Anyone interested in the scope of Congress’s power under the Necessary and Proper Clause will want to study today’s opinion in U.S. v. Kibodeaux.

Justice Breyer’s majority opinion concludes that the Necessary and Proper Clause gives Congress the power to enact the registration requirements set forth in the federal Sex Offender Registration and Notification Act (SORNA) and to apply those requirements to a “federal offender who had completed his sentence prior to the time of SORNA’s enactment.”

In his opinion concurring in the judgment only, the Chief Justice relies heavily on Congress’s power to regulate the military, as the offender was convicted by a special court-martial of his sex crime while serving in the Air Force. (As SORNA applies to federal sex offenses generally, and not just those committed by members of the military, I don’t readily understand how Congress’s power to regulate the military, even combined with the Necessary and Proper Clause, can justify SORNA.) The Chief expresses his “worry that incautious readers will think that they have found in the majority opinion something they would not find in either the Constitution or any prior decision of ours: a federal police power.” Cautious readers may have that same concern. That may be why Justice Alito also concurs only in the judgment. And in his dissent Justice Thomas, joined by Justice Scalia, complains that SORNA “usurps the general police power vested in the States.”

If I were so inclined to dedicate my law practice to suing universities over race-discriminatory admissions policies, I’d have popped a champagne cork over the Fisher decision. The court just guaranteed my employment for the next decade. Here’s the key language from the Justice Kennedy’s majority opinion:

Once the University has established that its goal of diversity is consistent with strict scrutiny, however, there must still be a further judicial determination that the admissions process meets strict scrutiny in its implementation. The University must prove that the means chosen by the University to attain diversity are narrowly tailored to that goal. On this point, the University receives no deference. Grutter made clear that it is for the courts, not for university administrators, to ensure that “[t]he means chosen to accomplish the [government’s] asserted purpose must be specifically and narrowly framed to accomplish that purpose.” 

. . . 

True, a court can take account of a university’s experience and expertise in adopting or rejecting certain admissions processes. But, as the Court said in Grutter, it remains at all times the University’s obligation to demonstrate, and the Judiciary’s obligation to determine, that admissions processes “ensure that each applicant is evaluated as an individual and not in a way that makes an applicant’s race or ethnicity the defining feature of his or her application.”

. . . 

Narrow tailoring also requires that the reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity . . . This involves a careful judicial inquiry into whether a university could achieve sufficient diversity  without using racial classifications.

In other words, if a university’s going to use race as a factor, it had better be prepared to endure a searching judicial examination — with a plaintiff’s lawyer on the other side armed with considerable facts showing that race-blind schools can be (and are) quite diverse. How can the use of race be “necessary” when race-blind policies — like Texas’s Top Ten Percent Law (granting admission to state universities to any student who graduates in the top 10% of his high school class) — achieve good results without racial classifications?

Moreover, note the explicit blessing of judicial inquiry. Those of us who’ve challenged university policies across many fronts are used to courts deferring again and again to “academic” judgments, reluctant to second-guess the guardians of the academy. Yet this opinion represents a demand, a requirement, that courts second-guess university admissions policies.

Given the deceptive realities of modern affirmative action programs, this second-guessing is likely not to end well for many universities. If the legal will exists (and that’s a key point), academic racial classifications may well end not with the the big bang of a Supreme Court opinion but instead with an exhausted wimper, as the university community, besieged by lawsuits and unable to publicly justify its ongoing, explicit racial classifications, finally ends a decades-long, divisive social experiment and retreats behind the safe harbor of ten percent laws and other methods that rely on objective measures of academic success.

The message to frustrated academic all-stars excluded from the public university of their choice? Sue. The Supreme Court wants you to.

The Court’s decision in Fisher v. Texas has been long-anticipated: it was one of the first cases argued this term, but was handed down in the last week of the term. That is the hallmark of either a contentious back-and-forth between opinion and dissent, the switch of a decisive fifth vote, or a carefully-negotiated majority opinion that hews a delicate legal line. Today’s decision was the latter.

Although this case is being reported as a punt or as splitting the baby, it actually has the potential to narrow Grutter v. Bollinger significantly. Even more interestingly, Justice Kennedy was able to marshal a 7-1 majority for his opinion, including the vote of Justice Sotomayor, one of the Court’s most vocal defenders of racial preferences.

