Fisher v. Texas and the Reasons Why Liberals and Conservatives on the Supreme Court Don’t Trust Each Other on Affirmative Action: Part Two in a Two-Part Series of Columns

My most recent column for Justia’s Verdict, Part One in this series, began to look at issues raised by the Supreme Court’s recent decision to grant review in the Fisher v. University of Texas affirmative action case.  There I discussed some of the ways in which both the so-called liberal and the so-called conservative Justices have come across as less than completely intellectually honest in many of the substantive votes they have cast on the constitutionality of race-based affirmative action, contributing to a mutual distrust among the groups of Justices on the subject.  In the present column, I continue developing this theme of intellectual (in)consistency, this time focusing less on the outcomes that the Court or various of its Justices have reached, and more on the questions of how the Court should decide these cases—that is, what methodology should be used in these cases—and, indeed, whether the Court should have been willing to decide some of these cases at all.

The “How” Question: Why Has There Been No Sustained Discussion of the Use of Originalist Methodology in the Affirmative Action Cases?

For about a generation, the conservatives on the Court have been arguing for originalism, a particular approach to constitutional interpretation that seeks to understand and apply the text of the document as “intelligent and informed people of the time” of enactment would have.  Justice Antonin Scalia, the American jurist most often associated with the development of originalism in recent American jurisprudence, has explained that originalism seeks to construe the Constitution’s text “reasonably, to contain all that it fairly means.” Under originalism, the meaning that counts is “the original meaning of the text”—”how the text of the Constitution was originally understood” by interpreters of the day.

Originalism in some form is a very attractive idea.  Yet throughout the modern affirmative action cases over the last generation, the most conservative Justices have never really explained how their view that government cannot use race in any way whatsoever—that the Constitution is “color-blind,” so to speak—can be squared with the fact that the very same Congress that passed the Fourteenth Amendment did, in fact, use race-based programs to help African Americans.

Consider the Parents Involved ruling from 2007, which I discussed in Part One of this series, and which tested the validity of race-based pupil assignments employed to promote high school integration in Seattle and Kentucky.  In that decision, Justice Breyer, in dissent, finally began to call out the color-blind-Constitution Justices on this point, reminding observers that the federal government, even in the Nineteenth Century, at times offered relief to all African Americans, and not just newly freed slaves.  Justice Thomas, the most ardent color-blind-Constitution Justice and also a staunch proponent of Scalian originalism, had only this to say by way of response:

“The dissent half-heartedly attacks the historical underpinnings of the color-blind Constitution. . . . What the dissent fails to understand, however, is that the color-blind Constitution does not bar the government from taking measures to remedy past state-sponsored discrimination–indeed, it requires that such measures be taken in certain circumstances. Race-based government measures during the 1860’s and 1870’s to remedy state-enforced slavery were therefore not inconsistent with the color-blind Constitution.”

Justice Thomas’s comment here is, from what I can tell, the most elaborate explanation that originalists have offered about originalism and the “color-blind Constitution.” And it is far from enough. Why? Because the programs at issue in the 1800s extended beyond former slaves to other African Americans, and thus could not be easily characterized as surgically redressing slavery.  And also because Justice Thomas does not address the fact that slavery was not illegal until 1866, when the adoption of the Thirteenth Amendment made it so.  If the government has the authority to use race to rectify slavery (which was not illegal when maintained), why can’t the government as a more general matter use race to rectify racial problems (such as de facto segregation) that also go beyond past state lawlessness?

There may be plausible originalist responses to my questions, but it’s hard to know, because the color-blind-Constitution Justices simply haven’t made any. Indeed, they haven’t applied originalism to affirmative action at all.  Nor have they explained why they haven’t.

The “Whether to Decide” Questions:  Issues of Standing in Affirmative Action Cases

In the 1975 Supreme Court case of Warth v. Seldin, various individuals and organizations had sued the Town of Penfield, New York, alleging that the town’s zoning ordinance excluded persons of low and moderate income from living there, in violation of the plaintiffs’ rights under, among other provisions, the equal protection clause of the Fourteenth Amendment.  The question of whether governmental discrimination, overt or tacit, against the poor (who also frequently happened to be persons of color) violated the Constitution was indeed a thorny one.  But the Court determined that it didn’t need to reach that prickly issue, because none of the plaintiffs had standing to sue. (Standing is the right, based on the facts of one’s situation, to bring a particular case to court.)

