26. Two Theories of Equal Protection

In a series of decisions starting in the 1970s, the Supreme Court set the stage for subjecting race-based affirmative action to the most exacting constitutional scrutiny

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

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On the Docket

Despite no arguments or merits rulings, it was a fairly busy week for the Court. Monday’s regular Order List included two grants of certiorari for cases to be heard next Term, one of which asks the Justices to consider overruling Chevron v. NRDC—a 1984 ruling under which courts are supposed to defer to executive branch agencies’ reasonable interpretations of ambiguous statutory text. This case could be a really big deal for administrative law, but won’t be argued until sometime this fall.

The Court denied two applications for emergency relief from a death-row prisoner in Florida, but granted an application to stay Oklahoma’s execution of Richard Glossip—almost surely because Oklahoma had acquiesced in the grant in light of prosecutorial misconduct that would make Glossip’s execution “unthinkable.” (The Oklahoma Court of Criminal Appeals’ refusal to provide relief in the face of the state’s concession, which forced the Supreme Court’s hand, is rather astonishing.) The grant of emergency relief, which provoked no public dissents (Justice Gorsuch did not participate; he was on a Tenth Circuit panel in one of Glossip’s earlier appeals), was unsurprising given Oklahoma’s position, but also a useful reminder that the relevant metric for how the Court handles emergency applications isn’t just how often they’re granted/denied.

The Court also issued a second supplemental briefing order in Moore v. Harper—the potentially blockbuster North Carolina case about the “independent state legislature” theory. Given that the North Carolina Supreme Court recently vacated at least one of the two rulings the Justices are currently reviewing, the Court asked the parties (and the Solicitor General) to weigh in on how the North Carolina Supreme Court’s most recent intervention affects the Supreme Court’s power to decide the case (if at all).

There were another slew of stories about the Justices’ personal financial situations, including a ProPublica story about Harlan Crow paying for the private school tuition of Justice Thomas's grandnephew, and a Washington Post story about payments Leonard Leo funneled to Ginni Thomas. I don’t mean to give these important stories short shrift, but I’m not sure they move the needle relative to last week’s newsletter, which considered the broader issues in more detail.

Turning to this week, there is no Order List expected today (because there was no Conference last week). Instead, we next expect to hear from Court at 10 ET on Thursday, when the Justices are scheduled to hand down one or more decisions in cases argued earlier this Term. There’s also an emergency application seeking to block local and state limits on assault rifles (and large-capacity magazines) enacted in Illinois after the mass shooting at the Highland Park July 4th parade last year, which left seven dead. Given that the application seeks an injunction pending appeal (the highest form of emergency relief), it seems unlikely that the Court will grant it, but it’s possible several Justices may want to weigh in on the Illinois measures as multiple cases challenging them have now reached the Seventh Circuit.

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The One First Long Read: Anti-subordination vs. Anti-classification

As we start to gear up for the Supreme Court to hand down decisions in each of the remaining cases that were argued earlier this Term, I wanted to put into context two of the biggest impending rulings—in the Harvard and North Carolina affirmative action cases. It seems by now almost a foregone conclusion that the Court is going to rein in race-based affirmative action in higher education by holding that racial preferences in higher education violate “strict scrutiny”—because they’re not “narrowly tailored to achieve a compelling governmental interest.”¹ But it may not be obvious to folks who aren’t steeped in the case law and history why racial preferences receive the most exacting judicial scrutiny when plenty of other policies that produce racially discriminatory effects are not. My goal in this week’s long read is to briefly outline how we got here—and the significance of a choice the Court began to make in the 1970s as between two competing theories of what kind of racial discrimination the Constitution actually forbids.

