May 06, 2004

Brown: By Request

by PG

At co-blogger Nick Morgan's suggestion, this Brown post contrasts the Warren Court with the Rehnquist Court, with particular attention to "the broad injunctive relief paradigm of federal court intervention," states' rights and the 11th Amendment.

As this is a large topic, and I am in any case making it up as I go along, I hope De Novo readers will forgive my hopscotch approach.

Those who wish to distinguish the Warren and Rehnquist Courts from each other have plenty of labels at their disposal, with "liberal" vs. "conservative" the most obvious. One word, however, describes both Courts: "activist." Both are unafraid of using the power of judicial review to overturn law, though the Warren Court preferred to meddle with state laws requiring segregation and school prayer, whereas the Rehnquist Court concentrates its fire on Congressional legislation such as the Violence Against Women and Americans with Disabilities Acts.

"In getting the decisions we like, we run the risk of decisions we despise. [...T]hose who celebrate Brown as the exemplar of judicial review have to live with Supreme Court decisions restricting affirmative action and campaign finance reform." -- Mark Tushnet, Taking the Constitution Away from the Courts.

This may reflect which level of government each Court found more problematic. The Warren Court saw states stifling their citizens' rights, but the Rehnquist Court views the federal government as expansive and over-reaching. The results tend to be that the Warren Court gaveth and the Rehnquist Court taketh away (blessed be the name of the Court), at least with regard to broad injunctive relief. Where Warren found rights that citizens could sue to have upheld, Rehnquist dismisses rights that Congress attempts to create.

"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." -- Eleventh Amendment to the U.S. Constitution

Much of this dismissal relies on the 11th Amendment. Notwithstanding its plain text, historical context and Chief Justice Marshall's temporally proximate construction, it has been read since 1890's Hans v. Louisiana to bar federal suits by a citizen against her own state. Coming up with the idea of implicit or penumbral rights long before Griswold, Justice Bradley & Co. decided that state sovereignty, even beyond its articulation in the 11th Amendment, could not withstand the indignity of federal lawsuits by individuals. This particular form of sovereignty, though never explicitly mentioned in the Constitution -- indeed, rather denied by Article III Section 2's "The judicial power shall extend to all cases, in law and equity, arising under [...] the laws of the United States" -- nonetheless must exist.

In a way, the Fuller Court and subsequent courts using that interpretation have a similar view of the states as the Griswold majority did of individuals. Those who see a right to privacy in the Constitution cannot conceive of how Americans are to be meaningfully free without it; for example, do not see a nation in which the the government routinely barges into bedrooms to see what husband and wife are doing as a nation of liberty. Those who see a prohibition on federal suits against states cannot conceive of how states are to be meaningfully sovereign without it.

When one is meditating on Brown, all this encourages a thought experiment. With 20/20 hindsight on the vast backlash against Brown -- the massive resistance, Prince Edward County's five year school closing -- many scholars argue that the Warren Court was unwise in making a sweeping declaration against segregation in public education. These legal historians claim that the civil rights movement already had sufficient momentum, such that racial discimination in public education could have been prohibited by Congress. After all, the Civil Rights Act of 1964 passed Congress by a margin of 42 votes in the Senate (after a very lengthy debate and filibuster attempt) and 160 votes in the House -- a strong democratic consensus just a decade after Brown.

In this view, much of the resistance to desegregation was due to its having been illegitimately mandated by judicial fiat. The slogan "Impeach Earl Warren" was popular in the years following Brown, but no "Impeach LBJ" nor "Impeach Congress" stickers seem to have been widespread immediately following the passage and signing of civil rights legislation.

But state sovereignty presents a problem for the Congressional alternative to Brown. While all but the most demented supporters concede that states must obey the U.S. Constitution, including [sigh] the Supreme Court's interpretation of that Constitution, they very much do not believe that states must obey Congressional legislation. Or at least, they do not believe that obedience can be enforced by the federal courts. Congress may make laws prohibiting discrimination on the basis of age, but the Rehnquist Court won't uphold suits to force Florida to compensate older employees appropriately.