What about the plaintiffs who seemed to be the most likely to have standing, the low-income persons who said they wanted to live in Penfield?  The Court said that these folks lacked standing because their injury—the inability to live in Penfield—was not caused by the municipal defendant, insofar as even if Penfield rewrote its zoning laws to encourage more low-income housing, the particular plaintiffs before the Court still couldn’t afford to live there.  It was the harsh economic market—not Penfield’s laws—that was causing these particular challengers to live elsewhere.  Because there was no causation, there was no standing.

Fast forward to 1993, when the Court decided Associated General Contractors v. City of Jacksonville.  There, non-minority contractors alleged that they would have bid on construction work that was set aside for minority contractors, but could not due to their race.  The contractors were challenging the requirement that 10% of city contracts be awarded to minority-owned businesses.  The problem, however, was that even absent the set-aside program, the particular challengers still would not have been awarded any contracts—their bids would have been uncompetitive even in the absence of the affirmative action program.  In other words, the challengers would have lost out to other non-minority companies.  It was the existence of these other non-minority bidders, and not the set-aside program, that caused the plaintiffs to lose out on the contracts.  But the Court said that in equal protection cases like these, the relevant injury is not the denial of the benefit itself, but the denial of equal treatment that is imposed by a discriminatory barrier to obtaining a benefit.  Or, put another way, the injury is the inability to compete on an equal footing in the bidding process.  So the challengers had standing even if they would never have been awarded the contracts.

The Court admitted some “tension” between its decision and the ruling in Warth, but with a few sentences of elaboration the Court deemed the tension “minimal.”

Associated General Contractors, then, recognizes that a constitutional equal protection injury can consist of unfair treatment in a selection process even if the ultimate benefit sought would not be forthcoming. In addition to its inconsistency with Warth, the decision is also hard to square with a case that was decided eight years later, Lesage v. University of Texas.  In Lesage, the Court held that a challenger to a UT race-based affirmative action plan who would have been denied admission even in the absence of the plan could not recover anything from the University, which means that the injury consisting of unfair procedural treatment has no monetary value.

Should We Anticipate More Procedural Innovation/Manipulation From the Court in the Fisher Case?

A close cousin of standing rules—the mootness doctrine—may figure prominently in the Fisher affirmative action case that is now pending at the Court.  The plaintiff in Fisher (who was once one of two plaintiffs, but now is the only one left) applied to UT as a freshman and was denied admission.  She then filed suit in federal court challenging UT’s race-based admissions criteria, but at the same time enrolled in another college. In her Complaint, she asked for a declaration that she was entitled to have her UT application considered without regard to race; an injunction (a court order) directing UT to consider admitting her without regard to race (on the premise that she would transfer to UT if admitted); and money damages “in the form of” a refund of her admissions application fee (on the theory that her application had not been processed fairly, and therefore she was entitled to get her money back.)

But here’s the (or at least a) big wrinkle.  Since it took a while for her case to be resolved by the U.S. Court of Appeals for the Fifth Circuit (which ruled in UT’s favor on the merits), she’s now no longer interested in transferring to UT (given that she’s already a senior at her current college).  So her claims for declaratory and injunctive relief are no longer alive; in legal parlance, they are moot.  But what about her small monetary refund claim (for a sum total of roughly $100)?

In opposing Supreme Court review a few months ago, UT told the Court that if the Justices were to grant review, UT could simply offer to refund plaintiff the $100, thereby mooting the damage claim too!  So, argued UT, it would be a waste of time for the Court to grant review, only to have to dismiss the case before deciding it.

That is a very interesting argument.  If UT follows through on its threat and makes a tender of $100 (or a bit more, just to be on the safe side), what will/can the Court do?  Perhaps it will dismiss the case as moot; by granting review, perhaps it wanted to at least force UT make the tender, which, if it moots the case, would also erase (vacate) the Fifth Circuit ruling that some conservative Justices don’t like.

But it seems more likely a majority of the Justices think that they have found a way to keep the case alive.  There are a number of possibilities as to how they might do so, including (though not limited to): (1) rejecting the tender as too manipulative; (2) holding that the plaintiff implicitly requested in her Complaint (or may amend her suit to request) more extensive damages for not having been able to attend UT; and (3) holding that the plaintiff implicitly requested nominal damages and that such nominal damage claims cannot be mooted with a tender that is unaccompanied by an admission of liability. Yet each of these three options involves significant tension past decisions and/or actions in earlier Court cases.

Thus, many legal analysts are anxious to see if, and how, the Court can get past the procedural hurdles it has erected in many other settings to reach this latest affirmative action dispute on the merits.