Grutter has been subjected to serious criticism because it purported to apply strict scrutiny to the University of Michigan Law School’s admissions policy, while in fact it deferred to the law school’s own judgment as to whether a racially diverse student body is a compelling interest as well as whether its use of race was narrowly tailored to achieve that mission.

The Fisher decision builds on Justice Kennedy’s own dissent in Grutter, which took the Court to task with its dishonest application of the strict scrutiny standard. The Fifth Circuit, reversed today, can hardly be held solely responsible for the deference it afforded the university when the Grutter court signaled that it was gutting that standard by deferring to the good faith of the university on each aspect of the test.

In fact, today’s decision does leave in place one contentious aspect of Grutter: the deference to a university’s own judgment about whether diversity is essential to its educational mission and therefore a compelling government interest. Justices Scalia and Thomas both concurred to explain that they would not defer on this point, and the majority opinion clarifies that it was not asked to revisit that aspect of Grutter, so its adoption of that point adds only minor weight to Grutter itself and leaves the door open (at least a crack) for future challenges.

But another aspect of the decision could push back significantly on the ability of universities to employ racial preferences by articulating the correct burdens on a university to prove narrow tailoring. Fisher, far from counseling deference to the university’s judgment, places the burden on the university to prove that its use of race is necessary. Here is the key language:

The reviewing court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If “‘a nonracial approach . . . could promote the substantial interest about as well and at tolerable administrative expense,’” Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 280, n. 6 (1986) (quoting Greenawalt, Judicial Scrutiny of “Benign” Racial Preference in Law School Admissions, 75 Colum. L. Rev. 559, 578–579 (1975)), then the university may not consider race.  A plaintiff, of course, bears the burden of placing the validity of a university’s adoption of an affirmative action plan in issue. But strict scrutiny imposes on the university the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.

Now it is possible that other courts will downplay this language and allow racial preferences to continue, perhaps with the only change being a higher bar of administrative costs imposed on schools to amass sufficient statistics supporting their chosen policy. But I hope this passage will prove significant, particularly its statement that non-racial policies need not be identically effective at creating racial diversity, but only do it “about as well”, and in its admission that this could involve additional administrative expense compared to directly using race.

The citation of the Wygant case is interesting as well, since that case actually called for “particularly intense scrutiny” at the narrow tailoring prong. Far from the watered-down version of scrutiny in Grutter, the Court here could be seen as applying a higher-than-normal level of strict scrutiny. After all, Grutter stated that narrow tailoring “does not require exhaustion of every conceivable race-neutral alternative” while Fisher requires a court to be satisfied that “no workable race-neutral alternatives would produce the educational benefits of diversity.” (emphasis mine)

One thing this case will have in common with other compromise decisions is that the outcome isn’t particularly intellectually satisfying. Those in search of a truly consistent approach are directed to Justice Thomas’s concurrence which rejects (in my opinion, devastatingly) the treatment of racial diversity as a compelling interest altogether, categorically ruling out the use of race in university admissions. He points out how each of the university’s arguments in favor of racial preferences now for minorities was once employed (and rejected by the courts) in the cause of school segregation. Dismissing the notion “that it is possible to tell when discrimination helps, rather than hurts, racial minorities,” Justice Thomas invoked the arguments of the plaintiffs in Brown v. Board of Education: “[N]o State has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens.” Full stop.

I also appreciated Justice Ginsburg’s frank acknowledgement that the “race-neutral” alternatives to achieving diversity in fact are generally little more than proxies for an impermissible inquiry that encourage dishonesty in the admissions process. She criticized the “kind of legal mind [that] could conclude that an admissions plan specifically designed to produce racial diversity is not race conscious,” and she reiterated her preference for a candid acknowledgement of a university’s race consciousness over attempts to dissemble and camouflage it.

Another unfortunate feature of decisions like this one that walk such a fine line is that they don’t often provide terribly clear or easily applicable guidance going forward. The incredible cost in time and money of this litigation not only is still continuing for the University of Texas and Abigail Fisher, but also will likely be repeated on a case-by-case basis across the country as each university attempts to find its own magic formula for consideration of race that the Court will accept. Of course, universities still have one option that is not only straightforward and above constitutional scrutiny but also, according to recent polling, favored by a significant majority of Americans: leaving race out of it altogether.

