Universalism and civil rights (with notes on voting rights after shelby)

Yale Law Journal

Volumn 123, Issue 8, 2014, Pages 2838-2876

  Bagenstos, Samuel R ^a  

^a UNIVERSITY OF MICHIGAN LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84902808114     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (79)

1. 133 S. Ct. 2612 (2013).
2. The most notable set of proposals in this regard came from Samuel Issacharoff's Beyond the Discrimination Model on Voting, 127 HARV. L. REV. 95 (2013) [hereinafter Issacharoff, Discrimination Model], which builds on themes Issacharoff sounded earlier in Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of its Own Success?, 104 COLUM. L. REV. 1710 (2004). Issacharoff's longtime collaborator, Richard Pildes, provided the first comprehensive defense of a turn to a universalist approach while the 2006 Voting Rights Act reauthorization was pending.
3. Richard H. Pildes, The Future of Voting Rights Policy: From Anti-Discrimination to the Right to Vote, 40, HOWARD L.J. 741 (2006)
4. Richard L. Hasen, Race or Party?: How Courts Should Think About Republican Efforts to Make it Harder to Vote in North Carolina and Elsewhere, HARV. L. REV. F. 58 (2014).
5. Daniel P. Tokaji, Responding to Shelby County: A Grand Election Bargain, 8 HARV. L. & POL'Y REV. (forthcoming 2014).
6. 3 BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 83-126 (2014).
7. SAMUEL R. BAGENSTOS, LAW AND THE CONTRADICTIONS OF THE DISABILITY RIGHTS MOVEMENT 51-54, 145 (2009) [hereinafter BAGENSTOS, DISABILITY RIGHTS] (advocating universal health insurance and universal workplace accommodation requirements to address problems of disability inequality)
8. Samuel R. Bagenstos, Employment Law and Social Equality, 112 MICH. L. REV. 225 (2013) [hereinafter Bagenstos, Employment Law] (arguing that universal provisions of employment law can serve equality interests).
9. In this regard, my prescription accords with that of Desmond King and Rogers Smith in DESMOND S. KING & ROGERS M. SMITH, STILL A HOUSE DIVIDED: RACE AND POLITICS IN OBAMA'S AMERICA (2011).
10. Rogers M. Smith, Ackerman's Civil Rights Revolution and Modern American Racial Politics, YALE L.J. 2906 (2014).
11. Of course, one could understand laws prohibiting race discrimination as universalist to the extent that they protected members of all races equally. But because laws that specifically call attention to identity status share a set of dynamics that are different from the dynamics of laws that do not require any reference to identity status-and because this difference is an important one to explore-I treat those laws as targeted for purposes of my argument. In that sense, my understanding of universalism is narrower than one some might offer. By contrast, my understanding of a universalist approach is broader than the one employed by Jessica Clarke, who excludes "traditional labor standards (i.e., the minimum wage as opposed to equal pay) that do not find antecedents in antidiscrimination laws" from her definition.
12. Jessica A. Clarke, Beyond Equality? Against the Universal Turn in Workplace Protections, 86 IND. L.J. 1219, 1221 n.11 (2011).
13. As I show in the remainder of this Part, commentators have often proposed labor or welfare standards that do not find antecedents in antidiscrimination laws (such as just-cause termination regimes and universal health insurance) as a means of achieving civil rights goals.
14. Joseph Fishkin, Equal Citizenship and the Individual Right to Vote, IND. L.J. 1289, 1345 (2011).
15. Pub. L. No. 103-31, 107 Stat. 77 (1993).
16. Pub. L. No. 107-252, 116 Stat. 1665 (2002).
17. Issacharoff, Discrimination Model, supra note 2, at 109-110
18. Pildes, supra note 2, at 757.
19. 531 U.S. 98 (2000).
