunately for equal protection law, Bush v. Gore is not an aberration. Rather, it is yet another manifestation of the newest model of equal protection, a model laid out in the Court's decisions regarding race-conscious redistricting and Congress' power to enforce the Fourteenth Amendment. Bush v. Gore involves what I call "structural" equal protection. In this newest model of equal protection, the Court deploys the equal protection clause not to protect the rights of an individual or a discrete group of individuals, particularly a group unable to protect itself through operation of the normal political processes, but rather to regulate the institutional arrangements within which politics is conducted. Neither the Court's earlier structural equal protection cases nor Bush v. Gore satisfactorily answers the question of when, and why, courts should intervene in the deeply messy process of partisan politics. And the Court has adopted a distressingly narrow perspective within which to measure equality. Moreover, the image of democracy that underlies Bush v. Gore is itself a controversial one. The Court sees itself as the only institution fully competent to resolve the difficult questions raised by the equal protection clause. The Supreme Court has radically transformed not only the substantive rules that govern reapportionments and recounts, but also the vertical and horizontal relationships among the various institutional players - federal and state, judicial, legislative, and executive - involved in these intensely political activities.