NR’s Ramesh Ponnuru devoted a recent Bloomberg column to arguing for judicial deference to more democratic institutions in the “big four” cases that had not then been decided by the Supreme Court: the two marriage cases (Hollingsworth and Windsor), the university affirmative action case (Fisher), and the Voting Rights Act case (Shelby County).  Fisher has now been decided, but the other three remain to be announced later this week, perhaps one or more of them tomorrow.

This morning Hans von Spakovsky and Elizabeth Slattery posted a comment on Ramesh’s column on the Corner, specifically criticizing his view of the Shelby County case, in which they think he was wrong to call for judicial deference to Congress’s legislative power (under Section 2 of the Fifteenth Amendment) to enact and re-enact the pre-clearance provision (Section 5) of the Voting Rights Act of 1965.  Ramesh has responded to von Spakovsky and Slattery, I think with telling effect, but I’ll add something more myself, since they make a rather curious argument that Ramesh’s argument contravenes a core principle of the Constitution’s Article III judicial power.  They deploy a famous quotation of Alexander Hamilton in Federalist 78, “that the Court is ‘the bulwark of a limited constitution against legislative encroachments,’” adding that “Ramesh would have the Court abandon that role.”

Their quotation, containing the key phrase “a limited constitution,” appears in the 17th paragraph of Fed. 78.  Here is the 9th paragraph (my emphasis), where Hamilton defines that term:

The complete independence of the courts of justice is peculiarly essential in a limited constitution.  By a limited constitution I understand one which contains certain specified exceptions to the legislative authority; such for instance as that it shall pass no bills of attainder, no ex post facto laws, and the like.  Limitations of this kind can be preserved in practice no other way than through the medium of the courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.  Without this, all the reservations of particular rights or privileges would amount to nothing.

When we turn to section 2 of the Fifteenth Amendment, however, we have, not a “specified exception to the legislative authority,” but a grant of legislative authority, and Hamilton’s “bulwark” remark might be said hardly to apply at all.  That provision reads, “The Congress shall have power to enforce this article by appropriate legislation.”

But anyway, von Spakovsky and Slattery seem to be begging the question.  They and Ramesh agree that the Court should strike down unconstitutional acts of Congress that properly come within the purview of the Court.  But they as much as say that he would throw in the towel on judicial review altogether, in the name of “deference.”  Not so; he was casting doubt on whether the VRA’s provision for preclearance in certain jurisdictions is an unconstitutional act within the purview of the Court to invalidate.  Now, he on the one hand and von Spakovsky and Slattery on the other might disagree about whether there is a category of a) unconstitutional acts that are b) not within the purview of the Court to invalidate.  If von Spakovsky and Slattery think there can be no such category, then they embrace a version of judicial supremacy.  That’s their prerogative, but it’s stealing a base to say that someone who holds a more modest version of judicial review is somehow abandoning the principles of the Constitution (which is the burden of the “he’s contradicting Hamilton” claim).

While I’m at it, there’s another interesting wrinkle to the von Spakovsky-Slattery argument.  They seem to equivocate a little on whether VRA Section 5 was constitutional in 1965, but became unconstitutional as its stated rationale became less empirically defensible, or has always been unconstitutional.  Sometimes it seems they think it was okay at first, but is no longer; but one could read them as saying that Section 5 was invalid from the first.  There’s something appealingly consistent and defensible about the latter view.  But if it was right for the Court to defer long ago to Congress’s judgment of what is appropriate, it is hard to see what contitutional requirement now converts that imperative for deference into an imperative for the opposite.

I’ll be interested in what Roger Clegg and other experts on race preferences have to say, but my initial read is that today’s ruling in Fisher v. UT Austin doesn’t amount to much and largely punts the bigger questions down the road. [Addendum: On the Volokh Conspiracy, Ilya Somin argues that today’s ruling is a “significant victory for opponents of affirmative action in higher education” and that it is, at the least, “at odds with the dominant understanding of Grutter by most lower court judges, university administrators, and legal scholars.” And here is Roger Clegg’s take.]

Here is a quick summary of Justice Kennedy’s majority opinion (for seven justices):

1. Any official action that treats a person differently on account of his race or ethnic origin is inherently suspect and subject to strict scrutiny.

2. Under Grutter, courts will defer to a university’s educational judgment that the attainment of a racially/ethnically diverse student body is essential to its educational mission.

