Justice Kennedy and the domains of equal protection

Harvard Law Review

Volumn 121, Issue 1, 2007, Pages 104-130

  Gerken, Heather K ^a  

^a YALE UNIVERSITY   (United States)

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EID: 38949181338     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (114)

1. 127 S. Ct. 2738, 2788 (2007) (Kennedy, J., concurring in part and concurring in the judgment).
2. Metro Broad., Inc. v. FCC, 497 U.S. 547, 631 (1990) (Kennedy, J., dissenting).
3. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 518 (1989) (Kennedy, J., concurring in part and concurring in the judgment).
4. See, e.g., Posting of Lyle Denniston to SCOTUSblog, http://www.scotusblog.com/ movabletype/archives/2007/06/commentary_the_5.html (June 28,2007, 2:27 PM).
5. For s different twist on this phrase, see Ian Ayres & Sydney Foster, Don't Tell, Don't Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517, 518 (2007).
6. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
7. Grutter v. Bollinger, 539 U.S. 306 (2003). For comparisons between Kennedy's opinion and BakkelGrutter, see, for example, Posting of Jack M. Bslkin to Balkanization, http://balkin.blogspot.com/2007/06/parents-involved- swan-song-or-bakke-for.html (June 28, 2007, 1:58 PM); and Posting of Pamela S. Karlan to Supreme Court -School Integration, http://scintegration.blogspot.com/ 2007/07/guest-blogger-new-four-horsemen.html (July 2,2007, 12:00 PM).
8. 126 S. Ct. 2594 (2006).
9. Id. at 2619.
10. Parents Involved, 127 S. Ct. at 2792 (Kennedy, J., concurring in part and concurring in the judgment).
11. Justice Kennedy has resoundingly rejected race-conscious districting in every voting-rights decision to come before him. See, e.g., Miller v. Johnson, 515 U.S. 900, 911-14 (1995). And he has been quite clear on the analytic point -it is the decision to use race, not the obviousness of its use, that is the source of the constitutional harm. See id.; see also Grutter, 539 U.S. at 389 (Kennedy, J., dissenting) (arguing that a law school csnnot evade strict scrutiny by using "the concept of critical mass ... to mask" its effort to achieve "racial balance").
12. The term, of course, comes from ROBERT C. POST, CONSTITUTIONAL DOMAINS (1995). To be sure, the domains I identify are different from Post's. See id. at 1-2 (describing three domains: "community, management, and democracy").
13. Indeed, in some respects the two "domains" I describe here more closely resemble what Michael Walzer would term "spheres," iee MICHAEL WALZER, SPHERES OF JUSTICE (1983), as they are tied to s sense of place as well as a particular form of social ordering.
14. See Lawrence Lessig, Post Constitutionalism, 94 MICH. L. REV. 1422, 1425 (1996) (offering a lucid analysis of the two books and suggesting the notion of "place" as one means of differentiating between them).
15. It is at least not in the cadence of Justice Kennedy's Fourteenth Amendment. One could easily imagine a vision of equal protection that fits the story Justice Kennedy tells.
16. Stephen Greenblatt, Comments at the Yale Law School Legal Theory Workshop (Feb. 15, 2006).
17. See Lani Guinier, The Supreme Court, 2002 Term-Comment: Admissions Rituals as Political Acts: Guardians at the Gates of Our Democratic Ideals, 117 HARV. L. REV. 113, 189-90 (2003).
18. 42 U.S.C. § 1973 (2000).
19. League of United Latin Am. Citizens (LULAC) v. Perry, 126 S. Ct. 2594, 2613 (2006).
20. Id.
21. Id. at 2615.
22. Id. at 2623.
23. See, e.g., Georgia v. Ashcroft, 539 U.S. 461, 491-92 (2003) (Kennedy, J., concurring); Miller v. Johnson, 515 U.S. 900, 926-27 (1995); Johnson v. De Grandy, 512 U.S. 997, 1028-29 (1994) (Kennedy, J., concurring in part and concurring in the judgment).
24. 509 U.S. 630 (1993).
25. Justice Kennedy all but lifted passages of his opinion in Miller v. Johnson, 515 U.S. 900, to describe the LULAC offset district. See Heather K. Gerken, Rashomon and the Roberts Court, 68 OHIO ST. L.J. (forthcoming 2007) (manuscript at 14, on file with the Harvard Lsw School Library).