20. Issacharoff, Discrimination Model, supra note 2, at 104; see also Pildes, supra note 2, at 759 ("[O]ne of the vastly underappreciated consequences of Bush v. Gore is its recognition that the Constitution protects the right to vote from being arbitrarily infringed, for any reason at all, whether or not race is involved." (internal citation omitted)). Issacharoff and Pildes set forth their understanding of the emerging constitutional jurisprudence enforcing a universal right to vote in Samuel Issacharoff & Richard H. Pildes, Bush v. Gore and the Constitutional Right to Vote, in ELECTION ADMINISTRATION IN THE UNITED STATES: THE STATE OF REFORM AFTER BUSH V. GORE (Michael Alvarez & Bernard Grofman eds., forthcoming 2014).
21. Pildes, supra note 2, at 760.
22. Issacharoff, Discrimination Model, supra note 2, at 121-23.
23. Richard H. Pildes, We Need a Broader Approach, N.Y. TIMES: ROOM FOR DEBATE, Feb. 24, 2013,http://www.nytimes.com/roomfordebate/2013/02/24/is-the-voting-rights-act-still-needed/we-need-a-broader-approach.
24. Hasen, supra note 2.
25. Kenji Yoshino, The New Equal Protection, 124 HARV. L. REV. 747 (2011).
26. Reva B. Siegel, From Colorblindness to Antibalkanization: An Emerging Ground of Decision in Race Equality Cases, 120 YALE L.J. 1278, 1311-12 & n.100 (2011) (describing conservatives' advocacy of "percent plans" as an alternative to race-based affirmative action).
27. Richard D. Kahlenberg, Class-Based Affirmative Action, 84 CALIF. L. REV. 1037 (1996) (arguing for class-based affirmative action on moral, legal, and political grounds).
28. Fisher v. Univ. of Texas at Austin, 133 S. Ct. 2411, 2433 (2013) (Ginsburg, J., dissenting) ("[O]nly an ostrich could regard the supposedly neutral alternatives as race unconscious."); Brian D. Fitzpatrick, Strict Scrutiny of Facially Race-Neutral State Action and the Texas Ten Percent Plan, 53 BAYLOR L. REV. 289, 290 (2001) (arguing that "although these novel admissions schemes are facially race-neutral, they are no less unconstitutional than the racial preference policies they replaced").
29. Fisher, 133 S. Ct. 2411; see John B. Judis, The Unlikely Triumph of an Affirmative Action Prophet, NEW REPUBLIC, July 18, 2013, http://www.newrepublic.com/article/113669/richard-kahlenberg-class-based-affirmative-action-prophet.
30. Katie R. Eyer, That's Not Discrimination: American Beliefs and the Limits of Anti- Discrimination Law, 96 MINN. L. REV. 1275, 1341 (2012).
31. Katie R. Eyer, That's Not Discrimination: American Beliefs and the Limits of Anti- Discrimination Law, 96 MINN. L. REV. (2012).id. at 1345
32. Catherine Albiston, Institutional Inequality, 2009 WIS. L. REV. 1093 (arguing that the FMLA is better suited to eradicating entrenched workplace inequality than are Title VII and the Pregnancy Discrimination Act); Ann C. McGinley, Rethinking Civil Rights and Employment at Will: Toward a Coherent National Discharge Policy, 57 OHIO ST. L.J. 1443 (1996) (arguing for just-cause termination as a means of achieving civil rights ends).
33. EVAN GERSTMANN, THE CONSTITUTIONAL UNDERCLASS: GAYS, LESBIANS, AND THE FAILURE OF CLASS-BASED EQUAL PROTECTION 180-81 (1999). For a general discussion of off-duty conduct laws as a protection of social equality, see Bagenstos, Employment Law, supra note 5, at 247-53.
34. Michelle A. Travis, Toward Positive Equality: Taking the Disparate Impact Out of Disparate Impact Theory, 16 LEWIS & CLARK L. REV. 527, 552-59 (2012).
