My Own Words
Page 27
Having barely sketched some prescriptions on equality nationally and internationally, I will devote the remainder of my remarks to some of the endeavors to make the equality ideal more than aspirational in the land in which I live and work, the United States.
II
Affirmative action efforts in the United States reflect distinctive aspects of our history. All people residing in France proper qualified for citizenship without regard to race or religion following the revolution. But in the United States slavery persisted in the South until outlawed by our Civil War and an 1865 constitutional amendment. So-called Jim Crow laws replaced slave codes in several states, laws that imposed a rigid and pervasive system of racial segregation that continued past the midpoint of the twentieth century. Although World War II made unmistakably clear to the world the evil of racism, one cannot erase the past in short order. “In the wake of a system of racial caste only recently ended,” President Lyndon Johnson told the nation in 1965, “[f]reedom is not enough. You do not wipe away the scars of centuries by saying: ‘Now you are free to go where you want . . . do as you desire, [elect your] leaders.’ ”
Affirmative action in the United States has had a seesaw, up-and-down history. The term was coined in 1961, but implementation of the concept did not shift into high gear until the administration of Republican President Richard Nixon. In 1969, Nixon’s Labor Department published its pathmarking Philadelphia Plan, in large part to combat high rates of unemployment among African-American men, and to break down nepotism in the construction trades. The plan required construction enterprises that held contracts with the government to set goals and timetables for hiring minority workers. Enterprises that failed to comply risked termination of their contracts.
Within just a few years, the model was extended to cover the whole of the United States and all government contracts, including those held by universities. Coverage was also expanded to include women as well as racial and ethnic minorities. I was the beneficiary of the Nixon administration’s affirmative action effort when, in 1972, I was engaged by the Columbia University law faculty as the first woman ever to hold a tenured position there.
During the period the administration was promoting affirmative action, the U.S. Supreme Court supplied important guidance on the scope of Title VII of the 1964 Civil Rights Act, the nation’s principal law on antidiscrimination in employment. Title VII prohibits discrimination by employers, private and public, on the basis of race, color, religion, sex, or national origin. In Griggs v. Duke Power Company, a 1971 decision, the Supreme Court unanimously ruled that Title VII outlawed “not only overt discrimination but also practices . . . fair in form, but discriminatory in operation”—practices that had a “disparate impact” on minority group members or women. Merely stopping intentional discrimination, the Court acknowledged, would not accomplish Congress’ objective. To open doors, employers had to examine their employment practices and eliminate requirements that screened out minorities and women, unless the policy or practice was manifestly related to job performance—necessary to the safe and efficient operation of the business.
The Griggs case itself involved a high school diploma requirement, even for low-level jobs that could be performed perfectly well by people who could not meet that measure. (In the state where Duke Power maintained its plant, North Carolina, most African-Americans, in the 1970s, were not high school graduates.) A host of exclusionary practices were dropped as a result of the Griggs disparate-impact ruling, for example, height or weight-lifting requirements for piloting planes or police officer jobs—requirements few women could meet.
The “disparate impact” or indirect discrimination concept reached selection criteria that operated as “built-in headwinds” for minorities or women. But the Griggs decision did not address the question whether express preferences could be given to minorities by employers or educational institutions.
The U.S. Supreme Court first ruled on the constitutionality of preferential systems in a university setting in 1978. The case, Regents of the University of California v. Bakke, involved a challenge by a disappointed white male applicant to a California medical school. The school’s affirmative action plan reserved 16 out of 100 places in the entering class for members of minority groups. Dividing five to four, the Court held that the reservation violated the Constitution’s equal protection principle. The controlling opinion in the Bakke case said that race could be considered as one factor among others in an admissions process that treated each individual discretely. But outright quotas or reservations of a set number of places for minority-group students, the majority held, are unconstitutional. Past societal discrimination, five Justices agreed, could not justify plans like the medical school’s. While rejecting compensatory justifications for quotas or set asides, the dispositive opinion approved milder forms of affirmative action aimed at achieving a racially diverse student body. The educational experience for all students, the opinion reasoned, would be enhanced if members of different cultures live and learn together. That very understanding underlies the Sciences Po initiative.
The U.S. Supreme Court again addressed affirmative action in university admissions in 2003, in paired cases from the University of Michigan. One of the two cases, [Gratz v. Bollinger], involved the undergraduate school, which automatically awarded minority group members 20 points of the 100 needed to gain admission. The other case, [Grutter v. Bollinger], involved the law school, which assigned no additional points but treated race or ethnicity more flexibly as a plus factor. The Court disapproved of the undergraduate program because, the majority said, it put members of minority groups on a separate track. But it upheld the law school’s program because that program advanced diversity without establishing a quota or separate track.
