On Thursday, September 26th, Harvard Law School held a review of the previous term of the Supreme Court.  The panelists included Professors Charles Fried, Tomiko Brown-Nagin, Michael Klarman, Visiting Professor Justin Driver, and the event was moderated by Dean Martha Minow.

The panelists first discussed the marriage cases (Windsor and Hollingsworth).  In Windsor, the Court struck down DOMA, which was passed in 1996 and provided a federal definition of marriage, by a 5-4 split with Kennedy joining the liberals on the Court.  Professor Klarman noted that although federalism concerns permeated the opinion, the case itself was an Equal Protection holding stating that laws guided by animus cannot meet rational basis review.  Hollingsworth is grounded in the Prop 8 litigation, whereby the California Supreme Court in 2008 ruled that gays must be given equal marriage rights, but California voters passed Proposition 8, which overturned the California State Supreme Court.  The 9th Circuit then overturned Prop 8.  Professor Klarman noted that the Court had multiple options in Hollingsworth: (1) ruling no right to marriage, (2) ruling narrowly to affirm the 9th Circuit, (3) ruling that any state with civil unions that give same sex couples equal rights must allow same sex marriage, or (4) ruling that there is a federal constitutional right to marriage that includes same sex couples.  However, the Court declined to take any of these routes and ruled that they had no jurisdiction because proponents of Prop 8 did not have standing to argue the case (California declined to defend the law).

The panelists then gave their analysis of the cases.  Professor Klarman noted that it was plausible to view the majority in Hollingsworth to be ducking the matter, especially considering that the dissent had the better argument pertaining to the jurisdiction.  He then wondered whether the Court was ducking because of a possible backlash effect of imposing same sex marriage on the states.  Professor Klarman brought up Justice Ginsburg’s recent discussion that Roe was a mistake because the Court constitutionalized the issue too quickly, but he noted that Justice Ginsburg’s opinion on Roe is controversial within legal commentators and hypothesized that same sex marriage might not have the same backlash as abortion because it has a smaller direct effect on individuals than abortion.  Second, Professor Klarman reaffirmed that these cases were not a loss to the gay rights movement considering the state developments on the matter (HI, IL, OR are all close).  He ended by stating that gay marriage is inevitable in the United States.

Professor Fried then gave his thoughts on the marriage cases.  He began by stating that although he believed that Court decisions were moved by the force of the better argument, the marriage cases have given him “considerable pause”.  He noted that most people thought DOMA should go and also that the Court should lay off same sex marriage, and that is exactly what the Court did.  Professor Fried then sharply criticized Justice Kennedy’s opinion in Windsor, describing the opinion as, “The more you explain it, the less I understand it.”  He emphasized that Justice Kennedy never said in the opinion that precluding same sex marriage was unconstitutional anywhere in the opinion.  Professor Fried’s other issue was with the President’s decision to refuse to defend Windsor.  He criticized the overly political decision by the Obama Administration and noted that the Attorney General and Solicitor General took an oath to defend the laws unless there was no reasonable argument, which was not the case in Windsor.

Professor Driver then situated Windsor within the Supreme Court’s Equal Protection jurisprudence.  He noted that Windsor echoed some of the earlier Equal Protection jurisprudence by the Warren Court, and that the Court in Windsor was clearly concerned about larger questions of justice.  Professor Driver compared Windsor to Brown v. Board, where the Warren Court focused on the expressive values of segregation laws, and noted that the same language was in Windsor – dignity, stigma, second-class.  He ended by noting that although Windsor is seen as a “liberal” outcome, that Justice Kennedy’s opinion is actually conservative in the sense that it elevates marriage to the pinnacle of society at a time when marriage is being moved away from by citizens.

The panelists then turned their attention to Fisher, which was the case dealing with the constitutionality of race in university admissions.  In the University of Michigan cases  (Gratz and Grutter), Professor Brown-Nagin noted that Justice O’Connor thought she had made a grand bargain on affirmative action that people thought would last a long time, but there was worry that Fisher would overrule or narrow Grutter.  Texas’s policy was written in the shadow of Grutter, with a two-tier approach – first, the top 10% of every public school would be admitted (this program accounted for 88% of admissions to the University of Texas), and second that there would be holistic review based on grades, race, background and other factors.  In 2008, which was the year that Ms. Fisher applied to the University of Texas, there were only 33 cases of African American and Hispanic applicants in which race might have played a role.

Professor Brown-Nagin began by stating that there is no radical doctrinal change in Fisher, and that the Court was nudging the law in a new direction to place universities on the defensive.  The Court ruled that the 5th Circuit had not properly applied the standard set in Grutter, and remanded the case for review.  Justice Kennedy explicitly said in the opinion that Bakke and Grutter are good law, and Professor Brown-Nagin noted that Justices Roberts and Alito signed to Justice Kennedy’s opinion without a concurrence.  But, she stated, the devil is in the details and the case heightened the evidentiary showing that must be met before universities can turn to race sensitive admission policies.  Justice Kennedy said that there must be no workable race neutral alternatives that would produce the benefits of diversity, which Professor Brown-Nagin said was the Court preferring race neutral alternatives and disfavoring race conscious alternatives.  She stated that in the long term the Court is whittling away at diversity in higher education, much like the Court whittled away remedial purposes for discrimination in the 1980s and 1990s (See Richmond v. Croson in 1989).  Professor Brown-Nagin noted that the important questions of the case remain – How much race neutral efforts must be done by the university?  She ended by stating that the Court was nudging universities away from race conscious remedies, but universities can survive by focusing on features that interact with race.  The problem is that they’re costly and more time consuming.

Professor Driver then began by noting that Fisher didn’t provide a lot of news at all, and that people have been stating that affirmative action is on the way out ever since Bakke in 1978.  He believes that the practical effect of Fisher will be that lower courts will have to place a lot of emphasis on the narrow tailoring of the affirmative action program.  Professor Driver also noted that the case highlights the instability of the Equal Protection Clause – is the clause meant to focus on colorblindness or insubordination based on race?  He ended by noting that Justice Kennedy attempted to separate classifications based on race from colorblindness and that Justice Thomas has continually hindered the antisubordination theory of the Equal Protection Clause in his jurisprudence.

Professor Fried began by stating that the affirmative action line of cases shows the artificiality of litigating cases when proper reasons for the policy have been cut off by the Court.  He believes that university presidents really conduct affirmative action policies based on the poor historic treatment of minorities for hundreds of years and the desire by the presidents to better their place in society.  However, according to Professor Fried, this rationale was considered illegitimate by the Court in Bakke and Grutter, and so now affirmative action cases have to be litigated based on the “phony” diversity reason.  Professor Fried noted that the price of this is doctrinal incoherence, and Grutter/Gratz is a prime example of this.  He pointed to Justice Rehnquist’s dissent in those cases, which said that both Grutter and Gratz cannot be rightly decided.  Professor Fried noted that we all know why there’s affirmative action – it’s to integrate society – but we’re deeply discontent with this because of the concern of a balkanized society.  Professor Fried ended by stating that balkanization can only be avoided through pragmatic political decisions to determine how and when to conduct affirmative action, but this solution isn’t amenable to constitutional doctrine.

[The panel went on to discuss Shelby County and voting rights jurisprudence, which could not be covered.]