So if Congress had, in the absence of Brown, legislated that states could not separate students by race, how would this have played out? Suppose some particularly hardened state like Alabama was unappeased by desegregation's having come through Congress instead of the Supreme Court, and steadfastly refused to obey that law. Under the state sovereignty view, African American children could not sue Alabama in federal court, under the federal desegregation statute, because that would interfere with state sovereignty.

May 6, 2004 12:39 AM | TrackBack
Comments

Erm... forgive me for having just come out of my Con Law exam and thus being a bit muddled, but your question doesn't seem to be very tough, is it? The 11th Amendment jurisprudence states that state sovereign immunity can't be abrogated when Congress is acting under its enumerated, Article 1 powers. If it's acting under Amd. 15, Section 5, I thought that even Rehnquist, Mr. Sovereign Immunity his own bloody self, states that Congress can get around such a suit? Kimel, after all, can be distinguished by Nevada Dept. of Human Resources v. Hibbs (IIRC, a Rehnquist opinion), which finds 14/5 to go so far as the Family Medical Leave Act.

(Please tell me I'm not wrong here. Failing Con Law would be depressing.)

Now, I'm sure there's some extreme 11th Amendment types who might say that Rehnquist is wrong there--that sovereign immunity for the states is absolute. But then, they're the same folks who would answer that the issue simply isn't a federal one anyway--that it couldn't be reached by 14.5, which means they think it's not an equal protection issue. But otherwise your complaint about Kimel seems to be that the Rehnquist court is using the differential levels of scrutiny so beloved of earlier courts--such as the Warren one--to work with age. It's not a question about Congressional action under Brown at all...

Or at least I hope. I'd like to become a 2L.

Posted by: A. Rickey at May 6, 2004 02:11 AM

Sorry, that should be 'congressional action to do with race,' which even the Slaughterhouse cases agreed was the purpose of the 14th Amendment.

Posted by: A. Rickey at May 6, 2004 02:13 AM

:-) Forgive me for having had undergrad Con Law four years ago and thus being far more muddled than you are. Hence the disclaimer at the beginning of this post.

Just correcting your typo so no one will be confused: that should be Amdt 14, Sec. 1 & 5, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States [...] nor deny to any person within its jurisdiction the equal protection of the laws.
"The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."

You're assuming that a statute prohibiting racial segregation in public education would have to rely on Amdt 14. But IIRC, the Civil Rights Act of 1964 was based on Art. 1 Sec. 8 interstate commerce powers, just as VAWA, ADA et. al have been. Had it included "and no school shall segregate its students by race," we would have the same peculiarity we see with age and disability discrimination, wherein private employers are required to obey the law but public employers are not. Private schools would have been forced to admit black students, but public schools wouldn't.

As for Hibbs, Rehnquist's action left a lot of people scratching their heads and suspecting that he was joining the majority so he could write the opinion and limit its scope as narrowly as possible. If we're truly going to take gender as seriously as race for 14.5 purposes -- and I think I'm much more in favor of doing so than Rehnquist really is -- I got some discriminatory marriage statutes to dispute with ya... ;-)

Posted by: PG at May 6, 2004 08:07 AM

You're assuming that a statute prohibiting racial segregation in public education would have to rely on Amdt 14. But IIRC, the Civil Rights Act of 1964 was based on Art. 1 Sec. 8 interstate commerce powers, just as VAWA, ADA et. al have been. Had it included "and no school shall segregate its students by race," we would have the same peculiarity we see with age and disability discrimination, wherein private employers are required to obey the law but public employers are not. Private schools would have been forced to admit black students, but public schools wouldn't.

It's still early in the morning, so maybe I'm a bit too groggy to get this, but...

Congress would have tried to rely on it's Section 5 power as basis for the legislation.

Of course, the (relatively) recent Sutton-argued 11th Amendment cases only limit the use of Section 5 power to existing constitutional law. For example: Congress can't force states to be sued for pattern of practice discrimination as it goes against Washington v. Davis.