26. LULAC, 126 S. Ct. at 2619.
27. Metro Broad., Inc. v. FCC, 497 U.S. 547, 636 (1990) (Kennedy, J., dissenting).
28. Miller, 515 U.S. at 911-12 (quoting Shaw, 509 U.S. at 647).
29. Election law scholars are divided as to whether Justice Kennedy's ruling in LULAC represents a departure from his equal protection jurisprudence. Compare Richard H. Pildes, The Decline of Legally Mandated Minority Representation, 68 OHIO ST. LJ. (forthcoming 2007) (manuscript at 6, on file with the Harvard Law School Library) (LULAC was merely another chapter in the Court's anti-essentialist jurisprudence),
30. with Guy-Uriel E. Charles, Race, Redistricting, and Representation, 68 OHIO ST. L.J. (forthcoming 2007) (manuscript st 9, on file with the Harvard Law School Library) (LULAC represents a departure from the Court's anti-essentialist position),
31. Pamela S. Karlan, New Beginnings and Dead Ends in the Law of Democracy, 68 OHIO ST. LJ, 743, 761 (2007) (Justice Kennedy's interest in protecting Latinos was genuine),
32. and Ellen D. Katz, Reviving the Right To Vote, 68 OHIO ST. L.J. (forthcoming 2007) (manuscript at 3, on file with the Harvard Law School Library) (LULAC "necessarily acknowledged that race need not be a problem to overcome but can be a trait that unites people in positive ways and gives rise to communities of value").
33. At least since Burdick v. Takushi, 504 U.S. 428, 443 (1992) (Kennedy, J., dissenting), Justice Kennedy has had a soft spot for voting claims with expressive dimensions. And he has recently insisted that partisan gerrymandering claims should be framed in First Amendment terms. See Vieth v. Jubelirer, 541 U.S. 267, 314 (2004) (Kennedy, J., concurring in the judgment).
34. LULAC, 126 S. Ct. st 2621 (citation omitted).
35. See id. at 2622-23.
36. Id. at 2622.
37. Id. at 2621.
38. Lisnne Hart, Runoff in Redrawn Texas District Could Be a Tight Race, L.A. TIMES, Dec. 11, 2006, st A16.
39. See LULAC, 126 S. Ct. at 2622 ("Latinos' diminishing electoral support for Bonilla indicates their belief he was 'unresponsive to the particularized needs of the members of the minority group.'" (quoting Thornburg v. Gingles, 478 U.S. 30, 45 (1986))).
40. Daniel R. Ortiz, Cultural Compactness, 105 MICH. L. REV. FIRST IMPRESSIONS 48, 50 (2006), http://www.michiganlawreview.org/firstimpressions/vol105/ortiz.pdf.
41. LULAC, 126 S. Ct. at 2600.
42. Id. at 2618-19.
43. For other interpretations of this passage, see Charles, supra note 27 (manuscript at 12); and Karlan, supra note 27, at 760.
44. See, e.g., Bd. of Educ. v. Pico, 457 U.S. 853, 909 (1982) (Rehnquist, J., dissenting) (arguing that when the government acts as "educator" rather than "sovereign," it "is engaged in inculcating social values and knowledge in relatively impressionable young people").
45. See generally James E. Ryan, The Supreme Court and Public Schools, 86 VA. L. REV. 1335 (2000) (analyzing ways in which constitutional principles are applied in schools). To understand the depth of this commitment, one need look no further than another end-of-Term blockbuster, Morse v. Frederick, 127 S. Ct. 2618 (2007), better known as the "BONG HITS 4 JESUS" case.
46. Milliken v. Bradley, 418 U.S. 717, 783 (1974) (Marshall, J., dissenting).
47. See Parents Involved, 127 S. Ct. at 2751-52.
48. Id. at 2768 (opinion of Roberts, CJ.).
49. Id. at 2768 (Thomas, J., concurring).
50. Id. at 2787-88.
51. Id. at 2788 (Kennedy, J., concurring in part and concurring in the judgment).
52. Id. at 2788-89.
53. See id. at 2791 ("The enduring hope is that race should not matter; the reality is that too often it does."); id. at 2792 ("[AJs an aspiration, Justice Harlan's axiom must command our assent. In the real world, it is regrettable to say, it cannot be a universal constitutional principle.").
54. Id. at 2795-96.
55. Or Robert Post and Reva Siegel. Or the critical race theorists. Or the many other academics who write in a critical vein.
56. Parents Involved, 127 S. Ct. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
57. Grutter v. Bollinger, 539 U.S. 306, 387 (2003) (Kennedy, J., dissenting); see also J. Harvie Wilkinson III, The Supreme Court, 2006 Term-Comment: The Seattle and Louisville School Cases: There Is No Other Way, 121 HARV. L. REV. 158, 170 (2007) (noting Kennedy's shift).
