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The life cycle of jurisprudential regimes: the supreme court and the constitutional law of civil rights
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THE LIFE CYCLE OF JURISPRUDENTIAL REGIMES:
THE SUPREME COURT AND THE CONSTITUTIONAL LAW OF CIVIL RIGHTS
by
Marcella Marlowe
A Dissertation Presented to the
FACULTY OF THE GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICAL SCIENCE)
December 2008
Copyright 2008 Marcella Marlowe
ii
DEDICATION
To Albert A. Hellman, who taught me that there’s always enough love to go
around. This one’s for you, Papa; we all still miss you... every day.
iii
ACKNOWLEDGEMENTS
So very many people were critical to the progress and success of this project. My
immense gratitude to the best foundational team I could ever ask for: Patrick Beals,
Michele Ficks-Hellman, and Dr. Steven Horn. You each were ready to provide whatever
support it took to ensure that I’d reach the end, and trusted that I had the intellectual skill,
capability, and fortitude to triumph once I got there. Yours was not simply blind faith,
but rather open-eyed confidence in me, and I appreciate that more than I can say.
All of my family, primarily Mark and Shelley Hellman, and all of my friends,
primarily Judith Boros and Dr. Julie Silvers, provided a wonderful base of love and
conviction in my eventual achievement. I know that you all have been pulling for me,
and I have rested on thoughts of each of you, even if we haven’t spoken in months.
Thank you for knowing when to reach out to me and when to give me space to work. I
am very happy to be freed to resume all of our relationships again!
I have been influenced by many brilliant authors, too numerous to name, but most
notably Derrick Bell, Catharine MacKinnon, Charles Lawrence III, and Kimberlé
Crenshaw. However, my passion for civil rights was first inspired over 20 years ago
when I read And the Band Played On by Randy Shilts. That book, and his several others,
personalized discrimination for me, and crystallized my commitment to fighting for
equality. There are battles yet to be won. He did not live to see the slow victories or to
know that more would surely be forthcoming; however, my great wish is to honor his
legacy and, for me, his memory will sing in every inevitable triumph.
iv
Over the years, I have enjoyed the support of the USC Political Science
Department, and appreciate the encouragement of the current Chair, Dr. Ann Crigler, the
Director of Graduate Studies, Dr. John E. Barnes, and the Graduate Advisor, Alex
Venegas, to continually achieve, both in my graduate teaching career and in the
completion of my dissertation.
I have had the privilege of input, teaching, and mentoring from several excellent
minds over the course of my academic career. I am extremely grateful in particular to Dr.
Ange-Marie Hancock and Dr. Terry Seip for joining my project at this late stage; your
insights and support were truly invaluable. In addition, this dissertation was shaped in
very real ways over the years by commentary from Dr. Mark Kann, Dr. Alison Dundes
Renteln, Dr. Mary Dudziak, and Dr. Michael Preston.
Ultimately, amidst all of the academic giants I have had the benefit of working
with, I am most indebted to Dean Howard Gillman, my chair and primary mentor for
over 14 years, whose impact on my teaching, thinking, and ideas cannot be overstated.
The joy of teaching so many undergraduate classes as an ongoing team, and the challenge
of matching wits with such a master on a regular basis, can only have honed my skills
and I will be forever grateful for such opportunities.
Finally, I must circle back to Patrick, who has borne the unfortunate brunt of the
burden of living with me during the final stages of this project. Your care and dedication
remained constant, and I love you very much.
v
TABLE OF CONTENTS
Dedication ii
Acknowledgement iii
List of Tables vii
Abstract viii
Chapter 1: Introduction 1
Statement of Questions 1
Existing Theories on Constitutional Change 1
Does Doctrine Matter? 21
What is the development process of doctrine? 23
How does the life cycle theory inform the “jurisprudential regimes” idea? 26
Research Design 29
Chapter Outlines 31
Chapter 2: Regimes and Phases 33
Pre-Governance Phase 38
Governance Phase 42
Post-Governance Phase 48
Looking Ahead 52
Chapter 3: The Jim Crow Era 54
Pre-Governance Phase 55
Governance Phase 62
Post-Governance Phase 71
Conclusion – How Does It All Fit? 80
Chapter 4: The Civil Rights Era 82
Pre-Governance Phase 82
The Perplexing Matter of Brown 88
Governance Phase 101
Post-Governance Phase 109
Conclusion – How Does It All Fit? 117
Chapter 5: The Affirmative Action Era 120
Pre-Governance Phase 120
Governance Phase 132
Post-Governance Phase? 143
Conclusion – How Does It All Fit? 148
vi
Chapter 6: Conclusion 150
Review of Purpose 150
Review of Findings 151
Taking a Step Back 156
Importance and Contribution to the Field 157
Summing Up 159
Bibliography 160
vii
LIST OF TABLES
Table 1: Supreme Court’s Civil Rights Jurisprudence Regimes 26
Table 2: Projected Criteria for Identifying Regime Phases 53
Table 3: Voting Patterns for the Post-Governance Cases 114
Table 4: Changing Justice Vote Combinations 130
Table 5: Final Criteria for Identifying Regime Phases 153
viii
ABSTRACT
Is there a “life cycle” pattern to jurisprudence? This dissertation draws on
institutional-based Court literature and American Political Development literature to
refute the existing view of the common law system as a mostly-seamless pattern of ever-
developing rulings, each of which builds on the last and continually clarifies our
understanding of the law in a given area. Instead, I argue that doctrine in any given
caselaw area follows a life cycle pattern consisting of a pre-governance phase, where the
Court has not settled on a doctrinal test to apply consistently, a governance phase, where
the Court establishes and consistently applies one doctrinal test in a given area of
caselaw, and a post-governance phase, where consensus regarding the existing doctrinal
test breaks down.
I also draw on emerging literature related to notions of jurisprudential regimes,
articulated as periods of time where the Court is governed by a particular doctrine in a
particular area of caselaw. Because this parallels my conception of the governance
phase, I also apply the life cycle pattern in this case study to the jurisprudential regime
concept to better inform our understanding of its utility.
I examine both the life cycle pattern and its applicability to jurisprudential
regimes within the context of 14
th
Amendment equal protection challenges as it pertains
to race, using qualitative methods. I conclude that the life cycle pattern is successfully
borne out, with three regimes demonstrated to date, all following the three-phase pattern.
1
CHAPTER 1
INTRODUCTION
I. Statement of Questions
This dissertation uses the Supreme Court’s civil rights jurisprudence to analyze
changes in constitutional law doctrine. More specifically, it draws on literature in both
American Political Development (APD) and institutionalist-based scholarship regarding
the notion of jurisprudential regimes to argue that doctrine development follows a
particular development pattern. Given that, this dissertation seeks to primarily answer the
question: If so, what is the “life cycle” pattern of jurisprudence? And, relatedly yet
secondarily, how does this life cycle inform an understanding of the quantitatively
established concept of “jurisprudential regimes”? I will answer those questions as it
relates to the Court’s equal protection jurisprudence concerning racial classifications.
II. Existing Theories on Constitutional Change
Constitutional change is most likely to result from change over time in a
combination of two different areas: the direction of case outcomes and the legal doctrines
utilized to get to those outcomes. As each of those two factors evolve, so will
constitutional meaning. As we might expect, political scientists and legal scholars have
developed several approaches to explaining constitutional change. However, although it
2
seems relatively likely that change must have the two components, outcome and doctrine,
current literature typically only seeks to explain the former, often seeing doctrine as the
legal “cover” for desirable case outcomes. This school of thought, called judicial
decision-making in political science, and empirical legal studies (ELS) in the legal
community, seeks to explain judicial voting behavior.
1
Although one popular model holds that Supreme Court justices are primarily
unconstrained decisionmakers, most models currently en vogue hold that justices operate
under some constraint, whether external or internal. From there, it is only a matter of
differentiating each approach by which external or internal constraint directs the justices’
voting behavior. Some of the highlights and drawbacks to each approach are illustrated
here, first discussing the unconstrained theory, then following with the constrained
theories, divided into external constraint and internal constraint models.
Unconstrained Policymakers
The Attitudinal Model. The only currently prominent model that theorizes the
justices to be unconstrained by either external or internal factors is the attitudinal model,
most prominently theorized by Jeffrey Segal and Harold Spaeth.
2
Segal and Spaeth
explain that because the Supreme Court is the highest appellate court in the nation, the
Justices are free to act as unconstrained policymakers. The essential framework of this
model is that justices are free to make decisions that correspond to their optimal policy
1
Keck 2007, p. 512.
2
Segal and Spaeth 1993; 1994; 1996, Spaeth 1995.
3
preferences. Justices’ political ideologies are ascertained from information about the
justices prior to appointment to the Supreme Court, including newspaper articles,
personal writings, or even, and least reliably, votes cast on a previous bench;
3
from the
ideologies, policy preferences are inferred. Those policy preferences are then used to
predict the outcome of his/her vote. In order to predict the Court’s outcome, the votes of
each individual justice are counted up.
Applied to the idea of constitutional change, the attitudinal model holds that
fundamental change occurs as new justices, with different policy preferences than the
existing justices, are appointed to the Court; as this happens, the agenda and direction of
the Court’s jurisprudence changes. They show that the evolution of the civil rights cases
is attributable in no small amount to changes in the ideology of the justices. It should be
noted that Segal and Spaeth are able to achieve a high degree of predictability: the model
is powerfully accurate in predicting and explaining actual outcomes.
Although simple, straightforward, and empirically testable, the attitudinal model
has been subject to much criticism.
4
Common critiques include the difficulty in
accurately assessing a Justice’s true policy preference,
5
the fact that some other
explanation(s) must account for the (albeit small) number of decisions that Segal and
Spaeth cannot explain through the attitudinal model,
6
and the fact that some other
3
Using votes to determine ideology, which will then be used to predict votes, seems somewhat circular
and, therefore, potentially moot.
4
Baum 1994, Knight 1994, Rosenberg 1994, Smith 1994, Brisbin 1996, Knight and Epstein 1996, Brenner
and Stier 1996, Songer and Lindquist 1996, etc.
5
Baum 1994, p. 4.
6
Knight 1994, p. 5.
4
explanation could account for the same scenarios.
7
Segal and Spaeth’s work relies
heavily on quantitative analysis, which can also lead to critiques about the model’s
inability to explain more nuanced questions about doctrinal evolution and the choice of
particular forms of legal reasonings.
Given the models level of success, and the rare occasion of decisions such as
Bush v. Gore,
8
that appear to only be understandable as justices exercising pure policy
preferences, the attitudinal approach, then, seems to be a factor, but perhaps not to the
extent that its proponents claim. Charles Epp, for example, points out that the changes in
the Court’s agenda started before the increasing number of liberal judicial appointments
began and resulted less from the justices’ personal desires to press the newfound civil
rights agenda and more from increased pressure from interested litigants and pressure
groups.
9
Further, Lee Epstein and Joseph F. Kobylka, in their extensive study, find that
the law does, in fact, constrain justices.
10
Both analyses pull into question the idea that
judges are unconstrained by both external and internal factors.
7
See Keck 2007, who points out that because justices are typically appointed because their policy-
preferences and ideologies run parallel to the appointing political regime, any case in which the justice in
question votes along the same lines of the regime that appointed him/her could be an example of
unconstrained policy preference, but it could also be an example of the regime theory. The result of the
vote alone may not be significant enough to determine the explanation.
8
531 U.S. 98 (2000). See Balkin and Levinson 2001 for a discussion of how Bush v. Gore is not legally or
constitutionally defensible, nor is it even an acceptable exercise of “high politics” (p. 1061) that we might
expect from the regime approach.
9
See Epp 1998, pp. 35-39.
10
Epstein and Kobylka 1992.
5
Constrained Policymakers
As noted, almost all current thought regarding judicial behavior operates under
the assumption that justices are constrained decisionmakers. For most current scholars,
although there are a variety of features that might, on first glance, appear to insulate the
justices from pressure (such as life tenure), in fact current research indicates that there are
potentially a myriad of ways that the justices are affected and directed in their voting.
Some theories contend that the Court is affected by external constraints, while other
theories argue that the key constraints are internal.
EXTERNAL CONSTRAINT THEORIES
The Regime Model. The regime model is quite prominent at the moment. It
essentially holds when the Court acts, it does so in such a way as to legitimize, or further
enhance, the existing governing regime’s authority and/or agenda. On an individual
level, each justice is likely to vote according to the regime, or conflation of regime
factors, that appointed him or her.
11
Robert Dahl is largely viewed as the intellectual originator of the regime theory.
12
He claimed that the Court is most appropriately viewed as a majoritarian institution that
acts to solidify the agenda of the governing elite; the cases he examined showed a
11
Balkin and Levinson 2001 point out that a justice produced by nomination from a President in one party
and confirmation from a Senate with its majority in the other party will likely evince a different ideological
make-up than one produced by a President and Senate of the same party.
12
See generally Dahl 1957.
6
tendency by the Court to defer to Congress. Constitutional change is explained by a
change in the ideology of the person(s) controlling Court appointments. As new elected
officials take office and justices retire, new justices are appointed that are more aligned
with the new regime’s position. This, in turn, leads the Court in whatever direction the
current power regime prefers.
Mary Dudziak offers additional considerations within the regime model, showing
that the rise of civil rights concern is due, in large part, to the Cold War imperative.
13
She explains that, after World War II, the U.S.’s position in the international community
as the only viable alternative to communism was threatened by the continued persistent
racism and segregation occurring on the domestic front. The Court, then, bolstered the
U.S.’s international standing by doing its part to rid the country of whatever legal
vestiges of racism it could. According to her theory, this also explains why the Court
does not seriously begin to evince dedication to the civil rights agenda until after the War.
Dudziak’s account of the Cold War factor is very persuasive, especially as it relates to
Brown. If Brown is re-understood as a need to legitimize the nation’s power and moral
righteousness in the international community, the shine on popular understandings of
Brown which assert that Brown was a triumph won by determined and committed social
and political actors might be tarnished. On the other hand, this theory applies better to
cases that bluntly rejected the Plessy-like doctrine (such as Brown); it might not explain
why the Court was issuing race-protective decisions prior to World War II.
13
Dudziak 1988, basing her theory on Derrick Bell’s interest-convergence thesis that the civil rights
movement only began to be successful when it was beneficial not only to blacks, but also to whites.
7
Michael Klarman has more recently argued that although the Court may not
follow the will of the political branches, as Dahl posits, it instead may closely monitor,
and take its lead from, dominant ideology.
14
He argues that, due to society’s
canonization of Brown, realistic analysis of the contextual forces at work is impossible;
this is important because it will always impede our ability to accurately situate the case
within the appropriate larger framework. He explains that, generally, the Court serves
two major purposes: the first is to enforce the dominant ideology on a recalcitrant outlier
and the second is to break the tie when the nation is closely divided on an issue.
15
In
either case, Klarman notes, the Court has the support of at least half of the nation, hardly
qualifying it to be a heroic countermajoritarian institution. Either way, it follows that
Brown cannot be seen as a countermajoritarian decision, no matter how much its prestige
has grown. In his recent work, he exhaustively chronicles the history of the civil rights
struggle on the Court in order to demonstrate the Court’s propensity to operate within the
regime’s needs.
16
Other scholars have also weighed in with their support of the regime model. Most
notably, Terri Peretti points out that even when justices appear to be deciding cases
according to their own preferences, the reality is that that particular justice has only been
appointed to the Court and therefore able to exercise that preference because at least
some part of the governing regime wanted it to be so.
17
Mark Graber has also written a
14
Klarman 1996.
15
Ibid., p. 6.
16
Klarman 2004.
17
See generally Peretti 1999.
8
series of case studies, demonstrating the ways that the Court acts at the behest of the
governing regime, sometimes even by deciding cases that the “political” branches prefer
not to address.
18
Jack Balkin and Sanford Levinson have written to articulate a more
nuanced understanding of the way that whole areas of jurisprudence can be shaped by
visionary politicians.
19
Today, the common understanding of the Court is that it is
definitively majoritarian, and cannot be counted on to protect the country from patterns of
power encroachments from the regime in office.
In the beginning, Dahl’s theory was a major blow for advocates of a “heroic
countermajoritarian Court,” but was critiqued by Jonathan Casper, who pointed out flaws
in Dahl’s findings and experimental design.
20
Dahl is also critiqued for viewing judicial
behavior in an overly simplistic fashion
21
and for ignoring the Court’s role in shaping
doctrine by its interpretation of laws, instead of just its ability to strike legislation
down.
22
He was also criticized for seeming to accurately explain the Court’s role as it
pertained to the New Deal legislation, yet not accurately capturing the jurisprudence of
later and recent Courts.
23
18
See generally Graber 1993, regarding the “non-majoritarian dilemma.”
19
See generally Balkin and Levinson 2001 and 2006.
20
Casper 1976.
21
Segal and Spaeth 1993, p. 303.
22
Ibid., p. 304. This is odd because Segal and Spaeth’s research also only focuses on outcomes, not the
way that the legal doctrines evolve. They do consider federal Court-state legislature power relations and
the results of statutory challenges that Dahl does not study, but their research is still about explaining
outcome, not evolution.
23
Epstein and Kobylka 1992, p. 301.
9
There are other difficulties as well, depending on how literally one takes the
regime model’s claims. For example, a strict reading of Dahl’s version of the theory
might suggest that loyalty to the appointing Presidential regime is key to understanding
votes, but the Justices who unanimously decided Brown v. Board of Education were not
unanimously appointed by presidents whose ideologies favored abandoning Jim Crow
laws.
24
This might shed some doubt on the model’s efficacy. On the other hand, a
broader conception of the regime theory also suggests that Justices will follow the
existing majority’s will; it has been suggested
25
that widespread U.S. support for ending
segregation existed. This would support a regime theory reading and, ironically, leads to
another critique of widespread commitment to that model.
Given that some level of policy differences are likely, even among those in the
same political party, it stands to reason that almost any decision that the Court hands
down could claim support somewhere in one of the two elected branches. If this is all
that’s necessary, then it’s unclear what this model brings to the table. Keck points out
this conflict as well, stating that “[t]he Court’s decision in a given case may be supported
by some members of the governing coalition, but if the opposite decision would have
been supported by other members of the coalition, then…” we may well need to find an
alternate theory.
26
24
Ibid., p. 302.
25
Klarman 1996.
26
2007, p. 517.
10
It should be noted that others maintain that the Court has handed down cases in
other areas (school prayer, freedom of expression, and abortion) that did not legitimate
the existing or appointing regime;
27
if the Court’s sole motivation for its civil rights
decisions was to legitimate the regime’s stance, then it would follow that the same would
be true regarding other issues, but this is not the case.
The Agenda-Setting Model. I have elected to group several theories together
under the category of an agenda-setting model. Each author is discussing external
constraints, but what I mean by this is that these theories primarily focus on the extent to
which these external forces pushed new issues onto the Court’s radar, as opposed to
compelling any necessary result in a given area of law. Mark Tushnet details NAACP
litigation strategies, Charles Epp explores financial support structures, and Bruce
Ackerman follows the mobilization of the People, but all theories show how certain kinds
of issues gained salience with the Court, and seem to have less weight in explaining how
those factors affected case voting behavior once the issue had been taken on by the Court.
Tushnet details the impact of the NAACP’s litigation strategies, as led by
Thurgood Marshall, on the eventual outcome in Brown.
28
There is little doubt that the
NAACP played a major role in the Supreme Court’s willingness to hear civil rights cases
and that the strategies employed by Marshall and other prominent lawyers of the NAACP
were critical in persuading the Court to take steps toward the elimination of de jure and,
in some cases, de facto racism and segregation. Tushnet’s purpose in writing the book is
27
Epstein and Kobylka 1992, p. 305-306.
28
Tushnet 1994.
11
to recognize these contributions of the NAACP and Thurgood Marshall in the civil rights
movement; his analysis in this area is quite helpful.
For Charles Epp, the Court’s commitment to civil rights increased as social forces
made possible a “support structure for legal mobilization, consisting of rights-advocacy
organizations, rights-advocacy lawyers, and sources of financing.”
29
Epp posits the
appropriate and common-sense notion that the Court could only begin recognizing civil
rights issues when cases were brought to it and that this was mostly impossible until the
financial support network was in place.
Although his model clearly articulates how and why the Court began focusing its
agenda on civil rights, specifically criminal defendants and women’s rights, Epp’s work
doesn’t explain the ways that the Court decided how to analyze such cases, which was
critical, especially for women’s rights. Given the discussion at the time among the
justices about the appropriate level of scrutiny for sex discrimination, which would have
dramatic repercussions for the constitutionality of a myriad of destructive and affirmative
action laws, it seems like a critical piece of the puzzle. It also may not account for cases
in which the Court ruled differently when the same support structures were in place;
30
because Epp’s project only includes the rights of women and of criminal defendants, it
might not, for example, explain why the Court did not begin handing down racially
protective decisions as soon as the NAACP support structure was in place. Keeping this
in mind, Epp notes that the support structure might best be understood as a necessary, but
29
Epp 1998, p. 3.
30
Epstein and Kobylka 1992.
12
not sufficient, condition for the rights revolution to occur. In fact, we should keep in
mind that Epp and Tushnet are not arguing for the rejection or replacement of other
existing models, only for the expansion of factors considered.
Another third approach that can be included in this group is Ackerman’s dualistic
theory, which posits that there are constitutional “moments,” in which “the People” are in
such agreement that they are able to stage a constitutional revolution, sometimes without
even going through the typical Article V amendment process.
31
Ackerman states that
there are three such constitutional moments in our history: the founding of the United
States, resulting in the ratification of the Constitution; the Reconstruction period,
resulting in the ratification of the 13
th
, 14
th
, and 15
th
amendments; and the constitutional
revolution of 1937, resulting in the Court’s agenda shift from economic rights to civil
liberties. This theory is powerful in that it notes decisive moments in constitutional
history.
32
Ackerman, however, is essentially positing the notion of constitutional
regimes, where the Court is primarily focused on and monopolized by a particular broad
issue (i.e. consolidation of national power) flowing out of each of its three constitutional
moments. It can be considered an agenda-setting model, because it seeks to explain why
and how a particular set of issues drives the Court during a particular time. His project
intentionally lacks an analysis of particular legal issues (such as civil rights, religious
freedom, etc.) and does not examine the evolution of doctrine, as it develops between
constitutional moments.
31
Ackerman 1991, see especially Chapter 10.
32
However, see Griffin 1996, pp. 46-53, for a critique of some of Ackerman’s points.
13
Given the self-conscious limitations of these agenda-setting approaches, they can
only serve to demonstrate the various ways that issues can increase their visibility to the
Court. The models have little to say regarding judicial behavior. We now turn to models
theories that claim that judicial decisionmaking in constrained from within.
INTERNAL CONSTRAINT THEORIES
The New Institutionalism Model. New institutionalism contends that the Court
imbues its members with a set of internalized constraints and that the internalized
constraints are constitutive, rather than external.
33
That is, that the choices that justices
make may be shaped internally by institutional norms. Those institutional norms may
constrain judges by only allowing certain options to even be visible; options that are not
in keeping with the internalized norms
34
are not even seen as such by the actors.
Although the institutional constraints are viewed as primary in this perspective, other
factors (such as relationships with other political institutions, intra-Court bargaining, and
societal pressures) are also considered. In fact, one of the most valuable features of new
institutionalism is the attempt to combine and incorporate all of the other models into one
coherent explanation.
