Unsuspecting Eviction: SFFA’s Racialized Distortion of Suspect Classification

OUR ANTI-<i>KOREMATSU</i>

In Whole Woman’s Health v. Hellerstedt, Justice Thomas criticized existing Supreme Court doctrine regarding the “tiers of scrutiny,” quoting a passage from an earlier Justice Scalia dissent that the “three basic tiers – ‘rational basis,’ intermediate, and strict scrutiny – ‘are no more scientific than their names suggests, and a further element of randomness is added by the fact that it is largely up to us which test will be applied in each case.’” 136 S. Ct. 2292, 2327 (2016), quoting United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting). Justice Thomas added, “But the problem now goes beyond that. If our recent cases illustrate anything, it is how easily the Court tinkers with levels of scrutiny to achieve its desired result. . . . [M]ore recent decisions reflect the Court’s tendency to relax purportedly higher standards of review for less-preferred rights. . . . Meanwhile, the Court selectively applies rational-basis review – under which the question is supposed to be whether ‘any state of facts reasonably may be conceived to justify’ the law – with formidable toughness.” Id., quoting McGowen v. Maryland, 366 U.S. 420, 426 (1961). Despite these concerns, careful attention to the Court’s decisions reveals a predictable and principled structure to the Court’s existing standards of review. Justice Thomas’ criticisms stated in points and above on the “scientific nature” of the standards of review and possible selective application of “rational basis review” are addressed in a separate article entitled, “The Structure of Rational Basis and Reasonableness Review.” Justice Thomas’ criticism in point about the malleability in selecting which standard of review to adopt is addressed in a separate article entitled, “Justifying the Supreme Court’s Standards of Review.” Justice Thomas’ criticism in point regarding selective application of the “higher standards of review” are addressed into two related articles, “The Structure of Intermediate Review” and “The Structure of Strict Scrutiny Review.” All four of these articles are now posted on SSRN and available at http://libguides.stcl.edu/kelsomaterials. This article addresses “The Structure of Strict Scrutiny Review.” Today, there are two versions of strict scrutiny review. There is: (1) “standard” strict scrutiny review used for cases like (a) racial discrimination under the Equal Protection Clause, both in cases involving (i) discrimination against minorities, as in Loving v. Virginia, or in cases of involving (ii) race-based affirmative action, in cases like City of Richmond v. J.A. Croson Co., or (b) content-based regulations of speech in a public forum, in cases like Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board. There is also (2) a “loose” strict scrutiny approach used for cases involving racial redistricting challenges under the Equal Protection Clause in cases like Bush v. Vera. In actual Court decisions, four other kinds of tests have been used, or suggested, by the Court where one of the established versions of strict scrutiny should apply. These four can be viewed as “mutations” of the two kinds of strict scrutiny review proper to apply. These four mutations involve: (1) a “hybrid” kind of intermediate/strict scrutiny review used in cases like Denver Area Educational Telecommunications Consortium v. FCC, which involved regulation of cable television; (2) a “watered-down” kind of strict scrutiny, applied in cases like Fisher v. University of Texas at Austin; (3) suggestion of “extremely limited” possibilities for compelling interests to satisfy strict scrutiny, as in Justice Thomas’ concurrence in Grutter v. Bollinger, a case involving race discrimination under the Equal Protection Clause; and (4) suggestion of a “categorical” approach of unconstitutionally when traditionally strict scrutiny has been applied, such as in Iancu v. Brunetti, a case involving viewpoint discrimination in free speech cases. Part II of this article will discuss the two well-established kinds of strict scrutiny. This discussion will provide detailed treatment of a structured approach to phrasing and applying these two kinds of strict scrutiny tests. Following this discussion, Part III will discuss: (1) the “hybrid” kind of strict scrutiny review. Part IV will address (2) the “watered-down” kind of strict scrutiny review. Part V will discuss (3) the “extremely limited” compelling governmental interests kind of strict scrutiny review. Part VI will discuss (4) adopting a “categorical” approach rather than applying strict scrutiny. Part VII will discuss why the first of these mutated approaches should adopt the loose strict scrutiny of Bush v. Vera, while the last three of these mutations should adopt standard strict scrutiny review. Part VIII will provide a brief conclusion.

