Today in Supreme Court History: April 1, 2003

4/1/2003: Grutter v. Bollinger and Gratz v. Bollinger argued.

Comments

[Thought about __ all my life]

Grutter is wrong because government gets to define race.
Plessy was Black because one of his 8 great-grandparents was Black. you know, just like Sen Warren is an Indian

[JoeFromtheBronx]

Fifteenth Amendment

Section 1

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude–

Section 2

The Congress shall have power to enforce this article by appropriate legislation

How does Congress enforce the article if cannot define its terms?

How do the courts determine if something is illegitimately a denial or abridgment "on account of" something if they can't define it?

[F.D. Wolf]

On this day, April 1, 1970, President Nixon signed the Public Health Cigarette Smoking Act. The act required a stronger warning label on cigarette packages and banned cigarette advertising on radio and television. The advertising ban itself would not take effect until January 2, 1971, and the last televised ad for cigarettes (Virginia Slims) in the United States would air at 11:59 PM on January 1, 1971, during the Tonight Show Starring Johnny Carson.

Several broadcasters would challenge the law on First Amendment grounds, but a three-judge district court, by a 2-1 vote, would uphold the law. The Supreme Court would affirm the district court without opinion. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 1971), aff’d sub nom., Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972).

[Dan Schiavetta]

I was up that night, switching the channels, seeing which commercial would be the last. (The VS commercial showed a rail-thin woman walking toward the camera in an evening gown; the advertisers knew that women sometimes smoked to stay thin and that quitting brought the prospect of putting on weight.)

[apedad]

Is there a link for Capital Broadcasting Co. v. Acting Attorney General, 405 U.S. 1000 (1972)?

Thanks.

[A Japanese Student]

Just two words: "Judgment affirmed." https://www.courtlistener.com/opinion/8987427/capital-broadcasting-co-v-acting-attorney-general/

(The page mentions fictional Justices Appeal, Are, Consideration, Motion, Noted, Should, and Took. The new website definitely needs some fixes.)

[Noscitur a sociis]

It’s on page 100 of this PDF:

https://tile.loc.gov/storage-services/service/ll/usrep/usrep405/usrep405orders/usrep405orders.pdf

Make sure you have a comfy chair!

[Dan Schiavetta]

FCC v. Prometheus Radio Project, 592 U.S. 414 (decided April 1, 2021): In 2017 the Trump-led FCC reversed long-standing policy, affirmed in 2016, and permitted, in the same market, cross-ownership of radio, television and newspapers, and cross-ownership of several stations. Plaintiffs alleged this would hinder female and minority ownership and local viewpoints. Reversing the Circuit Court (which had ordered the FCC to develop a better record), the Court holds that in the internet era the FCC’s decision was not “arbitrary and capricious” and dismisses the suit.

The St. John, 154 U.S. 586 (decided April 1, 1872): affirming verdict for upstream-heading vessel, where downstream-heading vessel, having blown its whistle twice, should have gone to the right (without blowing whistles she should have gone to the left -- such were the rules of the river); instead she meandered somewhat to the left and hit the upstream-heading vessel

Brinkmeier v. Missouri Pacific Ry. Co., 224 U.S. 268 (decided April 1, 1912): trainman injured by faulty coupling can’t sue under federal Safety Appliance Act because the train was on a siding (not interstate commerce)

Greenwald v. Wisconsin, 390 U.S. 519 (decided April 1, 1968): burglary suspect with a ninth-grade education and hypertension denied the crime, kept without food or medication overnight, asked for lawyer, not given Miranda warning, could not sleep on the wooden plank they led him to, next morning finally confessed; not surprisingly, confession inadmissible

Florida v. Georgia, 592 U.S. 433 (decided April 1, 2021): ruling against Florida in its contention that Georgia was sucking up so much upstream water that it was ruining its “oyster fisheries”; I suppose the Court can make up its own rules in original jurisdiction cases and assumes that plaintiff’s proof must be “clear and convincing” (not the usual “preponderance” of evidence)

Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (decided April 1, 2009): Clean Water Act, which requires power plants to use “best technology to minimize environmental impact”, allows EPA to use cost-benefit analysis; upholds EPA regulations as to extracting water from rivers and lakes for cooling

14 Penn Plaza LLC v. Pyett, 556 U.S. 247 (decided April 1, 2009): night watchmen who were demoted allegedly due to age are bound by arbitration clause in collective bargaining agreement; case dismissed (5 - 4 decision; Souter in dissent points out that the Court previously ruled that the right to sue given by civil rights statutes such as the Age Discrimination in Employment Act supersedes arbitration clauses in collective bargaining agreements, Alexander v. Gardner-Denver Co., 1974)