35. See BAGENSTOS, DISABILITY RIGHTS, supra note 5, at 53-54 (arguing for a requirement that "would demand that employers design physical and institutional structures (including work schedules and work tasks) in a way that reasonably takes account of the largest possible range of physical and mental abilities, and that they provide reasonable flexibility to all potential employees whose physical or mental abilities still are not taken into account," but recognizing that such a radical requirement is unlikely to be adopted); Rachel Arnow-Richman, Incenting Flexibility: The Relationship Between Public Law and Voluntary Action in Enhancing Work/Life Balance, 42 CONN. L. REV. 1081, 1108-12 (2010) (arguing for a right for all employees to request workplace accommodations and receive a written response from their employer).
36. BAGENSTOS, DISABILITY RIGHTS, supra note 5, at 129, 145.
37. The extensive literature on political, social, and judicial backlash against the Americans with Disabilities Act, for example, highlights the ways in which political and judicial trends interact with and reinforce each other in this context. See, e.g., BACKLASH AGAINST THE ADA: REINTERPRETING DISABILITY RIGHTS (Linda Hamilton Krieger ed., 2003).
38. See BAGENSTOS, DISABILITY RIGHTS, supra note 5, at 143 ("Looking at the history of the American welfare state in general, there seems to be a great deal of evidence to support the notion that broad social insurance programs fare better politically than do more targeted interventions."). For a discussion of some of the complexities of the point as applied to the disability context, see Samuel R. Bagenstos, Disability and the Tension Between Citizenship and Social Rights (unpublished manuscript) (on file with author).
39. WILLIAM JULIUS WILSON, THE TRULY DISADVANTAGED: THE INNER CITY, THE UNDERCLASS, AND PUBLIC POLICY 118 (1987).
40. Yoshino, supra note 26, at 794-95.
41. Mary Anne Case, How High the Apple Pie? A Few Troubling Questions About Where, Why, and How the Burden of Care for Children Should Be Shifted, 76 CHI.-KENT L. REV. 1753, 1768 (2001).
42. Jed Rubenfeld, The Anti-Antidiscrimination Agenda, 111 YALE L.J. 1141 (2002). I highlighted the problem of courts' narrow readings of the ADA in BAGENSTOS, DISABILITY RIGHTS, supra note 5, at 46-47.
43. Justice Scalia's description of Voting Rights Act preclearance as a "racial entitlement" in the Shelby County argument seems to rest on this sort of view.
44. Amy Davidson, In Voting Rights, Scalia Sees a "Racial Entitlement," NEW YORKER, Feb. 28, 2013, http://www.newyorker.com/online/blogs/closeread/2013/02/in-voting-rights-scalia-sees-a-racial-entitlement.html (quoting Justice Scalia: "Even the name of it is wonderful: the Voting Rights Act. Who is going to vote against that in the future?").
45. See, e.g., Frank H. Easterbrook, The Supreme Court, 1983 Term-Foreword: The Court and the Economic System, 98 HARV. L. REV. 4, 14-18 (1984) (arguing that courts should interpret interest-group legislation narrowly); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 HARV. L. REV. 405, 471 (1989) (arguing "that courts should narrowly construe statutes that embody mere interest-group deals").
46. Yoshino, supra note 26, at 747-48.
47. Adarand Constructors, Inc. v. Pena, 515 U.S. 200 (1995).
48. Ricci v. DeStefano, 557 U.S. 557, 594-97 (2009) (Scalia, J., concurring).
49. Dahlia Lithwick, The Courts: The Conservative Takeover Will Be Complete, WASH. MONTHLY, Jan./Feb. 2012 ("[T]he one legacy of which George W. Bush can be most proud is his fundamental transformation of the lower federal judiciary-a change that happened almost undetected by the left.").
50. Eyer, supra note 32, at 1292-1318.
51. Eyer,id. at 1318-1327.
52. Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Motivation in Reducing Implicit Workplace Discrimination, 95 VA. L. REV. 1893 (2009).