33
See Orren and Skowronek 1996, Skowronek 1982 & 1993, Barrow 1993, Skocpol 1985 & 1992, Sinclair
1989, among others, for new institutionalism approaches in general; see Gillman 1993 & 1999, Smith 1994,
Clayton 1999, McCann 1994 & 1999, and Graber 1993, 1994, & 1995, Kahn and Kersch 2006, among
others, for new institutionalism approaches to understanding the Supreme Court.
34
Gillman 1999 calls this the “mission” of the institution.
14
For example, Epstein and Kobylka
35
tried to synthesize the various parts of those
theories in their study of abortion and death penalty litigation. They posited that the
behavioral, regime, and interest group mobilization models cannot alone explain
constitutional change in their case studies and that they must be added together to get a
convincing story. In addition to those three components, Epstein and Kobylka consider
the impact that legal arguments had on the evolving outcomes in their case studies: they
look at the arguments put forth by the lawyers and in the various amicus briefs. They
conclude that while the Court’s personnel, political context, and interest group
mobilization were important, it was the way that the legal arguments were presented and
either embraced or rejected that was decisive.
The emergence of new institutionalism as a legitimate field of inquiry began with
the notion that institutional norms constrain Supreme Court decisionmaking. While there
are various institutional norms that might be studied (the Court’s discretion over its
agenda, the lack of enforcement power of unpopular decisions, etc.), law as one of those
norms could not be ignored. The law might matter in different ways (e.g. the perceived
necessity of grounding decisions in precedent, etc.), but it certainly matters. This, in turn,
allowed for the possibility of legal constraints.
36
Most new institutionalists believe that
legal constraints are a legitimate part of the constitutive effect on judges, making an
analysis of legal factors essential to a nuanced understanding of judicial behavior. As
35
1992.
36
See Kritzer, Pickerill, and Richards 1998 for a discussion of how legal constraints differ from
institutional constraints.
15
Richards and Kritzer put it, “(l)eaving jurisprudence out of the analytic framework fails
to recognize ... the distinctive nature of courts.”
37
This movement therefore makes it possible to bring the law back into the picture,
reflecting the critical understanding that the singular feature that separates the Court from
the other branches of government is its reliance on the somewhat fixed nature of the law.
Congress, the President, and the Supreme Court all make decisions that affect the United
States and all three change their decisions, sometimes rarely, sometimes often, but the
Court is the only institution that is bound by certain legal constraints - it is not enough for
the Court to simply say that it has changed its mind. Leaving out an analysis of
jurisprudential development relegates the Court to being only a political actor. Robert
McCloskey, although being an early proponent of the regime model, also pointed out that
“the judges have usually known… that their tribunal must be a court, as well as seem one,
if it is to retain its power.”
38
The Jurisprudential Regime Model.
39
Although “[t]he construct of jurisprudential
regime fits squarely within the neoinstitutional perspective on politics generally and
37
Richards and Kritzer 2002, p. 306.
38
McCloskey 2000 (3
rd
Ed), p. 13.
39
As Richards and Kritzer, the pioneers of this research, have clarified the jurisprudential regime approach,
the language that they have used has evolved, leading to confusion about which terms have which
definitions. For example, they often use the term “regime” in two separate ways - to refer to the entire time
period that a given method of analysis is in place (sometimes they also refer to this with the term
“doctrine”) and to refer specifically to the case or cases that established the doctrine. For another example,
time period regimes are referred to either by the name of the case containing the governing doctrine (e.g.
“the Lemon regime”) or by the area of caselaw in question (e.g. “the search and seizure regime”).
In order to alleviate the confusion of multiple words used in multiple and similar ways, it is important to
note that I have consolidated their language. First, I use the term “regime” to mean the entire time period
16
within recent institutionalist approaches to the study of the Supreme Court,”
40
I have
elected to discuss it separately as result of the key role it plays in my project. This recent
approach
41
posits that the internal constraint on the justices’ behavior comes in the form
of a “jurisprudential regime,” which refers “to a key precedent, or a set of related
precedents, that structures the way in which the Supreme Court justices evaluate key
elements of cases in arriving at decisions in a particular legal area.”
42
The model posits
that judicial voting behavior is constrained by these judicial regimes, when they exist, so
that justices may even vote against their likely policy preferences or regime affiliations to
stay within the confines of the jurisprudential regime.
The jurisprudential regime concept opines that, during any given time, the
Supreme Court will generally analyze similar cases the same way, even if the outcome is
different – for example, free speech cases concerning incitement will be analyzed under
the Brandenburg test, symbolic speech cases will be analyzed under the O’Brien test,
establishment of religion cases will be analyzed under the Lemon test, and the like.
When the Court uses a particular doctrine - or legal test - for a prolonged period of time,
the Court can be said to be operating under a particular “jurisprudential regime.”
The jurisprudential regime concept is still relatively new. Existing scholarship
related to the validation of the constraining ability of model has all been quantitative in
where the Court used a particular doctrinal test to analyze similar cases, including the periods of time
where the Court is developing the doctrine and when the Court grows less enamored of it. Second, I refer
to those regimes by the doctrine established (e.g. “the separate but equal regime”).
40
Richards and Kritzer 2002, p. 308, Clayton and Gillman 1999, and Epstein and Knight 1998.
41
Kritzer, Pickerill, and Richards 1998; Richards and Kritzer 2002, 2003, and 2005.
42
Richards and Kritzer 2002, p. 308.
17
methodology.
43
Using logistic regression analysis, Richards and Kritzer, et al, have
demonstrated the efficacy of such a model in demarcating the point in time at which the
Court begins analyzing cases differently. Repeatedly, they have shown that the Court
uses different doctrinal analyses before and after a given regime “point.” Jurisprudential
regimes have now been used to analyze Court behavior in multiple areas of caselaw,
including incitement speech,
44
free expression,
45
establishment clause,
46
obscenity,
47
and
search and seizure.
48
Given this statistical support, it is fair to say that the concept of
jurisprudential regimes has achieved legitimacy as a way to understand Supreme Court
decisionmaking.
The notion of jurisprudential regimes also offers an understanding of the role that
law plays for the Court; it is the doctrine that guides and constrains other and future
decision makers, not outcomes.
49
Other institutions bind decision makers with legal
language (i.e. legislation, treaties, executive orders, etc.); in that respect, the Supreme
Court is no different. For courts, “... [legal language] at the Supreme Court level is to be
43
Kritzer, Pickerill, and Richards 1998; Richards and Kritzer 2002, 2003, and 2005; Buchman 2005.
44
Kritzer, Pickerill, and Richards 1998.
45
Richards and Kritzer 2002.
46
Kritzer and Richards 2003.
47
Buchman 2005.
48
Richards and Kritzer 2005.
49
Richards and Kritzer 2002, p. 306.
18
found in the structures the justices create to guide future decision making: their own, that
of lower courts, and that of non-judicial political actors.”
50
Given that, this model begins with the supposition “that law establishes decisional
principles that guide ... justices’ ... decisions [and that] ...a key decision can establish a
doctrinal principle that changes the [analysis] process.”
51
Moreover, “[t]he decisions
enunciating these key [doctrines] serve to demarcate jurisprudential regimes that are
established for a particular period of time.”
52
They do note that not all cases reach this
operational level. Some case decisions only offer narrow analyses of an issue and/or are
blunt about having no precedential value; these cases do not qualify as regime
establishing cases. Bush v. Gore
53
is a prime example of an important case that yet
would not qualify as a candidate for establishing a jurisprudential regime since the
majority opinion clearly states its intention to be viable for this case only.
54
In Richards
and Kritzer’s words,
...the Supreme Court establishes specific doctrines to guide
judicial decisions in a particular area of law. We are
concerned with doctrine in this sense, which we define as a
specific formulation of the analytic principle which should
guide Court decisions in a particular area. Thus, [a regime
reflects] a decisional principle established in case law
which is expected to influence judicial decisions through a
50
Ibid., p. 306.
51
Kritzer, Pickerill, and Richards 1998, p. 14.
52
Richards and Kritzer 2002, p. 308.
53
121 S. Ct. 525 (2000).
54
See the majority opinion’s statement that the Court’s “consideration is limited to the present
circumstances, for the problem of equal protection in election processes generally presents many
complexities.”
19
structuring process. ... The [regime] is established [based
on] a principle which should apply to the adjudication of all
cases within a substantive area, so it is less likely to be
distinguished than is ordinary precedent.
55
For approximately ten years, the jurisprudential regime theory as a constraining
model gained support. Over the course of those ten years, as noted earlier, repeated
quantitative analysis persuasively showed the guiding force of the jurisprudential
regimes, and also appeared to successfully hone in on the case marking the beginning of
that regime’s governing heyday. Recent scholarship, however, has cast some doubt on
the results put forth by Kritzer and Richards, et al.
First, Segal and Spaeth note that a shift in judicial voting behavior could be
attributed to new Court personnel, not a ground-shifting precedent.
56
Second, the
empirical findings have come under serious fire, as well.
57
These issues have led one set
of critics to say “we find only weak evidence that major Supreme Court precedents affect
the way the justices themselves vote in subsequent cases.”
58
* * *
Coming full circle, we can note that studying constitutional change almost always
implicates an analysis of judicial voting patterns and a heavy focus on evaluating
55
Kritzer, Pickerill, and Richards 1998, p. 9.
56
Segal and Spaeth 2003, p. 33.
57
Ibid., Lax and Rader 2008, and Bartels and O’Geen 2008.
58
Lax and Rader 2008, p. 22.
20
changing case outcomes on the Court over time. However, we have already stated that
there is another side of the coin – the development of legal doctrine. As we have seen, all
of the above approaches to understanding constitutional change have merit, but they each
only explain a piece of the puzzle; there are consistently exceptions. Additionally, and
more importantly for the purposes of this project, they each focus generally on explaining
outcomes, without focusing in on doctrine itself. Even most new institutionalists, who
are typically acknowledged as advocates for bringing the law back into the discussion,
use law primarily as one of the explanation for outcomes.
59
I believe there is much to be
gained by leaving this discussion aside for the moment and exploring doctrine for its own
sake.
After all, it is “...the opinions themselves, not who won or lost, [that] are the
crucial form of political behavior by the appellate courts, since it is the opinions which
provide the constraining directions to the public and private decision makers who
determine the 99 percent of conduct that never reaches the courts.”
60
Therefore, I reject
none of the earlier-mentioned approaches outright because I believe they all explain a
piece of the puzzle; however, I argue that a complete understanding of constitutional
change needs to include a conversation about doctrine – specifically, the ways that
different reigning doctrine emerge and fade away, to be replaced by new doctrine.
59
See Kritzer, Pickerill, and Richards 1998, two of whom are the leading proponents now of the
jurisprudential regime approach, for a paper arguing that law matters in the sense of being part of the
reason Supreme Court Justices decide cases the way they do.
60
Richards and Kritzer 2002, p. 306.
21
III. Does Doctrine Matter?
In the beginning of this chapter, I noted the seemingly common-sense notion that
constitutional change must be a product of both outcome change and doctrine change.
Traditionally, political scientists have developed several approaches to explaining
constitutional change. Typically, most scholarship regarding constitutional change
focuses on case outcomes, and the way that those outcomes, over time, shift our
understanding of what is constitutionally acceptable and unacceptable in any given area
of law. It is important to note that I believe each to offer valuable contributions to
understanding why a certain issue becomes important or how a justice might be
motivated to vote in a particular way. I also believe that each approach yields an
important piece of the whole answer about how agenda-setting on the Court might occur
or about how specific issues get decided. However, all of the approaches, even by most
of the proponents’ own concessions, must be combined in order to arrive at a fully
nuanced explanation of judicial decisionmaking.
Although each of these approaches has significant merit, none of them explain the
whole picture and too many of them define constitutional change solely in terms of
change in outcome, without incorporating a corresponding understanding of change in
doctrine. These approaches seek more to explain how the Court was “won over” by
particular outcomes, or a pattern of outcomes, rather than how legal doctrine evolved
over time. As a result, I believe that none of them focus adequately on this question of
how doctrinal development is a part of the constitutional change process. My work
22
attempts to take a step toward re-balancing the scales by focusing more attention on the
development of the Court’s legal doctrine and filling that hole in the existing literature.
This research emanates out of new institutionalist scholarship and interests. As
noted, although still largely concerned with the ways in which law constrain
decisionmaking, the work of new institutionalists has made a compelling case for
refocusing attention on the role of doctrine in Court analysis.
Bartels and O’Geen point out that, in addition to the Supreme Court producing
“disposition[s] on a given case… [t]he second output is the legal policy that the Court
produces. The result of a Supreme Court decision is not only the resolution of the
individual case or conflict but also the dissemination of broader legal policy for other
political actors to consume.”
61
In their work, Bartels and O’Geen examine two models of
doctrine development, eschewing the more common trend of looking at the Court’s legal
language as only peripheral to the decisional outcome.
In another endorsement from the new institutionalism school about why the study
of doctrinal development is legitimate despite the push to evaluate competing methods of
understanding judicial behavior, Gillman states, “Judges, lawyers, law professors, even
political scientists routinely make predictions about how certain cases or issues will be
resolved, on the basis not only of the idiosyncratic attitudes of the particular judges, but
also using standards or precedents that are perceived to be external to particular judges; if
existing standards or precedents had no such force, there would no reason for anyone to
61
Bartels and O’Geen 2008, p. 1.
23
worry about what judges say in their opinions.”
62
It should be pointed out that legal
constraints are currently understood to be internal constraints, because they relate to
internal Court issues and norms.
Utilizing this argument, my position is that because doctrine has this “force,” it is
worth of further exploration. My focus, then, is not to evaluate, critique, or refine current
theories on judicial behavior as it relates to decisionmaking; excellent scholars produce
thoughtful work on this subject, further refining, consolidating, and expanding holistic
assessments on this subject. My goal is examine the development of legal doctrine in two
related ways, described below in Sections IV and V.
Does doctrine matter enough on its own to warrant independent investigation?
Put bluntly, “[t]he fact that legal ideologies shape the way judges interpret their world
makes them legitimate objects of study in their own right.”
63
IV. What is the development process of doctrine?
If, in fact, the doctrinal aspects of a case constrain the decisionmaking process, as
the new institutionalists posit, then it follows that investigation should turn to the
question of how those doctrines emerge in the first place. The evolution of doctrine,
especially within common law systems, is traditionally understood as a mostly-seamless
pattern of ever-developing rulings, each of which builds on the last and continually
62
Gillman 1993, p. 17.
63
Ibid., p. 16.
24
clarifies our understanding of the law in a given area.
64
While it is accepted that previous
decisions do get overturned, this is largely viewed as an unusual and often undesirable
exception to the rule, even by Supreme Court Justices.
65
Although it is true that issues do
arise which highlight a hole in legal understanding and that the Court does have a
responsibility to fill those holes, I argue that this understanding of a Court continually
developing a given area of law with occasional reversals misses the bigger picture of the
process of doctrinal growth and change as a whole.
In order to explain the overall development pattern of legal doctrine building, my
position is that our understanding can be enhanced by drawing on research in the area of
American political development and extending some of its concepts. A popular
approach
66
describes the process of state building as change occurring when a structure
already exists; this is quite parallel to the Court’s process of changing and developing
legal interpretations when some sort of understanding already exists.
I argue that the Court’s equal protection jurisprudence contradicts the usual
understandings of a common law system in which courts fill in the blanks of statutory
law. This model predicts that, as courts decide cases, future and lower courts are bound
by those precedents, bound to follow what has come before. This explains why it can be
easily assumed that common law jurisprudence evolves in a continual stream, constantly
developing, building upon, and continuing the doctrines established by previous courts in
64
See Abraham 1998 for a discussion of the differences between common law and civil law systems and
Morag-Levine 2003 for a specific application of the distinction in the environmental arena.
65
See the majority opinion stressing the importance of adherence to precedent in Planned Parenthood of
Southeastern Pennsylvania v. Casey 505 U.S. 833 (1992).
66
Skowronek 1982.
25
previous cases. As already noted, overruling precedent is understood as a necessary, but
rare part of the system; it is assumed to be an unusual occurrence, used to eliminate
unique, singular, intolerable case outcomes.
However, instead of this understanding, I posit that the Supreme Court’s
jurisprudence, at least as exemplified in the civil rights cases, is less like a seamless flow
of developing legal interpretation with occasional overrulings, and more like a repetitive
pattern of doctrine creation and doctrine destruction – as it turns out, a cyclical ebb and
flow pattern, whereby doctrines are created, entrenched, and then torn down, at which
point the cycle begins again. I argue that the Court first struggles to fix legal problems in
the least disruptive way(s) until it becomes apparent that the existence of a variety of
case-by-case solutions is only exacerbating the situation, then capitulates and creates a
cohesive doctrine and/or legal test that it spends a period of time entrenching, applying,
and building upon, and then finally moves to a complete rejection of that doctrine or test,
only to cyclically begin the process again with a series of case-by-case solutions.
67
As I
will discuss in more detail later, each complete cycle can be referred to as a
jurisprudential regime.
Emanating out of the new institutionalist school of thought and utilizing the
concept of jurisprudential regimes, this project’s primary purpose is to illustrate this
pattern using the three apparent such cycles of regimes since the ratification of the 14
th
Amendment: the Jim Crow era, civil rights era, and affirmative action era. Each time
67
See Richards and Kritzer 2005, generally, and Kritzer, Pickerill, and Richards 1998 (p. 9), foreshadowing
this idea by pointing out that “doctrine can be overturned or substantially limited in principle. If this
happens to a doctrine, then it loses its status as doctrine.”
26
period, in its heyday, was governed for a time by a jurisprudential regime: separate but
equal, strict scrutiny for classifications disadvantaging racial minorities, and strict
scrutiny for classifications benefiting racial minorities, respectively.
This life cycle pattern is fluid. However, for informational purposes, the three
jurisprudential regimes, as well as the approximate timelines of each phase, can be
summarized as follows:
TABLE 1
Supreme Court’s Civil Rights Jurisprudence Regimes
Pre-
Governance
Governance
Post-
Governance
Regime #1: Jim Crow Era
Separate, but Equal
1868 - 1896 1896 - 1938 1938 -1954
Regime#2: Civil Rights Era
Strict Scrutiny
(Classifications Disadvantaging Minorities)
1938 -1964 1964 -1976 1976 Î
Regime #3: Affirmative Action Era
Strict Scrutiny
(Classifications Advantaging Minorities)
1978-1989 1989 - 2003 2003 Î
V. How does the life cycle theory inform the “jurisprudential regimes” idea?
As discussed earlier, the concept of jurisprudential regimes has recently come
under some fire. Although Kritzer and Richards, et al, use their work to demonstrate
quantitatively that there are certain key cases that mark a clear shift in judicial
decisionmaking and doctrine, emerging research has cast doubt on the strength of that
27
claim.
68
Lax and Rader use the same datasets used by Kritzer and Richards and run other
tests. In one randomization test series, they claim that the results achieved by Kritzer and
Richards cannot be strongly corroborated because of the degree to which the
randomization test is able to yield the same results. In another test, Lax and Rader chose
to run the same logistical regression test as Kritzer and Richards, but instead of focusing
on a test case, they simply focused on odd years versus even years – and they found that
“the standard jurisprudential regimes test would conclude that Supreme Court justices use
a different legal regime in odd years than they do in even years.”
69
This obviously
undercuts the efficacy of the jurisprudential regime model. Undoubtedly, more research
will continue on the quantitative side to evaluate the strength of the claim that certain
cases act as “triggers” in altering the voting behavior of Supreme Court justices or even
the way they think about relevant issues, but these emerging questions present the first
assault on the model.
Since holes in the jurisprudential regime theory are emerging from the
quantitative school, it is logical to turn to the qualitative approach to examine the idea as
well. My work will seek to apply the theoretical concepts of jurisprudential regimes to
the area of equal protection and civil rights to see if it holds up under qualitative scrutiny.
To their credit, Kritzer and Richards, et al, seem to have envisioned this approach at
some point, and even detailed some of the more qualitative criteria that we might use to
68
Lax and Rader 2008.
69
Ibid., p. 14.
28
locate whether or not a trigger case and/or regime exists.
70
Chapter 2 will discuss those
criteria in more detail, as well as their applicability to my overall project.
The literature on jurisprudential regimes, it seems to me, stands for the
proposition that we should “think of Supreme Court decisionmaking over time as
consisting of stable regimes.”
71
From there, we can identify two specific sub-arguments.
First, the regimes come into being at a discrete point in time. Second, the regime shift
simultaneously shifts judicial voting behavior. Since current scholarship is already
evolving on the latter, my evaluation will ultimately end up relating to the former,
although I will evaluate the regime theory using its own criteria.
72
For now, my claim is that there have been three jurisprudential regime cycles so
far with respect to the civil rights issue; that is, three time periods that were governed by
particular analytical methods. Those regimes can be described and abbreviated as: (1)
separate but equal – or the Jim Crow era, (2) strict scrutiny for classifications that
disadvantage racial minorities – or the civil rights era, and (3) strict scrutiny for
classifications that benefit racial minorities – or the affirmative action era.
In sum, for the reasons noted in Section III, even if new studies purporting to
undercut the claim that the concept of jurisprudential regimes constrain voting behavior,
an examination of those regimes is still legitimate. As Gillman argues, “ [i]t is often the
case… that the meanings extracted from texts (or associated with certain principles) settle
into consistent patterns which, for a time anyway, are considered relatively coherent and
70
Kritzer, Richards, and Pickerill 1998, p. 10
71
Lax and Rader 2008, p. 2.
72
See Chapter 2, Section II.
29
controlling by members of a particular ‘interpretive community.’”
73
I argue that a
complete understanding of constitutional change must incorporate the implications of
jurisprudential regimes as relatively enduring (and cyclical) features of the Court’s
policymaking, regardless of whether the regimes constrain the justices’ decisionmaking
ability.
VI. Research Design
By this point, I hope it is clear that rather than analyzing the development of a
particular type of jurisprudence by focusing on the outcome of a particular case or group
of cases, or even time periods where bodies of case outcomes are similar, I seek to
analyze the type of doctrine promulgated by the Court, regardless of the outcome. I will
extend the work of the new institutionalists by focusing specifically on the development
cycles of, not case outcomes, but jurisprudential regimes - specific time periods whereby
the Court can be identified by its commitment to evaluating civil rights claims by
particular doctrinal tests. In this paper, I support existing research positing that these
regimes are relatively accurate descriptions of the Court’s behavior, but critically analyze
the assertion that regimes can be traced to one trigger case or group of cases. Moreover, I
will extend the current work of jurisprudential regime scholars by relating the governance
periods of those regimes to the periods of time directly before and directly after it: the
73
Gillman 1993, p. 16-17.
30
periods within the overall developmental cycle of the regime’s emergence and
deterioration.
74
I will utilize historical-interpretive methodology. Since I am telling a story about
the way that law should be conceptualized and the manner that jurisprudential regimes
grow and shift over time, it is appropriate to use such a methodology. Historical
approaches focus on temporal, holistic, and conjectural features, meaning that the
selected issue for analysis is “understood only in relation to other events and by taking
into account their position in time and in a unique historical context.”
75
As Gillman puts
it,
the issue of whether a particular legal result at a particular
time can best be explained as a matter of principle, policy,
unmediated class interest, perceived functional necessities,
or even bribery can only be clarified through the use of
historical, reconstructive, and interpretive methods -
methods that bring us closer to both the social and political
contexts within which participants acted and to the webs of
meaning embedded in those contexts.