Book Reviews 153 Barbara A. Perry. The Michigan Affirmative Action Cases. Lawrence: University Press of Kansas, 2007. Pp. 232. Bibliographic essay. Index. Cloth, $35.00; paper, $16.95. Barbara A. Perry's The Michigan Affirmative Action Cases analyzes two important 2003 Supreme Court decisions on affirmative action in education. This volume, published as part of the Landmark Law Cases and American Society series from the University of Kansas, provides the legal and historical context for Grat^ v. Bollinger et al. and Grutter v. Bollinger et al, which challenged the University of Michigan's admissions practices for undergraduates and law-school applicants. Jennifer Gratz and Barbara Grutter, two white women who were denied admission to the university's undergraduate and law-school programs, respectively, sued the University of Michigan in 1997. Both plaintiffs claimed that they had been denied their Fourteenth Amendment rights to equal protection of the laws and their rights under Tide VI of the 1964 Civil Rights Act; both suedwith the legal assistance of the Center for Individual Rights (OR), a conservative public-litigation organization dedicated to ending racial preferences. The CIR's involvement portended the intervention of numerous interested third parties in these two cases; when the Supreme Court heard oral arguments in the cases in 2002, they received nearly one hundred amici curiae briefs. The heated controversy surrounding these cases was a product of the nation's long and tangled history of race relations. By way of background to Grat% and Grutter, Perry provides a particularly nuanced history of how Michigan's racially polarized politics both gave rise to, and resulted from, previous legal batdes over school busing and affirmative action in employment. The 2003 cases were no different. When the Supreme Court struck down the University of Michigan's undergraduate-admissions policies, but upheld those of the law school, affirmative-action supporters celebrated, while opponents mobilized support for an amendment to Michigan's constitution banning the use of racial preferences (itwas approved by voters in 2006, thus rendering the Grutter decision moot inMichigan). Perry's account of the legal issues involved in these cases initially focuses on the Supreme Court's first major educational affirmative action decision, Regents of the University of California v. Bakke (1978). In Bakke, a white man denied admission to the University of California Davis's Medical School won a decision that racial quotas were constitutionally impermissible. Yet Justice Lewis Powell also indicated 154 Michigan Historical Review in his opinion in Bakke that "diversity" was a "compelling state interest" (p. 90) that could justify some use of racial preferences in educational settings. Many institutions, including the University of Michigan, subsequendy developed admission procedures accordingly, offering diversity as the rationale for their affirmative-action programs. Given that a majority of justices did not join this portion of Powell's opinion, however, the precedential status of his pronouncement on diversity remained in question until, fittingly, his close friend and fellow "judicial diplomat" (p. 96), Justice Sandra Day O'Connor, direcdy embraced diversity as a compelling state interest in her majority opinion in Grutter. After describing the cases' historical background and their controversial journey to the Supreme Court, Perry devotes three entire chapters to the briefs submitted to the Court, oral arguments before the Court, and the Court's decisions. She artfully describes complex legal arguments, even providing an outline of the questions the Supreme Court had to consider. Perry's description of oral arguments is especially fine, as she defdy weaves together the finer points of equal-protection jurisprudence and fascinating biographical details about the justices, all in a dramatic narrative form. Perry's insights into individual personalities were enabled by her contacts at the Court and her ability to interview many of the major participants in the Grat% and Grutter cases. They also serve as a useful reminder that notwithstanding the high-flown legal rhetoric and the powerful interests involved, opinions on both sides of the affirmative action question, even for judges, continue to be intensely personal. With Justice O'Connor's retirement, and a new, conservative majority on the Court, the long-term legacy of her embrace of diversity is in question. The two Michigan affirmative-action cases may ultimately prove...

When the U.S. Supreme Court declared that same-sex marriage would be legal throughout the country, that decision did not end the possibility of other types of discrimination on the basis of sexual orientation or gender identity. The U.S. Supreme Court has been very unclear about what standard to use when the courts face claims of discrimination based on these characteristics. In cases decided under the Fourteenth Amendment’s Equal Protection Clause, the Court has stated that lower courts should use one of three standards, based on the type of discrimination alleged. These three standards for review are known as rational basis, intermediate review, and strict scrutiny. This article, based on both empirical and normative analysis, will explore the proper legal standard that the Supreme Court should use in these cases. Since several states have begun to enact laws that encourage discrimination on the basis of sexual orientation and gender identity, this article will argue that the Supreme Court should use strict scrutiny in these cases because the LGBT community is clearly a discrete and insular minority subject to targeted discrimination.