3. Under Grutter, a university must prove that the means it chooses to attain diversity are narrowly tailored to that goal. It receives no deference on that question. Narrow tailoring also requires that a reviewing court verify that it is “necessary” for a university to use race to achieve the educational benefits of diversity. A court must carefully inquire whether a university could achieve sufficient diversity without using racial classifications.

4. The Fifth Circuit did not perform the searching examination required of it. Instead, it held that the plaintiff could challenge only whether the university’s decision to reintroduce race as a factor was made in good faith. Further, it established a presumption that the university’s decision was in good faith, and it required plaintiff to rebut that presumption. But good faith does not forgive an impermissible consideration of race.

5. On remand, the courts below should apply the appropriate standard.

In concurring opinions, Justice Scalia and Justice Thomas reiterated their views that Grutter should be overruled.

In a brief dissent, Justice Ginsburg approves of the Fifth Circuit’s application of Grutter.

Justice Kagan was recused from the case.

[Going into today, the Supreme Court still has decisions to render in eleven cases. It would be quite a surprise if the Court were to issue all eleven decisions today; a range from three to six is far more likely. Relying on SCOTUSblog and How Appealing, I’ll post here the early word on today’s decisions. I’ll update this post until all the decisions have been announced. Once I am able to review the actual opinions, I may do separate posts on particular cases.]

Five rulings today:

Here’s one of the much-awaited rulings: Fisher v. UT Austin (racial preferences in undergraduate admissions): Kennedy opinion. Fifth Circuit failed to provide exacting standard of scrutiny; case is remanded to it. 7-1 (Kagan recused). Only Ginsburg in dissent. (7-1 vote suggests that Court may have avoided deciding much; may be largely a punt.) From quick skim of syllabus only, it appears that Court rules only that Fifth Circuit failed to properly apply existing precedent. Court takes existing precedent as “given” for purposes of this case. So it appears that the Court is punting for now on whether it would revisit Grutter. Ginsburg reads her solo dissent.

Vance v. Ball State University (supervisor liability under Title VII for sexual harassment): 5-4 ideological divide on who qualifies as a supervisor; opinion by Alito; Ginsburg dissent

UT Southwestern Medical Center v. Nassar (proof for retaliation claim): 5-4 ideological divide on causation test. Kennedy opinion. Ginsburg reads her dissent (and apparently also addresses Vance).

Mutual Pharmaceutical Co. v. Bartlett (federal preemption of design-defect claims against generic drugs): Claims are preempted. Alito opinion; 5-4

U.S. v. Kibodeaux (Sex Offender Registration and Notification Act): Congress has power to require registration. Breyer opinion for five-justice majority; concurrence in the judgment by Chief and Alito; dissents by Scalia and Thomas.

The Court has set another announcement session for tomorrow (Tuesday). Six cases remain. My guess is that the Court will issue two or three tomorrow; probably not the marriage rulings.

1992—In Lee v. Weisman, a 5-justice majority, in an opinion by Justice Kennedy, rules that a nondenominational prayer delivered by a rabbi at a public school graduation ceremony violated the Establishment Clause because students who chose to attend the ceremony were psychologically coerced “to stand as a group or, at least, maintain respectful silence” during the prayer. Who knew that Judaism had briefly become the established religion of Providence, Rhode Island?

In dissent, Justice Scalia observes that the majority “lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally.” Scalia states: “I find it a sufficient embarrassment that our Establishment Clause jurisprudence regarding holiday displays has come to ‘requir[e] scrutiny more commonly associated with interior decorators than with the judiciary.’ But interior decorating is a rock-hard science compared to psychology practiced by amateurs.” Further: “I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty—a brand of coercion that, happily, is readily discernible to those of us who have made a career of reading the disciples of Blackstone, rather than of Freud.”

God save the United States and this often-dishonorable Court! 