The Equal Protection Clause of the Fourteenth Amendment cryptically provides that no state may “deny to any person within its jurisdiction the equal protection of the laws.” (In Bolling v. Sharpe, a companion case to Brown v. Board of Education, the Supreme Court held that equal protection principles also bind the federal government.) Since that language was adopted in 1868, there has been debate over what, exactly, it means. Does equal protection mean equal treatment, so that laws violate the clause if (but only if) they treat differently those who are otherwise similarly situated? Does equal protection mean equal opportunity, so that the law should provide preferences where necessary to put those who are otherwise similarly situated on similar legal footing? (Think about the difference between a flat income tax and a progressive income tax: two approaches that reflect very different conceptions of how law should achieve equality.)

With apologies for the oversimplification, equal protection scholarship has long sorted the two most common views of equal protection into two rough camps: The first is commonly described as anti-classification—that the Constitution eschews all classifications of particular types, regardless of their motives or effects (these classifications are often short-handed as “suspect” classifications). The second is anti-subordination—that the Constitution eschews those classifications that tend to subordinate existing minority groups and perpetuate existing discrimination, but not others.

For those who ascribe to the anti-classification view, race-conscious preferences for disadvantaged minority groups are just as constitutionally pernicious as Jim Crow-era racial segregation, for both involve governments intentionally classifying on the basis of race. On the flip side, those who ascribe to the anti-subordination view tend to see a world of difference between laws that perpetuate existing discrimination and those that seek to ameliorate it. To similar effect, the anti-subordination approach tends to focus as much on the effects of government actions as on the intent of the actors—so that a law that produces widely disparate impacts on minority populations would be problematic even if there was no proof that the impacts were intended.

In what we might call the first generation of modern equal protection cases, the Supreme Court didn’t really need to choose between these two approaches. The state laws/actions at issue tended to be both intentional and subordinating. A good example is Virginia’s anti-miscegenation statute, which a unanimous Court invalidated in Loving v. Virginia: Because the law drew race-based classifications, and because it specifically singled out whites for preferential treatment (it didn’t ban all interracial marriages; only those in which one party was white), it warranted—and failed—strict scrutiny either way.

Mildred Jeter and Richard Loving, whose challenge to Virginia’s ban on interracial marriage led to the emergence of the modern application of strict judicial scrutiny for laws that discriminate based upon race

But by the mid-1970s, the Court (which had changed a lot in the brief time since Loving had been decided) was confronted with cases that forced the issue. And, in ways that are remarkably important today, the Justices slowly but surely adopted the anti-classification view.

The first major case down that path was Washington v. Davis, in 1976. In that case, the civil service examination adopted by Washington, DC for aspiring police officers significantly disfavored Black applicants. Between 1968 and 1971, 57 percent of Black applicants failed the test (which included a number of white cultural and idiomatic references), whereas only 13 percent of white applicants failed.

Despite this incongruity, there was no evidence that the city had adopted the test because it produced those discriminatory effects. Writing for a 7-2 majority, Justice Byron White held that, to trigger strict scrutiny, there had to be at least some evidence of discriminatory purpose, and not just discriminatory effects. To be sure, there may be cases in which the effects are so grossly discriminatory that they are, themselves, persuasive circumstantial evidence of discriminatory intent, but intent there must be. In an illustrative case three years later, when Massachusetts adopted an absolute civil-service preference for veterans despite knowing that virtually all of those would would benefit would be men, the Court rejected the argument that the knowing adoption of the preference was sex-based discrimination—because knowledge wasn’t the same as intent. (For a powerful critique of Davis, see this 2016 New York Times column by Berkeley law professor Osagie K. Obasogie.)

A majority of the Justices who decided Washington v. Davis in 1976 had been appointed since 1969: Chief Justice Burger (front row, center) and Justices Blackmun, Powell, Rehnquist, and Stevens.

Davis and its progeny took one big step toward settling the anti-classification vs. anti-subordination debate, at least as a matter of equal protection doctrine. But Davis didn’t address whether preferences for racial minorities should likewise trigger strict scrutiny insofar as they are intentional (which they almost always are). When the Court first grappled with that question two years after Davis in Regents of the University of California v. Bakke, it punted. Justice Powell’s opinion, which spoke only for himself on the critical questions, would have upheld the permissibility of racial preferences in the abstract, but would have subjected them to strict scrutiny (and invalidated the one at issue in that case—a 16-seat quota for the UC-Davis medical school).