This article argues that state action that discriminates on the basis of religion is unconstitutional under the Equal Protection Doctrine even if it does not violate the Establishment Clause or the Free Exercise Clause as incorporated by the Fourteenth Amendment. State action that discriminates on the basis of religion should be subject to strict scrutiny and should almost always be held unconstitutional. We thus challenge the Supreme Court’s recent decision in Christian Legal Society v. Martinez in which a 5 to 4 majority of the Court wrongly allowed a California state school to discriminate against a Christian Legal Society chapter on the basis of religion. We defend our argument that the Fourteenth Amendment bans discrimination on the basis of religion as being: 1) consistent with and mandated by the original meaning of the Fourteenth Amendment; 2) as following logically from the seminal logic in United States v. Caroline Products Footnote Four which specifically mentions religion as a suspect classification; 3) as not being precluded by any prior Supreme Court caselaw; 4) as reflecting the fact that religious affiliation is in some faiths hereditary and immutable; and 5) as being consistent with the ban on discrimination on the basis of religion in almost every equal protection clause in every foreign constitution or international human rights document that we have surveyed. We analyze the impact our equal protection argument might have on Establishment Clause and Free Exercise Clause caselaw, and we explain why in our view State constitutional Blaine amendments forbidding government money from going to religious entities violate the Fourteenth Amendment. We conclude, perhaps most strikingly, by arguing that the Fourteenth Amendment’s ban on discrimination on the basis of religion renders the current system of funding the public schools unconstitutional. In our view, the Fourteenth Amendment obligates the states to provide students with education vouchers that they can redeem either at a secular or at a religious school depending on parental choice. Forcing religious students to attend a state funded school that is permeated with an atmosphere that is hostile to religion violates the Fourteenth Amendment.

The Structure of Rational Basis and Reasonableness Review

Designed to promote African American suffrage, the second sentence of Section 2 of the Fourteenth Amendment reduces congressional representation of states disenfranchising male citizens over 21 who have not been convicted of crimes. During Jim Crow, many former Confederate states denied the vote to African Americans, yet none ever lost a seat in Congress under Section 2. This paper proposes that one reason Section 2 was never used is because it was repealed by the Fifteenth Amendment. The fundamental inconsistency between the provisions is that Section 2 recognized state authority to deny the vote to African Americans while the Fifteenth Amendment removed that power. As a matter of remedy, Section 2 reduced congressional representation and allowed the discrimination to continue, while the Fifteenth Amendment employed the quite different remedy of actually allowing African Americans to cast ballots. Section 2 cannot be an alternative remedy to the Fifteenth Amendment; a court finding unconstitutional disenfranchisement has no discretion to allow it to continue if it reduces the offending state's basis of representation in Congress. Section 2 cannot offer a concurrent remedy; enfranchisement plus reduction of the basis of representation would reward the discriminated-against group with a diluted vote. Section 2 cannot be recast as a provisional remedy, because Congress has power under the Fourteenth and Fifteenth Amendments to regulate, enjoin and invalidate elections in ways beyond Section 2, without Section 2's built-in limitations, exceptions and restrictions. In sum, the Fifteenth Amendment covers more elections and persons than Section 2 of the Fourteenth, and offers stronger remedies. That the Fifteenth Amendment does everything Section 2 could do and more both demonstrates that Section 2 was impliedly repealed and explains why it was never invoked. (Section 2 could survive if it applied to non-racial restrictions on the franchise, but the Supreme Court cases rejecting this construction are correct. One reason to read Section 2 narrowly in spite of its broad language: The Constitution is traditionally discreet about race; indeed, the apportionment provision of the original Constitution replaced by Section 2 referred to slaves as all other persons). Although never enforced, Section 2 is tremendously important to modern voting rights law. Section 2's penalty is inapplicable to disenfranchisement based on commission of rebellion or other crime. In Richardson v. Ramirez in 1974, the Supreme Court declined to apply strict scrutiny under the Equal Protection Clause of Section 1. The Court did not use Section 2 simply as evidence of the views of the states and Congress; this would have been insufficient because strict scrutiny had invalidated almost all state voting restrictions, including ones widely accepted when the Fourteenth Amendment was passed. Instead, the Court held that Section 2 textually authorized felon disenfranchisement, obviating the possibility of considering its validity under Section 1. This paper proposes that Richardson should be reexamined, because it rests on a provision no longer in force.