1972—In Furman v. Georgia, five justices vote to overturn a death penalty as cruel and unusual punishment in violation of the Eighth Amendment but can’t agree on a rationale. Each of the five justices instead issues his own opinion. Despite the fact that the Fifth and Fourteenth Amendments expressly assume the existence of the death penalty, Justices Brennan and Marshall each assert that the death penalty is in every instance an Eighth Amendment violation. The Court’s per curiam declaration creates massive confusion and requires states to rewrite their capital-sentencing laws

1992—By a vote of 5 to 4, the Supreme Court bungles an opportunity to dismantle the regime of Roe v. Wade and to restore abortion policy to the democratic processes. In Planned Parenthood v. Casey, Justices O’Connor, Kennedy, and Souter combine to produce a joint opinion so breathtaking in its grandiose misunderstanding of the Supreme Court’s role that it makes one long for the modest incoherence of Justice Blackmun’s opinion in Roe v. Wade. The joint opinion is perhaps most infamous for declaring, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” What this gauzy New Age rhetoric obscures is that the justices are claiming the unconstrained power to define for all Americans which particular interests they think should be beyond the bounds of citizens to address through legislation. But it gets far worse. Consider, for example, these passages on stare decisis considerations:

 “Where, in the performance of its judicial duties, the Court decides a case in such a way as to resolve the sort of intensely divisive controversy reflected in Roe and those rare, comparable cases, its decision has a dimension that the resolution of the normal case does not carry. It is the dimension present whenever the Court’s interpretation of the Constitution calls the contending sides of a national controversy to end their national division by accepting a common mandate rooted in the Constitution.”

“To all those who will be so tested by following [the Court], the Court implicitly undertakes to remain steadfast, lest in the end a price be paid for nothing. The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete.”

“Like the character of an individual, the legitimacy of the Court must be earned over time. So, indeed, must be the character of a Nation of people who aspire to live according to the rule of law. Their belief in themselves as such a people is not readily separable from their understanding of the Court invested with the authority to decide their constitutional cases and speak before all others for their constitutional ideals. If the Court’s legitimacy should be undermined, then, so would the country be in its very ability to see itself through its constitutional ideals. The Court’s concern with legitimacy is not for the sake of the Court but for the sake of the Nation to which it is responsible.”

Subject yourself to parts I, II, and III of the atrocity, and then read Justice Scalia’s devastating response. Some excerpts from Justice Scalia:

“The Court’s description of the place of Roe in the social history of the United States is unrecognizable. Not only did Roe not, as the Court suggests, resolve the deeply divisive issue of abortion; it did more than anything else to nourish it, by elevating it to the national level where it is infinitely more difficult to resolve. National politics were not plagued by abortion protests, national abortion lobbying, or abortion marches on Congress, before Roe v. Wade was decided. Profound disagreement existed among our citizens over the issue—as it does over other issues, such as the death penalty—but that disagreement was being worked out at the state level.”

“Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. And by keeping us in the abortion umpiring business, it is the perpetuation of that disruption, rather than of any pax Roeana, that the Court’s new majority decrees.”

“The Imperial Judiciary lives. It is instructive to compare this Nietzschean vision of us unelected, life tenured judges—leading a Volk who will be ‘tested by following,’ and whose very ‘belief in themselves’ is mystically bound up in their ‘understanding’ of a Court that ‘speak[s] before all others for their constitutional ideals’—with the somewhat more modest role envisioned for these lawyers by the Founders: ‘The judiciary . . . has . . . no direction either of the strength or of the wealth of the society, and can take no active resolution whatever. It may truly be said to have neither Force nor Will but merely judgment . . . .’ The Federalist No. 78.”

2005—In an act of judicial passivism, a 5-justice majority, in an opinion by Justice Stevens, rules in Kelo v. City of New London that the City of New London satisfies the “public use” requirement of the Takings Clause when it takes private property from homeowners in order to transfer it to another private owner as part of an economic redevelopment plan. The majority correctly observes that its diluted reading of “public use” to mean “public purpose” accords with precedent, but its bare assertion that a genuine “public use” test “proved to be impractical given the diverse and always evolving needs of society” shows how unreliable the “living Constitution” is as a guarantor of rights not favored by the elites from which the Court’s members are drawn. It’s hardly a surprise that justices who willy-nilly invent rights that aren’t in the Constitution ignore rights that are.

President Obama arrived in Northern Ireland this week to attend the G8 Summit, and he brought with him the familiar rhetoric of unity and of ending division.