Honig v. Students of California School for the Blind, 471 U.S. 148 (decided April 1, 1985): dismissing appeal of preliminary injunction (which ordered school for the blind to do testing to ensure that it complied with seismic safety standards) because testing already completed (not sure why the school kept the appeal alive)

Village of Belle Terre v. Boraas, 416 U.S. 1 (decided April 1, 1974): upholding city ordinance limiting house occupancy to “traditional families” because keeping families together is a state interest; opinion by Douglas (that dedicated family man); Brennan and Marshall dissent (suit brought by college students sharing a house)

United States v. Oregon, 295 U.S. 1 (decided April 1, 1935): affirming Special Master’s finding for the United States as to ownership of various ponds and surrounding areas (what is now Lake Malheur National Wildlife Refuge; I fantasized about camping there and, one morning over “cowboy coffee”, doing an unhurried reading of this long decision with its many references to local features); introduced me to the term “meander line”, an informal line made by surveyors marking water boundary

[JoeFromtheBronx]

Only Marshall dissented on the merits in Village of Belle Terre v. Boraas. You can listen to Douglas read a brief summary of his opinion over at Oyez.com.

Douglas treats it as a zoning matter that the government has broad power to regulate. He cites the right of the government to further "a quiet place," which was one thing he enjoyed.

Marshall saw it as a right to associate issue. It was the age of untraditional families, including hippie communes. Moore v. the City of East Cleveland (grandparent/grandchild) would show the limits of this ruling.

[Dan Schiavetta]

If the Supreme Court building had been zoned to prevent mistresses from being hidden in closets when a wife visits, Douglas would have been in trouble.

[The Margrave of Azilia]

No love for the "penumbras and emanations" Justice?

[A Japanese Student]

The whole arbitration-or-not cases could have been avoided had the court adopted textualism in Circuit City. "Commerce" is defined as every interstate commerce, so "contracts of employment of any other class of workers engaged in foreign or interstate commerce" ought to mean employment contracts for any kind of interstate commerce. (Seamen and railroad employees are per se interstate-commerce workers.)

I wonder if there is a case seeking Circuit City to be overruled. I've seen an amicus discuss it in Bissonnette.

[SRG2]

she meandered

A somewhat meta usage, no? 🙂

[JoeFromtheBronx]

The 14A protects equal protection of the law. It speaks of equality for "persons." Just how to do that is quite difficult to address.

The 14A doesn't explicitly ban any sort of affirmative action, including a policy that in some fashion takes into consideration race. That requires interpretation.

And, as 10% plans and other things show, an honest accounting shows we take into consideration race in a variety of ways. Realistically, you are going to take into consideration of race when dealing with racism. Somehow.

Also, if the programs involved in these cases are a problem, so is racial inequality. The people against race based affirmative action too often do not want to do the hard work to truly address racial inequality. And integration and racial diversity is going to be a likely path there. Thurgood Marshall was right about that.

[SMP0328]

The 14A doesn't explicitly ban any sort of affirmative action, including a policy that in some fashion takes into consideration race. That requires interpretation.

The Equal Protection Clause was adopted in response to the Southern States applying Black Codes, laws that expressly treated some races better than others. Affirmative action expressly treats some races better than others, so it likewise is prohibited by the Equal Protection Clause. Benevolent intent is irrelevant (see Adarand Constructors, Inc. v. Peña, 515 U.S. 200 (1995)).

[JoeFromtheBronx]

"Affirmative action expressly treats some races better than others."

No, it does not.

[SMP0328]

Of course it does. To achieve racial diversity you need to take race into account and that will result in some people being treated worse than others due to their race in order to strike the right racial balance. That's been the case in every affirmative action case before the Supreme Court.

[JoeFromtheBronx]

To achieve racial diversity

Not the only reason for affirmative action. A basic purpose of affirmative action is to address groups that need extra help to be on an equal footing with others. For example, the disabled might need affirmative action since regular procedures are not enough to deal with their special needs and/or burdens.

you need to take race into account and that will result in some people being treated worse than others

LBJ's proverbial runner starting with chains is not being treated "better" than the others if we compensate for the chains. Not providing affirmative action can very well result in some people being treated worse. The traditionally discriminated against.

due to their race in order to strike the right racial balance.

A college can use a neutral rule such as wanting the class to reflect breakdown of the population as a whole. Each group is being treated the same -- a set rule is applied. A person can complain about the use of race or argue merit, but a neutral rule is being used that applies equally to each person.

That's been the case in every affirmative action case before the Supreme Court.

racial diversity isn't the only grounds involved in each AA case. It was used for remedial reasons to address past discrimination too.