76
Even Klarman’s 1996 assessment of Brown as specifically endorsing a regime
reading of judicial power has, as one of its primary purposes, the goal of encouraging
74
It is also intriguing; both for explanatory and predictive purposes, to gain an understanding of the factors
at play that can trigger a move from one phase to the next. There are several such possibilities, suggested
strongly even by the competing constitutional approaches detailed in Section II. For example, based on the
models discussed earlier, we can surmise that they might play into jurisprudential regimes in the following
ways: a change in Court personnel might signal that a doctrinal shift might soon emerge, as Segal and
Spaeth point out; domestic and international political pressures on the Court, shifts in public opinion, or
dramatic changes in funding for a given issue might also indicate that a change in jurisprudential regimes is
likely. Once the triggers are sufficiently strong enough, the Court will begin its transition from one phase
to the next. Although an analysis of the trigger factors is beyond the scope of this project, it is a natural
next step of this research trajectory.
75
Schutt 1999, p. 334.
76
Gillman 1993, p. 17.
31
scholars to situate “past decisions within their historical context”
77
and to “create a richer
and more credible account of the twentieth century’s civil rights and civil liberties
revolutions.”
78
The article is devoted to showing that a more contextual approach may
revise and will certainly enhance our understandings of important cases. As I understand
Klarman, this applies to large scale constitutional change, as well; it is only by embracing
more interpretive methods that constitutional change can be fully understood. In this
vein, then, my research will certainly build on his call for a more contextually rich
understanding of doctrinal change and situate Brown, in addition to other cases, in a more
detailed history for a longer period of time.
VII. Chapter Outlines
My dissertation will examine whether the claim of jurisprudential regimes can
survive qualitative inquiry and demonstrate the existence of a life cycle pattern to those
regimes by tracing the rise and fall of three such regimes in the area of race and the equal
protection clause. Chapter 2 addresses the development pattern in more detail, spell out
the qualitative criteria put forth for jurisprudential regimes by Kritzer and Richards, et al,
and theorizes on what each phase might look like.
Chapters 3-5 address each cycle, respectively: the Jim Crow era, the civil rights
era, and the affirmative action era. Chapter 6 ties each story together, explains the
77
Klarman 1996, p. 27.
78
Ibid., p. 67.
32
conclusions and implications of this research, and sketches out some potential future
research agendas.
33
CHAPTER 2
REGIMES & PHASES – TELLING A STORY
As discussed,
1
current jurisprudential regime scholarship focuses on the period of
time that the regime appears to be dominant. Because the work is quantitative, its motive
is to determine whether or not a given case marks a turning point in the way that the
Court considers the types of issues brought up by that case. By the very structure of these
methodologies, investigations like those are binary (i.e. justices are constrained or are not
constrained by this factor) and single-focused (i.e. does this case mark the turning point
in case evaluations or does that case mark the turning point). However, the very nature
of doctrine is that it is the product of negotiation and compromise among people with
competing views of constitutional interpretation.
2
As such, doctrine cannot possibly
simply spring, fully formed, in whatever trigger case quantitative scholars have
identified.
The arrival of a governing doctrine must have a story – a beginning and an end.
Quantitative analysis is ill-equipped to tell this story of doctrinal change. The story of
how a governing doctrine developed, emerged, coalesced, and declined is best suited for
a narrative format. The language and concepts of American Political Development
(APD) are well-suited to take on the narrative. Situated in the historical-interpretive
methodology, APD scholars are predominantly focused on situating a key political
1
See generally Chapter 1.
2
Balkin 2004, p. 1563-1568.
34
moment or dynamic in a longer contextual viewpoint, precisely the kind of story that this
dissertation is telling.
I argue here that jurisprudential doctrine is a governing authority and that each
new regime cycle represents shifts in that governing authority. Political development is
defined by two of the leading APD scholars as “a durable shift in governing authority.”
3
According to Orren and Skowronek, “authority” can be determined by four criteria: (1) it
is designated to be authoritative in advance; (2) it works through institutions; (3) its
mandates are enforceable; and (4) it has the perception of legitimacy.
4
Jurisprudential
doctrine clearly meets all four criteria. The Court has long since been designated the
final arbiter of constitutional meaning; its doctrine is authoritative, especially when
governing the jurisprudence of lower courts. Doctrine, by its very nature, must work
through the institution of the Court. The mandates of any given doctrine are enforceable,
both by police-type enforcement of the Court’s rule and the lower courts’ reliance on its
guidance. Finally, the Court and its jurisprudence have long been perceived as
legitimately credible overall by the general population, even when it issues controversial
decisions. Therefore, by its own nature and through the Court as its vehicle,
jurisprudence represents the kind of governing authority that APD language can be
applied to. In the beginning portion of that original definition of political development,
“shift... implies rearrangement, redirection, reconstruction.”
5
Since the very core of this
3
Orren and Skowronek 2004, p. 123.
4
Ibid., p. 125.
5
Ibid., p. 127.
35
project is on these three aspects, political development and its associated literature can be
directly applied to notions of a life cycle in jurisprudence in incredibly useful ways.
Moreover, the study of APD is primarily focused on the identification and
explanation of patterns and change over time.
6
In fact, pattern identification is often the
defining feature of work in the APD arena.
7
Additionally, APD research does more than
identify such individual patterns; it also highlights cyclical patterns, much like the one I
articulate here.
8
Returning to my methodology, APD scholars maintain that without
contextual historical examination, true understandings about the nature of shifts and
development are suspect, which validates the study of cycles and patterns. For many
academics, “change is usually regarded as an interlude between relatively permanent
settlements.... Conversely, in APD, change is something inherent in politics as such; it is
an integral feature of the juxtaposition of patterns that construct politics historically.”
9
APD research puts the concept of change, especially change over time, center stage,
identifying it and exploring how and why it comes about.
Third, as already discussed, this dissertation serves, in part, to tell both a story,
and then a story within the story. The overall story builds on the jurisprudential regime
literature and seeks to examine and apply the jurisprudential regime concept to the civil
rights jurisprudence of the equal protection clause, as it pertains to race. Even a cursory
6
Ibid., Chapter 1, for a particularly thorough explanation of this predominant focus.
7
See Orren and Skowronek 2004 and Burnham 1994.
8
Other studies on such cyclical patterns have run the intellectual gamut in subject matter - see Ackerman
1991, Skowronek 1993, Morone 1998, Huntington 1983, Smith 1997, Sanders 1986.
9
Orren and Skowronek 2004, p. 14.
36
glance over constitutional law textbooks will quickly demonstrate that the jurisprudence
in this era can be divided into three time periods: the period governed by legal
segregation and Jim Crow laws, the period marked by the civil rights movement of the
1960s, and the affirmative action era. The main story, then, is whether there are three
corresponding jurisprudential regimes, per the definitions established by the pioneers of
this regime theory. More importantly, the story within the story is to better explain the
emergence and decline of those regimes, should they exist.
Again, APD literature has similar concepts to the ones needed for this project,
instead using the terms “paths” and “critical junctures.” “Path” concerns the long term
trajectory of a given element of political development and “junctures” are those critical
points along the way that re-direct development onto a new path.
10
In terms of my own
research, it should be a relatively straightforward analogy that the “path” represents the
main story – the full cycle of a given jurisprudential regime from start to finish. If the
jurisprudential regime criteria hold true, there should be three overall “paths.” The type
of critical junctures that Orren and Skowronek discuss parallel either the points at which
either the entire jurisprudential regime is rejected or a new jurisprudential regime begins,
or could easily refer to the points along the way that push the Court from one phase of the
jurisprudential regime cycle to the next.
The APD literature also provides a point of departure for identifying key features
of jurisprudential regimes. Kritzer, Richards, and Pickerill, in their foundational
10
Ibid., p. 103-104, 117.
37
jurisprudential regime piece,
11
lay out a qualitative framework for analyzing
jurisprudential regimes, but since their sole purpose was to prove the existence and
constraining power of the regime, they provide no guidance in identifying the time
periods before and after the regime’s governing period. The work that has continued on
jurisprudential regimes has not sought to address this issue either. As a result, although it
seems like a common-sense notion that such bookending phases must exist, there is no
framework within existing jurisprudential regime literature to point the way. However,
Stephen Skowronek, one of the leading members of the APD movement, has used
concepts which may be adapted to this end.
Skowronek,
12
writing about state building in a sampling of policy areas from
1877 through 1920, posits that state building has two patterns - initial patchwork
solutions, followed by reconstitution of policy. It is his patchwork phase that is
particularly useful. The patchwork phase represents a period of time in which there
might be simultaneous voids in governance
13
and obstacles to overarching change from
outdated structures. During this period, state building in one cohesive framework is
impossible because the voids can only be filled by band-aid-like solutions as a result of
the inability to accomplish a more holistic change. For the purposes of jurisprudential
regimes, Skowronek’s patchwork phase is an amalgam of what this project refers to as
the pre-governance and post-governance phases; state building, as discussed earlier in the
11
1998.
12
Skowronek 1982.
13
Ibid., p. 41.
38
chapter, is parallel with doctrine development. By applying and adapting some of his
concepts for the pre- and post-governance phases, and examining Kritzer, Richards, and
Pickerill’s qualitative assessment of the governance phase, we can see the beginnings of a
framework of criteria by which to assess each.
We can use the language and ideas presented by APD to develop a preliminary
framework of what the beginning and ending chapters of regimes might look like. After
applying that framework to multiple case studies, more criteria will emerge and existing
criteria may not be borne out by the evidence. It is, however, a useful starting place.
I. Pre-Governance Phase
According to Skowronek, “[s]hort of revolutionary change, state building is most
basically an exercise in reconstructing an already established organization of state
power.”
14
Typically, with any given jurisprudence, some existing precedent exists. Even
if a case isn’t directly on point, clever justices are capable of taking a distantly applicable
doctrine and bending it so that it sheds a guiding light on the matter at hand. Therefore,
when justices are ready for a new method of analysis, as Skowronek points out, there is
almost always an existing doctrine to somehow contend with. Regardless, once the Court
eliminates the pre-existing hurdle, either by overturning it or carving out its new dilemma
as resolvable by previous analysis methods, it finds itself in a vacuum, searching for a
(new) coherent methodology with which to approach its cases. In extremely rare
14
Skowronek 1982, p. ix.
39
scenarios, an area of law is pure and untouched, and no Court action is required to put the
Court into its void. We will see such an instance in this project.
Regardless of how it arrives there, in the pre-governance phase, the Court is
grappling with the particular issue (civil rights, in the case of this project), unconvinced
in any ongoing manner of how to evaluate constitutional claims. During this time period,
the Court may evaluate similar claims differently, lacking a commitment to any particular
doctrine and floundering by trying to address issues in whatever way seems workable in
the moment.
Although Courts across time do not avoid addressing issues during the pre-
governance phase, they rarely yield consistent guidance to lower courts. Although
individual justices may have strong feelings on how to analyze cases, those feelings often
do not bridge a coalition to govern the Court. As Skowronek describes a theoretical pre-
governance phase, “[n]ew institutions emerged to meet the most immediate new demands
on government, but governmental elites could not sustain support for any effort that
threatened to undermine long-established political and institutional relationships.”
15
We
can adapt his assessment and understand that this phase sees multiple doctrinal analyses,
but none that can garner a majority over time – sometimes, not even within a given case.
The Court is always looking for a method of evaluation that will generate buy-in
from enough justices to set a significant precedent, and then maintain that buy-in over
time. Unfortunately, this doesn’t happen in the pre-governance phase, which is
consistent with two of Skowronek’s examples. In the first, he describes a Congress
15
Skowronek 1982, p. 16.
40
“stymied by [its] task and” therefore opting “for the largest possible coalition of support
with the most ambiguous measures.”
16
In the second, specifically referring to the
passage of the Interstate Commerce Act, he notes that the problem with it “was not that it
served any one interest but that it ventured into inconsistency and ambiguity in failing to
choose among the interests.”
17
It is a hallmark of the pre-governance phase that justices
sometime settle on methodologies that they don’t sincerely subscribe to only because
none are virulently opposed to it - a lesser of all known evils. As a result of not having
any cohesive guiding doctrine, it is also to be expected that vagueness emerges in the
form of multiple plurality opinions, rather than one majority opinion.
Another unfortunate side-effect of the pre-governance phase is that loopholes are
often left in the doctrinal tests. Without an eye toward coherency, gaps remain that can
be exploited. In the civil service system, we have this example: “The Pendleton Act
applied to ‘classes’ of offices that had been specified in law in 1853. The federal service
had at that time been divided into classes based on salaries received.”
18
Skowronek goes
on to detail the specifics of the Act’s classifications and affiliated salary ranges,
ultimately pointing out that “spoilsmen could easily circumvent the merit system by
hiring a partisan under an unclassified division, say as a manual laborer, and having him
do the work of a clerk who have been classified. Without coherent and binding
relationships among salaries, positions, qualifications, and duties performed, there could
16
Ibid., p. 138.
17
Ibid., p. 149.
18
Ibid., p. 80.
41
be no semblance of order among the employees in the new merit service. They were
little more than a hodgepodge of officers in a number of services intruding almost
indiscriminately into the patronage system.”
19
This same situation can happen with legal
doctrine, allowing appellants to continually bring forward cases that they claim are
distinguishable from the cases that have come before.
The advantage of the pre-governance phase, however, is that it often leads to
“notable institutional adaptations”
20
since the Court is not bound by existing conventional
wisdom. And, of course, the ideas tossed around during this time period will eventually
lead the Court to a more coherent position, much like an extended brainstorming period.
Criteria for Identifying the Pre-Governance Phase
Based in part on the previous discussion, we can glean many potential criteria for
identifying the pre-governance phase. First, and most obviously, there is no established
doctrine by which to evaluate similar constitutional claims. Cases that raise parallel
claims are often treated differently, leaving appellants to wonder how their arguments
will be assessed or opening the door to claims that one case should be treated differently
from another even when the facts seem similar.
Second, when no jurisprudence exists in a given area, we are dealing with a pre-
governance period. Especially with regard to constitutional issues, these scenarios are
rare. True formal constitutional change is difficult to achieve; as a result, times where
19
Ibid., p. 80.
20
Ibid., p. 46.
42
there are provisions that have simply never been evaluated are rare. We will see an
example of this in this project, however; Plessy’s pre-governance era marked the first
time the Court gave meaning to the equal protection clause.
Third, we may see frequent closely-divided decisions, with the majorities
reversing back-and-forth frequently as they negotiate and compromise on what the
Constitution means. In addition to or instead of complete ambiguity, we may also see
instances where there are two clear camps regarding interpretation and neither has yet
garnered a consistent majority.
Fourth, pre-governance opinions contain language that will be incorporated into
the eventual governing doctrine. Although it is sometimes the case that an analytical
method moves unscathed through the pre-governance process and emerges “victorious”
in the governance phase relatively untouched, the more common route is for the eventual
doctrine to be an amalgam of the cases that have come before. This means that the pre-
governance cases must, by default, contain either wording or concepts that will
eventually get combined with other pre-governance case elements to arrive at a coherent
whole method.
II. Governance Phase
Ultimately, the Court elects to move beyond band-aid solutions and settles on
some doctrinal test that it commits to consistently applying. Once that happens, the Court
43
enters the governance phase. During this phase, generally speaking, the Court’s
commitment to a particular doctrine or test is established, and consistently applied as
further cases come along. Decisions made during the governance phase also largely tend
to have similar outcomes, although this is not a necessary feature of a governance phase,
since it is intellectually feasible that some laws will pass constitutional muster and some
will not, even when the test is the same.
Here, a sidenote about terminology is important. As discussed, the way that term
“regime” has been used so far in the relevant literature is to describe a period of time
where cases that concern similar issues are evaluated relatively consistently in similar
ways. Existing research typically flags one case (or very closely related group of cases)
and, using logistic regression analysis, shows that while judicial behavior can likely be
explained by the attitudinal model before that case, it is clearly constrained afterwards by
whatever doctrine is created in that test. So far, it has mostly been statistically shown that
regimes do affect judicial decisionmaking.
Once each key case occurs, the Justices’ behavior becomes more consistent and
decisionmaking more predictable. In the area of free expression, after the companion
cases of Grayned and Mosley,
21
the Court uses a model of content-neutrality to evaluate
cases.
22
Regarding Establishment Clause jurisprudence, after 1971, the Court
consistently applied the so-called “Lemon
23
test,” consisting of three identifiable
21
Chicago Police Department v. Mosley 408 U.S. 92 and Grayned v. City of Rockford 408 U.S. 104 (1972
companion cases).
22
Richards and Kritzer (2002).
23
Lemon v. Kurtzman 403 U.S. 602 (1971).
44
prongs.
24
For search-and-seizure, six 1983-1984 cases
25
carving out specific exceptions
demarcate a turning point in the Court’s staunch “liberal” enforcement of the
exclusionary rule.
26
Miller
27
signals the Court’s establishment of, and subsequent
reliance on, a three-prong test for obscenity.
28
Finally, administrative law issues take a
marked turn, with a two step inquiry, toward deference to regulatory agencies after
Chevron
29
was decided.
30
Each of the time periods after the key case (or cases) have
been defined by Kritzer, Richards, Smith, and Buchman as the regimes because they
govern the way that claims are evaluated.
It should be reiterated that the focus of the previous scholars is simply to prove
the existence of the regime. As noted in Chapter 1,
31
I use the term “regime” differently.
Because the term generally will refer to the doctrinal test being applied (i.e. the Lemon
regime), it can also be extrapolated out to encompass the entire life cycle period, from
pre- to post-governance of that particular doctrine. In the Lemon regime example, the
term “regime” would refer to the time period beginning when the Court first begins
24
Kritzer and Richards (2003).
25
Illinois v. Gates 459 U.S. 1028 (1983), Massachusetts v. Upton 466 U.S. 727 (1984), U.S. v. Leon 468
U.S. 897 and Massachusetts v. Sheppard 468 U.S. 981 (1984 companion cases), and Nix v. Williams 467
U.S. 431and Segura v. U.S. 468 U.S. 796 (1984 companion cases).
26
Kritzer and Richards (2005).
27
Miller v. California 413 U.S. 15 (1973).
28
Buchman (2005).
29
Chevron v. Natural Resources Defense Council 467 U.S. 837 (1984).
30
Richards, Smith, and Kritzer (2006).
31
Infra, Chapter 1, note 39.
45
struggling with deciding Establishment Clause cases to the moment they vote to reject
such a test. Reaching back to the APD language, the term “regime” is synonymous with
the concept of “path.”
Given all of that, I have elected to refer to the time period where the doctrine is
being consistently utilized and applied as the governance phase. The governance phase
is the primary time period discussed by the existing literature, although that terminology
is not used. As the articles are written, the governance phase begins once the key case
has occurred. Occasionally, the demarcation date is fuzzy. For example, in their work
related to search-and-seizure jurisprudence,
32
Kritzer and Richards struggle to determine
the date at which the governance phase (called the regime by them) begins. They note:
“One dilemma in our analysis was how to operationalize the regime break: We could use
Gates as the split point for the jurisprudential regime because it represents the beginning
of the shift that took place over a period of about 12 months, we could use the last case
over that period, Segura, or we could use something in between.”
33
Because they were
using a quantitative model and coding data, the break point seemed significant. As we
will see even throughout this project, break points between phases are often relatively
easy to identify. However, when the ability to code hard data is less critical, as it is here,
rare dilemmas involving solving break points with concrete dates is less necessary. As
Kritzer and Richards saw,
34
narrowing in on the precise date did not significantly shift
32
Kritzer and Richards 2005.
33
Ibid., p. 43.
34
As it turned out, they “actually conducted the analysis several different ways and found that the results
were very similar.” (Ibid., p. 43).
46
their findings regarding the validity of the model, so perhaps it is not as critical in the
quantitative work either.
In short, then, the governance phase described here is parallel in concept to one of
the usages of the term “regime” utilized in the relevant literature so far. As we already
know from the jurisprudential regime literature, before the governance phase begins, it is
not always clear how a particular case will be handled and, to a lesser degree, what the
outcome will be; once the governance phase has started, there is a clear shift in
decisionmaking and predictability on the Court. The governance phase, then, is the
period of time where the justices have agreed on a method for evaluating cases, apply it
in relatively consistent ways, achieve some level of predictability, and provide guidance
to lower courts and the public.
Once we know how the phase is expected to operate, we need to know how to
identify it, if not with the data, coding, and logistic regression method used by previous
scholars.
Criteria for Identifying the Governance Phase
According to Kritzer, Richards, and Pickerill, there are also three qualitative
guidelines for identifying jurisprudential regimes, in addition to the statistical modeling
noted earlier. As explained above, they use the term “regime” as I use the term
“governance phase,” so their three-pronged test is appropriate to use as the benchmark
evaluation of whether any given time period is functioning as a governance phase:
47
First, a [regime] should present a formulation of an analytic
principle. A precedent which establishes only a narrow
holding that is particular to one case fails to establish [such]
a decisional principle. By contrast, a [regime] is
formulated to identify the relevant case facts or decisional
principles (i.e., level of scrutiny) that should structure
decisions in an area of law.
Secondly, [the] doctrine [offered by the regime] should
have been used to guide adjudication in subsequent cases.
It needs to be cited in future decisions. If it is never
mentioned in subsequent cases, it has not achieved [regime]
status.
Thirdly, a [regime] should be recognized by scholars as
[encompassing] a precedent which is a formulation of an
analytic principle and has guided the decision making of
subsequent cases. If scholars have recognized the doctrinal
character of a particular precedent, this provides more
evidence of its influential status.
35
Those criteria can be summarized as follows: (1) a governance phase must include
at least one key case that contains a broadly applicable legal doctrine; (2) the doctrine, or
the case(s) it emanated from, must be cited liberally in future relevant decisions, likely
both at the Supreme Court and lower court levels; and (3) scholars, contemporary or
otherwise, must validate the existence of a set period of time whereby that doctrine or its
establishing case(s) serve(d) as the authoritative method to evaluate relevant cases.
35
Kritzer, Richards, and Pickerill 1998, p. 10.
48
III. Post-Governance Phase
Eventually, consensus about the efficacy of the doctrine deteriorates and the Court
then enters a post-governance phase. During this phase, application and overall utility of
the doctrine declines. Often, time has marched on (not to mention new understandings of
constitutional meaning), and the Court’s attempts to modify doctrine without overturning
precedent are often “caught in the unresolved tension between the governing demands of
a new age and the triumph of this old governmental order… only to be held in an
awkward state of suspension.”
36
Outcomes that were originally expected by the
application of the doctrine begin to fluctuate.
37
Additionally, the justices often use their
opinions to voice their dissatisfaction about the particular doctrine, and not just in
dissenting opinions. Sometimes, the displeasure comes in the form of a direct assault on
the test itself; other times, the displeasure is evidenced by a “bending” of the test or a
slight (or even major) modification of the wording.
As the deterioration phase draws to a close, the Court will either tacitly or bluntly
make it clear that the guiding doctrine is no longer valid. At this point, the Court finds
itself back in its initial position: with no clear and consistent way to analyze cases in a
36
Skowronek 1982, p. 46.
37
“Paradoxically, to the extent that the underlying political dynamics of central administrative reform in
America followed the cosmopolitan pattern of the consolidation of a governmental order, the substantive
results were actually quite different, and to the extent that substantive results of central administrative
reform in America resembled the cosmopolitan pattern of professionalism, the underlying political
dynamics diverged dramatically.” (Skowronek 1982, p. 83.)