Summoning the spirit of the Civil Rights Movement, he raised the figurative pulpit in front of a crowd of 2,000 young people in Belfast and preached:

Issues like segregated schools and housing, lack of jobs and opportunity — symbols of history that are a source of pride for some and pain for others — these are not tangential to peace; they’re essential to it. If towns remain divided — if Catholics have their schools and buildings, and Protestants have theirs — if we can’t see ourselves in one another, if fear or resentment are allowed to harden, that encourages division. It discourages cooperation. 

Embedded in his argument are the assumptions that 1) the conflict in Northern Ireland was primarily motivated by religion and 2) parochial schools are responsible for encouraging division and often violence. Let’s assume President Obama is correct on both points.

In his eyes the prominent existence of separate Catholic schools and institutions stand as lingering reminders of hatred and fear, fomenting division and discouraging unity. If the president believes separate institutions based on religious beliefs are divisive in a country that has a history of religious tension, then surely he believes that separate institutions based on race are divisive in a country that has an ugly history of racial tension.

Based on his criticism of Catholic institutions, one can only expect President Obama to apply the same standard to historically black colleges and universities (HBCUs) in the U.S. But this is not the case. (For the record, I am fine with HBCUs as long as they are not discriminatory, but I do expect the president to be consistent.)

Unfortunately, when it comes to issues involving race, he is anything but consistent.As a candidate in 2008, he said that his daughters should not receive race-based preferential treatment when they apply to college, because of their relatively privileged upbringing. As president, however, he has vigorously supported policies that uphold different treatment based on race in public education, employment, and contracting — policies that would give his daughters special treatment solely because of their skin color. If anything is divisive, it is government-sponsored institutions picking winners and losers based on race.

The truth is that Barack Obama has always advanced two conflicting positions on race. The first position states that it is time to put racial division behind us and strive toward Martin Luther King’s vision of a truly equal and colorblind society. Those who still want to divide and profit from racial tension are merely clinging to the past. This is the message of Obama’s campaign speeches and public appearances.

The second position acts upon the notion that race is a powerful and effective political tool. Opponents are accused of being motivated by underlying racism and minorities are told they have a right to preferential treatment. Individuals are divided into victims groups, then mobilized for political causes.

One moment Obama is calling us to move beyond racial division, the next moment he is actively promoting it.

We have come a long way from the discrimination of the 1950s. Yes, racism still exists. It will likely never be completely eradicated. But thevast majority of Americans have come to realize that people should be judged on character and merit, not skin color, and this is reflected in recent polls showing strong opposition to policies of racial preferences.

The question now is will the Supreme Court end these policies of discrimination once and for all, or will they allow them to continue to divide and undermine the process of racial healing. We’ll find out on Monday. Or maybe Thursday.

According to this article by the National Journal’s Karen Sloan, NALP* reports that “within nine months of graduation … less than 60 percent of [2012 law-school graduates] had landed permanent, full-time jobs that required bar passage.” Further, 12.8% of the members of the 2012 class are unemployed. The employment rate for new law-school graduates has fallen for five straight years (though the actual number of jobs for new graduates was up slightly from a year ago).

* NALP was formerly known as the  National Association for Law Placement but is now apparently an orphan acronym.

1973—In their dissents in Paris Adult Theatre I v. Slaton, Justice Douglas reiterates his belief that obscenity is fully protected by the First Amendment, and Justice Brennan, joined by Justices Stewart and Marshall, expresses the same position, “at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults.”

Here are two more reasons — that would No. 517 and No. 518, respectively, I think — to hope that the Supreme Court rules in Fisher v. University of Texas next week that racial preferences in university admissions are unconstitutional.

First, so long as they are allowed, it appears that the Obama administration’s Department of Education will insist on racially preferential programs at universities even when the school is willing to get rid of them — see this story today from the Chronicle of Higher Education.

Second, not only do the Constituiton, the civil-rights statutes, and sound policy all weigh in favor of ending racial preferences, but here is the third opinion poll in recent weeks (the first two, by the Washington Post/ABC and Wall Street Journal/NBC are discussed here) showing that, no surprise, people don’t like them. The lastest poll, by CNN/ORC, found Americans opposed to them by 68 percent to 29 percent (versus, by the way, 49–39 ten years ago).

Three decisions today, one in a case that has received some attention.

Per SCOTUSblog and How Appealing:

AID v. Alliance for Open Society (does funding condition requiring that organization have a policy explicitly opposing prostitution and sex trafficking violate First Amendment?): Condition violates First Amendment. 6-2 opinion by Chief, with Scalia and Thomas in dissent. This one should be interesting.