I guess the question is: without Brown... thus with Plessy as the guiding law... wouldn't the 11th Amendment analysis dictate that since the Supreme Court hadn't determined that integration was in the scope of the 14th Amendment, any such statute by Congress would indeed fail.

Although you might say it's a bit incongruous as private schools would have had to integrate, such a methodology protects the Constitution from being amended by a simple majority vote of Congress (even, in this case, if it's for the better).

I don't know what the 11th Amendment case law was like in the 1950's but (extrapolating from Ex parte Young) I would assume a result similar to Kimel, etc. would have been reached.

Posted by: Brian at May 6, 2004 09:44 AM

Great post! I am so very eager to dive in and discuss the 11th Amendment, but I need to go take Volokh's exam (take-home).

Posted by: Nick Morgan at May 6, 2004 10:45 AM

thanks for reminding me of the text of the 11th.
i think, tho, that the Rehnquist court is relying more on the 10th in its federalism cases.
Ex parte young was mentioned, i would have pointed to will v michigan. The 11th (or prudential rules loosely linked to the 11th)do not prohibit federal courts from declaratory or injunctive relief against state officers.
and see monell - you can sue a city or county
(er, but that's 14th based, my bad)
e.g. majors v abell (majors.blogspot.com)sues indiana in federal court.
the 11th does not bar the supreme court from reviewing state court decisions, ala naacp v alabama ex rel patterson.
passage of the 64 act was less a triumph of democracy than a triumph of lbj's semi-enlightened despotism. 64 was the peak of his manic phase, depression didn't set in until 66.
in 64, lbj got more bills through than kennedy had 61-63.
thanks for this source:
Mann, Robert. The Walls of Jericho: Lyndon Johnson, Hubert Humphrey, Richard Russell and the Struggle for Civil Rights. New York: Harcourt
i'll have to put that on my reading list. have you read caro's lbj master of the senate?
nick, tell us more about volokh's exam and class, if you like.

Posted by: arbitraryaardvark at May 6, 2004 12:48 PM

The 11th (or prudential rules loosely linked to the 11th)do not prohibit federal courts from declaratory or injunctive relief against state officers.

I'm guessing the problem with that is Ex parte Young... or that theory at least... is reliant on the fact that the actions by the state official are indeed unconstitutional (that's part of the fiction, pseudo-ultra vires and all).

However, in the PG hypo, without Brown, segregation in schools wouldn't be unconstitutional so the only basis for injunctive relief would be the statute... and I don't think that exception to the 11th applies to statutory law. Does it? I can't recall.

Posted by: Brian at May 6, 2004 04:16 PM

Oh God, Nick. I can't even begin to imagine a Volokh take-home. ;-) Good luck.

Posted by: Chris Geidner at May 6, 2004 04:40 PM

PG:

Yeah, sorry... typos after that brutal Con Law exam were to be expected. My bad! :)

However, I'm not so sure about your memory. Certainly many of the substantive goals of Title VII are reached through the Commerce Clause. Nonetheless, the fact that you can breach sovereign immunity for the states is reached through 14.5. This is why you can sue your state for Title VII violations (and FMLA, which I agree makes little sense).

So--and some of the big bad 2Ls can correct me if I'm wrong here--there wouldn't be a problem at all with your decision in the absence of Brown. If there were a statute saying that, "All schools are forbidden from segregating on the basis of race; any student whose right to an unsegregated school is violated may have a right of action through the state[1]," Congress can reach it through 14.5, even if the rest of the bill were done under Commerce. Sovereign immunity would be no shield at all for the state.

As for 'taking gender as seriously as race,' we don't have to. It gets intermediate scrutiny. Why FMLA was gender I don't know, but gender isn't like age.

[1] Obviously, drafted better than that.

