The tide is slowly changing at the United States Supreme Court, which ended its 2015-16 term with a slew of high-profile opinions that for the first time in years did not leave progressives in a state of distress.
Several years ago I wrote for Z Magazine that the Court was locked in a 5-4 conservative tilt that was routinely issuing decisions that scaled back civil and constitutional rights. This was all the more troublesome because the Justices usually remain on the Court for more than 20 years, and there are few opportunities for any president to appoint replacements that can shape the Court’s future. The 5-4 lock no longer exists because of Justice Antonin Scalia’s death in February 2016. As the leader of the Court’s conservative wing, Scalia helped to pioneer the “original intent” theory of constitutional law, mandating that current legal problems cannot be solved without considering what the constitutional framers had in mind in the 18th Century. That interpretative theory usually led to conservative results. Yet, while Scalia’s death erases the 5-4 lead that conservative Justices had over the liberals, that does not fully explain the Court’s frequent rulings this term that rejected conservative legal reasoning. Whether this term’s liberal rulings signal a real shift in the Court’s thinking or represents a brief aberration from past practices remains to be seen. But these rulings, and the possibility that a Democratic president might appoint up to four Justices, gives liberal Court-watchers reason for optimism after years of conservative rulings that will remain on the books for a generation.
Abortion Rights
Every few years, the Court takes on abortion rights, which remains at the fault lines in the American cultural war ever since Roe v. Wade, the Court’s 1973 ruling that the Constitution protects a woman’s right to an abortion. The 7-2 majority vote in Roe whittled away after the Reagan administration appointed conservative justices in the 1980s. While Roe remains good law, abortion rights have been scaled back over the years, notably in 1992, when the Court in Planned Parenthood v. Casey upheld a series of abortion restrictions in ruling for the first time that abortion rules are legal unless they create an “undue burden” to abortion access. The 5-4 Casey ruling was big news in 1992 because Justice Anthony Kennedy—a conservative Reagan appointee—and two other Republican Justices issued a collaborative opinion in reaffirming Roe despite dogged efforts by conservative legal strategists to eliminate any constitutional protections for abortion and allow the states to regulate that procedure without Supreme Court oversight.
Roe v Wade & Women’s Health
From time-to-time, the media reports on a state’s effort to push the envelope in regulating abortion. At issue in Whole Woman’s Health v. Hellerstedt was Texas’s anti-abortion rules that prevented abortion clinics from operating unless they could satisfy certain requirements. Under the “admitting privileges requirement,” a physician performing or inducing an abortion must have active admitting privileges at a hospital located no further than 30 miles from the abortion clinic. Under the “surgical-center requirement,” a clinic must satisfy the “minimum standards…for ambulatory surgical centers” under Texas law. These stringent requirements would make it much more difficult for women to have abortions. Prior to the law’s enactment, more than 40 abortion facilities were licensed in Texas. Under the law, less than ten would exist, and only in the Houston, Austin, San Antonio and the Dallas/Fort Worth region. The trial court in this case also found that, prior to the law’s enactment, abortion in Texas was “extremely safe” with “low rates of serious complications.” On the other hand, the costs of complying with the surgical-center requirement would approach at least $1 million. In sum, the admitting privileges requirement “brought about no…health-related benefit” and would instead place a “substantial obstacle in the path of a woman’s choice.” As for the surgical-center requirement, the Court found “considerable evidence in the record [establishing] that the…provision does not benefit patients and is not necessary.” In the balance, the Texas law posed an undue burden for women seeking abortions.
The Womens Health ruling is significant. While Justice Kennedy in the Casey decision may have voted to reaffirm the central holding in Roe that the Constitution protects the right to abortion, he remains a largely conservative Justice who has struck down other abortion provisions in the past, including intact dilation and extraction, also known as “partial-birth abortion.” In that case, Justice Kennedy offered the patronizing view that “While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.” Yet, in Whole Womens Health, the Court—with Kennedy in the majority—did not defer to Texas’s views about the health benefits of the abortion clinic law, and instead carefully considered how it would actually affect women.
Affirmative Action
Another constitutional hotspot is affirmative action, which has divided the Supreme Court ever since it held in Regents of University of California v. Bakke (1978) that a medical school could take race into account in making college admissions. Bakke was decided by the narrowest of margins, and the Court has grappled with affirmative action in public education ever since. While the Justices have upheld racially-conscious admission policies over the years, it has usually done so over the strong objections of conservative Justices who have insisted on color-blind admissions policies. One of those Justices was Anthony Kennedy.
In 2003, the Court upheld the University of Michigan’s system of holistic admissions review, which treated race as among many relevant factors in reviewing a candidate’s application. In that case, Grutter v. Bollinger, the Court held by a 5-4 vote that a public university had a compelling reason to ensure a diverse student body. In dissent, Justice Kennedy accused the majority of dispensing with the required careful analysis in reviewing the law school’s application process. He stated, “If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review.”