Descamps v. U.S. (Armed Career Criminal Act): Kagan opinion, 8-1

American Express Co. v. Italian Colors Restaurant (Federal Arbitration Act): waiver of class action enforceable in arbitration; 5-3 ideological divide; opinion by Scalia. (This leaves the Chief as likely author of Voting Rights Act ruling in Shelby County.)

2002—In Atkins v. Virginia, the Court, in an opinion by Justice Stevens (for a majority of six justices), relies on the “direction of change” in state laws, the views of the supposed “world community” and of various professional and religious groups, and polling data to rule that execution of anyone who is even slightly mentally retarded violates the “evolving standards of decency” that it sees as governing application of the Eighth Amendment. (A person who has properly been found competent to stand trial, who is aware of the punishment he is about to suffer and why, and whose subaverage intellectual capacity has been found an insufficiently compelling reason to lessen his responsibility for a crime may nonetheless be “mentally retarded.”)

In dissent, Justice Scalia marvels at the majority’s ability to extract a “national consensus” from the fact that 18 of the 38 states that permit capital punishment have recently enacted legislation barring execution of the mentally retarded. Moreover, Scalia charges, the majority’s assumption that judges and juries are unable to take proper account of mental retardation “is not only unsubstantiated, but contradicts the immemorial belief, here and in England, that they play an indispensable role in such matters.”

For an excellent overview of what’s at stake in the two marriage cases before the Supreme Court, read Ryan Anderson’s new essay on NRO. An excerpt:

[G]overnment has an interest in marriage because it is society’s best way to ensure the well-being of children. State recognition of marriage protects children by encouraging men and women to commit to each other and take responsibility for their children.

Redefining marriage would further distance marriage from the needs of children and would deny, as a matter of policy, the ideal that a child should have both a mother and a father. After all, it’s hard to insist that fathers are essential when the law has redefined marriage to make fathers optional. Delinking childbearing from marriage would force the state to intervene more often in family life and expand government welfare programs.

Redefining marriage does not simply expand the existing understanding of marriage. It would legislate a new principle: that marriage is whatever emotional bond the government says it is. But redefining marriage to abandon the norm of male-female sexual complementarity also would make other essential characteristics — such as monogamy, exclusivity, and permanency — optional, as leading LGBT scholars and activists admit. Marriage cannot do the work that society needs it to do if these norms are further weakened.

As I write, the United States Supreme Court’s term awaits the release of what will probably be watershed opinions on affirmative action, same-sex marriage, and the Voting Rights Act. These cases will receive — and rightly so — the lion’s share of media attention.

Nevertheless, there are always quieter cases that often starkly illustrate the Court’s divisions in the matter of constitutional interpretation. The June 17 decision in Salinas v. Texas is one such case. What is striking in Salinas is the lesson that the abandonment of adherence to original-understanding issues is mere judicial policymaking of one political stripe or another.

Suspected of murder, Genovevo Salinas had been brought into a police station for questioning. All parties agreed that he was not in custody and no Miranda warning was read. Salinas voluntarily answered police questions about the crime. However, when the police asked him whether ballistics testing would match the shell casings at the murder scene to his shotgun (which he had turned over to the police earlier), Salinas suddenly fell silent.

At the subsequent criminal trial, prosecutors proffered his silence to the shotgun question as evidence of his guilt. Salinas was convicted and sentenced to 20 years. Salinas’s challenge on appeal was predicated on the contention that the Fifth Amendment’s prohibition on self-incrimination means that his silence could not be used against him at trial.

The Court divided predictably on the result in this criminal-procedure case: Chief Justice Roberts and Justices Alito, Kennedy, Scalia, and Thomas all joined the judgment to affirm the use of Salinas’s silence at trial. Justices Breyer, Ginsburg, Sotomayor, and Kagan all dissented (with an opinion by Breyer) and would have prohibited Salinas’s silence from being used at trial.

What is really noteworthy was the split between the opinion of Alito for the plurality (including Roberts and Kennedy) and Thomas’s opinion (joined by Scalia) concurring only in the judgment. The source of the split was what to do about Griffin v. California, a 1965 Warren Court excrescence authored by Justice William O. Douglas. Griffin (mis)used the Fifth Amendment and incorporated it to compel every state to follow the rule that no prosecutor or judge could comment on a defendant’s failure to testify at trial.