It would take 17 years for the full Court to resolve what type of scrutiny should apply to preferences for racial minorities. In 1989, a four-Justice plurality, in an opinion by Justice O’Connor, held that strict scrutiny should apply to state-based preferences (because, as O’Connor argued, it may not be possible to tell the difference between benign and nefarious racial preferences without strict scrutiny). But the next year, Justice Brennan wrote for a 5-4 majority in Metro Broadcasting v. FCC that, where federal preferences were concerned, courts should be less skeptical—and apply only “intermediate” scrutiny (which asks whether the preference is “substantially related to an important governmental interest”). Finally, in 1995, with Justice Thomas having replaced Justice Marshall (among other changes in the Court’s composition), the Court settled the matter once and for all in Adarand Constructors, Inc. v. Peña, overruling Metro Broadcasting and holding that all racial preferences by government actors trigger strict scrutiny, regardless of their motive or purpose. After Adarand, adherence to the anti-classification approach became unquestioned.

The legendary constitutional law professor Gerald Gunther used to describe strict scrutiny as “strict in theory, but fatal in fact.” The idea was that strict scrutiny was effectively a death sentence for any and all laws subjected to it. But if there was any Justice on the Supreme Court for whom that mantra did not hold, it was Justice O’Connor. Thus, in 2003, it was O’Connor who wrote for a 5-4 majority in Grutter v. Bollinger, applying strict scrutiny to the use of race as a “soft variable” in the University of Michigan Law School’s admissions process, but then upholding it. Of course, Justice Alito has since replaced Justice O’Connor—and Justice Barrett has replaced Justice Ginsburg—hence the widespread predictions of Grutter’s impending demise.

There is a lot to say about the affirmative action cases, and this post is not meant to try to cover even much of the relevant terrain. Rather, my goal today is just to emphasize how deeper (and deeply debatable) doctrinal choices the Court made a generation ago continue to shape its contemporary jurisprudence, even as the Justices consider whether to overrule a 20-year-old precedent. I will confess, perhaps to no one’s surprise, that I’ve always found the anti-subordination approach a more satisfying understanding of the Equal Protection Clause—and have struggled with the doctrinal reality that preferences for members of racial minority groups are more constitutionally suspect than widespread discrimination against racial minority groups that can’t be proven to be intended to produce those discriminatory effects.

But if nothing else, the Court’s embrace of the anti-classification approach is a big part of why this Term’s monumental affirmative action cases are being fought on the terms on which they’re presently being contested. Without being able to argue that intentional preferences for racial minorities shouldn’t be as constitutionally suspect in the first place, defenders of these programs are left to make second-best arguments about why they satisfy the most exacting level of constitutional scrutiny—to Justices who may be far closer to Gerald Gunther’s view of strict scrutiny than to Sandra Day O’Connor’s.

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SCOTUS Trivia: The Marks “Rule”

Justice Powell’s solo opinion in Bakke gives me an excuse to introduce one of the nerdiest topics in Supreme Court doctrine: The "Marks rule.” Named after the Court’s 1977 decision in Marks v. United States, the “rule” is that, when there is majority rationale, the holding of the Court rests in whichever opinion supporting the majority’s judgment decided the dispute on the narrowest grounds.

There is a lot to say about the Marks rule, much of which has been said, quite ably, by University of Virginia professor Richard Re. I’ll just say here that deciding which grounds are the “narrowest” can itself be a minefield (if not a source of division in lower courts). And if we see a similarly fractured judgment in any of the cases coming down the pike in the next eight weeks, well, good luck.

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Happy Monday, everyone! I hope you have a great week.

1. Of note, the constitutional analysis applies only in the North Carolina case (where the university at issue is public). The Harvard University case turns on Title VI of the Civil Rights Act. The discussion in this week’s newsletter is focused on the constitutional question.