49
given area. The pre-governance phase then begins anew, starting a new cycle, or a new
path.
38
According to Skowronek, we can extrapolate that the primary reason the post-
governance phase occurs is that the doctrine and its application simply become outdated.
The way that he puts it is “[a]n impasse in the evolution of relations … began to form out
of the unintended consequences of an old governing formula. Institutions and procedures
once created to serve [that purpose] now appeared as self-perpetuating perversions of that
purpose.”
39
We can also note that the Court often lags behind society, or the rest of the
governing elite, in its ideas, largely as a result of the lag time between new political
regimes coming into power and those new regimes’ appointments of enough justices to
turn the jurisprudential tide of the Court. This adaptation gap can easily translate
sometimes to mean that certain solutions are finally actualized just after the point at
which they finished being needed in the first place. Skowronek comes to this same
conclusion in his discussion of parties, noting that “[t]he preestablished state organization
was revealing the full extent of its particular strengths and capacities just as society was
moving beyond the point at which those particular strengths and capacities were still
pertinent to the maintenance of order and control.”
40
38
See Richards and Kritzer (2002, p. 316), presaging the existence of cyclical jurisprudential regimes,
stating that, “as with any organizational framework, the anomalies and contradictions of a regime may
become increasingly apparent, leading the justices to seek out a different approach to dealing with cases in
a given area.”
39
Skowronek 1982, p. 40.
40
Ibid., p. 45.
50
Especially with the Plessy era’s post-governance phase, we will see that the
doctrine had become a stumbling block for a Court wanting to transcend previous
understandings of the equal protection clause, that “[i]ts very strengths had become its
most serious liabilities; its mode of operations had become a threat to further …
development.”
41
All of this begs the question… why does the Court not choose to simply eliminate
the offending doctrine? Why does the Court instead go through a sometimes protracted
process of trying to make the “old” solution work?
It is possible that Pierson’s path dependence argument provides a relevant way to
explain what pushes the Court into the deterioration phase, instead of a quicker, complete
rejection of the whole regime.
42
In his discussion of increasing returns, he states out that
once an institution commits to a path, it becomes exponentially more difficult to reverse
course. In his words, “[p]olitical arrangements are unusually hard to change,” “change-
resistant,” and “difficult to overturn”
43
and we know that achieving consensus on
doctrine is most certainly a political arrangement. As a result, it seems intuitive that it
would be difficult for the Court to simply reject a doctrine before gathering a similar
consensus, built over time, that the doctrine has run its course.
41
Ibid., p. 162.
42
See generally Pierson 2000a.
43
Ibid., p. 262.
51
Criteria for Identifying the Post-Regime Phase
Using this discussion as a jumping-off point, we can hone in on criteria for
identifying the post-governance phase. First, if general unanimity existed during the
governance phase, it typically breaks down at this point. This deterioration could be
attributed to a number of reasons, but ultimately results in an increasing number of
justices being less committed to the existing method of analysis. This is usually visible
by a proportionally increasing number of 5-4 or 6-3 decisions.
Second, and most dramatically, the Court may make alterations to the doctrine.
We often expect dissenting opinions to poke at the majority’s chosen method of analysis,
but in the post-governance phase, we see even the majority revising its jurisprudence by
narrowing it, carving out exceptions, etc. The prime example of this is the significant
narrowing, but not outright overturning, of Roe v. Wade
44
that has occurred over the last
35 years.
Third, following along that same logic, the majority opinion may contain
language undermining the doctrine, even if it doesn’t carve away at it. This language
usually comes in the form of dicta, hinting at the Court’s growing displeasure with the
efficacy of the current guiding doctrine.
Fourth, mobilized parties (interest groups, other political elites, etc.) begin to take
a vocal and different position than before on a given issue. Skowronek discusses this
scenario as well, using the development of the military as his case study. In that scenario,
44
410 U.S. 113 (1973).
52
“[a]ggressive linesmen had served notice to the staff bureaus of the War Department that
they were not willing to accept existing institutional arrangements.”
45
If we substitute
“interested parties” for “linesmen” who attempt to insert their desire for change, we can
see another hallmark of the post-governance phase, as consensus among the key players
deteriorates.
Fifth, different outcomes occur than were likely originally conceptualized by the
“framers” of the test. Although outcome is not an inherently determinant factor in
evaluating doctrine, a significant consistent reversal in the outcomes of cases can be
indicative of the problem that Skowronek refers to – that the method of analysis is
outdated and no longer serves contemporary needs. The dramatic change in outcome is
usually also indicative of a significant shift in the way the doctrine is being understood
and utilized.
Sixth, cases with seemingly similar factors yield fluctuating results, despite the
expectation that they might be decided in a complementary manner. Again, case
outcome is not the focus of this project, but inconsistency where we would expect to see
consistency is a sign that agreement is breaking down.
IV. Looking Ahead
Having discussed the concept of a judicial regime and its phases in detail, all that
remains is a summary. Table 2 shows the criteria that Skowronek clearly implies for the
45
Skowronek 1982, p. 120.
53
pre- and post-governance phases and that Kritzer and Richards, et al, articulate to define
the governance phase.
TABLE 2
Projected Criteria for Identifying Regime Phases
Pre-Governance Phase
• No settled doctrine for evaluation of the issue/area
• Cases that raise parallel claims are handled
differently
• No previous Supreme Court jurisprudence exists
• Closely-divided decisions
• Switching “winning” majorities
• Frequent plurality opinions
• Language or concepts in opinions that is/are later
used to weave the doctrinal test
Governance Phase
• A settled, broadly applicable doctrinal “test” for a
given area of caselaw
• Repeated citations either to test or establishing case
in future relevant cases
• Legal and/or academic validation of that test or
establishing case as settling the matter of doctrine
in that area of law
Post-Governance Phase
• A break-down of any unanimity that may have
existed during the governance phase
• Alterations to the doctrinal test
• Dicta in majority opinion, undermining the test
• Mobilized parties take a new and aggressive
position on the issue with the Courts
• Different outcomes occur than were initially
envisioned at the doctrine’s creation
• Cases with similar factors are decided differently
In the proceeding chapters, I will apply these features to the three regimes to
determine if the life-cycle model is an appropriate way to understand doctrinal change.
We will re-examine this table in the Conclusion, adding any features that the studied
regimes suggest are missing.
54
CHAPTER 3
REGIME ONE: THE JIM CROW ERA
SEPARATE BUT EQUAL
By now, the story is familiar. The 13
th
, 14
th
, and 15
th
Amendments were passed
and ratified in the years following the Civil War in what we now commonly understand
as an attempt to offer some measure of equality to Southern black Americans. The 14
th
Amendment, and, for the purposes of this dissertation, its equal protection clause were
specifically designed to apply to states (as opposed to the federal government), although
there is reason to believe that the original intent of at least some of the framers might
have been to reach into private discriminatory behavior as well. Later interpretation
would incorporate the equal protection component to the federal government via the 5
th
Amendment’s due process clause.
Reconstruction held great promise for black equality in the South, but was
discontinued as a result of the Compromise of 1877 that granted the presidency to
Republican Rutherford B. Hayes, rather than Democrat Samuel Tilden. Once the
political option of enforcement and action had been foreclosed by the compromise, this
area was relegated to the judiciary to clarify.
55
I. Pre-Governance Phase (1868-1896)
The Slaughter-House Cases
1
marked the first time the Supreme Court was faced
with a 14
th
Amendment challenge. Although the challenge didn’t directly implicate the
Equal Protection Clause, it is no exaggeration to say that the Court’s decision
dramatically affected the course of civil rights jurisprudence. In that case, relating to
butchers and the regulating of meat slaughter, the Supreme Court severely curtailed the
reach of the new amendment, stating that it could only grant individuals national
citizenship rights, not state citizenship rights. Although the majority opinion notes that
the history of 14
th
Amendment makes it clear that its intention was to confer protection
on black Americans, the Court does not rely on that language or opening in subsequent
cases.
Similarly, U.S. v. Cruikshank
2
only involved the Equal Protection Clause insofar
as the Court determined that it didn’t apply to cases concerning racially-motivated
violence by individuals. The Court made it clear that its reach only extended to state
action and, unlike in later years,
3
was unwilling to look hard to find state action in an
attempt to protect black Americans.
1
83 U.S. 36 (1873).
2
92 U.S. 542 (1875).
3
See Shelley v. Kraemer 334 U.S. 1 (1948) for an example of the Court pro-actively seeking state action in
order to find unconstitutional discrimination.
56
Hall v. DeCuir
4
showed the Court’s early unwillingness to offer an expansive
reading of the 14
th
Amendment, especially on the issue of segregation. At issue was a
Louisiana statute requiring public conveyances to provide integrated accommodations to
black and white passengers. Ultimately, the Court unanimously determined that this was
an unconstitutional infringement on Congress’s commerce power, since it unduly
burdened the conveyance while in the state of Louisiana to behave in a certain manner
which stood in opposition to that of other state requirements.
The Court next faced a series of challenges regarding local governments’
unwillingness to include black Americans on juries. In the first case, Strauder v. West
Virginia,
5
the Court was confronted with a statute which explicitly stated that only white
males would be permitted to serve on juries. The Court again relied on the history of the
14
th
Amendment’s ratification, noting that its purpose was to guarantee black Americans
to privilege of legal access; this was, therefore, a relatively easy case for the Court to
dispense with by overturning the statute.
Virginia v. Rives
6
put the Court on the opposite conceptual side of the issue. In
this case, the Court reaffirmed Strauder in that any law facially stating a racial
classification with regard to jury service would be overturned, but allowed a facially
neutral law with clearly discriminatory implementation patterns to stand. In Ex Parte
Virginia,
7
the Court struggled again, reversing its qualitative decision. This case
4
95 U.S. 485 (1878).
5
100 U.S. 303 (1879).
6
100 U.S. 313 (1879).
7
100 U.S. 339 (1879).
57
concerned a petition for a writ of habeus corpus filed by a local county judge who was
being held for refusing to include black Americans on juries. The Court denied his
petition, holding him responsible for refusing to abide by the law of the land, as noted in
Strauder. Finally, in Neal v. Delaware,
8
the Court again straddled the fence, finding that
Delaware had no actionable law, statute, or state constitutional provision that limited jury
service to white males, but expressing skepticism that the complete lack of black
Americans being called to such service could be related to anything other than clear
discrimination.
Alabama v. Pace
9
saw the Court uphold anti-miscegenation statutes. The Court
offered its opinion indicating that interracial sexual relationships and/or interracial
marriage should be avoided and was comfortable with statutes discouraging its
occurrence. “The Court in Pace v. Alabama reasoned that so long as both parties to the
fornication were subjected to similar criminal penalties, the races were being treated
equally, and thus the Equal Protection Clause was satisfied. Analytically, Plessy’s [later]
endorsement of separate but equal was a straightforward application of Pace.”
10
Although U.S. v. Harris
11
did not deal with jury selection, the Court again
reiterated the point that the 14
th
Amendment did not authorize Congress to reach non-
state actors. Harris struck down portions of the 1871 Congressional Ku Klux Klan
8
103 U.S. 370 (1880).
9
106 U.S. 583 (1883).
10
Klarman 1998, p. 330.
11
106 U.S. 629 (1883).
58
legislation designed to protect blacks from conspiracies of violence that were racially
motivated and reminded Congress that only the states had the power to penalize such
violent crimes as murder and assault.
Also that same year, the Court consolidated and addressed the Civil Rights
Cases.
12
The Court continued the now-familiar refrain that the 14
th
Amendment, and its
Equal Protection Clause, could only confer upon the newly-freed slaves the right of
national citizenship and a small measure of protection from state-sponsored
discrimination. The almost-unanimous Court agreed that Congress did not possess
authorization to reach into private accommodations, businesses, transportation, etc. in
order to prohibit private discriminatory action.
In 1886, the Court resolved a case in a manner that would not re-emerge until the
Warren Court, almost 65 years later. In Yick Wo v. Hopkins,
13
a unanimous Court
announced that a facially neutral law that had obviously racially discriminatory impacts
violated the equal protection clause.
Louisville, New Orleans & Texas Railway v. Mississippi
14
was not argued on
Equal Protection grounds, but set the stage for the later Plessy decision. At issue was a
Mississippi statute, requiring separate cars for black and white passengers. The case was
argued as a Commerce Clause matter since the railway company alleged that this was an
unconstitutional infringement on its ability to operate intra-state. Although this case was
12
109 U.S. 3 (1883).
13
118 U.S. 356 (1886).
14
133 U.S. 587 (1890).
59
virtually identical in fact to Hall v. DeCuir, the Court upheld the law this time, finding no
encroachment on Congressional power.
During this time period, the Court tested the bounds of the equal protection clause
and the justices’ own convictions about what it stood for and what it would be permitted
to stand for. In looking at the criteria for identifying the pre-governance phase, we can
see a few of them highlighted here.
No settled doctrine for evaluation of the issue/area
There is no settled evaluative method during this period of the Court’s
jurisprudence. The justices seem to apply a measure of reasonableness; that is,
assessment of the rule, policy, or law in question turns on whether or not the regulation
makes sense to them, but that’s not a useful explanatory method for lower courts or future
justices to utilize.
Cases that raise parallel claims are handled differently
In this arena, the Court addressed a broad variety of issues as the justices and the
legal community tried to understand what the equal protection clause could and could not
be used to accomplish. In one instance, as noted above, Hall v. DeCuir and Louisville,
New Orleans & Texas Railway v. Mississippi contain virtually identical fact patterns, yet
60
the cases were decided with conflicting outcomes and conflicting rationales. The jury
selection cases also raise similar issues, but the Court was not able to coalesce around a
cohesive answer or method of analysis to assess such questions.
No previous Supreme Court jurisprudence exists
Most obviously, this period must be a pre-governance phase, insofar as no
Supreme Court jurisprudence existed on the issue. To be sure, other courts were pieces
together answers, and the jurisprudence of pre-14
th
Amendment Supreme Court and
lower court decisions might be useful later in properly reading public, political, and legal
opinion on the general issue of race and rights, but to the extent that the 14
th
Amendment
had arrived on the scene and potentially informed the issue in new ways, there was little
precedent the Court could rely on.
During this time of vagueness, the Court also struggled with creating a stand-
alone niche for the equal protection clause. Because this Court had no judicial history to
rely on in shaping its understanding of what a pure equal protection challenge might look
like, it sometimes conflated equal protection issues with other issues. The three most
common combinations in this area during this time period were commerce clause issues
(typically litigated under Article I, Section 8), criminal procedure claims (typically
litigated under the 4
th
-8
th
Amendments, depending on the nature of the claim),
15
and
15
“Ironically, the most vigorous early statement of the anti-discrimination principle had come in a criminal
procedure case. The state statute struck down in 1880 in Strauder v. West Virginia had excluded blacks
from grand and petit juries. Between Strauder and the passing of Chief Justice White in 1921, all but one
of the sixteen decisions handed down by the Supreme Court concerning racial discrimination in the
61
economic rights (which came to be litigated also under the 14
th
amendment, but via the
due process clause, not the equal protection clause).
16
Perhaps as a result of this
conflation or perhaps simply because the rights really are intertwined, this combining of
issues has persisted through time.
Language or concepts in opinions that is/are later used to weave the doctrinal test
Eventually, in Plessy, the Supreme Court would draw on many sources, including
primarily a Massachusetts state supreme court case called Roberts v. City of Boston
17
for
its articulation of the separate but equal test. However, even during this period, traces of
what will later evolve into the Plessy doctrine can be spotted. “Perhaps the earliest
enunciation of the doctrine occurred in the dictum of the United States Supreme Court in
the case of Hall v. De Cuir. The case involved a public carrier, but the court stated obiter
that segregation in public schools did not violate the Fourteenth Amendment if equal
facilities were provided.”
18
Pace offered an early understanding of the separate but equal
doctrine as well, since that decision was predicated on the assumption that
criminal process involved the exclusions of blacks from juries. Pace v. Alabama in 1882 was the
exception, an unsuccessful challenge to a statute that provided greater punishment for interracial adultery or
fornication than it did for intraracial adultery or fornication. Though peonage cases involved the criminal
process and had important racial consequences, no explicit racial discrimination was at issue in them, and
the Supreme Court downplayed the racial impact.” (Schmidt, Jr. 1986, p. 1693.)
16
“In subsequent decisions, however, the Court began to uphold state economic regulations that explicitly
discriminated against Blacks or women, even when such laws violated economic liberty principles.”
(Bernstein 1990, p. 726, discussing Yick Wo and interpreting the victory as being more about economic
rights than equal protection, a theme that will re-appear later in Buchanan v. Warley.)
17
Mass. 5 Cush.198 (1850).
18
Seegert 1948, p. 640.
62
criminalization of interracial relationships was constitutional so long as it punished
participants of both races equally.
II. Governance Phase (1896-1938)
In 1896, after grappling with and avoiding any consistent approach on the
subject of race and the newly-ratified equal protection clause, the Court established the
doctrinal test of “separate but equal” in Plessy v. Ferguson.
19
Plessy concerned a
Louisiana statute that mandated segregation for its railway car passengers. Homer Plessy
was one-eighth black and was prosecuted by Louisiana officials for violating the statute.
The Court relied on the concept of formal equality to arrive at its decision, stating that
since the seating mandate meant that neither whites nor blacks had the liberty to sit
wherever they wanted, there was no unequal treatment because both whites and blacks
were burdened equally. Over the sole dissenting opinion of Justice Harlan, the Court
ultimately announced that “separate, but equal” laws would be judicially permissible.
Plessy represented the idea that if a classification were drawn on the basis of race, the
Court would not reject it on its face, but would rather look to be sure that both races were
impacted by the separation.
It is important to point out that the separate but equal doctrine represented the
general consensus among the public, political, and legal community.
20
It’s also
19
163 U.S. 537 (1896).
20
For a particularly thorough and excellent treatment of the jurisprudence of this era, see Klarman 1999.
63
important to note that the turn-of-the-century period covered a time when the Court was
far more concerned about the due process clause than the equal protection clause and the
fierce battle that was waged in that area did not allow much extra energy for rigorous
analysis of allegedly racist activities. However, when such cases did arise, the Court did
not hesitate to demonstrate its commitment to the newly articulated separate but equal
test.
As early as 1898, the Court decided Williams v. Mississippi,
21
concerning voter
registration requirements. Although the particular requirements generally worked to
disenfranchise blacks, the Court affirmed the state’s requirements using the separate but
equal framework, saying that “[t]hey reach weak and vicious white men as well as weak
and vicious black men.”
22
Cumming v. Richmond County Board of Education,
23
although not citing Plessy,
clearly relies on the separate but equal theory
24
to uphold the Georgia County’s practice
of using public funds to operate an educational facility for the area’s white students, but
not for the black students; it is this case that is eventually officially overturned by Brown
v. Board of Education. This case raised unusual aspects, however: at issue was
Richmond’s desire to convert its only public black high school that had approximately 60
students into a black primary school which would be able to serve a few hundred
students. Although the challenge rested on the fact that there would be no public black
21
170 U.S. 213 (1898).
22
Ibid., p. 222.
23
175 U.S. 528 (1899).
24
Chemerinsky 1997, p. 559.
64
high school when there were public white high schools, the utilitarian argument that more
black children would be served by a primary school than a high school seems to have
won out.
Berea College v. Kentucky
25
was a strong victory for the Plessy construction.
Berea College had been convicted for violating a state law that prohibited integration in
schools. Over two dissents, the Court upheld the conviction and the right of the state to
mandate separate educational facilities. In the same vein, Gong Lum v. Rice,
26
indeed
cites Plessy as, in fact, a much more difficult case to decide than this one,
27
and approves
separate schools for blacks and whites, classifying Martha Lum, a Chinese-American
nine-year-old as “colored.”
Outside the educational arena, the court returns to the railway industry in McCabe
v. Atchison, Topeka and Santa Fe Railway Co,
28
where the Court chides the railway
companies in question for providing diner, sleeper, and other luxury cars for white
passengers, but not for black passengers. “McCabe was the first time the Court gave
weight to the equality side of the separate but equal equation;”
29
however, the Court
expressly reiterates that separate cars are constitutionally permissible, per Plessy. Also
concerning railway travel and interstate commerce, Chiles v. Chesapeake O.R. Co.,
30
25
211 U.S. 45 (1908).
26
275 U.S. 78 (1927).
27
Ibid., p. 86.
28
235 U.S. 151 (1914).
29
Schmidt, Jr. 1982, p. 492-493.
30
218 U.S. 71 (1910).
65
relied on Plessy reaffirming that the separation of races in this manner was an acceptable
action for the railway company.
Finally, “[f]or the first time, in Buchanan v. Warley in 1917, it found in the
Fourteenth Amendment constitutional limits on the spread of laws requiring racial
separation, and, also … put some teeth in the equality side of the “separate but equal”
doctrine.”
31
This case has presented a dilemma to many Court observers, given that the
unanimous decision opposing an ordinance mandating racial segregation seems awfully
race-protective at a time when the Court was not overly concerned with that goal.
However, the tension seems resolved if the case is examined as one of those cases noted
above where race issues crossed paths with economic and property rights issues. In fact,
a sweep of contemporary comments shows that “…the law reviews saw the decision as
mainly about property rights rather than about a baseline principle of
nondiscrimination.”
32
That view has persisted. “Both at the time and later, most legal
scholars have seen Buchanan as a decision of property rights. …It is easy to see why this
view of Buchanan has taken hold. Day’s opinion makes no mention of equal protection,
other than in the course of general recitals of the Fourteenth Amendment. He focuses
throughout either on the amendment at large or on the due process clause and rights of
property.”
33
31
Schmidt, Jr. 1982, p. 445.
32
Schmidt, Jr. 1982, p. 509.
33
Ibid., p. 518.
66
Given the caselaw, it should be readily apparent that this time period is relatively
representative of consistent application of the separate but equal doctrine. By utilizing
the criteria that Kritzer and Richards, et al, describe, we can see if it might pass that test,
as well.
A settled, broadly applicable doctrinal “test” for a given area of caselaw
Plessy very clearly articulated a standard, and was able to draw from earlier cases,
both at the state level and at the Supreme Court level from earlier points in time, that
supported the test the Court wanted to use.
The first section of the statute enacts 'that all railway
companies carrying passengers in their coaches in this
state, shall provide equal but separate accommodations for
the white, and colored races, by providing two or more
passenger coaches for each passenger train, or by dividing
the passenger coaches by a partition so as to secure separate
accommodations: provided, that this section shall not be
construed to apply to street railroads. No person or persons
shall be permitted to occupy seats in coaches, other than the
ones assigned to them, on account of the race they belong
to.'
34
… [W]e think the enforced separation of the races, as
applied to the internal commerce of the state, neither
abridges the privileges or immunities of the colored man,
deprives him of his property without due process of law,
nor denies him the equal protection of the laws, within the
meaning of the fourteenth amendment…
35
[W]e cannot
say that a law which authorizes or even requires the
34
Majority opinion, p. 540.
35
Ibid., p. 548.
67
separation of the two races in public conveyances is
unreasonable.
36
Repeated citations either to test or establishing case in future relevant cases
Plessy quickly became the standard. Although the case technically only applied
to railway segregation, it was treated as applicable to education. This is not surprising,
given that the Court had drawn a large part of its inspiration from the earlier Roberts case
involving education. Regardless, as time rolled on, the separate but equal doctrine was
applied to and referenced by many more Supreme Court cases. As we have seen through
the case history, virtually all of the caselaw in this area turns on understandings of Plessy
and the separate but equal type of analysis.
