When at Times the Mob Is Swayed

by Burt Neuborne

  The decision was a disaster for racial equity on two levels. First, the plight of racial minorities is never solely the result of purposeful discrimination. Much of the time, the majority makes policy (or fails to make policy) without thinking—or caring—about its potential impact on weak minorities. From the standpoint of a minority job applicant, though, it doesn’t make any difference whether a disqualifying question was included on the test with the purpose of disqualifying black employees or is being asked because no one bothered to think about whether the question would knock out minorities for no good reason. In both settings, the minority applicant is out of a job because of his or her race.

  Under Washington v. Davis, the Republican Supreme Court ruled that government has no constitutional duty to think about the foreseeable impact of its actions on vulnerable groups. Imagine what our highways would look like if new drivers were told that they were not allowed to injure someone intentionally but were under no duty to avoid negligent or reckless driving. Washington v. Davis turns vulnerable minorities into sitting ducks on that toxic highway, just waiting for an “accident” to happen. Worse, once you tell a cynical racist that all he has to do is make up a story about why his foreseeably discriminatory actions “unintentionally” harm blacks, how long do you think it will take him to come up with a pretextual explanation? What else do you think is going on when cynical Republican politicians claim that unnecessary voter ID requirements, stringent voter registration rules, or overly broad voter purge statutes are about preventing nonexistent fraud, not keeping poor blacks and Latinos off the voting rolls?

  As in Rodriguez, the technical constitutional arguments in Washington v. Davis were, at a minimum, in rough equipoise. The Fifth Amendment’s implied protection of equality could plausibly be read either way. I have no doubt that a Democratic Supreme Court would have broken the legal tie in favor of racial equity. Five Republicans broke the tie in favor of local autonomy. Subsequent Republican Supreme Court decisions extended the necessity of proving discriminatory intent to the Fifteenth Amendment’s protection of voting rights, the Fourteenth Amendment’s protection of women, and the protection of Native American religious exercises inherent in the First Amendment clause guaranteeing the free exercise of religion.

  The sorry saga of hundreds of unsuccessful efforts by civil rights lawyers to prove “discriminatory purpose,” as opposed to “disparate impact,” demonstrates the magnitude of the Court’s error—and just how much the Fortas fiasco really cost the movement for racial equity.

  FELON DISENFRANCHISEMENT: THE ROOTS OF BUSH V. GORE

  The 2016 presidential election wasn’t the first to be hijacked and delivered to a minority president. In 1876, southern racists stole the Hays-Tilden election by disqualifying enough Tilden electors to give Hays a one-vote victory in the Electoral College despite losing the popular vote, in return for Hays’s promise to abandon southern blacks by ending the military occupation of the defeated South. Hays kept his promise, and lynch law swept the South.

  In 2016, it was the Russian government’s disinformation campaign and a presidential candidate named Trump willing to violate the campaign finance laws to cover up evidence of his sexual escapades, and perhaps his willingness to cooperate with the Russians that hijacked the Electoral College for the losing candidate.

  In 2000, it was a Republican Supreme Court that executed the heist by refusing to permit Florida to complete a recount of the presidential balloting ordered by the Florida Supreme Court, a recount that the Democratic candidate, Al Gore, plausibly expected to win. Largely because of incompetent administration of the paper ballot voting in Palm Beach and Broward Counties (Democratic strongholds), the Republican candidate, George W. Bush, carried Florida by just over six hundred votes after thousands of paper ballot votes for Gore were disallowed on dubious technical grounds.

  The Democratic-controlled Florida Supreme Court ordered a careful manual recount of the disqualified paper ballots to ensure the integrity of the election. A five-justice Republican majority on the Supreme Court first stayed the recount, and eventually blocked it as coming too late (because of the stay). George W. Bush carried Florida and became a minority president.