I would have upheld both University of Michigan programs and wrote in dissent in the undergraduate school case: “Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its after effects have been extirpated.” “If honesty is the best policy,” I added, the undergraduate school’s transparent “affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.”
Four years after the University of Michigan cases, the Court divided 5–4 again, this time on the constitutionality of lower school programs in Seattle, Washington, and Louisville, Kentucky—programs designed to keep kindergarten through twelfth-grade classes racially integrated despite the high degree of neighborhood separation along racial lines. To maintain integration, the cities’ school boards took race into account in assigning children to particular schools. The Court [in Parents Involved in Community Schools v. Seattle School District No. 1] held the programs unconstitutional. Unlike the University of Michigan law school program, the Court said, race in the lower school plans was “decisive by itself.” Moreover, the Court added, the Michigan case involved “considerations unique to higher education.” The lead opinion ended with an attention-riveting line: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
The four dissenters—I was one of them—saw the Seattle and Louisville plans differently. There is a “legal and practical difference,” we said, “between the use of race-conscious criteria . . . to keep the races apart, and the use of race-conscious criteria . . . to bring the races together.”IV
To complete the picture, I will note the Court’s latest decision on disparate impact [Ricci v. DeStefano]. Making headlines, the Court held, on June 29, 2009, once again 5–4, that a city—New Haven, Connecticut, home to Yale University—could not set aside the results of promotional exams for firefighters, though certifying the results would mean no African-Americans could be promoted for at least two years. In dissent, I pointed to multiple flaws in the test design, flaws that severely undermined the reliability of the exams and made it likely that black firefighters would not be promoted, despite their readi
ness to hold command positions. The Court’s opinion in the firefighters case does not destroy the “disparate impact” concept, but it does significantly limit its application.
Comparing the unanimous 1971 Griggs decision with the U.S. Supreme Court’s current decisions, a cynic might observe that the true symbol of the United States is not the bald eagle; it is the pendulum. Responding to a changed political climate, a few states have endeavored to reduce inequality in access to higher education by means that do not explicitly invoke a racial criterion. A decade ago, Texas enacted a “Top 10 Percent Law,” under which any student who graduates in the top 10 percent of his or her high school class automatically qualifies for admission to any public undergraduate college in the state. A few other states have since adopted similarly designed, on the surface race-blind, policies. Because of residential segregation, these states have achieved a measure of diversity through their percentage plans.V
Ironically, schools in poor neighborhoods have gained greater popularity as a result of percentage plans. One can get into the top 10 percent more easily in lower-performing schools located in poor neighborhoods than in highly competitive schools located in more affluent neighborhoods.
III
In sum, affirmative action measures are controversial because they send both inspiring and disturbing messages. Affirmative action and the disparate-impact concept have potential to lessen substantive inequality, foster diversity, and promote the economic and social well-being of people raised in unprivileged communities. But they also generate opposition, charges that they unfairly discriminate against individuals not personally responsible for society’s transgressions. I do not downplay the opposition, but balancing the pros and cons, I subscribe to what Justice O’Connor wrote in the Michigan law school case: “[T]o cultivate . . . leaders with legitimacy in the eyes of the citizenry, . . . the path to leadership must be visibly open to the talented . . . individuals of every race and ethnicity.” “Effective participation by members of [minority groups and women] in the civil life of our Nation is essential if the dream of one Nation, indivisible, is to be realized.” We will all profit from a more diverse, inclusive society, understanding, accommodating, even celebrating our difference, while pulling together for the common good.
Congratulations on your graduation from a school known far and wide as one of the very best institutions of higher education. Cheers, too, to the parents and teachers who nurtured you and contributed to your will to aspire and achieve. And as you leave here and proceed along life’s paths, try to leave tracks. Use the education you have received to help repair tears in your communities. Take part in efforts to move those communities, your nation, and our world closer to the conditions needed to ensure the health and well-being of your generation and generations following your own.
My applause on your achievement and every good wish.
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I. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. We have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.
II. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. We have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.
III. Justice Ginsburg has delivered numerous versions of these remarks to various audiences over the years. We have edited the remarks for length and to ensure clarity outside the specific context in which they were originally delivered.
IV. For an update on affirmative action, see pages 327–28.
V. A separate aspect of the University of Texas admissions policy, which specifically designated race as one factor to be considered in the selection process, would twice end up in the Supreme Court. For Justice Ginsburg’s role in Fisher v. University of Texas, see pp. 296–98 (Fisher I) and pp. 327–28 (Fisher II).
