A few more notes on the case already covered yesterday in tweet form:
Scalia sets the stage beautifully: “[In this] jurisprudential twilight zone… we confront a frighteningly bizarre question: does the Equal Protection Clause of the Fourteenth Amendment forbid what its text plainly requires?” The drama, however, is not destined to play out on that rhetorical stage, since all eight Justices, even Sotomayor and Ginsburg, claim to believe that the Equal Protection issue is only whether Michigan citizens chose a constitutionally valid method by which to end preferences.
To me, this much increased the interest of the case. The constitutionality of racial preferences as such has been thrashed out for years in so many high-profile Court decisions that anyone who cares has had ample chance to think about the issue. There has been far less attention to the unprincipled, un-administrable, substance-masquerading-as-procedure Reitman/Hunter/Seattle line of cases, by which the Court occasionally and selectively intervenes to reverse democratically arrived-at processes when they come out with the “wrong” policy answer. Scalia and Thomas are ready to overrule this bad line of cases directly; the plurality, for better or worse, are not (yet) willing to do so, and instead limit the cases’ reach in ways that neither Scalia nor Sotomayor find logically compelling.
Sotomayor’s mantra “Race matters” is likely to thrill some readers — it has already been in use for a while as a catch-phrase in academia and elsewhere — but as a device for organizing a legal opinion, it’s at best … imprecise. All the other Justices agree that race matters, but disagree on how. As Ilya Somin and David Bernstein point out at Volokh Conspiracy, Sotomayor also gerrymanders “race” in a way convenient to her purposes, using it to include Hispanic-Americans (who aren’t a race) while breathing not one word about Asian-Americans (a more genuine racial classification whose situation of being both historically disadvantaged *and* discriminated against in university admissions cries out for recognition). “Race matters,” indeed. More thoughts: Roger Pilon and Ilya Shapiro, Cato. (adapted newer version at Cato at Liberty, and thanks for SCOTUSBlog mention).
Yesterday the U.S. Supreme Court, over two dissents, ruled that the voters of Michigan were within their rights under the Constitution’s Equal Protection Clause to enact an amendment to the state constitution barring racial preference in public university admissions. (Earlier here, here, etc.) Justice Kennedy wrote a plurality opinion for three Justices, while Justice Scalia, joined by Justice Thomas, Justice Breyer, and Chief Justice Roberts wrote separate concurring opinions. Justice Sotomayor dissented, joined by Justice Ginsburg, and Justice Kagan was recused. Both sides maintained that the core controversy was not over whether Michigan was obliged to keep racial preferences as such, but rather over whether the state’s way of banning them (through voter constitutional amendment) had fallen afoul of the Court’s holding in earlier cases that the Equal Protection Clause requires that the political process itself not be arranged in ways unfavorable to minority interests.
I sent out tweets and retweets summarizing highlights of the Roberts, Scalia, Sotomayor, and plurality opinions and reprint them here, earliest first (starting with the Roberts and Scalia opinions).
More in a second post; and Hans Bader has an extensive analysis, including implications for costly preferences in public contracting.
My new post at Cato at Liberty takes a look at yesterday’s Supreme Court decision in Williams v. Illinois, a Confrontation Clause case involving an accused rapist. It’s one more data point bolstering the observation that if the three most liberal members of the current Court (Ginsburg, Kagan, and Sotomayor) vote together with some frequency, it’s more because they share a certain philosophy about the law than because they’re all women.
P.S. I see Eugene Volokh got there first, drawing similar conclusions (& welcome Nabiha Syed, SCOTUSblog readers).
James Beck explains and Orac has some strong views as well (“I’m afraid Justice Sotomayor borders on the delusional when she blithely proclaims that courts are so good at efficiently disposing of meritless product liability claims.”) More: Kathleen Seidel and footnotes.
P.S. But preemption does not carry the day in an automotive case, Williamson v. Mazda.