58. See Parents Involved, 127 S. Ct. at 2797 (Kennedy, J., concurring in part and concurring in the judgment).
59. See, e.g., Robert C. Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 HARV. L. REV. 4, 59-60 (2003).
60. Grutter, 539 U.S. at 347-48 (Scalia, J., dissenting); see also Post, supra note 54, at 60.
61. Grutter, 539 U.S. at 347 (Scslia, J., dissenting) (quoting id. at 330-31 (majority opinion)).
62. Thus, Judge Wilkinson is right to describe Kennedy's "skepticism of racial classifications" as "heartfelt," Wilkinson, supra note 52, at 170, despite Kennedy's embrace of Grutter in this context. Thanks to Jessica Bulman-Pozen and Reva Siegel for pushing me on this line of analysis.
63. Parents Involved, 127 S. Ct. at 2792 (Kennedy, J., concurring in part and concurring in the judgment).
64. Id. at 2792, 2796.
65. Id. at 2796.
66. Id.
67. For arguments that Powell's snd O'Connor's approaches are designed to render the state's use of race less transparent, see Paul J. Mishkin, The Uses of Ambivalence: Reflections on the Supreme Court and the Constitutionality of Affirmative Action, 131 U. PA. L. REV. 907, 928-29 (1983);
68. Post, supra note 54, at 74. For arguments that Kennedy is doing the same, see James E. Ryan, The Supreme Court, 2006 Term-Comment: The Supreme Court and Voluntary Integration, 121 HARV. L. REV. 131, 138 (2007); and Posting of Lior Strahilevitz to The University of Chicago Law School Faculty Blog, http://uchicagolaw.typepad.com/faculty/2007/06/justice- kennedy. html (June 28, 2007, 12:11 PM).
69. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 518 (Kennedy, J., concurring in part and concurring in the judgment).
70. 127 S. Ct. at 2796 (Kennedy, J., concurring in part and concurring in the judgment). For another explanation of the distinction Kennedy is drawing, see Andrew Carlon, Racial Adjudication, 2007 BYU L. REV. (forthcoming) (manuscript at 8-12), available at http://papers.ssrn.com/sol3/pspers.cfm?abstract_id=997875.
71. For efforts to explore the doctrinal connections between desegregation plans and race-conscious districting, see Heather K. Gerken, Understanding the Right to an Undiluted Vote, 114 HARV. L. REV. 1663, 1684-88 (2001);
72. and Goodwin Liu, Seattle and Louisville, 95 CAL. L. REV. 277, 301-09 (2007).
73. Parents Involved, 127 S. Ct. at 2789 (Kennedy, J., concurring in part and concurring in the judgment).
74. Id.
75. Id. at 2790-91.
76. Id. st 2797. I am indebted to Will Baude for suggesting this line of analysis.
77. See Hannah Arendt, Reflections on Little Rock, 6 DISSENT 45 (1959);
78. Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 34 (1959).
79. For two seminal responses to Wechsler, see Derrick A. Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980);
80. and Charles A. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421 (1960).
81. Martha C Nussbaum, The Future of Feminist Liberalism, PROC. & ADDRESSES AM. PHIL. ASS'N, Nov. 2000, at 47, 68.
82. LANI GUINIER & GERALD TORRES, THE MINER'S CANARY: ENLISTING RACE, RESISTING POWER, TRANSFORMING DEMOCRACY 14-15 (2002).
83. Other scholars have explored the associationsl dimensions of racial identity in the context of voting. See, e.g., James U. Blacksher, Dred Scott's Unwon Freedom: The Redistricting Cases as Badges of Slavery, 39 How. L.J. 633 (1996);
84. Guy-Uriel E. Charles, Racial Identity, Electoral Structures, and the First Amendment Right of Association, 91 CAL. L, REV. 1209 (2003);
85. Terry Smith, A Black Party? Timmons, Black Backlash and the Endangered Two-Party Paradigm, 48 DUKE LJ, 1 (1998); cf. Bush v. Vera, 517 U.S. 952, 1049 (1996) (Souter, J., dissenting) (noting "the basically associational character of voting rights in a representative democracy").
86. See, e.g., MARTHA MINOW, NOT ONLY FOR MYSELF 30-58 (1997);
87. IRIS MARION YOUNG, INCLUSION AND DEMOCRACY 87-102 (2002);
88. IRIS MARION YOUNG, JUSTICE AND THE POLITICS OF DIFFERENCE 42-48 (1990);
89. K. Anthony Appiah, Race, Culture, Identity: Misunderstood Connections, in COLOR CONSCIOUS 30, 93-96 (K. Anthony Appish & Amy Gutmsn eds., 1996);
90. Richsrd T. Ford, Beyond "Difference": A Reluctant Critique of Legal Identity Politics, in LEFT LEGALISM/LEFT CRITIQUE 38, 41 (Wendy Brown & Janet Halley eds., 2002);
91. Kenji Yoshino, Covering, III YALE L.J. 769, 875-86 (2002). Interestingly, Yoshino argues that langusge in Justice Kennedy's opinion in Hernandez v. New York, 500 U.S. 352 (1991), suggests a "performative definition of race" similar to that "associated with postmodern theory." Yoshino, supra, at 900.
