Equal Protection - Constitutional Law: Fourteenth Amendment, Separation of Powers

I: Equal Protection: Minimum Basis Review

Question: Classification justified by a permissible purpose.

What determines why heighted scrutiny?

3 Traditional Criteria:

1. Immutable characteristic

2. Historical Discrimination

3. Powerless to protect self via political process.

New York City Transit Authority v. Beazer (1978)

• Not hiring an employee who uses methadone. Safety & efficiency

• Fn. 9: Policy is overinclusive, but still has rational relationship.

• Stevens Majority: Methadone users not a politically unpopular group

• White Dissents: Might need protection from judiciary

  • Fn. 15: Moreno, Cleburne

II: Equal Protection: Race

Dred Scott (1857)

• Birth of 14A in response to this.

• Why didn’t Taney stop on the jurisdiction question?

• Taney on Judicial Role:

  • Not to evaluate merits of this opinions

  • Decision up to law-making political process.

  • Bifurcation of Justice and Constitutional Interpretation

• Dicta: Missouri compromise was beyond

• Second federal invalidation of a federal law after Dred Scott.

• PROF: What’s wrong with Dred Scott

  • Should have stopped before Diversity claim?

  • Abdication of Morality and Justice and Personal responsibility

  • Scape-goating Taney for being a product of his time?

Frederick Douglas Speech

…

Plessy v. Ferguson (1896)

• Applying effectively rational basis to race

• Statute: Separate but equal train cars; but allows nurses of the “other race”

  • Facially neutral

• Separate but equal reasonable for race

• Harlan Dissent:

  • Expressive function of law; can shape social values and inferiority

  • But still slightly racist: White as dominant and continue to be… Chinaman…

  • Two theories:

    • Anti-classification: Colorblind. Harm to race is when any classification is made. Draw no lines on the basis of race

      • No one believes this in its entirety; can’t send a white cop undercover into a black gang. So, what kind of racial divisions acceptable?

    • anti-subordination: No superior, dominant race or ruling class. [AA permissible]

  • Rights:

    • Civil: File a law suit, make a contract

    • Political: Right ot vote, run for office

    • Social: Peer-to-peer; marriage, etc.

  • Harlan says ride train is a civil right; Majority says it's a social right.

    • Both agree Social Rights not have to be equal

Originalism:

• Three flavors

  • Framer’s original intent [Meese]

  • Ratifier’s original understanding

  • Original public meaning/Original Expected Application

    • More Modern.

    • less subjective, more about common usage.

• Scalia the most important justice of last generation.

  • Flexibility in statehouses, not courthouses.

  • “Living constitution” flexibility is undesirable.

• Role of Precedent?

  • There are sancrosanct opinions. Scalia, “I’m an originalist, not a nut”

• Originalism adopted by the Left:

  • Balkin’s “Living Originalism” – “majestic generalities” not “specificities.”

  • Founders not always specific, so delegating to future generations.

• (See 10/16 lecture for more on Originalism & Liberals)

• Takeaway: Originalism can be broad or narrow

DC v. Heller (2008)

• Flowering of originalism. Fought exclusively on originalist terms.

• Prohibition on handguns in DC unconstitutional.

• Scalia: Identify operative clause. Some handgun regulations permissible – certain times, places, people.

  • PROF: Is Court’s opinion actually a living constitutionalism one?

• Stevens dissent: Why is that allowed but not this?

Path to Brown

• Cumming (1899): Black taxpayers challenging money for their white high school. Black HS closed.

  • Harlan: Wrong kind of remedy requested.

  • [What is the right remedy for EP? Leveling up or down?]

  • Here, plaintiff asked for leveling down (Close the white HS), should’ve asked to reopen the black school.

  • Rare to level down (But see swimming pool case)

• McCabe v. Atchinson (1914): Sleeper cars on train. Must provide same kinds of facilities if going to be separate.

  • Emphasis on equal accommodations.

• Gaines v. Canada (1938): Can’t have all white law school without a black law school. Paying for a different state’s tuition not sufficient.

• Sweatt v. Painter (1950): Law school required to integrate.

  • Schools in Texas NOT equal.

  • Intangibles: Faculty, prestige, alumni, standing in community

  • Can’t match reputation and faculty – inherently unequal.

  • [Plaintiff chosen carefully: Already married, so no suggestion that he’s looking for a white wife…]

• McLaurin v. Oklahoma (1950): Public School of education can’t restrict Doctorate student (separate cafeteria table, sit outside the classroom)

Common Law Constitutionalism

• David Strauss: How legal change occurs

• Court articulates a rule and attempts to apply it, but rule is not satisfactory. Evolves over time, as judges slowly hollow out the rule.