Legal and/or academic validation of that test or establishing case
Even Justice Harlan, the only dissenter in Plessy (Justice Brewer did not
participate in the case), knew that the decision would be pivotal and warned his brethren
that history would not look kindly on their choice to move jurisprudence in this direction.
Other scholars have agreed that Plessy marked a turning point in legal consistency, even
if the Court was only following the most likely understanding of the equal protection
clause at the time.
Specifically about Plessy, the community has contributed the following:
36
Ibid., p. 550-551.
68
This bedrock opinion establishing the “separate but equal”
principle said nothing whatever about equality, and indeed,
in its reasoning, rejected equality as a condition to the
constitutionality of Jim Crow.
37
The Supreme Court adoption of the “separate but equal”
doctrine in Plessy v. Ferguson was not a turning point or
point of departure in the legal history of race relations, as
many commentators have suggested. It was rather an
affirmation of the dominant legal concept of equal rights in
public accommodations in the federal courts all across the
country after the Civil War. The Supreme Court’s
decision established it unquestionably as the supreme
law of the land.
38
(emphasis added)
The decision on the Plessy case has frequently been cited as
a definite ruling on the constitutionality of segregation in
public schools.
39
[Plessy] institutionalized what had been developing in state
courts for almost fifty years. What began in Roberts v.
Boston as law for Massachusetts now became legalized by
the Supreme Court for the entire nation.
40
Plessy v. Ferguson became the leading case in nearly all
segregation litigation.
41
The Plessy case introduced several enduring legal
principles and metaphors into the constitutional discourse
about race, civil rights, and models of the ideal democratic
public.
42
37
Schmidt, Jr. 1982, p. 468.
38
Riegel 1984, p. 39.
39
Gauerke 1953, p. 16.
40
Ficker 1999, p. 310.
41
Hobbs 1952, p. 491.
42
Elliott 2001, p. 288.
69
The Fourteenth Amendment became firmly encrusted with
the separate-but-equal interpretation adopted in the Plessy
case.
43
Discussing Plessy’s application to education and beyond:
It was not surprising … that the Supreme Court in Gong
Lum v. Rice, decided in 1927, upheld racial segregation in a
public school system on the authority of Plessy v. Ferguson
and other earlier state court decisions dealing with the same
question.
44
So, without ever having been pleaded, argued, or
determined, the separate but equal rule as applied to
education was now declared to be the settled law of the
land [in Gong Lum].
45
In [the school segregation cases of the early twentieth
century] the court followed the Plessy case as a precedent.
Several present-day cases raising the issue of segregation in
public schools have come into the federal courts. From the
decisions, the influence of the Supreme Court on the policy
and practice of segregation of the two races in public
schools is clearly discernible.
46
Note … that the Court [in the educational arena segregation
cases of the twentieth century] expressly refrained from
passing upon the more fundamental question of the
applicability of the separate but equal principle itself in the
field of public education[, electing to leave it in place].
47
During the years following the Plessy decision, the rule of
that case was interpreted and applied in a wide variety of
situations, some differing more or less sharply from
intrastate passenger transportation, with the effect of giving
43
Kauper 1954, p. 1137.
44
Ibid., p. 1145.
45
Ransmeier 1951, p. 219.
46
Gauerke 1953, p. 17.
47
Ransmeier 1951, p. 218.
70
substantial judicial support to legally enforced race
separation.
48
This decision, which was immediately interpreted to
regulate every conceivable aspect of life, presented the
Negro with a racial future in which he would happily live
among “his people.”
49
Finally, even passing commentary pointed out that the doctrine was applicable
over time, noting that “…Chiles was a routine decision on the level of doctrine…”
50
and
that “[t]he White Court did not repudiate the essential principles of Jim Crow laid down
by the Fuller Court in Plessy v. Ferguson and Louisville, New Orleans & Texas Railway
v. Mississippi.”
51
Separate but equal was a dominant theme during the early twentieth century.
Although it’s difficult to see how the Court could have decided its cases any other way at
the time, given the very widespread consensus on the acceptability of de jure
segregation,
52
Plessy and the Court’s approval of the doctrine certainly played some
significant role in the emergence and prominence of southern Jim Crow laws.
48
Ibid., p. 215.
49
Roche 1951, p. 1951.
50
Schmidt, Jr. 1982, p. 479.
51
Ibid., p. 523.
52
“Unlike original intent, however, legal precedent strongly supported the constitutionality of de jure
railroad segregation. The Justices in Plessy were not writing on a blank slate simply because the Supreme
Court had yet to consider the permissibility of racial segregation under the Fourteenth Amendment.
Roughly three decades worth of lower court decisions tilted strongly toward sustaining de jure racial
discrimination.” (Klarman 1998, p. 328.)
71
III. Post-Governance Phase (1938-1954)
During and after the New Deal, however, attitudes of the political and legal elite
were beginning to change. The Court’s earlier McCabe decision almost seemed prescient
about the direction that the Court would next follow, as it attempted to cling to its
established doctrine, but adapt it to changing needs and times.
McCabe was thus a breach in the aura of permanency that
surrounded the regime of Jim Crow in the second decade of
the twentieth century. It was not so from any explicit
doctrinal innovation, for the decision was not inconsistent
on its face with the doctrine of separate but equal.
However, by insisting on principled adherence to the
equality side of the doctrine, McCabe revealed a judicial
attitude that cast doubt on the future of the doctrine itself,
because realistically the separate but equal doctrine was
incompatible with itself in most situations, and if courts
approached the doctrine in a rigorous rather than excusing
way, it could not long survive.
53
To that end, the Court first signaled that change was coming in State of Missouri
ex Rel. Gaines v. Canada,
54
which considered an all-white law school, where no black
alternative existed within the state. The Court applied the separate but equal test, and
determined, a la McCabe, that that “equal” portion mandated that the state either needed
to admit black students to the all-white school, or create an in-state black alternative.
Although Missouri stated an intention to build and open a black law school, the Court
was not convinced that an intention satisfied the requirements of the Plessy test.
53
Schmidt, Jr. 1982, p. 493.
54
305 U.S. 337 (1938).
72
Hale v. Kentucky
55
relied on the earlier Neal v. Delaware decision, continued the
line of jurisprudence related to jury selection. In Hale, the Court found that there was a
systematic pattern of excluding blacks from juries for a period of over fifty years.
Although this case was partially decided on Equal Protection Clause grounds, Plessy was
not relevant nor mentioned. Again citing Neal, Pierre v. Louisiana
56
again reminded
states that it was impermissible to exclude blacks from serving on juries. Grand juries
were the issue in this case, but the Court made it clear that the same rule governs. Smith
v. Texas
57
continued to drive the jury selection point home. On behalf of the Court,
Justice Black even wrote, “ [i]f there has been discrimination, whether accomplished
ingeniously or ingenuously, the conviction cannot stand.”
58
Given that in most of its
“cases, however, the Court largely nullified Strauder by making such discrimination
virtually impossible to prove,”
59
this newfound commitment on the Court is notable.
The facts of Sipuel v. Board of Regents of University of Oklahoma
60
were
virtually identical to those of Gaines v. Canada, concerning a black woman denied
admission to the state’s single and all-white law school. The Court stayed consistent with
precedent, writing a brief per curium decision, reminding Oklahoma that Gaines was still
good law.
55
303 U.S. 613 (1938).
56
306 U.S. 354 (1939).
57
311 U.S. 128 (1941).
58
Ibid., p. 132.
59
Klarman 1998, p. 376.
60
332 U.S. 631 (1948).
73
In a different type of case, the Court revisited and extended Buchanan v. Warley.
In Shelley v. Kraemer,
61
the Court was faced with race restrictive covenants between
private property owners. Although keeping with its commitment to private property
rights, the Court held that covenants alone were permissible, the Court also unanimously
held that the covenants could not be judicially enforced because that would amount to
unconstitutional discriminatory state action.
Sweatt v. Painter
62
challenged the Court’s commitment to Plessy. At issue was a
black law school applicant denied admission to Texas’ all-white law school. The singular
feature of this case was that Texas actually had a black law school that the applicant
could have attended. The contention was that the law school did not fulfill the “equal”
prong of the Plessy test, and the Court agreed. They were not ready to dismiss Plessy
fully, however, stating that it was unnecessary to “reach petitioner's contention that
Plessy v. Ferguson should be reexamined in the light of contemporary knowledge
respecting the purposes of the Fourteenth Amendment and the effects of racial
segregation.”
63
McLaurin v. Oklahoma State Regents,
64
decided in conjunction with Sweatt,
pushed the limits of the Plessy test even further. Mr. McLaurin had been eventually
admitted to a doctorate program at the all-white University of Oklahoma, pursuant to
Gaines v. Canada and Sipuel. However, once admitted, he was segregated due to his
61
334 U.S. 1 (1948).
62
339 U.S. 629 (1950).
63
Ibid., p. 636.
64
339 U.S. 637 (1950).
74
race, and required to attend classes, eat lunch, and study in the library in a different
location and sometimes at a different time than his white counterparts. Although the
Court could find no discrete inequality in the tangible aspects of education he was
receiving, the Justices unanimously stretched their understanding of the “equal” prong of
separate but equal to include the intangible disadvantages suffered by Mr. McLaurin as a
result of the segregated learning and affiliated facilities.
“[The Court] was able to avoid the issue [of overturning Plessy] in these two
cases by finding that the Negro students here involved suffered unlawful discrimination
within the framework of the segregation pattern established by the state since they did not
in fact enjoy equality in the educational opportunities offered by the state.”
65
These two
cases were the Court’s last-ditch attempt to preserve its half-century precedent.
We can see that the Court is struggling with a doctrine that seems to have outlived
its usefulness. The signs that APD literature suggest in order to identify the post-
governance phase of a regime are useful ways to understand what is transpiring on the
Court.
Alterations to the doctrinal test
Although the test formally remains “separate but equal,” during this period, the
Court begins articulating the standards in ways that were not consistent with the original
understanding of the doctrine. Originally, the “equal” prong only stood for the
65
Kauper 1954, p. 1138.
75
proposition that conditions had to be reasonably similar and not completely offensive.
Contrary to what it seemed in the late 1930s and 1940s, the Plessy court almost certainly
did not envision the “equal” portion of the test as having any teeth. The way that
Klarman puts it is that “[w]hile modern courts and commentators generally have Plessy
as requiring segregated facilities be equal to be constitutional, a close reading suggests
that the Justices probably understood their decision differently.”
66
In the beginning, Court observers were not sure what to make of the Court’s new
direction. In 1939, the Chicago Law Review’s Note sadly concluded the following:
In view of the traditional delicacy with which the Court has
handled the problem of southern race relations, the instant
decision represents a bold and laudable affirmation of
Negro rights. The possibility of judicial action, however, is
limited and the far-reaching consequences claimed for the
decision are not to be expected. The principle of
segregation is preserved. Aside from the limitation that
equal facilities must be provided by and within the state, no
hint is given that the court will further whittle the
doctrine.
67
As time passed, some tried to be hopeful while remaining cautious: “Since that
time a discussion has raged on the implications of these two decisions with some
commentators maintaining that the Court in effect undermined the precedent of Plessy v.
Ferguson and others of a more cautious bent holding that the Court did no more than
66
Klarman 1991, p. 229.
67
p. 305.
76
reemphasize the principles enounced ten years ago in Missouri ex rel Gaines v.
Canada.”
68
However, as the caselaw proceeded, the re-interpretation and clear decline of the
Plessy doctrine that the Court was engaged was quickly noticed by contemporary
scholars, writing prior to Brown.
While giving lip-service to Plessy v. Ferguson and
purporting to act within in the confines of the separate-but-
equal doctrine, the Court had effectively devitalized the
doctrine in at least one area of public education.
69
Plessy v. Ferguson still stands, but not with its former vigor
and certainty. Like an ancient fort, it shakes upon its
foundations and the wind whistles through gaps in its walls.
Some may claim it is still defendable, but others, with a
better understanding of the imperatives of modern
democracy, realize that its walls are but hollow shells.
70
Plessy v. Ferguson can be overruled in either of two ways.
It can be outrightly, explicitly reversed by the present
Supreme Court, or it can be subverted in an indirect
fashion. It appears, for reasons that I have elaborated
elsewhere, that the “separate but equal” rule is to be given
the latter treatment. … The process of erosion has already
proceeded some distance.
71
Although the Court carefully avoided a reconsideration of
Plessy v. Ferguson and the separate-but-equal doctrine
derived from it, it is clear that these two cases sounded the
death knell for legally imposed racial segregation in the
field of higher education under state auspices.
72
68
Roche 1951, p. 949.
69
Kauper 1954, p. 1147.
70
Roche 1951, p. 959.
71
Ibid., p. 219.
72
Kauper 1954, p. 1147.
77
Any doubt that might have remained as to the validity of
racial segregation in the enjoyment of residential property
was dispelled by Shelley v. Kraemer which held that
enforcement by a state court of a restrictive covenant
precluding the use of residential property by Negroes was
state action that amounted to a denial of the equal
protection of the laws. The opinion in this case was notable
not only because it equated judicial enforcement of
restrictive covenants with residential segregation
ordinances for the purpose of determining whether there
was “state action,” but also because the Court in finding
that enforcement of these covenants resulted in
unconstitutional discrimination against Negroes advanced
arguments that were basically incompatible with the
reasoning of Plessy v. Ferguson.
73
Thus, though the decision of Plessy v. Ferguson remains on
the books and though it yet supports at least the trappings
of a system of caste and encourages decisions such as that
of Judge Hayes in North Carolina, its vitality would seem
to be waning, its decision less a comfort to those unable to
understand Justice Harlan’s uncompromising plea for total
democracy.
74
Mobilized parties take a new and aggressive position on the issue with the Courts
“Shelley v. Kraemer was the first of the post-World War II civil rights cases in
which the United States decided to participate as amicus curiae.”
75
In addition, a couple
of years later, the U.S. Government very clearly and publicly stated its opposition to
segregation in Henderson v. United States,
76
a case that was ultimately decided on
73
Ibid., p. 1144.
74
Groves 1951, p. 72.
75
Elman and Silber 1987, p. 817.
76
339 U.S. 816 (1950).
78
statutory, rather than constitutional, grounds. Philip Elman, one-time clerk and all-time
confidante to Justice Frankfurter, recalled the way the federal government began their
involvement in the segregation cases: “The Court noted probable jurisdiction, the ICC
argued the case in support of separate but equal, and we wrote a brief in which –this was
in 1949- for the first time, a party before the Court asked it to overrule Plessy v.
Ferguson. We wrote a long brief arguing the psychological effects of segregation, the
sociological effects, as well as law. We took a flat, all-out position that segregation and
equality were mutually inconsistent, that separate but equal was a contradiction in
terms.”
77
Different outcomes occur than were initially envisioned at the doctrine’s creation
The decision reached during this time period can generally be described as race
protective. As noted at the outset of this project, the outcomes of cases are not my focus;
however, it bears noting that when a pattern of case outcomes is so clearly at odds with
the original understanding of the framers of the doctrinal test, then we must consider the
possibility that the Court is applying either a different test, or has so fundamentally re-
interpreted the test as to render it anew. Two legal observers, writing in 1951, before
they had seen what the Court would do in Brown, phrased it like this:
It is, however, true that the philosophy of government
implicit in the decision of Plessy v. Ferguson has been
77
Elman and Silber 1987, p. 821.
79
increasingly under legal attack in recent years. … In
addition, many observers see, through a synthesis of the
holdings of those three cases--arguments of which were
heard concurrently and the opinions of which were handed
down on the same day-- what amounts, in fact, to an
overturning of the doctrine of “separate but equal.”
78
Legal development often proceeds in this manner with new
wine being poured into old bottles, old words being given
new meaning, until occasionally a concept which one had
content in the minds of its originators may end up being
interpreted in a diametrically opposed fashion by later
exegetes. The “separate but equal” rule is apparently fated
to die of reinterpretation.
79
Separate from these factors is the observation that the Court was even willing to
protect race issues by going outside the equal protection clause or the Plessy test, as need
be. Assuming that this was a conscious decision, the motivation is difficult to assess.
One possibility is that the justices realized that they were pushing the envelope too
quickly on race issues, given where the rest of the country seemed to be. Another
possibility is that this willingness to resort to extra-equal-protection methods reflected the
Court’s ever-growing impatience with the constraints of the separate but equal test.
One key example of such a circumvention occurred in the Scottsboro cases.
80
The Court analyzed most of these related cases as criminal due process cases, where it
would not be bound by the separate but equal regime,
81
even though, ultimately, the
78
Groves 1951, p. 71.
79
Roche 1951, p. 225.
80
See Lazarus 1998, pp. 77-80, for a narrative of the story.
81
Powell v. Alabama 287 U.S. 45 (1932) concerned a group of young black men who were convicted and
sentenced to death for allegedly gang-raping two white women. The Supreme Court reversed the men’s
convictions on the grounds that inadequate counsel had been provided and was therefore a denial of their
80
Court did come around to base race-protective decisions in this matter on the equal
protection clause.
82
Another example is Shelley v. Kraemer, where “[t]he Supreme
Court’s ultimate decision in Shelley reached the “right” result, but on a dubious
premise.”
83
There are a variety of other examples during this time period.
84
IV. Conclusion – How Does It All Fit?
This first Jim Crow regime follows the life cycle model well. The Court first
experiences the pre-governance phase, considering cases in a variety of arenas and
applying a variety of methods to evaluating them. Plessy moves the Court into the
governance phase by pulling from its own prior caselaw and that of lower courts to
establish the separate but equal test, with its focus on the “separate” prong. Finally, the
Court signals its turn to the post-governance phase by focusing on the “equal” prong,
marking a definitive turn in its jurisprudence as it carved away at its doctrinal test.
The middle part of this regime is a model example of the governance phase.
Plessy outlines a clear test for evaluating challenges to the 14
th
Amendment’s equal
due process rights. It is significant to reiterate that the decision was not based on equal protection grounds,
even though the defendants had raised an equal protection claim (see p. 49).
82
The Scottsboro cases came back to the Court again a few years later in Norris v. Alabama 294 U.S. 587
(1935) and Patterson v. Alabama 294 U.S. 600 (1935), where the boys had been re-tried and re-convicted.
The Court based this decision on the fact that, in practice, no black was or had been allowed to serve on
juries in that region.
83
Silard 1966, p. 858.
84
For criminal procedure cases, see Chambers v. Florida 309 U.S. 227 (1940) and White v. Texas 310 U.S.
530 (1940). For voting rights cases, see Lane v. Wilson 307 U.S. 268 (1939), Smith v. Allwright 321 U.S.
649 (1944), whose impact was lessened because the federal government retreated from enforcing it due to
political pressure (see Lawson 1976, p. 47), and Terry v. Adams 345 U.S. 461 (1953). For due process
cases, see Hansberry v. Lee 311 U.S. 32 (1940) and Mitchell v. U.S 313 U.S. 80 (1941).
81
protection clause when that challenge involves a racial classification. It is general in
principle, not limited to certain circumstances, and is applicable to such disparate subject
areas as railway commerce and education. For Plessy, even though the case and doctrine
have been long overturned, both are still cited as representative of that era and as the
examples of what current jurisprudence and practice has replaced, while most of the other
cases have faded into casebook footnotes, or paragraph mentions at best.
85
This regime
also highlights another feature of the post-governance phase not described by APD
literature. As the Court becomes less interested in using a particular doctrine, it
sometimes will resort to options outside the relevant analytical method. In this period,
we see that happen with Court turning to concepts from criminal procedure, voting rights,
and liberty and property rights.
But what about jurisprudential regimes? From a qualitative perspective, the Jim
Crow era reinforces the central holding of the jurisprudential regime literature – that there
is one case or group of cases that serves as a turning point in the Court’s doctrinal
analysis of a given area of law. Contemporary and current scholars agree that Plessy
marked that turning point in cases concerning race and equal protection. The analytical
construction has informed the way that jurists think about equal protection today, and it
certainly governed a long line of cases. It is likely that quantitative analysis would also
yield confirmation that Plessy is the trigger for this new regime.
85
Chemerinsky 1997, pp. 558-559, and Bell 2004, generally.
82
CHAPTER 4
REGIME TWO: THE CIVIL RIGHTS ERA
STRICT SCRUTINY FOR CLASSIFICATIONS DISADVANTAGING
MINORITIES
The civil rights era, of which Brown usually stands as its centerpiece, was a
critical test of America’s commitment to protect all of its people. Especially as the New
Deal ideology had settled in with permanence and the need for the U.S. to be able to
assert an unassailable position in the global community emerged, the judiciary was
willing to do its part to entrench new notions of racial equality. Helped, in large part, by
a very active Warren court, the political parts of the civil rights movement achieved
success, as codified in the 1964 Civil Rights Act. Although many of the gains of the civil
rights heyday have been reversed or nullified, the shining period remains a beacon of
hope to many.
I. Pre-Governance Phase (1938-1964)
In the late 1930s, the Courts articulated a vision that would later be used as a
foundation for its civil rights jurisprudence. The case at issue in U.S. v. Carolene
Products
1
was, unrelatedly, a statute prohibiting the distribution of “filled milk.” The
challenge was presented on due process and Commerce Clause grounds and was decided
along those same lines. However, within Justice Stone’s majority opinion, the famously
1
304 U.S. 144 (1938).
83
cited Footnote Four laid the groundwork for the Court to use to justify its later
jurisprudence. Footnote Four is represented here:
There may be narrower scope for operation of the
presumption of constitutionality when legislation appears
on its face to be within a specific prohibition of the
Constitution, such as those of the first ten Amendments,
which are deemed equally specific when held to be
embraced within the Fourteenth.
It is unnecessary to consider now whether legislation which
restricts those political processes which can ordinarily be
expected to bring about repeal of undesirable legislation, is
to be subjected to more exacting judicial scrutiny under the
general prohibitions of the Fourteenth Amendment than are
most other types of legislation.
Nor need we enquire whether similar considerations enter
into the review of statutes directed at particular religious…
or national… or racial minorities… whether prejudice
against discrete and insular minorities may be a special
condition, which tends seriously to curtail the operation of
those political processes ordinarily to be relied upon to
protect minorities, and which may call for a
correspondingly more searching judicial inquiry.
2
Although the Court does not take action at this point under this philosophy, it
does revisit it later. Similarly, Skinner v. State of Oklahoma Ex Rel. Williamson,
3
which
concerned the mandatory and involuntary sterilization of certain criminals, marks the first
time that the Court articulates the term “strict scrutiny of the classification.”
4
There is no
further explanation, however, of what the test is and how it is to be applied. This
2
Ibid., n. 4, p. 155.
3
316 U.S. 535 (1942).
4
Ibid., p. 540.
84
articulation goes essentially unnoticed, especially because, although decided under the
equal protection clause, it does not concern a racial classification.
Korematsu v. United States,
5
concerning the internment of Japanese Americans
during World War II, also uses similar wording. In fact, it is common for scholars to
refer to Korematsu as the first articulation of the strict scrutiny test in a racial
discrimination case, citing the following language:
It should be noted, to begin with, that all legal restrictions
which curtail the civil rights of a single racial group are
immediately suspect. That is not to say that all such
restrictions are unconstitutional. It is to say that courts must
subject them to the most rigid scrutiny. Pressing public
necessity may sometimes justify the existence of such
restrictions; racial antagonism never can.