With his characteristic originalist approach, Thomas wrote that Griffin “lacks foundation in the Constitution’s text, history, or logic” and therefore must not be extended. Thomas noted that Griffin is offensive to both the text and history of the Fifth Amendment. Textually, Thomas observes that a defendant is not compelled to be a witness against himself because a prosecutor points to his failure to testify and says to the jury that an adverse inference may be drawn from that failure. Moreover, the history of the Fifth Amendment contradicts the judicially invented mandate of Griffin. Thomas commented that “at the time of the founding, English and American courts strongly encouraged defendants to give unsworn statements and drew adverse inferences when they failed to do so.”

Because of the “indefensible foundation” of Griffin, Thomas and Scalia logically did not extend it to Salinas’s precustodial interview. Of course, Alito, Roberts, and Kennedy declined to extend it, too. The problem is that without grounding in the text and history of the Fifth Amendment, Alito’s opinion is little more than a policy statement that turns on Salinas’s failure to invoke the protection against self-incrimination. In a similar way, the Breyer dissent is nothing more than a policy statement favoring the extension of Griffin to this factual setting. One may agree with Alito’s approach over Breyer’s, but that is fundamentally a policy judgment and not a matter of interpretation.

That is why originalism is so vital to the conservative project of restoring the Constitution. Without a rigorous analysis of the text and history of the constitutional provision, little more than results are at stake. And that is a constitutional jurisprudence that will not endure.

— Gregory J. Sullivan (Gregoryjsull@aol.com) is a lawyer in New Jersey. 

The Spring issue of the indispensable Claremont Review of Books is on its way to subscribers’ mailboxes, and is already online for subscribers (you do subscribe, don’t you?).  The editors have kindly made accessible to all my review of a fine new book by legal historian R. Kent Newmyer, The Treason Trial of Aaron Burr.  A sample of my review:

We may forget that, in [Marshall's] day, a Supreme Court Justice was also a trial judge, “riding circuit” for much of the year, sitting alongside federal district judges to try cases in the circuit courts away from the capital. For the most part, only the closest students of the early Supreme Court have paid much attention to the Justices’ trial-court activities. And admittedly, it is a rare case at the trial level that gives rise to opinions of historic interest. But as R. Kent Newmyer, a professor at the University of Connecticut Law School and one of the best historians of the early republic, shows in his new book, United States v. Burr is that rare case.

Of all the cases on which Marshall sat in his 34 years on the bench, the 1807 treason trial of Aaron Burr in Richmond, Virginia, over which he presided with district judge Cyrus Griffin, consumed more of his time and energy than any other, and prompted more legal opinion writing than any other (some 20 items in the Marshall Papers), including two of his longest, most significant constitutional opinions. In the early 19th century, the Supreme Court convened on the first Monday in February and rarely went far into March before it had disposed of all the cases on its annual docket. (Those were the days!) But in the Richmond circuit court, Marshall was consumed with the Burr case off and on from the end of March to mid-October 1807, with the main treason trial occupying the whole month of August.

If you saw Seth Lipsky’s piece on treason in yesterday’s Wall Street Journal, you may have noticed his mention of an opinion on treason that Marshall gave in a Supreme Court case in 1807.  That case was a mere prelude to the Burr trial, in which Marshall clarified what his earlier Supreme Court opinion had left rather murky.

You can read the rest of my review here.

Today at Public Discourse, I explain why the defense of religious freedom depends on preserving the truth about marriage in our legal order:

Should the truth about marriage—that it unites men and women so that children will have fathers and mothers—be defied by the laws of the land, we cannot expect the religious freedom of those who believe in that ancient truth to be respected under the new dominion of falsehood.

After all, if redefining marriage to include same-sex couples accords with justice and moral truth, there is no good reason for the new legal order to make room for “conscientious” religious dissenters, for clearly their consciences are malformed and unworthy of respect. Thus the fate of religious freedom, for scores of millions of Americans, stands or falls with the fate of conjugal marriage itself.

Read the rest here.

1980—Mere months before losing his bid for re-election, President Jimmy Carter puts ACLU activist Ruth Bader Ginsburg on the D.C. Circuit. Carter had nominated Ginsburg only two months earlier.