• PROF:

  • Too anemic a conception of what justices are doing.

  • More aware of what they are doing.

  • Plessy (rational basis) -> By Buchanan, no longer doing reasonableness.

  • Not unconscious, but decisive decisions

Buchanan v. Warley (1917)

• Residential segregation order impermissible.

• Viewed as a break in tradition even immediately after the case.

  • Property rights issue not explain everything.

  • How is this not social rights, not civil rights, at play?

  • Trying to distinguish Plessy

Brown v. Board of Education (1954)

• Common law constitutionalism process of interpretation?

  • Separate but equal been tried and failed

  • PROF: This would be precedent-centric. Not true here!

• Warren: not an originalist, originalism is inconclusive.

• Times have changed since 1896. Public education has exploded.

  • Modern focus: “Today,” “This day and age”

• Holding: Separate educational facilities are inherently unequal.

  • But: not address de facto vs. de jure segregation

• Brown limited to public education, but Civil Rights Movement expands.

  • Later per curiam decisions not really justified on Brown.

• More Anti-classification than anti-subordination.

  • “Inferiority never to be undone”

  • Social science evidence.

  • But some classification as well: “on the basis of race”

• FN. 11: Famous footnote, citing psych studies – were not rigorous science…

• Unanimous: but in exchange, Brown II…

  • PROF: A terrible mistake. Separated right from remedy.

  • Would South have been less upset if there had been dissents?

  • [Roe v. Wade was 7-2; would 9-0 have made a difference?]

Bolling v. Sharpe (1954)

• companion to Brown

• 5A, not 14A: 14A not apply to DC.

• DP and EP not interchangeable?

  • “Equal protection component of the 5A”?

  • See Tribe, “Double helix of liberty and equality” [Windsor?]

• PROF: How could originalists reconcile all this?

Brown II (1955): All Deliberate Speed

• PROF: A cop-out decision. Brown I a hero, II a villain

• Invitation of Southern Manifesto?

• More anti-classification than anti-subordination.

  • See Parents Involved

Cooper v. Aaron (1958) - supra

Loving v. Virginia (1967): Miscegenation laws not ok.

• CJ Warren for a unanimous court

• (3 years earlier: McLaughlin v. Florida – co-habitation OK)

• Strict scrutiny

• Note: VA law explicit about white and black

• Compared to Brown

  • EP

    • Brown: can’t turn back clock to 1896

    • Loving: Stronger interpretation on 14A. 14A to eliminate all inequality.

  • DP here also

• PROF: Complicate traditional account

  • Traditional Account: Supreme Court wise to wait in 1955; opposition dwindled since Brown

  • BUT: Approval of interracial marriage in 1967 very low. Very controversial decision.

Aftermath of Brown: In 6 years between Green and Miliken, court exits the field of policing racial discrimination. 4 new Nixon appointees.

• Green (1968): First time weighing in since Cooper

  • Tail end of Warren Court. Repudiation of Brown II.

  • “Realistically to work now”

  • “Not white schools or black schools – just schools”

  • Does Green include de facto segregation?

• Swann (1971)

  • Court ordered busing affirmed by CJ Burger.

• Responding to de facto segregation

  • Keyes (1973): Denver never had segregation laws but tried to gerrymander school district lines to racially segregate. Brennan for majority.

    • Powell concur/dissent: should Treat North and South the same. Get rid of de jure/de facto distinction. Prefers Local schools, not busing.

    • Rehnquist: First Dissent in this line of cases. Keyes and Green go too far. Constitution forbids segregation, not force integration.

  • Milliken (1974): Detroit suburban schools implicated in court ordered busing.

    • CJ Burger: Court can’t mandate interdistrict remedies if no interdistrict violations.

    • Marshall strongly dissents.

    • * End of the road for meaningful integration

* * *

Discriminatory Impact

Strauder v. West Virginia (1880): Limiting juries to only to white people not OK.

• However, limiting to freeholders, citizens, gender education, etc. OK

• Later: Gender (Taylor), freeholder (Harper), etc.

• How the EP clause changes.

Palmore v. Sidoti (1984): Can’t consider private stigmatization in custody.

(Oregon v. Mitchell: No literacy tests; now Jim Crow-era-education voters can vote)

Washington v. Davis (1976): Police test with racially-disparate effect OK

• Rational basis, not strict scrutiny.

• White: A lot of neutral policies affect one race more than another

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