6
Unfortunately, like Skinner, the Court gives no guidance on how to actualize the
test, which renders it rather hollow. In fact, research contemporaries at that time make it
seem clear that nothing was particularly notable about that wording; scholarship focused
instead on the limited scrutiny the issue was given, a far cry from expressing hope about a
new heightened standard. Korematsu only begins to become important a full ten years
later, when, in Bolling v. Sharpe,
7
the Court cites Korematsu for the principle that
“[c]lassifications based solely upon race must be scrutinized with particular care, since
they are contrary to our traditions and hence constitutionally suspect.”
8
5
323 U.S. 214 (1944).
6
Ibid., 215 (1944).
7
347 U.S. 497 (1954).
8
Ibid., p. 499.
85
However, the actual strict scrutiny test is still not explained, explored, or
articulated in any of these cases and, in fact, in Brown v. Board of Education,
9
the
decision widely held to be the first real victory for minority rights,
10
Carolene Products,
Skinner, and Korematsu are not even mentioned.
Looking at this portion of the pre-governance phase, it is clear that we have a
different kind of model. Given my interpretation that the Gaines, Sipuel, Sweatt, and
McLaurin cases represent a decline in the Plessy standard, rather than the rebuilding of a
new doctrine, these three cases may seem disparate and out of place. Yet, even applying
the standard criteria yields persuasive results, depending on the interpretation.
No settled doctrine for evaluation of the issue/area
This criterion presents an interesting challenge. During this period of time, the
Court is focusing its attention on unraveling the Plessy test. As a result, it’s difficult to
believe that they are focusing any deliberate attention on creating something to replace
the separate but equal test if or when they eventually overturn it. It can therefore be
noted that the Court’s post-governance phase of the Jim Crow era clearly overlaps with
this portion of the Civil Rights era’s pre-governance era. This is consistent with another
9
347 U.S. 483 (1954).
10
Although, see Klarman 1996 for a critique of this widely held assumption.
86
feature of APD literature. Orren and Skowronek
11
posit the notion of intercurrence,
which
proceeds on the observation that at any given time,
institutions, both individually and collectively, juxtapose
different logics of political order, each with their own
temporal underpinnings. Separate institutions and
institutional arrangements, operating according to
distinctive ordering principles, structure the passage of time
- the sequences and cycles, the changes and lulls - at
varying rates.
12
At any one time, they believe that there are several timelines in effect that weave
together to form intercurrence, “an analysis of the multiple, incongruous orders that are
formative of politics at any given moment.”
13
Intercurrence helps to explain why, for
example, the Court might be engaged in the pre-governance phase regarding substantive
due process issues, but in the post-governance phase for Establishment issues, and so on.
And it clearly provides a description of what is happening in the Court’s jurisprudence in
this era where the post-governance phase of the previous regime overlaps with the pre-
governance phase of this one. The three cases here do not deal all directly with equal
protection and race, and yet all provide pieces of the later doctrine, as we see below. As
a result, while the Court is devoting most its attention to dismantling Plessy, there is a
void in this area.
11
Orren and Skowronek 1994, 1996, and 2004.
12
Orren and Skowronek 1994, p. 311-312.
13
Orren and Skowronek 1996, p. 137.
87
Language or concepts in opinions that is/are later used to weave the doctrinal test
As noted earlier, the primary indication of this pre-governance phase is the
observation that each case contains either concepts or wording that show up later in the
eventual finalized doctrine. Several commentators noted the early use of relevant
language and the fact that it transitioned into usage later.
The first use of the phrase “strict scrutiny” in an equal
protection challenge to a race-based classification appears
in the Japanese-American internment cases during World
War II, and the concepts underlying strict scrutiny can be
traced back to the famous footnote 4 of the Carolene
Products case.
14
Despite its outcome, we do teach Korematsu as the case
announcing the equal protection principles of suspect
classifications and strict scrutiny.
15
We already see the glimmerings of this idea in the famous
Carolene Products footnote. In the midst of expounding
the highly deferential standard that will become the rational
basis test, the Court suggests that it may abandon the
traditional presumption of constitutionality where the Bill
of Rights is affected, where the democratic process is
adulterated, or whether “discrete and insular minorities” are
harmed.
16
Carolene Products was part of the Court’s dramatic change
of course in the late 1930s, in which it abandoned strict
scrutiny of economic regulation and adopted a new role for
itself in protecting civil rights and liberties.
17
14
Bhagwat 1997, p.307.
15
Rubin 2006, p. 1892.
16
Balkin 2005, p. 117.
17
Farber and Frickey 1991, p. 689.
88
…Korematsu undeniably employed language suggesting
that racial classifications were presumptively objectionable
and thus subject to the most rigorous judicial scrutiny. Yet
in both cases, not withstanding the grandiose rhetoric, the
Court actually applied its most deferential brand of
rationality review.
18
The present strict scrutiny test has its origins in
Korematsu…
19
We do not mean to suggest that Ely was wrongheaded in
pointing out Carolene Products provides a theory to bolster
Brown and its progeny, or that Carolene Products
considerations are not a major part of the text or subtext in
many cases, or even that the Court ‘got it right’ in each of
the cases.
20
II. The Perplexing Matter of Brown
Brown v. Board of Education
21
and its direct progeny present a doctrinal
dilemma, especially for the model of jurisprudential regimes. By now, the story of
Brown is well-known. In a unanimous opinion, the Supreme Court explicitly rejected the
separate but equal test, proclaiming that “[s]eparate educational facilities are inherently
unequal.”
22
Although the Court did not officially overturn Plessy until two years later,
23
18
Klarman 1991, p. 232.
19
Meyers 1986, p. 1186 n.15.
20
Farber and Frickey 1991, p. 694.
21
347 U.S. 483 (1954).
22
347 U.S. 483, p. 495.
23
Gayle v. Browder 352 U.S. 903 (1956).
89
Plessy’s jurisprudential regime was unquestionably finished, replaced by the Brown
philosophy.
Many cases in the school arena carried out Brown’s mandate. McNeese v. Board
of Education,
24
Goss v. Board of Education,
25
Green v. County School Board,
26
U.S. v.
Montgomery County Board of Education,
27
Alexander v. Holmes County Board of
Education,
28
Swann v. Charlotte-Mecklenburg Board of Education,
29
Davis v. School
Commissioners of Mobile County,
30
McDaniel v. Barresi,
31
North Carolina State Board
of Education v. Swann,
32
Keyes v. School District No. 1, Denver, Colorado,
33
and
Norwood v. Harrison
34
all related to segregation issues in the educational forum; all were
handled consistently, by citing Brown and each subsequent relevant case.
That Brown controlled decisionmaking seems beyond question, but,
unfortunately, that decisionmaking philosophy was less an affirmative doctrine, and more
of a rejection of what had come before. The ten-year period following Brown is
24
373 U.S. 668 (1963).
25
373 U.S. 683 (1963).
26
391 U.S. 430 (1968).
27
395 U.S. 225 (1969).
28
396 U.S. 19 (1969).
29
402 U.S. 1 (1971).
30
402 U.S. 33 (1971).
31
402 U.S. 39 (1971).
32
402 U.S. 43 (1971).
33
413 U.S. 198 (1973).
34
413 U.S. 455 (1973).
90
characterized by an overriding clarity that any sort of segregation or classification drawn
in a manner understood to disadvantage minorities will be treated to a high level of
skepticism by the Court. Brown unquestionably articulates a clear vision, but does not
articulate a clear doctrine.
Apparently, however, the vision was enough, at least for awhile, even in areas
other than education. In the immediate aftermath of Brown, the Court decided a series of
cases, striking down segregation in a variety of areas; all of the decisions were handed
down with no explanation and simply cited Brown as the controlling precedent. Holmes
v. Atlanta
35
struck down segregation in public golf courses. Mayor and City Council of
Baltimore v. Dawson
36
struck down segregation in public swimming pools. Gayle v.
Browder
37
desegregated the bus system, formally overturning Plessy. New Orleans City
Park Improvement Assn. v. Detiege
38
also focused on golf courses and, more generally,
city park facilities as a whole. Turner v. City of Memphis
39
focused on a publicly-
operated restaurant facility and Johnson v. Virginia
40
addressed a segregated courtroom.
As noted, each case cited Brown, and then also cited whichever of the other cases
had already been decided. At no point, however, did the Court explain how its decision
in Brown, which had pointedly focused on the fundamental nature of education, could be
35
350 U.S. 879 (1955).
36
350 U.S. 877 (1955).
37
352 U.S. 903 (1956).
38
358 U.S. 54 (1958).
39
369 U.S. 350 (1962).
40
373 U.S. 61 (1963).
91
applied to the use of city parks, golf courses, swimming pools, restaurants, or buses. The
vision of Brown thus became dominant enough that its statement that “[s]eparate
educational facilities are inherently unequal” was read to mean that separate facilities of
any kind were inherently unequal.
Although the life cycle model of jurisprudence that I am positing is relatively
fluid and could easily allow for a transitional period, the validation of the jurisprudential
regime literature requires that we place the Brown era in one of two options. Brown is a
clearly a turning point of some kind, so we could treat it as the beginning of the
governance phase or, since no doctrinal basis for the decision is announced, we could
treat is as part of the pre-governance phase. Since it has components of each period, I
will apply both criteria to show that, from a doctrinal viewpoint, Brown its progeny are
better understood as pre-governance cases.
A settled, broadly applicable doctrinal “test” for a given area of caselaw
As already discussed, Brown did not articulate a doctrinal support system for its
decision. The opinion discussed the fundamental importance of education, but even that
was ignored, as the case was used to strike down segregation in other areas. The most
that can be said of Brown is that it established a broadly applicable vision in any case
concerning segregation.
Brown, as the potential establishing case of the governance phase, also does not
cite any of the doctrinal pieces that would make up a doctrinal test. “Th[e] flurry of
92
commentary … obscured the fact that Carolene Products [was] not even cited, much less
relied upon in any axiomatic way, in Brown or any of the other traditional racial
discrimination cases. … Even more surprisingly, Carolene Products was not cited in
cases where the Court was more overtly concerned with perfecting the pluralistic political
process.”
41
If we assume that it is correct that Carolene Products, Korematsu, and
Skinner are all pre-governance cases, it raises a question that Brown does not weave them
into its opinion.
Repeated citations either to test or establishing case in future relevant cases
Ironically, in 1951, just prior to Brown, there was reason to believe that
segregation would die a slow death. As one Court observer wrote, “[i]n short, the
‘separate but equal’ enunciated in Plessy v. Ferguson was almost automatically
broadened to regulate every possible relationship between Negroes and white, but the
present Court will supply no similarly automatic counter-agent. Every area of
segregation must be litigated on its merits before the shade of Plessy will be exorcised
from American life and constitutional law. Presumably the Court looks forward to years
of peeling layers off the onion and at last arriving at the place where nothing remains.”
42
However, as we know from history, three years later Brown was decided.
Although it might have been treated as a case relating only to education, this was not to
41
Farber and Frickey 1991, p. 691-692.
42
Roche 1951, p. 950.
93
be the case; Brown was applied to segregation in a variety of arenas over the next nine
years, just as had happened with Plessy before. Despite the lack of reference to a
cohesive doctrine, those cases do refer to Brown’s principle of desegregation. Given that
parallel, there is support for treating Brown as the governance-triggering case.
Legal and/or academic validation of that test or establishing case
Civil rights observers often refer to Brown as changing the landscape on race
issues; however, legal commentators offer a more reserved insight, and rarely about
doctrinal impact.
Jack Balkin points out that “[i]n the years between Brown v. Board of Education
and Grutter v. Bollinger, courts construct a new doctrinal framework for articulating
claims about equal citizenship,”
43
generously acknowledging that the overall process
began sometime around Brown; but, we should note that this is not the same as saying
that in Brown, courts construct a new doctrinal framework.
In 1969, it was noted that “[t]he Court’s decision brought to an end the eroded
doctrine that a stare could separate students in public schools solely because of their race
so long as ‘equal’ facilities ere provided,”
44
but does not identify what doctrine took its
place.
43
Balkin 2005, p. 124.
44
Vieira 1969, p. 1553.
94
Later, this understanding broadly summarizes the way that Brown functioned as a
turning point, but even this analysis notes that Brown’s impact was largely rhetorical and
requires reference to Loving to make a serious doctrinal argument:
Thus, early on, the Supreme Court moved, if only in its
rhetoric, beyond the original understanding of equal
protection toward a broader understanding, one embracing
the principle that any law predicated on the view that one
person is by virtue of race inferior to another offends equal
protection. It was not until Brown v. Board of Education
that the Court was able, or willing, to enforce this broader
understanding. Brown and the subsequent per curiam
opinions disestablishing, with a simple citation to Brown,
segregated beaches, buses, golf courses, and parks, plainly
stand as the major vindication of the principle, implicit in
the Court’s thinking as early as Strauder and Plessy, that
state action predicated on the supposed moral inferiority of
a particular racial group is unjust. Loving v. Virginia, in
which the Court struck down an anti-miscegenation law,
represents another significant vindication of this principle.
Both Brown and Loving firmly establish the understanding
of equal protection defended by Justice Harlan in Plessy.
45
Mark Tushnet attempts to make a strong doctrinal case for Brown, stating, “[w]e
might understand Brown as designed not to accomplish actual integration, but to establish
a fundamental principle of constitutional law.”
46
However, he follows that sentence by
showing the doctrinal ambiguity of the case, allowing “[t]he precise content of that
principle has become controversial: It might be that race is an impermissible basis for
45
Perry 1979, p. 1030.
46
Tushnet 1994, p. 176.
95
government decisions, or that race is an impermissible basis for government decisions
that subordinate African Americans.”
47
Finally, we have the strongest statement noting Brown as a turning point in race
relations law:
When Chief Justice Warren assumed his post in October
1953, the underpinnings of the ‘separate but equal’ concept
had become unmoored beyond restoration. Full-scale
argument on the validity of apartheid in public education
was only weeks away, and the portent of change in the
constitutional doctrine governing American race relations
was unmistakable. Although the groundwork had been
carefully prepared for the Chief Justice’s announcement in
Brown v. Board of Education that fundamental principles
forbade racial segregation in the nation’s public schools,
the decision, when it was delivered on May 17, 1954, was
more than a break with the past. In interpreting the
fourteenth amendment as guaranteeing and securing to
Negroes equality in substance rather than in mere form, the
Brown decision was a revolutionary statement of race
relations law.
48
Some of the foundations are present to treat Brown as a governance-beginning
case; however, many are missing or weak. Turning to the criteria for adding the Brown
era to the pre-governance phase, it can be quickly conceded that Brown and its progeny
provided no evidence for the criteria of closely-divided decisions, switching “winning”
majorities, and/or frequent plurality opinions. Other criteria, however, seem persuasive.
47
Ibid., p. 176.
48
Carter 1968, p. 237.
96
No settled doctrine for evaluation of the issue/area
Although Brown and its progeny are cited for the proposition that segregation is
constitutionally impermissible, there is no doctrinal test established by this case. Michael
Klarman establishes “that the Court throughout the pre-Brown era (and indeed until the
mid-1960s) never espoused the notion that racial classifications were presumptively
unconstitutional (hereinafter, a ‘racial classification rule’).”
49
Instead, we have the
following observations about the Court’s lack of doctrine, and lack of the doctrine we
know will later emerge, in Brown:
Ironically, but perhaps appropriately, Brown v. Board of
Education does not use the language of scrutiny. It is a case
about harm to black schoolchildren, although today many
people, I suspect, instinctively identify it with the doctrinal
proposition that racial classifications are strongly
disfavored and will be viewed by courts with the most
searching scrutiny.
50
Rather, Brown is at the start of creating a new way of
organizing concepts of citizenship, one that will eventually
use concepts like scrutiny rules, classifications, and
fundamental rights. Of course, Brown does not tell us
anything about this theory, because it has not been
developed yet.
51
Prior to McLaughlin v. Florida, the Justices struggled to
reconcile a general rationality approach to equal protection
with an intermittent intuition that racial classifications were
objectionable even when not irrational.
52
49
Klarman 1991, p. 220.
50
Balkin 2005, p. 119.
51
Ibid., p. 121.
52
Klarman 1991, p. 316.
97
The decisions in Brown and the companion case of Bolling
v. Sharpe are doctrinally awkward.
53
Brown v. Board of Education is decided after World War II
when the old model had dissolved but before a new model
of constitutional citizenship had fully emerged to replace it.
There is one reason- although certainly not the only one-
why Brown says so little about its theoretical justifications
for jettisoning Plessy. Quite apart from the need to
maintain unanimity, the details of the new theory simply
had not been worked out. That required the efforts in
succeeding decades by lawyers, judges, politicians, legal
scholars, and members of social movements. Later on,
people attributed elements of the theory of citizenship that
developed in the 1960’s and 1970’s to Brown. In hindsight,
Brown has come to represent this second theory of
citizenship, even though that theory was not yet articulated
in 1954 and would not be fully articulated for several
decades.
54
Cases that raise parallel claims are handled differently
With Brown and the cases that followed it, it was not so much that parallel cases
were handled differently; quite the opposite, it was actually that cases that raised very
different issues were handled the same with no intellectually coherent explanation. The
justification for opposing segregation in Brown was because of the fundamental
importance of education, not an overarching theory about the evils of segregation in
general. Therefore, when the Court used Brown to strike down segregation in other
areas, it seemed a bit intellectually dishonest, even if socially and progressively desirable.
53
Balkin 2005, p. 121.
54
Ibid., p. 102.
98
Another way of putting it is that, after 1954, “[t]he remaining question is whether
racial classification is permissible under the School Segregation Cases. Most
commentators agree that the decisions did not foreclose such classification. The opinions
were limited in terms to education, and the explicit reason for not applying Plessy was
that separate facilities were seen as inherently unequal in that field. If Brown had
imposed a general ban on racial lines, Plessy would have been obliterated rather than ‘out
of place,’ and the discussion of separation and inequality which comprised much of the
opinion would have been wholly gratuitous.”
55
Similarly, based on a case in which the
Supreme Court had denied review,
56
one observer claimed that “…legislation requiring
racial segregation with respect to the enjoyment of public parks, swimming pools and
golf courses is not directly affected by the holding in Brown v. Board of Education, but
the facilities made available to the two races on a segregated basis must in fact be
equal.”
57
Of course, Brown was not read this way by all; some immediately saw where
the Court would go, noting, “[a]lthough, on its merits, the holding applies only to
segregation in secondary public education, it is inconceivable that segregation in
transportation, theatres, railroad stations, etc., can long survive.”
58
One more perspective offered that “an honest reading of Brown, given its
emphasis on the importance of education, did not support invalidation of segregated
recreational facilities. Some additional explanation, such as candid avowal of a racial
55
Vieira 1969, p. 1560.
56
347 U.S. 974 (1954), denying certiorari of Beal v. Holcombe (5
th
Cir. 1951) 193 F. (2d) 384.
57
Kauper 1954, p. 1154.
58
Roche 1954, p. 48.
99
classification rule, was required to justify convincingly the results in the post-Brown per
curiams. Yet the Court provided none. Especially during the hegemony of the ‘reasoned
elaboration’ school of jurisprudence, for the Court significantly to expand Brown’s
holding without a word of explanation was deemed wholly indefensible.”
59
In fact, related to this strange doctrinal happenstance is the fact that the Court
commanded an unnerving amount of unanimity around these decisions. Given that there
was no strong jurisprudential underpinning to the logic, we would expect to see closely-
divided decisions or even plurality opinions. Given that the unanimity cannot really be
explained by legal means, it must be that the justices understood the highly politicized
nature of the case.
No previous Supreme Court jurisprudence exists
Obviously, since the Slaughter-House Cases, jurisprudence had existed
interpreting the 14
th
amendment. Even the Plessy regime had serious ramifications of
pre-14
th
Amendment legal doctrine to contend with. But with Brown and its progeny’s
final revocation of separate but equal, the Court appears to be starting from a blank slate,
representing “the moment at which the old forms have cracked and new ones are yet to be
prepared. Brown, is like a child, full of future hopes and future possibilities.”
60
While
the Court is triumphant in ushering in a new age and engaging in a systematic
59
Klarman 1991, p. 248
60
Balkin 2005, p. 141.
100
dismantling of the Jim Crow system, the justices are too focused on that goal to cement
the legal underpinnings. As Jack Balkin put it, referring to Plessy as the first act,
“Brown, the second act, occurs after it has passed away, but nothing has clearly emerged
to replace it.”
61
That the Court feels like it has started from scratch can also be deduced from the
fact that the justices do not appear to realize that Carolene Products, Korematsu, or
Skinner might provide a useful legal foundation. It would have been relatively easy for
the Court to pull from these cases, but, as noted in the pre-governance section, infra,
there is no mention of any of these cases in Brown.
Language or concepts in opinions that is/are later used to weave the doctrinal test
If we revisit the arguments for treating Brown as the beginning of the governance
phase, it is clear that the pivotal nature of Brown really lies in its conceptual attack on
classifications intending to separate the races in ways that are obviously discriminatory or
motivated by discrimination. It is this concept that acts as the foundation for the strict
scrutiny level of analysis later.
Brown and its historical meaning is still the subject of much debate. The year it
was decided, it was heralded as a great victory.
61
Ibid., p. 102.
101
This epochal decision of May, 1954, far outdistances in its
impact even such massive acts of judicial legislation as The
Insular Cases and Erie v. Tomkins…
62
The result of the Court’s decision announced May 17,
1954, was the complete demolition of the Plessy doctrine in
its application to public schools.
63
Regardless, the debate mostly focuses on its political efficacy in stopping
segregation and/or underlying the success of the civil rights movement of the 1960s.
Although its prime position in the political and social landscape is assured, we should
confuse this with the legal trajectory the Court was on. In 1954, the Court rejected
separate but equal and spent the next few years ensuring that this new judicial policy was
clear to all. Unfortunately, the legal underpinnings of such a position were lacking,
which was pointed out even by contemporaries of the decision. From a political and
social perspective then, we may easily consider Brown the beginning of the civil rights
heyday; however, from a jurisprudential perspective, the Court was only beginning to
clarify its doctrinal position. The governance phase arrives when the Court merges
Brown’s vision with the doctrinal strands from the earlier pre-governance phase cases.
III. Governance Phase (1964-1974)
Beginning in the mid-1960s, the Court actually fashions the doctrinal analytical
test that underscores the Brown vision. To do this, it reaches back to cases decided in the
62
Roche 1954, p. 47.
63
Kauper 1954, p. 1147.
102
earlier pre-governance phase and pulls useful terminology and concepts from the
Carolene Products footnote, Skinner, and Korematsu. Bolling v. Sharpe
64
(the
companion case to Brown, but utilizing the 5
th
Amendment because the case concerned
schools in the federal District of Columbia) also has language that the Court utilizes, in
addition to citations all the way back to pre-Plessy concepts.
McLaughlin v. Florida and Loving v. Virginia appear to the first cases that
articulate the early versions of the strict scrutiny test. McLaughlin
65
concerned a state
anti-miscegenation law directed at cohabitating couples and provided the insight that
“[s]uch classifications
66
bear a far heavier burden of justification.” A few years later, the
Court went further, striking down a state anti-miscegenation law directed at married
couples in Loving,
67
specifically noting “the very heavy burden of justification which the
Fourteenth Amendment has traditionally required of state statutes drawn according to
race.”
