The immediate impact of Grutter v. Bollinger and Gratz v. Bollinger is nothing short of momentous. Not only do the Supreme Court’s most recent affirmative action decisions settle the deeply contested question of whether race may be considered in higher education admissions, but they also, more broadly, envision permissible and impermissible uses of racial classifications in that context, and surface new, challenging questions about the official use of affirmative action.
Yet Grutter and Gratz are also momentous for what they tell us about the long-term struggle over the structure of equal protection doctrine. This struggle, which has been under way for decades, will affect the future of equality analyses far beyond affirmative action.
Thirty-nine states use some form of popular elections to select judges in their appellate courts, general jurisdiction trial courts, or both. In June of 2002, the Supreme Court handed down its first ruling regarding judicial elections. A 5-4 majority in Republican Party of Minnesota v. White held that part of the Minnesota Code of Judicial Conduct was unconstitutional as violating the First Amendment of the U.S. Constitution. The specific clause at issue is known as the “announce clause” and states that “[a] candidate for a judicial office, including an incumbent judge,” shall not “announce his or her views on disputed legal or political issues.” In White, a judicial candidate alleged that he was forced to refrain from announcing his views on disputed issues during a campaign because of this provision, in violation of the First Amendment. A majority of the Supreme Court agreed and struck down Minnesota’s announce clause as unconstitutional.
The role of the Takings Clause of the Fifth Amendment in requiring compensation for government actions that treat landowners unequally is seldom explored. This is remarkable given that the Supreme Court has said for more than a century that the Takings Clause “prevents the public from loading upon one individual more than his just share of the burdens of government, and says that when he surrenders to the public something more and different from that which is exacted from other members of the public, a full and just equivalent shall be returned to him.”
One might infer from this description of the Fifth Amendment that the regulatory takings doctrine should have developed as a comparative right (a species of equal protection law)—a right to be treated legally the same as other property owners in a community, or to receive compensation when differential treatment is justified. Indeed, when the Supreme Court first held that the Fourteenth Amendment incorporated the rule that government may not take private property without just compensation, it relied on the Equal Protection Clause, not the Due Process Clause.
In June 2002, the United States Supreme Court approved an Ohio program that made available publicly supported vouchers for children in Cleveland to attend private (nonsectarian) and religious schools. Writing for a five-member majority in Zelman v. Simmons-Harris, Chief Justice William Rehnquist held that the Ohio program did not violate the Establishment Clause of the First Amendment because it (1) has a valid secular purpose of providing educational assistance to poor children; (2) is neutral with respect to religion and provides assistance to a broad class of citizens; and (3) provides aid to religious institutions only as a result of independent decisions made by the parents of the school children participating in the program. The Chief Justice further explained that the ruling was consistent with a line of judicial reasoning dating back to 1983, when the Supreme Court approved an education tax deduction adopted in Minnesota. In a concurring opinion, Justice Sandra Day O’Connor took a broader view of First Amendment jurisprudence, indicating that the majority ruling in Zelman was consistent with case law that allowed tax exemptions and other forms of government aid for religious institutions. Justice Clarence Thomas also concurred with the majority. Citing Brown v. Board of Education, Justice Thomas emphasized that the program in question was a well-intentioned attempt by the state “to provide greater educational opportunity for underprivileged minority students.” He further opined that incorporating the Establishment Clause to prohibit the kind of educational choice that the Ohio program provides would have the ironic effect of employing the Fourteenth Amendment to curtail liberty rights protected by the Free Exercise Clause of the First Amendment.
Was Justice Scalia’s vote in the Boy Scouts case judicially straight? For years he has championed the view that a general conduct law not specifically directed at First Amendment interests does not implicate the First Amendment even if it happens to restrict First Amendment activity in some of its applications. Thus, when Oregon evenhandedly enforced its drug-control law against religious and nonreligious uses of peyote, Scalia maintained that the First Amendment was not implicated, and when Indiana evenhandedly enforced its public indecency law against expressive and nonexpressive public nudity, he took the same position. But in the Boy Scouts case, when New Jersey evenhandedly enforced its civil rights law against expressive as well as nonexpressive discrimination, Scalia not only thought that the law implicated the First Amendment, but he also provided the fifth vote to invalidate it as applied.
When the Court handed down its decision in Boy Scouts, one could fairly have wondered whether Scalia’s dissent was missing. Since the civil rights law at issue could have been characterized as a general law not directed at First Amendment interests, Scalia’s decision to join the majority opinion invalidating the law’s enforcement on First Amendment grounds appeared to conflict with the First Amendment philosophy he developed in Employment Division v. Smith, Barnes v. Glen Theatre, Inc., and similar cases. In what may be called his Smith jurisprudence, Scalia has maintained that, so far as the regulation of conduct is concerned, heightened judicial scrutiny should be reserved for circumstances in which a law specifically targets First Amendment interests for disfavored treatment. Otherwise, accommodation of those interests should ordinarily be left to the political process. Scalia did not seem to adhere to that philosophy in Boy Scouts.
On February 22, 2002 the General Accounting Office (“GAO”) filed an unprecedented lawsuit against Vice President Richard Cheney, seeking an injunction requiring him to produce certain records relating to the National Energy Policy Development Group (“NEPDG”), which he chaired at the behest of President George W. Bush. For the first time in its eighty-one year history, the GAO has filed suit against a federal official in relation to records access.
The suit is the result of a GAO inquiry begun at the request of Representatives Henry Waxman and John Dingell, who were concerned about the potential influence Enron and other special interest groups had over the NEPDG’s activities. The Vice President has so far refused to meaningfully acquiesce to any of the GAO’s information requests or attempts at accommodation, and has argued that the GAO does not have the statutory authority to obtain the records requested. More significantly, he has hinted at—though not formally asserted—executive privilege, setting the stage for a legal showdown that could make its way to the Supreme Court.
In 1976, Professor Hans A. Linde published his pathbreaking paper, Due Process of Lawmaking. That article focused attention on a subject of subtlety and importance: To what extent should the processes by which laws are enacted affect their validity under seemingly substantive constitutional provisions like the First Amendment and the Equal Protection Clause?
The U.S. Constitution is unique even among democratic nations for the guarantees it grants to U.S. citizens. The interpretation of the Constitution further distinguishes American notions of freedom and liberty from every other country in the world. The Internet Age, however, has ushered in a period where national boundaries and guarantees are blurred among the many intersections of the World Wide Web. This uncertainty has raised serious questions relating to the fundamental rights and liberties established by our forefathers: Can the United States maintain its guarantee of freedom of speech for the Internet? Who profits from such a guarantee? What are the implications for other nations if the United States ignores their pleas to rein in such guarantees?