[SMP0328]

Not the only reason for affirmative action.

Racial diversity was the only permissible reason according to the Supreme Court for race-based affirmative action.

It was used for remedial reasons to address past discrimination too.

In Bakke, Justice Marshall accepted that as a legitimate reason for race-based affirmative action, but the majority of the Court rejected it.

[David Nieporent]

You are treating "affirmative action" and "racial preferences" as one and the same. But they are not, inherently. For example, suppose that whenever a company wants to hire new workers, it informally announces in the break room "We're looking for a couple of new drivers. Please refer your friends/family if you think they'd be a good fit." If this company's current workforce is almost entirely white, then its new hires are likely to be, also.

But if the company decides that a more diverse workforce is desirable, it can hire by taking out an ad in the paper. (Or Craigslist, or whatever people do nowadays. I'm out of the loop.) That is not racial preferences, not illegal, even if it's motivated by a desire for diversity. That's much closer to the original conception of affirmative action.

[Brett Bellmore]

I think you're defending a position the Court is in the process of finally giving up on, having recognized that, if discrimination to remediate discrimination is permitted, discrimination is forever, we'll never be rid of it. That, in the end, the only way to stop discrimination IS to stop discriminating.

The next thing to go will be officially mandated racial gerrymandering.

"The people against race based affirmative action too often do not want to do the hard work to truly address racial inequality."

Depends on what you mean by "racial inequality". If you mean by it, inequality of rights and/or treatment, I very much care about that, and ending affirmative action IS putting in that hard work.

If by it you mean inequal outcomes, yeah, I don't give a damn. Once we have equal rights, let the chips fall where they will.

[A Japanese Student]

Cannot believe the Court used to issue opinions on the busiest day of the year - the start of a new fiscal year.

Theft Case (First Petty Bench, decided April 1, 1948): Supreme Court cannot suspend defendant's sentence absent reversible error (failure to give suspended sentence can, however, be a reversible error if "degree of punishment is seriously unfair" and not reversing "would clearly be contrary to justice" (CoCrP §411), and in fact the Court has done that a few times)

Tomabechi's Case I (Grand Bench, decided April 1, 1953): Power of judicial review, granted to the Court, does not grant original jurisdiction to hear abstract questions of constitutional interpretation (here, legislator sued to contest legality of dissolution of lower house without motion of no confidence being passed; Mr. Tomabechi sued in district court for backpay as well, but that was dismissed by this Court on June 8, 1960, on political question grounds)

Assault Case (Second Petty Bench, decided April 1, 1974): In a private prosecution (for police violence), courts can convict defendant on lesser-included offense (here, simple assault) instead of dismissing for lack of jurisdiction, even if private prosecution is not allowed for the lesser-included offense (Code of Criminal Procedure authorizes victims of color-of-law offenses to petition a court to prosecute charges dropped by prosecutors, in effect establishing limited private prosecution system; there is a loophole where the prosecutor can bring a lesser-included offense like negligent homicide and (with the consent of the charged cop) seek summary imposition of fine, in effect preventing the victims from having their voices heard in an open court or seeking a harsher sentence)

[Dan Schiavetta]

Yesterday my son came back from his second visit to your country (to see his girlfriend). I picked him up from the airport. He loves it there -- the politeness, lack of violence or guns, clean and civilized, the technology, the high speed trains. Is now thinking seriously of moving there if it becomes financially feasible. (He gets along great with her family too.)

[A Japanese Student]

I've had a lot of opportunities to think about affirmative action. I am an Asian student, and had I applied to one of the universities with racial quota, I probably did not qualify. That's one way to frame the equal protection argument.

Another way to frame this is that affirmative action can be prejudicial against the minorities. Society might see students eligible for affirmative action as inferior to those who "earned admissions".

Despite these thoughts, I believe promoting racial diversity is a legitimate policy choice. It normalizes interracial and intercultural communication. It exposes otherwise invisible instances of racism. Increased minority representation helps the next generation choose their own career, without facing the alienation and isolation - which might, in a couple of generations, make affirmative action unnecessary. Doing it via score-based paper exam only was a bad idea - perhaps there should be two admission methods, each responsible for half of new students. One is paper test-only, no affirmative action, just pure skill. The other evaluates applicants based on essays, interviews, and possibly racial or sociological factors.

If the rationale is instead provide equal footing, that can be done in race-neutral ways. Yet opponents of affirmative action also seem to reject this.

[Dan Schiavetta]

Agree

[The Margrave of Azilia]

"evaluates applicants based on essays, interviews, and possibly racial or sociological factors"

How would success in such an expert endeavor be measured? What would constitute failure?

"opponents of affirmative action also seem to reject this"

Reject what, specifically?