1948—In McCollum v. Board of Education, the Supreme Court applies the “wall of separation” myth that it adopted the previous year (see This Day entry for Feb. 10, 1947) and strikes down a released-time program in which religious teachers, employed by their own religious groups, could provide religious instruction on school grounds at designated times to those students whose parents consented. As law professor Philip Hamburger explains in Separation of Church and State, the McCollum case made clear that the Supreme Court’s misconstruction of the Establishment Clause “would go far beyond the [constitutionally unfounded] Protestant version of separation of church and state” and impose a secular version.
1971—In a striking sign of the intellectual aimlessness that will plague his tenure, Chief Justice Warren E. Burger pens a unanimous opinion in Griggs v. Duke Power Co. that misreads Title VII of the Civil Rights Act of 1964 to bar employment practices that are not discriminatory in intent but that have a racially disparate impact. In order to justify any such practice, Burger holds, the employer has “the burden of showing that any given requirement must have a manifest relationship to the employment in question.”
As law professor Gail Heriot will observe, Title VII disparate-impact liability “makes almost everything presumptively illegal.” Employers seeking to avoid disparate-impact claims will henceforth have an incentive to discriminate on the basis of race by adopting quotas or targets that reflect the racial composition of the workforce.
2018—In his majority opinion in Dai v. Sessions, Ninth Circuit judge Stephen Reinhardt holds that the court is required to treat an asylum applicant’s testimony as credible in the absence of an explicit finding to the contrary by the immigration courts. Never mind, as Judge Stephen Trott points out in dissent, that the immigration judge “expose[d] the glaring factual deficiencies in Dai’s presentation” and “explain[ed] in specific detail and at length why Dai had not persuasively carried his burden of proving his case.” Over Trott’s objection, Reinhardt also holds that a 2005 federal law, the REAL ID Act, that affords an asylum applicant only a rebuttable presumption of credibility on appeal applies only to the Board of Immigration Appeals, not to petitions for review in the federal courts.
More than eighteen months later, in October 2019, ten judges will dissent from the Ninth Circuit’s failure to rehear the case en banc. Judge Consuelo Callahan condemns the panel’s “artful evasion of the REAL ID Act [as] nothing short of an outright arrogation of the agency’s statutory duty as trier of fact.” Judge Daniel P. Collins similarly laments that the panel’s “Simon says” rule means that “even where (as here) the record overwhelmingly confirms that the agency actually disbelieved critical portions of the applicant’s testimony, [the Ninth Circuit] will nonetheless conclusively treat that testimony as credible if the agency did not make an explicit adverse credibility determination.” Collins also explains that the “panel majority’s sharp distinction between a ‘petition for review’ and an ‘appeal’ is refuted by the very statutory provision on which the majority relies.”