In the 2015-16 term, however, Justice Kennedy wrote for a 4-3 majority in favor of the University of Texas’s affirmative action program, reiterating that “enrolling a diverse student body ‘promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.’” The University adopted a holistic admissions review that included consideration of the applicant’s essays, letters of recommendation, the applicant’s potential contributions to the student body based in part on extracurricular activities and community service, and “special circumstances,” that include the applicant’s socioeconomic status and race. Justice Kennedy wrote that the University had adequately defended its admissions policies through anecdotal and quantitative evidence.
Using the sweeping language that Justice Kennedy is often known for, he concluded: “A university is in large part defined by those intangible qualities which are incapable of objective measurement, but which make for greatness. Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. But still, it remains an enduring challenge to our nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.
“In striking this sensitive balance, public universities, like the States themselves, can serve as ‘laboratories for experimentation.’ The University of Texas at Austin has a special opportunity to learn and to teach. The University now has at its disposal valuable data about the manner in which different approaches to admissions may foster diversity or instead dilute it. The University must continue to use this data to scrutinize the fairness of its admissions program; to assess whether changing demographics have undermined the need for a race-conscious policy; and to identify the effects, both positive and negative, of the affirmative-action measures it deems necessary.”
Based on the reasoning in Fisher v. University of Texas, affirmative action in higher education is here to stay. But this, too, was a narrow ruling, And the only reason the Court was able to issue a ruling at all was the death of Justice Scalia, who, as a leading opponent of affirmative action, almost certainly would have voted to strike down the University’s admission’s policies. That would have resulted in a 4-4 tie, which under Supreme Court practice means the Court will not issue a written opinion. Without the opinion in Fisher, public universities would have continued to wonder if their diversity programs survived constitutional review.
Race Discrimination
The Court also took up a number of cases that examined race discrimination in jury selection and employment. In Green v. Brennan, the Court resolved an issue that is unlikely to reach the front page: the statute of limitations when employees resign their positions because they are the victims of employment discrimination. This case may not carry the glamour of cases involving abortion, affirmative action, or the death penalty, but it raises a bread-and-butter legal issue that arises every day. In Green, the plaintiff was a postal worker who complained about discrimination. Following that complaint, Green agreed to either retire or accept a transfer. Green retired rather than accept another position in a remote location for a much lower salary. When he sued the post office for racial discrimination, the government argued that Green had waited too long to file the suit, arguing that the operative date for purposes of determining timeliness was the date he agreed to retire or accept the transfer. The Supreme Court disagreed, ruling 7-1 that the statute of limitations accrued when Green decided to resign.
Any time the Court expands the statute of limitations in employment discrimination cases is a good day for plaintiffs, as many cases are dismissed as untimely because lay-persons often do not know how to preserve their rights and, when they find an attorney willing to take the case, it may be too late. The last time the Court resolved a significant case involving the statute of limitations, it had ruled in favor of a tight and often unworkable deadline for equal-pay claims. Following that case, Ledbetter v. Goodyear Tire (2007), Congress voted to overturn the opinion by statute after the case became a cause celebre. But that result was an anomaly. Congress ignores many anti-plaintiff employment rulings, which remain the law of the land for decades.
While Green was a routine employment discrimination case, the jury selection case was more notable, as it exposed explicitly racist jury selection practices in modern-day Georgia. In 1986, the Supreme Court held that criminal convictions violate the Constitution when jurors are stricken because of their race. In Foster v. Chapman, the prosecutors who picked a jury in this murder case maintained a list of their prospective jurors, noting their race. When the prosecutors struck the black jurors, they were required under Supreme Court precedent to articulate neutral reasons for this decision. The Supreme Court ruled that these excuses rang hollow, as the life experiences and personal characteristics that prosecutors attributed to the black jurors (such as marital status, age and truthfulness during jury selection) also applied to the white jurors who were not stricken from the jury panel. While the prosecutors argued that they did not take race into account in striking jurors, Chief Justice Roberts strongly disagreed, writing, “The contents of the prosecution’s file…plainly belie the State’s claim that it exercised its strikes in a ‘color-blind’ manner. The sheer number of references to race in that file is arresting.”
The ruling in Foster is significant because few criminal defendants are able to challenge their convictions on the ground that they had a racially-biased jury, as judges are loathe to second-guess prosecutors who claim they struck jurors for neutral reasons. The Foster ruling adds teeth to these constitutional guarantees, inviting lower-court judges to more carefully scrutinize jury selection practices.
Search and Seizures
Not all Court’s decisions in the 2015-16 term favored civil rights. In Utah v. Strieff, the Court scaled back Fourth Amendment protections against warrantless police searches. However, the case featured a remarkable dissent from Justice Sotomayor, whose opinion echoed the Black Lives Matter movement in highlighting the real-life consequences of enhanced police search authority.