7
The Role of Dissenting Opinions
IN A LECTURE titled “The Role of Dissenting Opinions,” reprinted below, Justice Ginsburg reflects on the role of and proper occasion for dissents from the opinions of the Court’s majority. And well she might. In recent years, with the advent of the Roberts Court, she and the Supreme Court’s other three liberal Justices often found themselves in the minority when contentious legal issues divided the nine Justices along philosophical lines. Having become the liberal minority’s most senior Justice after more than two decades on the Court, she, much more frequently than during the Rehnquist Court years, is a leading voice in such cases, penning some of its most important dissents.
When the divide is especially deep and the case especially consequential, as Ginsburg explains in her lecture, dissenting Justices occasionally do more than simply write a dissent—they deliver an oral summary of the dissent from the bench, after the case has been announced by the author of the majority opinion. During her years on the Rehnquist Court (1993–2005) her bench dissents were few and far between—just six in twelve Terms. But beginning with the second Term of the Roberts Court, the pattern changed. That Term, 2006–07, she delivered not one but two bench dissents, a performance that made the front page of the New York Times. Linda Greenhouse, the Times’ veteran Supreme Court reporter, wrote two days after the second bench dissent, in Ledbetter v. Goodyear Tire & Rubber Company, that “oral dissent has not been, until now, Justice Ginsburg’s style,” and presciently predicted, “Whatever else may be said about the Supreme Court’s current Term, which ends in about a month, it will be remembered as the time when Justice Ruth Bader Ginsburg found her voice, and used it.” 1 By 2014, Justice Ginsburg had delivered twelve bench dissents, becoming the Roberts Court’s most frequent bench dissenter. This included a record four such dissents in the 2012–13 Term alone—more than any other Justice in a single Term in almost three decades.
Ever the law teacher, Justice Ginsburg brought handouts when she delivered her lecture on dissenting opinions to Tulane Law students in 2013. Specifically, she gave the students copies of two of the four dissents she had, just weeks before, summarized from the bench. She explained: The first one, Vance v. Ball, involving interpretation of a federal law, “appeals to Congress to amend Title VII to say more explicitly what I believe Congress intended all along.” The second, Shelby County v. Holder, involved constitutional interpretation, “and therefore appeals to the intelligence of a future day.” She also read to the students a third of the four bench dissents, Fisher v. University of Texas, and discussed her earlier bench dissent in the Ledbetter case in 2007.
Those four bench dissents appear below, following Justice Ginsburg’s lecture. We have also included Justice Ginsburg’s bench announcement in one of the most significant decisions of the Roberts Court, NFIB v. Sebelius (2012), the case that threatened to dismantle President Obama’s Affordable Care Act (ACA), and a second ACA case, Burwell v. Hobby Lobby (2014), a challenge to government regulations requiring employers to cover, in their employee health insurance policies, contraceptives for women employees. Over Justice Ginsburg’s vigorous dissent, joined by Justices Breyer, Sotomayor, and Kagan, the majority extended the ACA’s exemption for churches and religious organizations to cover closely held for-profit corporations like Hobby Lobby, a family-run corporation. Finally, we include Ginsburg’s bench dissent in Gonzales v. Carhart (2007), protesting the majority’s upholding of a state statute prohibiting a particular abortion method, even though the statute failed to make an exception to its rule when that method was necessary to protect a woman’s health.
The Role of Dissenting Opinions
Tulane University Law School Summer ProgramI
Paris, France
July 2013
My remarks concern the role of dissenting opinions in U.S. appellate courts generally, and the U.S. Supreme Court in particular. It is a subject I have been obliged to think about more than occasionally in recent Terms.
Although I sit on the to
p tier of the U.S. judiciary, I have often described trial judges as the real power holders in our justice system. Our trial judges sit alone and, in most instances, their rulings are not subject to review until the adjudication is completed and final judgment is entered. Even then, the vast majority of trial court rulings are never appealed, in large part because appeals may be taken only on matters of law. The fact determinations of trial courts may not be remade on appeal. In contrast, an appellate judge, typically sitting with two colleagues, is powerless unless at least one of her colleagues agrees she is right. And on the U.S. Supreme Court, where nine Justices sit together at all times, a Justice can write for the Court only if at least four of her colleagues endorse her opinion.
Chief Justice Roberts, in his 2005 confirmation hearings, expressed admiration for the nation’s fourth Chief Justice, John Marshall—longest at the helm (from 1801 until his death in 1835) and frontrunner for the title greatest Chief Justice in U.S. history. Our current Chief admired, perhaps most of all, Chief Justice Marshall’s unparalleled ability to achieve consensus among his colleagues. During John Marshall’s thirty-four-year tenure, the Court spoke with one voice most of the time.
How did Marshall manage that feat? In his early years as Chief Justice, all members of the Court resided and dined together in the same boardinghouse whenever the Justices convened in the capital city. After dinner, so the legend goes, the Chief would serve Madeira from his own supply, talk about the argued cases, urge unanimity, then volunteer to write nearly all the opinions himself.