Headline stories of the week:
- Crude for sure: Law.com runs highlights of the tapes of American lawyers stage-managing the Ecuador-Chevron suit [Corporate Counsel, ShopFloor]
- Why such broad gag orders in Kansas pain-doc advocacy case? [Jacob Sullum, Reason; Adam Liptak, NYT]
- Spectacular fall of lawyer Adorno in Miami fire fee case [ABA Journal, PoL, earlier]
- Fiscal 2010 saw biggest increase in regulatory burdens placed on US economy since measurements began [Heritage]
- Watch for nonstandard definitions of “rights”: “Unions Fear Rollback of Rights Under Republicans” [NYT]
- Marijuana, freedom and the California ballot [David Boaz, Cato at Liberty] Alas, text of Proposition 19 also contains “antidiscrimination” provisions that restrict private liberty [David Henderson]
- New papers from U.S. Chamber’s Institute for Legal Reform unveiled at last week’s Legal Reform Summit: ways to fix the Foreign Corrupt Practices Act (FCPA) (more on FCPA from Nathan Burney via Greenfield); Beisner-Miller-Schwartz on cy pres in class actions, via CCAF and Trask; and a new paper on asbestos claiming in Madison County, Illinois;
- Will Supreme Court clients be as keen on hiring Tribe after revelation of his letter trashing Sotomayor? [Whelan, NRO]
Justice Alito wittily defends Justice Sotomayor. [BLT/NLJ]
I’ve been appearing on a number of radio shows to comment on the Sonia Sotomayor confirmation hearings. Yesterday I joined Jim Vicevich on WTIC (Hartford) for a preview of the Senate proceedings, and this morning I was a guest on “York Morning News” on WSBA (York, Pa.), the Wills and Snyder show on WTAM (Cleveland), the Morning News with Lana Hughes and J.P. Pritchard on KTRH (Houston), Helen Glover’s show on WHJJ (Providence), and “Morning News and More with Matt Ray and Kelly Sanchez” on KPAY (Chico, Calif.). If you’re interested in having me on your show, contact Hannah Martone at the Manhattan Institute: 212-599-7000.
A White House press release quotes my comments on Judge Sotomayor (in which I have been critical of some of the critics). More: Boston Globe.
A majority of right-leaning bloggers (as well as virtually all the left-leaning) agree with me in predicting (at least on current evidence) that the Sonia Sotomayor nomination will prove more politically helpful to the Democrats than to the Republicans. The poll, also picked up in National Journal’s Ninth Justice column, quotes me as saying, “Her actual rulings don’t bear out the ‘scary radical’ meme. That Senate Dems were equally unfair to Miguel Estrada will, along with $3.26, buy you a latte at Starbucks.”
Relatedly, I can’t vouch for the methodology, which is not one that would have occurred to me, but this analysis by Corey Yung of five federal appellate circuits, based on an attempt to quantify what is meant by “activist” behavior in judges, tends to back up my sense that among judges with a liberal reputation, Obama could have found many who have shown a more adventurous disregard for precedent, less deference to other constitutional actors, etc. More: Marcia Coyle, National Law Journal.
As I mentioned last week at Point of Law:
The one case of [Sotomayor's] of which I’ve been most sharply critical over the years is Bartlett v. Bar Examiners, the famously long-drawn-out disabled-rights case in which Judge Sotomayor ruled that a seriously learning-disabled bar applicant who’d already failed the bar exam several times with extensive accommodations was legally entitled to yet further chances and accommodations. I wrote up the case here and here, among other places; Jim Dwyer of the Times has an account that is much more sympathetic to Bartlett’s cause.
Now a post by Anthony Dick at NRO “Bench Memos” gives a quick summary of why the case is so controversial:
you might think that, since reading ability is an important part of practicing law, and the bar exam is designed to ensure minimal competence among lawyers, papering over a test-taker’s lack of reading ability would somewhat defeat the purpose. It would seem clear to most people that, in the language of the ADA, compromising the standards of the test regarding a basic legal skill would not qualify as a “reasonable accommodation.” But that would be a decidedly unempathetic point of view. Such an attitude is in fact “invidious,” according to Sotomayor’s opinion.