  But it should never have been that close. At the time of the 2000 election controversy, a provision of the 1968 Florida constitution that dated from 1868 barred individuals with a criminal record from voting, even after they had fully served their sentences—a ban that disenfranchised 25 percent of Florida’s black male population in that election year. Had even one thousand of the hundreds of thousands of disenfranchised black males been allowed to vote in 2000, Al Gore would probably have been elected president.

  Were the 2000 election held under today’s rules, the decision in 2018 of 64 percent of Florida’s voters to end felon disenfranchisement would probably have delivered the state to Gore. Ending felon disenfranchisement may flip Florida from Republican to Democratic in 2020, but only if a substantial proportion of the hundreds of thousands of re-enfranchised black voters are brought back into the process.

  Given the massive racial disparities at work in the criminal justice system, it’s no surprise that felon disenfranchisement always falls with discriminatory severity on poor people of color. Imagine two kids arrested for drunk driving in Florida. One’s a young black teenager with no money. He’ll be lucky to be allowed to plead to a felony and get probation. Depending on the judge, he may even serve time. Either way, as a convicted felon, under the old rules, he’d never vote again in Florida.

  The other young drunk driver’s name is George W. Bush Jr. He’s represented by high-powered lawyers, appropriately supported by his influential family, and placed into an alcohol treatment program in lieu of facing a criminal charge. The drunk driving charges are dropped after he completes a rehabilitation program. To his credit, the young Bush beats his alcohol problem and goes on to become president of the United States.

  We have the Fortas fiasco to thank for the legal and moral disaster of Bush v. Gore and the persistence of felon disenfranchisement. In 1974, in Richardson v. Ramirez, the newly minted five-justice Republican majority made a mockery of the equality-enhancing purpose of the Fourteenth Amendment, reading its Section 2 hyper-technically to permit the continued disenfranchisement of felons, despite the massive disparate impact on black voters. Predictably, the four Democratic justices dissented. A Democratic-controlled Court in 1974 would almost certainly have invalidated the racist practice once and for all, changing the face of American democracy, changing the outcome of the 2000 presidential election, and changing the political composition of the Supreme Court.

  At a minimum, no disastrous invasion of Iraq. Perhaps no 2007–8 financial collapse. No Chief Justice John Roberts. No Justice Samuel Alito. No Justice Neil Gorsuch. No Justice Brett Kavanaugh.

  In a futile effort to close the barn door after the horses had already escaped, once the 2000 election was over, the Brennan Center challenged the constitutionality of the racially discriminatory impact of Florida’s felon disenfranchisement rules. Washington v. Davis’s insistence on proving “purposeful” discrimination could not save felon disenfranchisement, we argued, because it was clear that felon disenfranchisement had been adopted by Florida in 1868 in an intentional effort to disenfranchise formerly enslaved persons. Even Republican justices reject felon disenfranchisement when it is purposefully imposed to block blacks from voting. Mississippi’s version of felon disenfranchisement was invalidated under the Fifteenth Amendment for just that reason

  “Ah,” replied the Republican district judge in Miami, “that’s true.” “But the 1868 Florida constitution is no longer in force. Florida adopted a new constitution in 1968.”

  “That’s also true,” we replied, “but the 1968 Florida constitution uses virtually the exact language as the 1868 constitution.” At a minimum, we argued, if Florida repeats the exact language that it once used to discriminate on purpose, surely Florida should be required to prove that its motive has changed,
especially when the provision continues to discriminate against black voters. No Democratic judge would have rejected such a plausible, equality-enhancing legal argument. No such luck, though, with Republican judges, for whom Florida’s autonomy was apparently more important than the equality of its black citizens.

  After years of bitter litigation, we lost because, in the twenty-first century, there was no surviving formal evidence of what the white pols in Florida had intended in 1968 when they decided to reenact the exact terms of the racist 1868 felon disenfranchisement provisions. The white pols were too smart to admit why they were copying the 1868 language that just happened to block thousands and thousands of black men from voting.