53. Samuel R. Bagenstos, The Structural Turn and the Limits of Antidiscrimination Law, 94 CALIF. L. REV. 1, 45 (2006) [hereinafter Bagenstos, Structural Turn].
54. Eyer, supra note 32, at 1346.
55. BAGENSTOS, DISABILITY RIGHTS, supra note 5, at 46.
56. Of course, not all of these arguments are consistent with each other. Many are in fact in tension. But that underscores my fundamental point in this essay: that the choice between universalism and targeting cannot be made in the abstract but only on the basis of a careful examination of the context at issue.
57. Julie C. Suk, Race Without Cards?, 5 STAN. J. C.R. & C.L. 111, 114 (2009) (reviewing RICHARD THOMPSON FORD, THE RACE CARD: HOW BLUFFING ABOUT BIAS MAKES RACE RELATIONS WORSE (2008)).
58. Clarke, supra note 10, at 1263-66.
59. Clarke Id. at 1278-79.
60. RICHARD D. KAHLENBERG & MOSHE Z. MARVIT, WHY LABOR ORGANIZING SHOULD BE A CIVIL RIGHT (2012).
61. This is at least part of the thought behind Justice Scalia's labeling of Voting Rights Act preclearance as a "racial entitlement." See Davidson, supra note 46. Note also the arguments of many disability rights supporters, in the wake of courts' initial narrow readings of the ADA, that judges failed to understand that the statute was really a civil rights law.
62. Matthew Diller, Judicial Backlash, the ADA, and the Civil Rights Model, 21 BERKELEY J. EMP. & LAB. L. 19, 23 (2000).
63. FORD, supra note 60, at 176.
64. ACKERMAN, supra note 3, at 218-19.
65. Troublingly for both sides of the universalism debate, they provoked a backlash largely because they were understood as mainly benefiting racial minorities, and indeed as being the most effective means of achieving racial integration in housing. See CHRISTOPHER BONASTIA, KNOCKING ON THE DOOR: THE FEDERAL GOVERNMENT'S ATTEMPT TO DESEGREGATE THE SUBURBS 103, 105-07 (2006). I will return to this point.
66. 3 ACKERMAN, supra note 3, at 222-23.
67. See id. For some well-taken doubts as to how strong Nixon's support of the antidiscrimination principle was in this context, see BONASTIA, supra note 67, at 109-10.
68. See BAGENSTOS, DISABILITY RIGHTS, supra note 5, at 144; see also Jonathan Zasloff, Children, Families, and Bureaucrats: A Prehistory of Welfare Reform, 14 J.L. & POL. 225, 308 n.259 (1998) (arguing that disability welfare programs have fared well politically because their beneficiaries have "substantial political support among the general public").
69. MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965). This notion, too, seems to be part of the inspiration behind Justice Scalia's "racial entitlement" comment.
70. his is the basic political argument of PETER H. SCHUCK & RICHARD J. ZECKHAUSER, TARGETING IN SOCIAL PROGRAMS: AVOIDING BAD BETS, REMOVING BAD APPLES (2006).
71. Richard H. Fallon, Jr., Affirmative Action Based on Economic Disadvantage, 43 UCLA L. REV. 1913, 1939 (1996). Note also Professor Wilson's argument that the Great Society's reliance on means-tested anti-poverty programs associated the Great Society with minorities and made it politically vulnerable. See WILSON, supra note 42, at 125-39.
72. Elizabeth F. Emens, Integrating Accommodation, 156 U. PA. L. REV. 839, 894 (2008).
73. CATHARINE A. MACKINNON, SEXUAL HARASSMENT OF WORKING WOMEN: A CASE OF SEX DISCRIMINATION 88 (1979).
74. Clarke, supra note 10, at 1253-54.
75. Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503 (2000).
76. Albiston, supra note 84, at 1155.
77. Albiston,Id. at 1155-56.
78. Albiston,Id. at 1156-57.
79. BAGENSTOS, DISABILITY RIGHTS, supra note 5, at 144.