We are now in a position to pursue the implications both of originalism and of normative minimalism for the constitutional doctrine the modern Supreme Court has fashioned in the name of “equal protection” and for the doctrine it has fashioned in the name of “substantive due process”. No modern constitutional doctrines are more controversial. lo what extent are modern equal protection doctrine and modern substantive due process doctrine consistent with the originalist approach to constitutional interpretation? And to what extent are they consistent with the minimalist, or Thayerian, approach to the constitutional specification? Although I do not discuss, in this or in the next chapter, every doctrinal development the modern Court has fashioned in the name either of equal protection or of substantive due process, I do discuss the most important doctrinal developments, including the two that are probably the most controversial: those concerning affirmative action and abortion. My concern here is not with every detail of the developments I discuss, but only with the basic features of those developments: I want to inquire into the implications of originalism and of normative minimalism for the basic features of the most important doctrinal developments the modern Court has fashioned in the name either of equal protection or of substantive due process. In surveying the basic features both of the Supreme Court’s modern equal protection doctrine and of its modern substantive due process doctrine, I aim to determine the extent to which, if any, Robert Bork is right in asserting that “[o]f the [Fourteenth Almendment’s three clauses, two have been pressed into the service of judicial imperialism-the due process and equal protection clauses My concern here is not with formal, as distinct from substantive, matters.

The Free Exercise Clause of the U.S. First Amendment has been conceptualized by the Supreme Court and many commentators in all- or-nothing terms. The Court has tended to either apply “strict scrutiny” to burdens on religious exercise—in which case the government’s justi*cations for imposing the burden are rigorously reviewed––or instead, as of late, to apply a minimalist test that asks only whether government burdens on religion are motivated by antireligious sentiment. As the following materials and notes illustrate, other jurisdictions have tried to chart more nuanced middle-ground approaches. Whether balancing tests such as Canada’s, discussed below, are workable––there or more generally— is for readers to decide. Note that Canada, unlike the United States, has no explicit non establishment provision in its Charter. And yet, as the materials below suggest, Canada has incorporated many of the principles of religious equality on which much of the U.S. Establishment Clause jurisprudence has been built on. Perhaps Canada’s textual protection for multiculturalism has been an adequate vehicle in this regard. After reading the materials, consider whether the Fourteenth Amendment’s Equal Protection Clause could or should do more work in U.S. disputes implicating religious equality.

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.

Religious Exemptions

The Fourteenth Amendment provides that no state shall deny any person within its jurisdiction the equal protection of the laws. The Equal Protection Clause has been described as a direction that all persons who are similarly situated should be treated alike rather than differently. Although the Fourteenth Amendment does not apply to the federal government, the Fifth Amendment provides that no person shall be deprived of life, liberty, or property without due process of law. The U.S. Supreme Court has held that this Due Process Clause proscribes unjust legal discrimination. Federal laws that classify individuals in a manner that would offend the Equal Protection Clause will be struck down on Due Process grounds, and the basic analysis and standard of judicial review is the same. Therefore, for convenience's sake, I will use the phrase “equal protection guarantee” to describe the protection against discrimination that the Constitution grants to any person residing in the United States under both the Equal Protection Clause of the Fourteenth Amendment and the Due Process Clause of the Fifth Amendment. How is the equal protection guarantee relevant to a discussion of anticloning laws? This chapter answers this question in two steps: (1) it explains how such laws classify human clones and (2) it argues that this legal classification is suspect and triggers strict scrutiny under the equal protection guarantee. Anticloning Laws Deliberately Treat Human Clones Differently from Humans Born through Sexual Reproduction On their face, laws that ban human reproductive cloning do not classify human clones.