92. League of United Latin Am. Citizens v. Perry, 126 S. Ct. 2594, 2623 (2006).
93. If one is thinking about how 3 community's composition affects conceptions of identity, one might think it quite striking that the three people invited to comment on Parents Involved are white.
94. Cf. Bernadette Park & Charles M. Judd, Rethinking the Link Between Categorization and Prejudice Within the Social Cognition Perspective, 9 PERS. & SOC. PSYCH. REV. 108, 119-20 (2005) (questioning whether 3 reduced emphasis on categories will reduce bias).
95. Pamela S. Karlan, John Hart Ely and the Problem of Gerrymandering: The Lion in Winter, 114 YALE L.J. 1329, 1332 (2005).
96. Samuel Issscharoff & Pamela S. Karlan, Groups, Politics, and the Equal Protection Clause, 58 U, MIAMI L. REV. 35, 49-50 (2003).
97. Although this Comment draws inspiration from Robert Post's work, in some senses this is a non-Postian undertaking. Though Post emphasizes the messiness and interconnectedness of the domsins he identifies, jee, e.g., POST, supra note 12, at 3, he is skeptical of efforts to develop 3 unified theory of the First Amendment scross domains, id. at 16.
98. Exceptions include Heather K. Gerken, Second-Order Diversity, 118 HARV. L. REV. 1099, 1121-42 (2005) (distinguishing between levels of governance and types of governing institutions);
99. and Pamela S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 HARV. C.R.-C.L. L. REV. 173, 221-36 (1989) (exploring alternative voting systems for local elections).
100. There are also important practical differences between these domains. For instance, the problem of white flight exists for school districts but not electoral ones because people do not vote with their feet in electoral districts. Further, as James Ryan explains, districting strategies are unlikely to engender a fundamental change in the way our school system works given the size of residentially segregated neighborhoods. Ryan, supra note 62, at 144-46.
101. 509 U.S. 630, 642 (1993).
102. For a full discussion of these issues, see Gerken, supra note 79, at 1106-09. I agree with James Ryan, however, that "meaningful integration requires s nontrivial number of students from different racial or ethnic backgrounds." Ryan, supra note 62, at 145. My quarrel here is with the idea that a school is "segregated" simply because racial minorities are in the majority.
103. See Shaw v. Hunt, 517 U.S. 899, 928 (1996) (Stevens, J., dissenting); see also, e.g., Bush v. Vera, 517 U.S. 952, 1055 (1996) (Souter, J., dissenting).
104. See Parents Involved, 127 S. Ct. at 2802-03 (Breyer, J., dissenting).
105. Justice Thomas certainly thought so, though for different reasons than those suggested here. See, e.g., id. at 2769 (Thomas, J., concurring) ("Racial imbalance is not segregation."). Needless to say, I do not subscribe to his view that the dissenters' arguments should be equated with those of Brown-era. segregationists, iee id. at 2782-88.
106. Michsel S. Ksng, The Politics of Race and Democratic Contestation, 117 YALE LJ. (forthcoming 2008) (msnuscript at 27, on file with the Harvard Law School Library); cf. Gerken, supra note 79, at 1142-52.
107. Kang, supra note 86 (manuscript at 30).
108. Id. (manuscript st 32).
109. Id.
110. Id. (quoting MINOW, supra note 72, st 96) (internal quotation msrk omitted).
111. Both sides of the debate in Parents Involved agreed that the extant empirical evidence was mixed. Compare Parents Involved, 127 S. Ct. at 2776 (Thomas, J., concurring), with id. at 2820-21 (Breyer, J., dissenting). Moreover, these studies have tended to focus on concrete measures, like academic performance, see Amy S. Wells, The " Consequences" of School Desegregation: The Mismatch Between the Research and the Rationale, 28 HASTINGS CONST. L.Q. 771, 772 (2001), and not on the more atmospheric (and thus more difficult to measure) indicia of the type of deep social/political integration I describe here.
112. For thought-provoking explorations of these and other themes, see Michelle Adams, Radical Integration, 94 CAL, L. REV. 261 (2006);
113. and Lani Guinier, From Racial Liberalism to Racial Literacy:
114. Brown v. Board of Education and the Interest-Divergence Dilemma, 91 J. AM. HIST. 92 (2004).