Posted by: A. Rickey at May 6, 2004 09:05 PM

I think Tony is basically right. Congress will often cite both article I powers and the 14th am sec 5 power, and the court will consider abrogation under each. But Garrett makes this really difficult (need extensive evidentiary record showing pattern of states violating 14th Amendment rights); Hibbs is not consistent with Garrett, so no one really knows just how hard it is to abrogate under the 14th.

What I find discomfiting about all this is that the Rhenquist Court has launched an incredibly broad campaign for states rights on various fronts (not just the 11th Am), and the work is in progress. A seemingly endless series of cases has continually made 1983 suits harder and harder (check out qualified immunity and how it's changed in the last two decades), reduced Ex Parte Young (injunctive relief against states), made it nearly impossible to stop an unconstitutional state prosecution, expanded deference to states in habeas corpus petititions, and lots of other stuff. As of now, although one can't sue The State itself, it's unclear whether this is a mere captioning rule for pleadings, or whether the Court will continue to make it very hard to sue state officers who violate constitutional rights. What I find interesting is the broader mission of the Rhenquist Court and its diametical inconsistency with the Warren Court's "federal courts as guardians of constitutional liberties" philosophy. Espcially because the Rhenquist Court doesn't even attempt to argue that states are just as likely to protect liberties--it's as if nothing matters more than a state's sovereign dignity, no matter how they treat citizens. Everyone should take Federal Courts--this is where the action is, right now.

Posted by: Nick Morgan at May 6, 2004 11:11 PM

Hibbs is not consistent with Garrett, so no one really knows just how hard it is to abrogate under the 14th.

Yes, but let's make this clear: "No one is clear how hard it is" is a relative statement. PG's example above, in which 14.5 no longer touches facial racial discrimination, wouldn't just be reinterpreting Brown, it would be positively returning to Plessey. Indeed, by saying not only that correcting facial racial discrimination wasn't just not constitutionally mandated, but beyond legislative power as well, one is essentially overturning the Slaughterhouse cases.

I know Rehnquist is pretty conservative, but PG's putting him 100 years behind the times. ;)

(The difference between stating that something is not constitutionally required and isn't constitutionally prohibited from legislation, incidentally, is the same error that PG makes with the 'marriages' comment above, since it's colorable that under Hibbs Congress might get away with mandating a same-sex definition of marriage under 14.5--it's just not required to do so.)

Posted by: A. Rickey at May 7, 2004 12:05 AM

Tony, after reading your comment twice, I really can't figure out what you're saying. I should have written more explicitly: Hibbs and Garrett tell us the conditions under which Congress can create causes of action against states for rights that have not explicitly been declared by the Court as arising under the 14th Amendment; congress had trouble abrogating immunity for ADA claims because the ADA allowed states to be sued for conduct that did not arise to constitutional violations a la City of Clebourne. There is no doctrinal doubt (if the present case law stands) that Congress can create a cause of action against states for facial racial discrimination (cause that's been "declared" by the Court as a right under the 14th). I'd say there's tremendous doubt about Congress' power to authorize same-sex marriage in states--that's a right NOT recognized by the Court under the 14th, and lots of other complicated 10th Amendment stuff comes in. If what you meant is that judicially striking marriage laws that exclude gays is different than Congress telling states they must marry gays, I agree totally--there's nothing to agree on, it's a fact.

When you say "that something is not constitutionally required and isn't constitutionally prohibited from legislation" it's equivocal because when "something" refers to a substantive right, that's a different story than "something" referring to a jurisdictional matter.

Plus, I thought PG's whole point was that Rhenquist Court federalism makes it much harder to challenge marriage laws in Court, which, so far as I can tell (whether one likes it or not), is accurate.