  So George W. Bush beat Al Gore in 2000 because the Fortas fiasco cost the Democrats control of the Supreme Court in 1972. Were it not for the Fortas fiasco, felon disenfranchisement would have been struck down in 1974, Al Gore would have been elected president in 2000, and the Supreme Court would be blue today.

  VIOLENCE AGAINST WOMEN

  Persistent violence committed by men against women is a public health disaster and an enormous drag on the economy. It is a major cause of female absenteeism from work, and the principal reason women are reluctant to work in certain isolated or high-crime areas and at certain times. Violence against women is, of course, against the law in every state. But two centuries of hostility or indifference from too many male-dominated state judiciaries had barely made a dent in the problem.

  In 1994, Congress recognized the economic cost of violence against women by exercising its power under the commerce clause to enact the Violence Against Women Act, opening the elite federal trial courts to women seeking redress for gender-motived violence.

  For most of their history, those courts, staffed today by more than nine hundred of the nation’s most respected trial judges, had virtually ignored issues of importance to women. The nineteenth-century Supreme Court had rejected a woman’s right to vote and upheld the exclusion of women from the legal profession. It wasn’t until 1934 that President Franklin Roosevelt appointed the first woman to a federal appeals court. President Harry Truman appointed the first woman to the federal trial bench in 1949. Until the Notorious RBG got her hands on it, a judge-made “domestic relations” exception blocked women from asking federal judges to deal with intrafamily disputes, including allegations of marital rape, child abuse, and domestic violence.

  For more than two hundred years, women seeking to cope with state judicial and legislative indifference to gender-motivated violence—especially rape—were routinely shunted out of the elite federal courts and back into the very male-dominated state courts whose hostility and indifference had led to the judicial failure to act effectively to protect women in the first place.

  The Violence Against Women Act sought to open the federal courts to women who were victims of gender-motivated violence, allowing our elite trial judges to confront the ongoing epidemic. In 2000, in United States v. Morrison, the Republican Supreme Court majority (the same majority that would hijack the presidential election later that year) reached back to pre-FDR Republican precedents limiting Congress’s power to use the commerce clause to protect the weak, and invalidated Congress’s effort to enhance the equality interests of women.

  In Morrison, a student at Virginia Polytechnic Institute invoked the Violence Against Women Act to sue the school in federal court for failing to act against an athlete whom she accused of rape. The Republican majority invalidated the federal law, claiming that Congress had not sufficiently linked the statute to the adverse economic effects of gender-motivated violence. It was not enough, held the Republican majority, to demonstrate the economic link after the fact. Congress had to have been actually motivated by the link when it passed the law.

  The four Democratic justices dissented, arguing that the issue was not the subjective intention of Congress (whatever that means, since Congress is made up of 535 different people with 535 different motives), but whether gender-motivated violence in fact affects the national economy. If it does, argued the Democratic dissenters, Congress has power to move against it to protect interstate commerce.

  A Democratic-controlled Supreme Court would almost certainly have upheld the statute, providing women with a potent new legal remedy for failure to act vigorously against gender-motivated violence. At a minimum, a Democratic majority would have recognized that the equality-enhancing provisions of the Fourteenth Amendment authorize Congress to act to protect women against the indifference of the state courts. In later cases, the Notorious RBG rescued women from part of the problem by persuading a Republican Court to respect the right of a woman trapped in an intrafamily cycle of violence to seek relief in a federal court free from the nineteenth-century domestic relations exception. That’s something, of course. But it’s only a pale shadow of the equality-enhancing right to seek relief in federal court that women would have exercised if a Democratic Court had upheld the Violence Against Women Act.

  REPRODUCTIVE FREEDOM

  Roe v. Wade, decided in 1973 by a newly minted 5–4 Republican Court, protects a woman’s right to choose whether to bear a child. It’s hard to believe today, but both Republican and Democratic justices initially viewed the constitutional right to choose as an easy legal (if emotionally wrenching moral) case advancing the autonomy interests of the woman and her doctor. Roe was decided by a 7–2 bipartisan vote.