It is far from clear that any of this will constitute so much as a speed bump on the path to Senate confirmation for Sotomayor, since lawmakers on the Hill have shown little or no interest in reining in adventurous interpretations of the Americans with Disabilities Act — indeed, when the Supreme Court moved on its own to rein some of them in, Congress responded with legislation to overturn the decisions and re-liberalize rights to sue under the law (cross-posted at Point of Law). A different view: Larry Ribstein.
For those who imagine that Ted and I are always in accord on each and every topic of the day, he’s got a post at NRO “Bench Memos” correcting that impression. And the nomination-blogging continues at Point of Law with links to Jim Copland and John Hasnas columns, and an Ilya Somin podcast; and Jim reacts to the widely discussed Thomas Goldstein analysis of the judge’s rulings (about 100 of them) in race cases.
In today’s San Francisco Chronicle, Carolyn Lochhead quotes me on the Supreme Court pick:
“It’s not as if I think Obama’s incapable of nominating someone who is more adventurous and more activist by nature,” said Walter Olson, a senior fellow at the conservative Manhattan Institute. “Maybe we should save the all-out blast for when he nominates that one.”
I also have a comment on Ricci v. DeStefano, the lawsuit that arose from relatively blatant discrimination by the city of New Haven against non-minority firefighter applicants. I would not be surprised to learn that Sotomayor’s views on reverse discrimination differed widely from my own, but still note that it’s vaguely incongruous to treat as Exhibit A for a charge of judicial activism an instance in which the judge and her colleagues ducked a case.
Finally, my postings on the Sotomayor nomination continue at Point of Law, including an item on a Connecticut school discipline case where the nominee has drawn fire for (as part of a unanimous panel) siding with the school authorities. More: Jake Tapper, ABC.
I’m quoted today in the Times (and this site is linked — way to go Times!) in John Schwartz’s piece on Sonia Sotomayor’s opinions in civil litigation, where she comes across as generally on the liberal side, but not an anti-business crusader (see also Adam Liptak’s Times account). Here’s what I said:
Some of the attacks against the judge’s business rulings turn a complex legal record into a caricature, said Walter K. Olson, a senior fellow at the Manhattan Institute, a conservative organization, and the editor of a blog, Overlawyered.com. While expressing some qualms about Judge Sotomayor’s views, Mr. Olson said “she will not be as liberal as many of the Republicans are saying — but no one could be that liberal, even if they tried.”
For more of the reasons that enter into this opinion, see my roundup yesterday at the Manhattan Institute’s Point of Law, where I and others have been blogging on many angles of the Sotomayor nomination, with more to come.
[Bumped May 27 to reflect added material] I’ve written a piece for Forbes.com on President Obama’s nomination of the Second Circuit judge to the Supreme Court. In addition, expect coverage of the nomination from multiple voices over the next week at Point of Law; Marie Gryphon has already started off with a post on Sotomayor’s controversial ruling on a Second Amendment issue (Heller incorporation, for those who follow that area). More: SCOTUSBlog has a four-part series on Sotomayor’s rulings in civil litigation: first, second, third, fourth. Michael Fox catalogues her rulings in labor and employment cases, to which Daniel Schwartz adds analysis. And thanks to Instapundit, Eugene Volokh, Carter Wood/ShopFloor, Joe Weisenthal, Carolyn Elefant/Legal Blog Watch, Henry Stern/Yonkers Tribune, and Jonathan Adler at both Volokh.com and NRO “Corner” for the links.
I was a guest today on three radio shows to discuss the Sonia Sotomayor nomination: Air Talk with Larry Mantle (KPCC, Southern California public radio), Vicki McKenna (WISN Milwaukee), and Portland, Oregon-based Lars Larson. Tomorrow morning I’ll be a guest on Preston Scott’s program in Tallahassee, Florida, at about 8:05 a.m.
I’ve been added to the contributors at NRO’s Bench Memos discussing the Sotomayor nomination, and my first post skeptically looks at the talking point that she “saved baseball” in 1995.