Under the exclusionary rule, if the police conduct an unlawful search and find something illegal, the contraband cannot be used against the defendant in court. Over the years, the Court has carved out exceptions to the exclusionary rule, and this case creates another such extension. After the police received a tip about a house that was the site of narcotics activity, they followed a man out of the house and approached him. That man was Strieff. In the parking lot at the nearby convenience store, the police asked him for identification. The police relayed Strieff’s information to a dispatcher, who found there was an outstanding warrant on a traffic violation. Strieff was arrested on that warrant, and in searching him as part of the arrest (normal police procedure), they found drug paraphernalia. The problem for the police was that the initial stop of Strieff was illegal because there was no reasonable suspicion for it under the Fourth Amendment, which only allows the police to search people on the street without a warrant if they have reason to believe that criminal activity was afoot. The drug paraphernalia was the fruit of the “poisonous stop.”
While the exclusionary rule is a powerful doctrine intended to deter unlawful police conduct, the 5-3 majority noted that the exclusionary rule does not apply in certain instances: (1) if the evidence would have been found through an independent source, (2) if the evidence would have been found even without the unconstitutional stop (the inevitable discovery rule) and (3) the attenuation rule, which says that “evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that ‘the interest protected by the constitutional guarantee that has been violated would not be served by suppression of the evidence obtained’.”
The Court sustains the search and upholds Strieff’s conviction on the attenuation exception. The Court holds for the first time that the attenuation doctrine applies when the illegal stop results in the police discovery of a valid warrant against the defendant, and the arrest from that warrant reveals something illegal. As Justice Thomas puts it, the issue is whether “the discovery of a valid arrest warrant is a sufficient intervening event to break the causal chain between the unlawful stop and the discovery of drug-related evidence on Strieff’s person.” The Court majority answered that question in the affirmative.
Justice Sotomayor dissented, noting that outstanding warrants are common, particularly for traffic offenses, and that rulings like this have real-life consequences for people, including humiliating arrests that can include intrusive body searches and more incarceration: “The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. If the officer discovers a warrant for a fine you forgot to pay, courts will now excuse his illegal stop and will admit into evidence anything he happens to find by searching you after arresting you on the warrant. Because the Fourth Amendment should prohibit, not permit, such misconduct, I dissent.
“Writing only for myself, and drawing on my professional experiences, I would add that unlawful stops have severe consequences much greater than the inconvenience suggested by the name. This Court has given officers an array of instruments to probe and examine you. When we condone officers’ use of these devices without adequate cause, we give them reason to target pedestrians in an arbitrary manner. We also risk treating members of our communities as second-class citizens.”
Most remarkable is the dissent’s reference to recent literature about the high rates for incarceration for minority groups. These facts are often the focus of academic and even street discussion about the fairness of the criminal justice system. But they almost never find their way into a Supreme Court ruling. Justice Sotomayor wrote: “This case involves a suspicionless stop, one in which the officer initiated this chain of events without justification. As the Justice Department notes, many innocent people are subjected to the humiliations of these unconstitutional searches. The white defendant in this case shows that anyone’s dignity can be violated in this manner. See M. Gottschalk, Caught 119-138 (2015). But it is no secret that people of color are disproportionate victims of this type of scrutiny. See M. Alexander, The New Jim Crow 95-136 (2010). For generations, black and brown parents have given their children ‘the talk’—instructing them never to run down the street; always keep your hands where they can be seen; do not even think of talking back to a stranger—all out of fear of how an officer with a gun will react to them. See, e.g., W.E.B. Du Bois, The Souls of Black Folk (1903); J. Baldwin, The Fire Next Time (1963); T. Coates, Between the World and Me (2015).
“By legitimizing the conduct that produces this double consciousness, this case tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.
“We must not pretend that the countless people who are routinely targeted by police are ‘isolated.’ They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere. See L. Guinier & G. Torres, The Miner’s Canary 274-283 (2002). They are the ones who recognize that unlawful police stops corrode all our civil liberties and threaten all our lives. Until their voices matter too, our justice system will continue to be anything but.”
While Justice Sotomayor is an Hispanic from the Bronx, and presumably knows people who have been harassed by the police, she is also a former prosecutor and federal trial court judge, who has seen her share of genuine lawlessness by criminal defendants who deserved to be arrested. But there is no escaping recent social science research and popular sentiment that more examines police misconduct. While the Strieff ruling was distressing for those who wish to strengthen the exclusionary rule and protect against police abuses, Justice Sotomayor’s dissent reminded us that judges can still note the real-world consequences of court rulings.
Z
Stephen Bergstein is a civil rights attorney in upstate New York.