68
Hunter v. Erickson,
69
a case that appropriately rarely draws scholarly attention,
concerned a fair housing ordinance passed by the City of Akron which was repealed once
a charter amendment was passed requiring the Akron City Council to get majority
approval from its citizens before implementing the ordinance. The Court struck down the
64
347 U.S. 497 (1954), p. 499.
65
379 U.S. 184 (1964).
66
Referring to racial distinctions in the law.
67
388 U.S. 1 (1967).
68
Ibid., p. 9.
69
393 U.S. 385 (1969).
103
charter amendment, continuing the strict scrutiny vision and, for really the first time,
pulls from all of the past casts to draw together the familiar language: “Because the core
of the Fourteenth Amendment is the prevention of meaningful and unjustified official
distinctions based on race,
70
racial classifications are ‘constitutionally suspect,’
71
and
subject to the ‘most rigid scrutiny.’
72
They ‘bear a far heavier burden of justification’
73
than other classifications.”
74
The strict scrutiny test, as it originated in McLaughlin and Loving, provides the
vehicle by which the Court continued its years of commitment to the Brown vision. The
language of the Carolene Products footnote, Skinner, and Korematsu are woven into the
fabric of the new doctrine, despite the fact that the authors of those cases likely did not
envision this utilization, and, the doctrine clearly carries out the vision of Brown and its
progeny.
From this time on, although the exact term “strict scrutiny” does not appear
frequently in cases concerning invidious racial discrimination, the test is used frequently.
Adickes v. Kress & Co.
75
concerned a white teacher who had been refused service in a
food established because, she contended, she was accompanied by several of her black
70
Slaughter-House Cases 16 Wall. 36, p. 71 (1873); Strauder v. West Virginia 100 U.S. 303, p. 307-308
(1880); Ex parte Virginia 100 U.S. 339, p. 344-345 (1880); McLaughlin v. Florida 379 U.S. 184, p. 192
(1964); and Loving v. Virginia 388 U.S. 1, p. 10 (1967).
71
Bolling v. Sharpe 347 U.S. 497 (1954) , p. 499.
72
Korematsu v. United States 323 U.S. 214 (1944) , p. 216.
73
McLaughlin v. Florida 379 U.S. 184 (1964) , p. 194.
74
393 U.S. 385, p. 392.
75
398 U.S. 144 (1970).
104
students. Among other issues, lower courts had narrowly construed the proof she would
have to submit to document a custom of discrimination. The Supreme Court reversed
and remanded the case, contending that “[f]ew principles of law are more firmly stitched
into our constitutional fabric than the proposition that a State must not discriminate
against a person because of his race or the race of his companions, or in any way act to
compel or encourage racial segregation.”
76
With the emergence of the strict scrutiny test formulation, the Court has finally
developed a vehicle for its vision, as we see when we apply the criteria for the
governance phase.
A settled, broadly applicable doctrinal “test” for a given area of caselaw
After searching for a doctrinal foundation that could underscore its jurisprudence
in Brown, the Court crafted the strict scrutiny test. Later formulations would shorten it to
mean that classifications at issue have to be necessarily related to a compelling
government interest. In its original form, however, the doctrine was more verbose, but
clearly marked a departure from the Plessy jurisprudence, while providing the guiding
doctrinal method of analysis.
76
Ibid., p. 150.
105
In McLaughlin, the Court announced the following:
But we deal here with a classification based upon the race
of the participants, which must be viewed in light of the
historical fact that the central purpose of the Fourteenth
Amendment was to eliminate racial discrimination
emanating from official sources in the States. This strong
policy renders racial classifications "constitutionally
suspect," and subject to the "most rigid scrutiny," and "in
most circumstances irrelevant" to any constitutionally
acceptable legislative purpose.
77
Our inquiry, therefore, is whether there clearly appears in
the relevant materials some overriding statutory purpose
requiring the proscription of the specified conduct when
engaged in by a white person and a Negro, but not
otherwise. Without such justification the racial
classification … is reduced to an invidious discrimination
forbidden by the Equal Protection Clause.
78
That a general evil will be partially corrected may at times,
and without more, serve to justify the limited application of
a criminal law; but legislative discretion to employ the
piecemeal approach stops short of permitting a State to
narrow statutory coverage to focus on a racial group. Such
classifications bear a far heavier burden of justification.
79
There is involved here an exercise of the state police power
which trenches upon the constitutionally protected freedom
from invidious official discrimination based on race. Such a
law, even though enacted pursuant to a valid state interest,
bears a heavy burden of justification, as we have said, and
will be upheld only if it is necessary, and not merely
rationally related, to the accomplishment of a permissible
state policy.
80
77
McLaughlin majority opinion, p. 191-192.
78
Ibid., p. 192-193.
79
Ibid., p. 194.
80
Ibid, p. 196.
106
In Loving, the Court honed its language more.
In the case at bar, however, we deal with statutes
containing racial classifications, and the fact of equal
application does not immunize the statute from the very
heavy burden of justification which the Fourteenth
Amendment has traditionally required of state statutes
drawn according to race.
81
At the very least, the Equal Protection Clause demands that
racial classifications, especially suspect in criminal statutes,
be subjected to the "most rigid scrutiny," and, if they are
ever to be upheld, they must be shown to be necessary to
the accomplishment of some permissible state objective,
independent of the racial discrimination which it was the
object of the Fourteenth Amendment to eliminate.
82
The broadly applicable nature of the strict scrutiny test is clear, given the
applicability to equal protection cases in other arenas, noted above, as well as its later
appropriation into the area of affirmative action.
Repeated citations either to test or establishing case in future relevant cases
In addition to the cases noted in the overview, it should be pointed out that
additionally, over the next roughly nine years, the Court grappled with different types of
discrimination in the equal protection arena. It is in this way that the scrutiny analysis
really shows its entrenchment. Instead of crafting completely new doctrine, the strict
scrutiny formulation was so entrenched that the only question for the Justices was which
81
Loving majority opinion, p. 9.
82
Ibid., p. 11.
107
level of scrutiny to assign, leaving aside the complicated origins of this area of caselaw.
The first major application concerned sex discrimination,
83
but more groups were
seeking protection by the Court for still other types of classifications, including wealth,
84
mental retardation,
85
alienage,
86
and age.
87
Although most of the new classifications
were not awarded strict scrutiny review, it’s undeniable that the Court’s formulation of
this standard served as a model and guide for the other standards of review. Pre-
governance phases in those areas predominantly focused on which level of review they
would be assigned, as opposed to the creation of completely new doctrinal methods. The
widespread applicability of the strict scrutiny doctrine and the understanding of how it
works in contrast to rational basis review is a testament to its usage by later and lower
courts.
Legal and/or academic validation of that test or establishing case
Writing with the benefit of hindsight, Jack Balkin points out that “[i]t is hard to
assess [the originating case] for the model of scrutiny rules because it was not
83
Frontiero v. Richardson 411 U.S. 677 (1973) and Craig v. Boren 429 U.S. 190 (1976).
84
James v. Valtierra 402 U.S. 137 (1971) and San Antonio School District v. Rodriguez 411 U.S. 1 (1973).
85
Cleburne v. Cleburne Living Center, Inc. 473 U.S. 432 (1985) and Heller v. Doe 509 U.S. 312 (1993).
86
Graham v. Richardson 403 U.S. 365 (1971), Sugarman v. Dougall 413 U.S. 634 (1973), and In re
Griffiths 413 U.S. 717 (1973).
87
Massachusetts Board of Retirement v. Murgia 427 U.S. 307 (1976) and Vance v. Bradley 440 U.S. 93
(1979).
108
inaugurated at a single point in time.”
88
Today, we know that the strict scrutiny analysis
level exists, and we know, generally speaking, what factors trigger the test. Conventional
wisdom puts the origination point somewhere during the civil rights era, but
contemporary Court observers didn’t know what they were looking for. Direct evidence,
therefore, is scant for this criterion, but some observations are possible.
While individual Justices may have arrived there earlier,
the full Court first stated a presumptive rule against racial
classifications in McLaughlin v. Florida where it struck
down on equal protection grounds a state law criminalizing
cohabitation by unmarried interracial couples. For the first
time the Court in McLaughlin both articulated and applied
a more rigorous review standard to racial classifications,
requiring as justification an ‘overriding’ state purpose as
well as showing that the classification was ‘necessary,’
rather than just rationally related, to the proffered
governmental interest. This racial classification rule
subsequently was reaffirmed in Loving v. Virginia.
89
Reliance on McLaughlin is also called into question by the
fact that the Court actually applied the restriction against
classification by race far more rigorously in that case than it
had in the past. Earlier opinions characterized racial
distinctions as “suspect” and subject to “rigid scrutiny.”
90
88
Balkin 2005, p. 140.
89
Klarman 1991, p. 255.
90
Vieira 1969, p. 1594, noting that Loving represented an even further tightening of the strict scrutiny
standard that was first in McLaughlin.
109
IV. Post-Governance Phase (1976-Present)
By the mid-1970s, it was clear that any time a law was subjected to the strict
scrutiny test, the law would fail the constitutionality test and be struck down; the only
reported case of the Court applying strict scrutiny where the law was upheld was
Korematsu, but there is debate about whether the Court actually applied the strict scrutiny
standard or just happened to use language that later got incorporated into the test. The
first signal that the Court is retreating from its hardline enforcement of racial remedies
triggered by strict scrutiny comes in Milliken v. Bradley,
91
where the Court backs away
from inter-district school integration, unless historical segregation could be proven in all
affected districts. This case concerned segregated schools in Detroit. The Detroit district
had such a high black concentration that successful desegregation could not be
accomplished within the boundaries of its limits alone. Instead, the court determined that
the only way to successfully balance the student population was to bus in white children
from neighboring suburban school districts. The Supreme Court found this
unconstitutional, stating that discrimination must be documented in the locations
contributing to the remedy. The Court was split 5-4, and it seems likely that it would
have reached this decision one year earlier in School Board of Richmond v. State Board
of Education,
92
but Justice Powell did not participate in that case, so the Court split 4-4,
91
418 U.S. 717 (1974), striking down a busing program that would have ensured integrated schools.
92
412 U.S. 92 (1973)
110
along the same lines as in Milliken.
93
Although the strict scrutiny test is still formally
intact (perhaps because it wasn’t directly at issue), it is clear at this point that a major
directional shift has occurred, since the concept of the opinion is squarely opposite the
rationale in Brown and most of its progeny.
Washington v. Davis
94
marked the first serious exception carved into the strict
scrutiny test, and therefore, the “official” beginning of the post-governance phase. The
case concerned the employment practices of the Washington D.C. police department,
who required a verbal test of its applicants which was disproportionately failed by black
candidates. However, the Court held that impact was not enough to trigger the strict
scrutiny test; the challenger must also prove that intent to discriminate was present.
Because such intent was not proven in this case, strict scrutiny was not triggered, and the
practice easily passed what was now known as rational basis review.
This case marked the Court’s first formal exception to its governing doctrine,
holding that intent must be proven in order to trigger strict scrutiny and rejecting the
contention that impact alone is sufficient. This case articulates the intent vs. impact
standard which meant that in order to trigger strict scrutiny, a facially neutral law had to
be proven to have both discriminatory impact and intent. The intent standard established
was, and has proven to be, nearly impossible to meet.
93
Four years later, in Milliken v. Bradley 433 U.S. 267 (1977) (Milliken II), the Court reviewed the
district’s court’s response, which was to fashion a high detailed and specific four-part plan to address the
segregated schools within the district. The Court unanimously upheld the unusual components of the plan.
94
426 U.S. 229 (1976).
111
In a reaffirmation of the intent standard, the Court extended it in McCleskey v.
Kemp,
95
a death penalty case. Although death penalty cases were, and are, often litigated
under criminal procedure amendments, this particular challenge alleged that the death
penalty was being applied to black Americans in a racially discriminatory way that
violated the equal protection clause. In a decision with far-reaching ripple effects, the
Court refused to consider evidence presented that purported to prove the discriminatory
impact on convicted blacks, saying that no intent to apply the death penalty in a racially
discriminatory way could be proven. The existence of a clear statistical impact alone
could not trigger strict scrutiny.
Missouri v. Jenkins
96
concerned an ambitious, expensive, and multi-district
remedy for one largely-segregated school district. The lower court had ordered a plan
whereby a magnet school would be created, including so many learning amenities, that
non-minority students would voluntarily want to attend, and required the funding to come
from a state-wide tax. The Court unanimously ruled that this exceeded their remedial
authority. It is important to note that the Court decided the issue on taxation grounds and
did not reach the constitutional issue of the desegregation plan itself, but it seems likely
that at least a majority would have found the plan unconstitutional, based on the vote
configuration in Milliken.
95
481 U.S. 279 (1987).
96
495 U.S. 33 (1990).
112
Board of Education of Oklahoma City v. Dowell
97
concerned a terminated
desegregation court-order. The Court’s decision made it easier to discontinue such orders
and allow the return to predominantly one-race schools that were becoming more
common as a result of “white flight” to the suburbs.
Missouri v. Jenkins
98
was the return of the earlier 1990 case, modified as the
lower courts had now ordered increases to teacher salaries and to funding for remedial
programs. The Court determined that the lower court had exceeded its authority on all
fronts.
City of Cuyahoga Falls v. Buckeye Community Hope Foundation
99
concerned a
low-income housing complex whose construction was stalled as a result of a referendum
process. Buckeye Community Hope Foundation claimed, among other things, that it had
been denied equal protection by the referendum process. However, the Court
unanimously disagreed, finding, per Washington v. Davis, that no discriminatory intent
had been proven and that, therefore, no heightened review would occur.
97
498 U.S. 237 (1991).
98
515 U.S. 70 (1995).
99
538 U.S. 188 (2003).
113
We turn now to an analysis of the relevant criteria for the post-governance phase.
A break-down of any unanimity that may have existed during the governance phase
An extraordinary level of unanimity existed during the governance period.
Indeed, even during the pre-governance phase, the justices worked together to create a
new constitutional vision as it pertained to segregation and the educational arena.
Specifically, during the governance phase, all of the cases mentioned were either purely
unanimous (McLaughlin and Loving), or essentially unanimous on the doctrinal issue (the
decision in Hunter was 8-1, with Black dissenting, but only on the grounds of state
power, not based on a difference of opinion about equal protection analysis; the decision
in Adickes was virtually unanimous, with Marshall not participating, and both Douglas
and Brennan dissenting, but only in part).
In the post-governance phase, that agreement breaks down. “Just one year after
Swann, and nearly twenty years after Brown, the first dissents were registered in a
Supreme Court desegregation case (Wright v. City Council of Emporia 1972), when
Nixon’s appointees voted as a bloc to loosen judicial control. A year later, in the Denver
case, the justices, again divided made numbers rather than principle the heart of their first
ruling on segregation in the North (Keyes v Denver School District 1973).”
100
The cases in this time period were characterized by a marked increase of
disagreement among the justices. Notwithstanding two cases of unanimity, the conflict
100
Kirp 1997, p. 446.
114
among the justices has clearly heightened. The voting patterns in these cases are
illustrated by Table 3.
TABLE 3
Voting Patterns for the Post-Governance Cases
Vote Split
School Board of Richmond v. State Board of Education
4-4
Powell not
participating
Milliken v. Bradley 5-4
Washington v. Davis 7-2
McCleskey v. Kemp 5-4
Missouri v. Jenkins unanimous
Board of Education of Oklahoma City v. Dowell
5-3
Souter not
participating
Missouri v. Jenkins (II) 5-4
City of Cuyahoga Falls v. Buckeye Community Hope Foundation unanimous
Alterations to the doctrinal test
Earlier criteria notwithstanding, there are two fundamental indications that this
doctrine is in its post-governance phase. The first is the major exception carved out by
Washington v. Davis, which “adopted the narrowest plausible interpretation of
115
Brown.”
101
In fact, “Brown was tamed by being reduced to discriminatory intent... [and]
the consequence of the taming is a degree of infidelity to the great principle.”
102
As he had noted about the decline of the Plessy doctrine, Jack Balkin returned to
wonder about the fate of strict scrutiny, saying that “[i]t too has been debated, elaborated
and modified over time, and it is interesting to speculate about whether, after some fifty
or so years of intellectual dominance, it too is slowly coming apart at the seams.”
103
Different outcomes occur than were initially envisioned at the doctrine’s creation
The other fundamental indication that this doctrine is in its post-governance phase
is that the outcomes during this time period are notably at odds with what the originators
of the vision and doctrine intended. For example, “Davis … suggest[s] that the Court is
struggling to shift the balance between the two standards so as to reduce the gross
disproportion in the burdens of proof heretofore placed on defendants as contrasted with
plaintiffs,”
104
when the originators clearly felt that it was the strict scrutiny test, as
formulated, that leveled the playing field for minorities. Or we can note “Board of
Education of the Oklahoma City Public Schools v. Dowell, … reversing and remanding
the 10
th
Circuit’s judgment for further consideration, in a five to three decision (Justice
Souter did not participate in the case), [in which] the court dissolved the desegregation
101
Strauss 1989, p. 955.
102
Ibid., p. 955.
103
Balkin 2005, p. 102, talking about strict scrutiny in the context of racially discriminatory challenges.
104
Lerner 1976, p. 268.
116
order that had been in place since 1972.”
105
Reversing the course of twenty years of
history is clear sign that the direction has shifted.
Some were taken aback by what was perceived as a sharp turn: “In an abrupt
departure from previous rulings, especially Swann, the Supreme Court determined that
lower courts could not order multidistrict or interdistrict relief for de jure discrimination,
absent a showing that all school districts to be included had practiced such
discrimination, that racial practices in one district had deleterious effects on other school
districts, or that district lines had been drawn with the understanding that students would
be separated by race (Milliken, 1974).”
106
Indeed, above and beyond the criteria, there was a clear sense among Court
observers that Milliken and Washington were a turning point in civil rights jurisprudence.
One article title blurb read “Milliken v. Bradley: The First Step in Overturning Brown v.
Board of Education”
107
Another noted, “Washington v. Davis, was an employment
testing case, the third such case to reach the Court. It seems to mark the start of a major
shift in the Court’s approach in this area…”
108
And yet another asserts that “[t]he
turnabout came in Washington v. Davis.”
109
105
Russo 2004, p. 176.
106
Daniel 2004, p. 263.
107
The Journal of Blacks in Higher Education 2001, p. 39.
108
Lerner 1976, p. 266.
109
Ibid., p. 267.
117
More generally, one summarized it this way: “[a]fter a busy twenty-year period
during which the U.S. Supreme Court resolved more than two dozen cases on school
desegregation, the first twenty two of which resulted in unanimous rulings in favor of
proponents of equal educational opportunities, the Court’s attitude underwent a dramatic
shift beginning in the mid-1970s.”
110
VI. Conclusion – Does It Fit?
With the overturning of Plessy, the Court needed to stake out a new position on
race policies that might violate the equal protection clause. With the decision in Brown,
the Court makes its hostility to racial classifications known, establishing a vision for
racial equality. Ten years later, in McLaughlin and Loving, the Court finally pulls from
early pre-governance cases and articulates the doctrinal analysis that will be used to
anchor its vision from Brown. About another ten years later, the Court signals a retreat in
the long-settled school desegregation arena in Milliken and carves a major exception into
its test for application into broader subject areas in Washington v. Davis. The sum total
results in a current state of jurisprudence in which the strict scrutiny test can still be
triggered for laws that are facially discriminatory, but intent must be proven in order to
trigger it for facially neutral laws. Given the nature of race and unconscious racism, laws
that are facially discriminatory rarely occur; it is the facially neutral laws that are most
dangerous and that the Court is now the least willing to engage.
110
Russo 2004, p. 175.
118
This latest time period of this regime is a model example of the post-governance
phase, as detailed above. In addition to the standard criteria for identifying a post-
governance period, this regime seems to indicate that we may add one more: legal or
academic scholars will often provide validation for the Court’s shift away from its
existing doctrine. In addition to the standard criteria for the governance phase, we may
add that cases decided during that period often have a high degree of consensus or
unanimity among the justices, although it’s important to note the caveat that consistent
consensus could be simply a byproduct of lack of turnover in Court personnel.
But what about jurisprudential regimes? From a qualitative perspective, the civil
rights era does not reinforce the central holding of the jurisprudential regime literature –
that there is one case or group of cases that serves as a turning point in the Court’s
doctrinal analysis of a given area of law. This regime is characterized by a more fluid
evolution of doctrine than Kritzer and Richards, et al, would likely posit.
Based on their work, should Kritzer and Richards turn their attention to equal
protection, it is likely that they would hypothesize that Brown triggered a jurisprudential
regime. Based on recent critiques, noted in Chapter 1, we also know that it is likely that
their quantitative methodology would yield “proof” of such a regime change. However,
by applying qualitative methods, without even needing the randomization tests applied by
Lax and Rader,
111
it is likely that the results would show a false positive.
As we have seen, the key case triggering regime change is supposed to be the
precedent cited for the articulation of the doctrine. Brown, as related to the strict scrutiny
111
Lax and Rader 2008.
119
test, does not fit that pattern. Again, as discussed, Brown articulated a vision that
separate (meaning any sort of classification) could never be equal and would therefore be
struck down; it took the Court several years to pull from approximately 25 years of
jurisprudence to coalesce around a legally coherent test by which to achieve this vision.
Although it’s beyond the scope of this work to examine the driving forces behind
such a method of detaching the vision from the doctrine, we can speculate. The Court in
Brown, under the leadership of Chief Justice Earl Warren, was determined to achieve
victory; most of the supporting evidence marshaled in Brown, however, was drawn from
the social sciences and engendered criticism from the legal and academic community.
112
We may possibly surmise that the Court that it needed to have the country embrace its
vision before it could impose a doctrine. Regardless, while this era clearly follows the
life cycle pattern, it presents serious problems for the model of jurisprudential regimes.
112
See generally Wechsler 1959 for the best known critique.
120
CHAPTER 5
REGIME THREE: THE AFFIRMATIVE ACTION ERA
STRICT SCRUTINY FOR CLASSIFICATIONS ADVANTAGING MINORTIES
Although the caselaw on affirmative action could be considered an extension of
civil rights law, by now it’s clear that it has taken on a life of its own and can certainly be
engaged as its own line of jurisprudence. Early on, there was some thought that cases
related to the remedial efforts requested by Brown could be treated as the predecessors to
the affirmative action challenges, but now that enough caselaw has accumulated, we can
separate the later attempts of the Court to sort through the fallout from Brown from early
to struggles to flesh out a strategy for affirmative action programs stemming from
generalized after-effects of historical discrimination.
I. The Pre-Governance Phase (approximately 1978-1989)
Although the Court is in the post-governance phase of the previous cycle, the new
issue of affirmative action programs created a new question. The Court, therefore, began
a separate pre-governance phase to determine the appropriate level of analysis to fill the
void in this new area.
Beginning with University of California Regents v. Bakke,
1
the Court struggled
extensively on the appropriate analytical framework to use for classifications benefiting
1
438 U.S. 265 (1978).
121
minorities. In Bakke, the Court completely fragmented on the right approach to
addressing a claim of unconstitutionality against a policy designed to benefit racial
minorities. At issue was an affirmative action program at U.C. Davis’s medical school
that held separate admission slots for minority competition and had resulted in Bakke, a
white male applicant, being rejected twice. The justices split on everything from how to
examine this type of claim to whether affirmative was ever acceptable to whether this
particular program was acceptable. With no majority opinion in any direction, a total of
five justices believed that affirmative action programs could be constitutionally
acceptable under the right circumstances, five felt that the U.C. Davis program in
particular was impermissible, and one advocated applying the same strict scrutiny
analysis to affirmative action programs that the Court applied to classifications that
disadvantaged minorities.