And, by the way, don't forget that Rhenquist, as judicial clerk, wrote to [forget which justice] while Brown was pending, urging that Plessy be upheld (someone correct my history if I'm wrong on this). I have no evidence that Rhenquist would actually like racial segregation to flare back up (doubtful), but there's reason to worry that his (and Kennedy's) commitment to hands-off-the-states is extreme enough to allow states to inflict worse abuses than they are now immune to. One available doctrinal option: say that Garret means congress can only abrogate with respect to constitutional violations exactly like ones in cases the Court has held unconstitutional. Exactly this kind of move has been urged by Scalia in qualified immunity cases, and I recall it popping up elsewhere as well. But we can't know yet, because like I said, the Garrett/Hibbs doctrine is unstable.

Posted by: Nick Morgan at May 7, 2004 01:29 AM

(check out qualified immunity and how it's changed in the last two decades)

That's part of a longer sentence that raised important points.
How has qualified immunity changed since Harlow v Fitzgerald? I'm running into courts treating it as de facto absolute immunity.
I am currently working on cert petition focused mainly on the merits of a free speech issue - is it legal to say "vote for smith?"
But there is an accompanying QI issue. The right to anonymous political speech was clearly established at the time we filed suit, they openly and notoriously violated it while the suit ran, and yet the damage claim against both the municipality and the officials in personal capacity claim was dismissed.
If any of you folks are looking for a writing sample, i'd be happy to let you brief that issue.
Or, if i'm wrong in thinking the damage claims should survive, convince me, and i can leave out that issue. (I would be hard to convince.)

Posted by: arbitraryaardvark at May 7, 2004 02:35 AM

Tony, after reading your comment twice, I really can't figure out what you're saying.
Nick: Sorry. Can I claim exam exhaustion? The problem is that I was quickly trying to distinguish between what you were saying (which mostly agreed w/ me) and what PG was saying, which I think is a vast overstatement. I should have separated the two strands.

With regards to Congress not being able to create a private right of action against a state without Brown (PGs last sentence in her post)
Basically, Nick, I was saying that while you're right that no one knows how hard it is to abrogate rules under Hibbs/Garrett, no one supposes that current jurisprudence would state that you couldn't do it for facial race discrimination. I'm agreeing with you that there's a very blurry line, but stating that even though that's true, the line is nowhere near where PG is mentioning: the inability to abrogate immunity under the 11th.

With regards to the Plessey/Slaughterhouse distinction
My point here was that even if you returned to Plessey, which said that a state could allow discrimination, that's in the absence of a federal statute saying otherwise. PG's example is one in which Brown never happens, but we still have (presumably) Slaughterhouse, but there is a federal statute outlawing segregation in public schools. In this case, Congress could still pass a law allowing state citizens to sue their states, because it's an issue of facial race discrimination.

Basically, I'm saying that authority for Congress to say that the court has 'declared' facial racial descrimination precedes Plessey even, and certainly Brown. I may be wrong there, but I think it's a reasonable argument.

Homosexual Marriage
So far, so good: now, to the marriage thing: I was responding to PG saying:

If we're truly going to take gender as seriously as race for 14.5 purposes -- and I think I'm much more in favor of doing so than Rehnquist really is -- I got some discriminatory marriage statutes to dispute with ya... ;-)

The distinction in the arguments above is that Brown affirmatively declared that segregattion was forbidden, while Plessey merely said it wasn't, and this is the one that I don't think PG made. Even supposing you take a fairly liberal reading of Hibbs (the widest holding I think possible) and decide that we do give gender the same importance we give race for 14.5 purposes, that would at best mean Congress could pass a law mandating homosexual marriage and propose a right of action against the states. (Let's call this the Anti-FMA, or AFMA.)

However, simply because Congress could do so would not make all state laws limiting homosexual marriage invalid in absence of such a Congressional statute. And I don't think (again, my reading of Hibbs) that it means the Court would have to find that heterosexual-only marriage is unconstitutional, while Congress could affirmatively mandate same-sex marriage as a 'necessary and proper' remedy to enforce equal protection under 14.5.

Posted by: A. Rickey at May 7, 2004 06:38 PM

Tony, that makes sense, it looks like we're pretty much in agreement. But don't get too exhausted until your exams are over. :)

Posted by: Nick Morgan at May 7, 2004 08:49 PM
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