The constitutionality of affirmative action has now become one of the central topics in the politics of race. Ironically, the United States Constitution says absolutely nothing about affirmative action. The text never mentions the term, and the equal protection language in the Fourteenth Amendment simply begs the question of whether equality requires or precludes the use of affirmative action. The intent of the Framers is similarly unhelpful. We know that the drafters of the Fifth Amendment owned slaves, and the drafters of the Fourteenth Amendment envisioned a racially stratified society. But the Fourteenth Amendment was itself an affirmative action measure, and few of us think that the racial prejudices of the Framers should continue to govern contemporary race relations. There are a host of fancier, non-interpretivist constitutional theories, including structural theories, moral theories, civic-republican theories, representation-reinforcement theories, public-choice theories, and postmodern critical-race theories, but none has sufficiently broad support to claim status as the one authentic approach to constitutional interpretation. Rather, they are parochial overlays imposed on a Constitution that is best understood as defining the terms of engagement for political bargaining. Given the increasingly transparent dominance of political policy considerations in Supreme Court constitutional adjudication, it is not surprising that recent strands of constitutional scholarship have chosen to advocate judicial minimalism, and even the curtailment of judicial review. Because the Constitution says absolutely nothing about affirmative action, the Supreme Court should have absolutely nothing to say about it either. Rather, the political branches should set the nation's affirmative action policy, and they should do so with political leadership provided by the President. President Clinton has both advocated and actively practiced affirmative action to the extent that he could do so without offending the racial policy preferences of the Supreme Court. But he has failed to perform a presidential function that has even greater constitutional significance. He has failed to contest the Supreme Court's usurpation of racial policymaking power from the political branches of government.

Affirmative action is under attack by those who believe that race neutral criteria or a totally color-blind admissions process is mandated by the Equal Protection Clause of the Fourteenth Amendment. This onslaught comes in the form of voter-approved state initiatives outlawing the use of race in admission, a recent court case that rejected the position established in the Regents of the University of California v. Bakke (1978) decision, and recent litigation involving the University of Michigan. Surrounding this controversy is the search for better definitions of equity, diversity, strict scrutiny, compelling state interest, and merit. This article is a continuation of two other works (Hendrickson, 1996, 1999) and reviews the history of the evolution of the concepts of equal protection under the law or equity and affirmative action. A review of the case law on admission and affirmative action will

The article seeks, first and foremost, to demystify conceptions concerning the Section 5 of the Fourteenth Amendment power of Congress. Properly understood, Section 5 enactments raise no issue of separation of powers. The infirmity of the statute struck down in City of Boerne v. Flores, 521 U.S. 507 (1997), was not due to its provenance in Section 5. Rather, the statute sought directly to enlist the judiciary in implementing a congressional substitute for the equal protection analysis the courts would perform; in effect, Congress was commandeering the courts to do its bidding in the course of engaging in constitutional adjudication. Unlike the statute at issue in Boerne, Section 5 legislation generally should be understood as providing supplementary protection of groups, supplemental regulation of conduct that implicates no separation of powers concerns. Thus, while Congress unquestionably exercises substantive authority under Section 5, it enjoys no definitional authority over the Constitution's meaning. Section 5 enactments do raise federalism concerns, and the Supreme Court properly should inquire whether the ends of the legislation can be said plausibly to "enforce" the self-operative provisions of the Fourteenth Amendment. But enforcement authority is not limited to codifying, or providing additional sanctions for, conduct that courts on their own would find unconstitutional. Congress enjoys a remedial authority to act in a prophylactic fashion to prevent violations ever from occurring; to establish an environment conducive to the practical enjoyment of equal protection and due process. On the issue of permissible ends of Section 5 legislation, the question ordinarily should be whether the Court has acted in an area that the Court has identified as (or will agree is) one warranting heightened constitutional concern. Classifications the Court has subjected to intermediate or strict scrutiny are such areas, while classifications that are held to merit only rational basis scrutiny generally are not. However, classifications in the latter category may be proper subjects of Section 5 laws when they are found to implicate constitutional values (as recognized by the Court). The Court's "congruence and proportionality" test plays a useful role in cases, like Kimel v. Florida Bd. of Regents, 120 S.Ct. 631 (2000), where despite the invocation of Section 5, the absence of findings and the size of the gap between what the statute requires and what the Fourteenth Amendment requires of its own force raise the question whether Congress was, in fact, animated by Fourteenth Amendment concerns in passing the law. The test is unnecessary in cases like Boerne; it is inappropriate in cases like United States v. Morrison, 120 S.Ct. 1740 (2000), for it results in judicial scrutiny of the means Congress has chosen to advance an otherwise legitimate Section 5 objective. At one level, we should welcome the renewed attention to Congress's Section 5 authority, for an appropriate set of ground rules can serve both to quiet legitimate concerns that Congress impermissibly will overtake state functions and to initiate a new era of candor, encouraging Congress to legislate in the service of equality and due process norms under Section 5 rather than under the guise of regulation of commercial activity under the Commerce Clause. Morrison gives pause, however, and presents a threat to the capacity of the national legislature of address national problems through national solutions.