  Over the years, though, passionate, often religiously driven opposition to abortion persuaded several Republican justices (who happened to be Catholic) that Roe had underestimated the potential autonomy interest of the fetus. If, the dissenting justices argued, a genuine dispute exists over whose autonomy right to favor, the dispute should be resolved by the democratic process, not by constitutional judges.

  Once the autonomy issue became complicated by rival claimants, Ruth Bader Ginsburg, then a judge serving on the District of Columbia Court of Appeals, sought to alter the terms of the debate, arguing that the right to choose was not solely a question of autonomy; rather, she argued, it was central to the attainment of equality for women. No woman, RBG argued, could hope to participate equally in the economic, political, and social life of the nation if she was required by her reproductive organs to involuntarily spend considerable time bearing and then raising children. No society, she observed, had ever attained equality for women without permitting them to control their reproductive lives.

  The real legal issue posed by the abortion cases, Justice Ginsburg argued, is whether the unquestionable equality interests of women outweigh the deeply contested alleged autonomy interest of a fetus. Viewed as a collision between conflicting claims to autonomy and the clear equality interests of women, the minority Democratic justices dug in and supported Roe. Republican justices (in particular the male Republican justices), less moved by the equality interests of women, have chipped away at Roe, especially at protections for poor women. Troubled by the implications of overruling a rights-bearing precedent, however, they have stopped short of overruling it.

  In 1992, in Planned Parenthood v. Casey, a Republican-controlled Court, this time with a comfortable 8–1 Republican majority (reflecting the deferred democracy consequences of twelve consecutive years of Republican presidents), came within a whisker of overturning Roe v. Wade. At the last minute, cooler Republican heads, committed to the stability and sense of security that respect for precedent provides, declined to overturn Roe but began the process of chipping away at the case—especially when the rights of poor women are at stake.

  The watered-down judicial review standard imposed in Casey—whether a regulation poses an “undue burden” on the right to choose—has operated as a green light for anti-choice Republican legislators to pile on as many regulations as possible in an effort to undermine the right to choose whether to bear a child. In Rust v. Sullivan, for example, a 5–4 decision by the Republican majority upheld a federal gag rule banning federally funded doctors from talking to their patients about abortion. The five Rep
ublican justices insisted on viewing federally funded doctors for the poor as shills for the government, instead of as full-fledged providers of medical services. Rust should be appalling from both Republican autonomy and Democratic equality perspectives. The case runs roughshod over the autonomy interests of both doctor and patient in service of the government’s decision to advance the highly contested alleged autonomy interest of the fetus. The majority opinion entirely ignores both the equality interests of poor women patients, and the autonomy interests of poor women and their doctors. No Democratic Court would have voted that way.

  In 2007, in Gonzales v. Carhart, a five-justice Republican majority further eroded Roe, applying the Casey “undue burden” test to uphold a ban on generally accepted medical procedures for late-second-trimester abortions, further elevating the contested autonomy interest of the fetus at the expense of the autonomy and equality interests of women and their doctors. No Democratic Court would have given such short shrift to the equality values bound up in the question of whether women can control their reproductive lives.

  In 2016, in Whole Women’s Health Clinic v. Hellerstedt, in what was Justice Anthony Kennedy’s last hurrah before retiring, the four Democratic justices, plus Justice Kennedy, struck down a Texas anti-abortion law that piled so many onerous restrictions on abortion facilities that they were forced to shut down in large areas of rural Texas, leaving women with no opportunity to exercise what is left of the right to choose. But with Justice Kennedy gone, there’s no guarantee that Justice Kavanaugh will provide a fifth vote in such a case in the future. In fact, it’s quite possible that he’ll join with his four Republican colleagues to render Roe a dead letter for poor women, without the need to overrule it formally. As far as middle-class women are concerned, though, under a Republican Court with a thin commitment to equality, Roe clings to life on the fragile support system of respect for rights-bearing precedents. As we’ll see in chapter 6, the Supreme Court has never overruled a rights-bearing precedent.