Two years later, the Court again was faced with an affirmative action program,
but outside of the educational arena. In response to the Court’s opinion in Bakke, and
particularly Powell’s, since he had cast the deciding vote in both directions, governmental
agencies at all levels (federal, state, and local) had worked diligently to craft affirmative
action programs for their contracting work that might past constitutional muster.
Fullilove v. Klutznick
2
concerned a Congressional public works set-aside program for
Minority Business Enterprises. Again, the Court was deeply divided on this issue and no
majority opinion was written. Six justices, however, agreed that the program was a
legitimate exercise of Congressional power, especially insofar as it was remedying past
2
448 U.S. 448 (1980).
122
discrimination. One threesome opinion upheld the program on the basis of the 14
th
Amendment’s enforcement clause and the Commerce Clause powers, deferring to
Congress’s ability to evaluate the need for such a program and applying a standard of
review that utilized language from the strict scrutiny test, but undermining it
simultaneously with language from the rational basis review test. The other trio
comprising the six votes to uphold the plan evaluated the issue primarily on the basis of
so-called intermediate scrutiny, finding that the program passed that test. Either way, the
case’s outcome flip-flopped from Bakke’s, and the Court had still not managed to give
clear direction on how to evaluate these types of cases.
Wygant v. Jackson Board of Education
3
reversed the Court’s sentiment yet again.
At issue was a reduction in staff that preserved less senior minority teachers while laying
off more senior white teachers; the reduction had been voluntary agreed to by the school
board in an attempt to increase minority representation among teachers. Again, there was
no majority opinion. The plurality opinion, representing four justices, felt that strict
scrutiny should be applied, and determined that the affirmative action policy failed this
test. Justice White simply did not address the level of scrutiny issue, almost appears to be
applying the rational basis test, but agrees that the program is unacceptable. Without
receiving Justice White’s critical fifth vote, the Court could still not establish any
particular method of analysis for affirmative action cases.
3
476 U.S. 267 (1986).
123
In United States v. Paradise,
4
the Court again switched outcome directions,
returning to the race-protective side of the affirmative action melee. At issue was the last
in a long line of court-ordered promotional programs for Alabama’s department of public
safety designed to increase the number of blacks occupying the upper ranks. Yet again,
there was no majority opinion. The plurality opinion of four justices held that the orders
were permissible because the program is crafted in such a way that it meets even strict
scrutiny.
5
By concluding thus, the plurality was able to sidestep the issue of establishing
a level of scrutiny and secure Justice Powell’s vote. Justice Stevens concurred with the
judgment, but elected to analyze the case from a desegregation perspective, as opposed to
an affirmative action perspective. Given that perspective, he did not feel it necessary to
evaluate the issue of scrutiny review because he concluded that judges remedying
obvious cases of discrimination had broad latitude, as well as a mandate to consider race,
which would, essentially, exempt them from affirmative action-type review. Despite the
plurality’s success in obtaining Powell’s vote, the fact that there was no majority and the
method of analysis was still not established, this case did little to provide better guidance
for future cases.
Not until 1989 did the Court manage to speak with one voice on the issue of
affirmative action program analysis. By applying the criteria of the pre-governance
phase, it is apparent which ones are predominantly applicable.
4
480 U.S. 149 (1987).
5
Ibid., p. 166-167.
124
No settled doctrine for evaluation of the issue/area
First, this period of time clearly shows that no doctrinal test was established or
agreed to during this era. As we have seen, a variety of possibilities were articulated.
One possibility was to simply treat the affirmative action caselaw as an extension of the
Swann body of law regarding remedying past discrimination. However, this philosophy
was rejected, as Justice Powell noted in Footnote #2 of his concurring opinion in
Paradise, “[a]lthough these cases are broadly relevant, they differ significantly from the
Court's subsequent affirmative-action decisions. … the position of bused pupils is far
different from that of employees who are laid off or denied promotion. Court-ordered
busing does not deprive students of any race of an equal opportunity for an education.”
A second possibility was to delay the constitutional question as long as possible, deciding
cases on the narrowest ground possible, as four of the justices wished to in Bakke. A
third possibility was to utilize strict scrutiny, a fourth was to utilize intermediate scrutiny,
and a fifth was to utilize rational basis review.
Beginning with Bakke, even contemporary legal scholars were quite aware of the
fact that clear guidance had not arrived. A sampling of both current comments and
opinions at the time is instructive.
In Bakke, the Court established analytical framework for its
future affirmative action jurisprudence in the muddled,
fragmented opinions that split the differences between
proponents and opponents of racial preferences.
6
6
Ivers and O’Connor 1990, p.67.
125
It would be foolhardy to attempt to derive too much
meaning from Bakke’s message in the area of equal
protection.
7
The Bakke decision was a long time in coming, and one
may well wonder whether it was worth the wait. The
Supreme Court has now given some guidance with respect
to the role of race in higher education, although at least as
many questions have been raised as have been answered.
8
In Regents of the University of California v. Bakke, the
Justices discussed much and ultimately decided little…
[Bakke] was perhaps the grandest finesse of a searing legal
issue in Supreme Court history, but it rest neither on a
Supreme Court consensus nor on a clear doctrinal
foundation.
9
But insofar as the compromise rests neither on clear
doctrine nor Court consensus we are in more of a “bricks
without straw” situation than ever before.
10
To be fair, one might expect the first case in a particular type to have some
ambiguity attached to it. However, the next several years saw the Court retain its
ambiguity as it attempted to reach some sort of credible conclusion on the issue. This
view is shared by multiple Court observers.
The history of race-based affirmative action in the Supreme
Court has been one of uncertain trumpets.
11
7
Tribe 1979, p. 865.
8
O’Neil 1979, p. 143.
9
Dixon 1979, p. 69.
10
Ibid., p. 74.
11
Mishkin 1996, p. 875, writing about the cases leading up to Adarand.
126
The Supreme Court has long struggled over the issue of
affirmative action. Throughout the 1980s the Court
endeavored to devise consistent standards for evaluating
benign racial classifications, an endeavor that proved
fruitless for quite some time.
12
Not only have the Justices been bitterly divided on whether
particular forms of affirmative action are compatible with
constitutional principles of equality, they have also been
unable to agree upon which constitutional test is
appropriate for assessing the legitimacy of preferential
treatment plans.
13
It’s easy to be skeptical about the Supreme Court’s
affirmative action cases. From the standpoint of the rule of
law, the cases are truly a mess. This was so from the very
start.
… [And r]emarkably, during the next nine years, the
Court’s decisions developed no clear standard of review
and seemed to turn not on rules…
14
During the Reagan and Bush years, the Court’s decision
making on affirmative action was indeterminate and often
unintelligible.
15
But although this Court has consistently held that some
elevated level of scrutiny is required when a racial or ethnic
distinction is made for remedial purposes, it has yet to
reach consensus on the appropriate constitutional
analysis.
16
What is ironic about these long-time Court observers is the degree to which they
seem to have expected the Court to issue cohesive rulings from the start. In 1989, one
12
Day 2001, p. 82.
13
Rosenfeld 1989, p. 1729, discussing the Court’s affirmative action jurisprudence prior to Croson.
14
Sunstein 1996, p. 1185.
15
Devins 2003, p. 361.
16
U.S. v. Paradise 480 U.S. 149 (1987), p. 166.
127
scholar noted, “[t]aken together, what is most remarkable about these [pre-Croson]
decisions is their failure to establish authoritatively or clearly the constitutional
boundaries of affirmative action.
17
Another wondered aloud about “…the Supreme
Court’s apparently odd behavior – its meandering course, its refusal to issue rules – in the
affirmative action context…
18
However, if my thesis regarding doctrine development
and deterioration is correct, the Court should only very rarely begin their jurisprudence in
any given area of law with a settled pronouncement about the appropriate method of
analysis. Instead, we should expect such “meanderings” for some period of time until the
Court settles itself into an answer.
Cases that raise parallel claims are handled differently
Although the justices took great pains to identify the issues in Bakke, Fullilove,
Wygant, and Paradise as different from each other (or just from those cases they wanted
to be freed from following), the argument can be made on the other side as well,
depending on the degree of generalization one is willing to employ. All four issues
concerned affirmative action programs, instituted by a state actor. The only important
difference the justices could identify was the way each scenario set about implementing
its affirmative action goals. It’s not unreasonable to think that these cases should have
17
Rosenfeld 1989, p. 1735.
18
Sunstein 1996, p. 1179.
128
been, or could have been, evaluated similarly and even could likely have yielded similar
results.
However, it must be noted that no two cases in a row followed the same method
of analysis, and no two cases in a row resulted in a similar outcome – either for
affirmative action or against it. It was almost as it “[w]hat one finds is a Court molding
and shaping remedies in order to conform with the exigencies of the times.”
19
After the
first decision in Bakke, the community seemed to expect that the next decision would
either follow a similar pattern, or explain why it didn’t. However, “[i]In a six-to-three
decision, the Supreme Court found the set-aside [in Fullilove] facially constitutional but
offered no single rationale for the statute’s validity.”
20
Moreover, “[i]n Fullilove, the
Court[‘s]… reasoning was quite fragmented.”
21
The second case in the series made it
clear to the legal community that no cohesive doctrine was coming.
No previous Supreme Court jurisprudence exists
As noted earlier, the Court had two options available to it. On the one hand, it
could treat the affirmative action cases as arising out of the remedying-past-
discrimination line of cases. The rejected this line of reasoning, perhaps understanding
that not every affirmative action program would be tied to a distinctive discriminatory
history. Once that decision was made, the Court’s other option was to treat affirmative
19
Lamb 1981, p. 18.
20
Lanoue 1992, p. 107.
21
Lamb 1981, p. 22.
129
action challenges as relatively uncharted territory. This meant that although the justices
could pull bits and pieces from earlier decisions for their opinions, there would be no
precedents that truly governed. Although they could rely on earlier cases concerning
racial classifications in general, no decisions at the Supreme Court level really addressed
head-on the question of whether those classifications would be constitutional if drawn for
beneficial purposes, or, more importantly, how to analyze challenges to laws where race
was treated as an advantage, rather that a disadvantage. As a result, with no directly on-
point jurisprudence to guide the Court, it began piecing together solutions in baby steps.
Closely-divided decisions
The affirmative action cases during this period were always closely divided.
Bakke was a 5-4 decision upholding the general constitutionality of affirmative action
programs and a 5-4 decision, albeit with a different split of justices, to strike down the
U.C. Davis program in particular. Fullilove was a 6-3 decision, which seems slightly
more decisive, except that even the six justices that agreed on case disposition could not
agree on the justification for that disposition. Wygant and Paradise were both 5-4
decisions.
The back-and-forth nature of these decisions continues, even with the turnover in
Court personnel that occurs from the Burger/Rehnquist/Scalia change and the
Stewart/O’Connor change. Although Justice White can be noted to “switch sides,” most
of the outcome reversals can be attributed to Justice Powell. It is no small observation
130
that “Powell’s balancing act in Bakke was typical for him, and over the next several
years, he continued to lead the Court in straddling the fence on the question of affirmative
action’s constitutionality.”
22
Table 4 shows the justice combinations of the four affirmative action cases.
TABLE 4
Changing Justice Vote Combinations
“Majority” Configuration Dissent Configuration
Bakke
Powell, Brennan, White, Marshall,
Blackmun
OR
Powell, Stevens, Burger, Stewart,
Rehnquist
Powell, Stevens, Burger, Stewart,
Rehnquist
OR
Powell, Brennan, White, Marshall,
Blackmun
Fullilove
Burger, White, Powell
Marshall, Brennan, Blackmun
Stewart, Rehnquist, Stevens
Wygant
Powell, Burger, Rehnquist,
O’Connor
White
Marshall, Brennan, Blackmun,
Stevens
Paradise
Brennan, Marshall, Blackmun,
Powell
Stevens
White, O’Connor, Rehnquist, Scalia
In sum, three of the four cases were decided by a 5-4 split. The only case decided
by a 6-3 split is really best understood as a 3-3-3 split. It’s hard to imagine a time period
with a better record for more closely divided decisions.
However, there is an important caveat in this section. Most of the affirmative
action cases, regardless of what phase the Court was in, were decided by a 5-4 split. The
breakdown of votes became more predictable as time went on, but there was never a time
22
Keck 2006, p. 419.
131
when affirmative action methodology reached a significant consensus. As a result, it is
important to note the number of highly divided decisions during this period, but not to
overstate its importance relative to the other phases.
Frequent plurality opinions
As noted above, the importance of the 100% occurrences of closely divided
opinions should not be overstated. Far more significant is the fact that all were plurality
opinions. All of the potential approaches discussed above were articulated during the
nine year period from Bakke to Paradise; however, none commanded a majority, not
even once. This singular feature is difficult to overstate. There must be something
significant about a period of caselaw where no guiding opinion was able to garner a
minimum of five votes.
The Bakke opinion was, essentially, written by a Justice of one. Powell was
unable to secure a majority for his entire opinion. Instead, four justices agreed with part
of his opinion and the other four justices agreed with a different part of his parade. The
Fullilove decision was made by a 3-3 combination, and the Wygant and Paradise
decisions were made by a 4-1 group.
132
Language or concepts in opinions that is/are later used to weave the doctrinal test
Given the number of competing methods of analysis proffered during this period,
it might have seemed likely that the justices would eventually be forced to negotiate with
each other in the interest of securing stability. In circumstances such as this, the justices
have significant incentive to compromise in order to avoid a less desirable outcome.
However, this was not the case with the affirmative action issue. Over time, the language
and concepts advocating strict scrutiny were able to secure a legitimate majority.
II. The Governance Phase (1989-2003)
As we will see, by 1989, the Court appeared to come to a resolution on the issue,
but backslid a year later in an odd, but potentially justifiable exception. However, in
1995, the Court erased the 1990 exception, extended the 1989 resolution, and laid down a
consistent doctrinal test, to be applied in all circumstances. As a result, the pre-
governance phase could technically be understood as ending in 1995; however, I will
consider 1989 the demarcation point, since many contemporary commentators believed it
to be so, and the 1990 aberration was quickly overturned and can be understood, as we
will see, as the last breath of a liberal perspective, led by Justice Brennan, who exited the
Court about a month later.
133
In 1989, the Court decided Richmond v. J. A. Croson Co.
23
As we have already
seen, in order to remedy previous discrimination, and its lingering effects, many
municipalities and other government agencies had begun the practice of setting aside a
certain percentage of construction and/or contracts for minority-owned businesses.
Given the decision in Fullilove, agencies had proceeded, full speed ahead. The City of
Richmond was one such agency, and, after losing its contract with the city, construction
company J.A. Croson brought suit, claiming that the set-aside amounted to an
unconstitutional classification on the basis of race. The Supreme Court agreed, and,
although some of the justices disagreed on finer points raised by the case, a majority
finally consolidated to establish strict scrutiny as the level of review for so-called
affirmative action policies enacted by state and local agencies.
The dissenting Justices in Croson did not go down without a fight, however. One
year later, the same Court decided Metro Broadcasting, Inc. v. FCC,
24
in which two
Justices from the Croson majority joined with the Croson dissenters to form a new
majority that held that federal policies designed to aid minority-owned business (radio or
television broadcasters, in this case) only need to meet intermediate scrutiny, as opposed
to the higher level of scrutiny required of state and local policies. Even though the Court
appeared to have two different answers now, depending on where the law or policy
originated, observers did not believe the difference would remain in force. To wit, in
1991, one article proclaimed “[a]t the time of this writing, the Court may have reached an
23
488 U.S. 469 (1989).
24
497 U.S. 547 (1990).
134
(uneasy) equilibrium on affirmative action. … [But t]here is substantial reason to doubt
that this pattern will hold.”
25
Finally,
26
the Court, somewhat unsurprisingly, eliminates the two-tiered
evaluative system from Metro Broadcasting in Adarand Constructors, Inc. v. Pena.
27
Here, the Court makes it clear that affirmative action programs will always trigger the
strict scrutiny level of review, regardless of whether the law is passed by state, local, or
federal policymakers. By the time of Adarand, there had also been significant Court
personnel turnover, so it is not surprising that, based on the likely, more conservative,
policy preferences of the new Justices, the Croson model becomes the guiding doctrine.
Returning to the criteria established by Kritzer and Richards, et al, we can
determine if this phase meets the definition of a governance phase.
A settled, broadly applicable doctrinal “test” for a given area of caselaw
In Croson, a majority of justices finally agreed that the appropriate test for race-
based classifications by local and state governments that advantaged minorities would be
25
Farber and Frickey 1991, p. 717-718.
26
It should be noted that the Court did have occasion to re-emphasize Croson in a related case. Association
of General Contractors v. City of Jacksonville 508 U.S. 656 (1993) generally concerned the issue of a local
government set-aside policy; however, the particular issue that the Court had to decide was whether the
case was moot. The Court ultimately determined that it was not and that the plaintiff had standing. The
case was reversed and remanded and the Court made clear that Croson was assumed to be the guiding
authority on the substantive matter.
27
515 U.S. 200 (1995).
135
subject to strict scrutiny. In fact, the decision determined that race-based classifications
of any kind – invidious, benign, or beneficial – would be subject to strict scrutiny. The
plurality opinion, written by Justice O’Connor and joined by Chief Justice Rehnquist and
Justice White, phrased it this way:
Absent searching judicial inquiry into the justification for
such race-based measures, there is simply no way of
determining what classifications are "benign" or "remedial"
and what classifications are in fact motivated by
illegitimate notions of racial inferiority or simple racial
politics. Indeed, the purpose of strict scrutiny is to "smoke
out" illegitimate uses of race by assuring that the legislative
body is pursuing a goal important enough to warrant use of
a highly suspect tool. The test also ensures that the means
chosen "fit" this compelling goal so closely that there is
little or no possibility that the motive for the classification
was illegitimate racial prejudice or stereotype.
28
We thus reaffirm the view expressed by the plurality in
Wygant that the standard of review under the Equal
Protection Clause is not dependent on the race of those
burdened or benefited by a particular classification. …
Our continued adherence [is] to the standard of review
employed in Wygant…
29
Writing separately in a concurring opinion to underscore other issues, Justice
Kennedy nonetheless provided the fourth vote for establishing strict scrutiny as the
analysis method, as follows:
On the assumption that it will vindicate the principle of
race neutrality found in the Equal Protection Clause, I
accept the less absolute rule contained in Justice
O’Connor’s opinion, a rule based on the proposition that
28
Croson majority opinion, p. 493.
29
Ibid., p. 494.
136
any racial preference must face the most rigorous scrutiny
by the courts. My reasons for doing so are as follows. First,
I am confident that, in application, the strict scrutiny
standard will operate in a manner generally consistent with
the imperative of race neutrality, because it forbids the use
even of narrowly drawn racial classifications except as a
last resort. Second, the rule against race-conscious
remedies is already less than an absolute one, for that relief
may be the only adequate remedy after a judicial
determination that a State or its instrumentality has violated
the Equal Protection Clause. I note, in this connection, that
evidence which would support a judicial finding of
intentional discrimination may suffice also to justify
remedial legislative action, for it diminishes the
constitutional responsibilities of the political branches to
say they must wait to act until ordered to do so by a court.
Third, the strict scrutiny rule is consistent with our
precedents, as Justice O’Connor’s opinion demonstrates.
30
Like Kennedy, Justice Scalia also wrote separately to underscore separate issues,
but had no issue with subjecting racial classifications of all types to strict scrutiny. In
fact, for Scalia, strict scrutiny was a gentler test that he preferred, but he was willing to
consent to this level. He provided the crucial fifth vote, marking the first time a majority
of justices agreed to the doctrinal test, or level of scrutiny, to be used when examining
beneficial racial classifications. He said:
I agree with much of the Court's opinion, and, in particular,
with Justice O’Connor’s conclusion that strict scrutiny
must be applied to all governmental classification by race,
whether or not its asserted purpose is "remedial" or
"benign."
31
30
Croson concurring opinion, p. 519.
31
Ibid., p. 520.
137
In Adarand, after overruling Metro Broadcasting, the Court reaffirmed that strict
scrutiny was the appropriate method of inquiry, and extended that philosophy, via the
equal protection component of the 5
th
Amendment, to the federal government. The
O’Connor majority was very clear on the subject:
Accordingly, we hold today that all racial classifications,
imposed by whatever federal, state, or local governmental
actor, must be analyzed by a reviewing court under strict
scrutiny. In other words, such classifications are
constitutional only if they are narrowly tailored measures
that further compelling governmental interests. To the
extent that Metro Broadcasting is inconsistent with that
holding, it is overruled.
32
In addition, Justice Thomas registered his additional agreement in his concurring
opinion, agreeing “with the majority's conclusion that strict scrutiny applies to all
government classifications based on race.”
33
In short, the Court was able to announce a clear doctrine, strict scrutiny, which
was already generally understood by the legal community, and direct that it be applied to
the general area of racial classifications, whether those classifications were developed by
local, state, or federal governmental agencies.
32
O’Connor, majority, Adarand.
33
Thomas, concurring, Adarand.
138
Repeated citations either to test or establishing case in future relevant cases
Typically, in order to see this criterion fulfilled, multiple cases decided during the
governance period are necessary, with regular citations to either the doctrine or to the
establishing case. Quite the opposite with this cycle, the affirmative action regime is
significant for the complete paucity of direct affirmative action cases during the
governance phase. Bluntly, “[f]rom its Metro Broadcasting decision in 1990 until
Grutter was decided in the spring of 2003, the Court issued only one substantive ruling
on the constitutionality of affirmative action: Adarand Constructors, Inc. v. Peña.”
34
It is possible that the dearth of caselaw in this area stems from the Court’s
unwillingness to venture back into the arena or the Court’s feeling that they had settled
the matter. However, this is difficult to reconcile with the fact that two lower courts
reached vastly different understandings on the issue during this time period;
35
the Court
usually understands that one of its critical institutional roles is to eliminate confusion
among its lower courts. In any matter, this doctrine remained unchallenged and
unassailed until 2003.
The Court does, however, deal with classifications benefiting minorities in a
different aspect: the minority-majority redistricting cases. In this area, the Court also
uses the Croson/Adarand standard consistently. Shaw v. Reno
36
established that any
34
Devins 2003, p. 360.
35
See especially Hopwood v. University of Texas (1996 - 5
th
Circuit), saying that Bakke is no longer good
law and diversity is not a compelling government interest and Smith v. University of Washington (2000 - 9
th
Circuit), saying that Bakke is still good law and that diversity is a compelling government interest.
36
509 U.S. 630 (1993).
139
redistricting that obviously occurs on the basis of race must meet strict scrutiny. Shaw v.
Hunt,
37
the continuation of the earlier Shaw case, saw a racial redistricting scheme struck
down for failing to meet strict scrutiny. Miller v. Johnson
38
also concerned a redistricting
plan struck down after failure to meet the strict scrutiny standard, as did Bush v. Vera.
39
Abrams v. Johnson,
40
the continuation of Miller v. Johnson, actually resulted in the
redistricting plan being upheld by the Court, but apparently because the lower court,
when designing the new districts, did not take race into account when drawing the
boundary lines.
And, finally, Hunt v. Cromartie,
41
the third continuation of the original Shaw
case, upheld the latest redistricting plan because the more likely justification for the
district boundary was politically, rather than racially, motivated. However, the majority
opinion very clearly re-emphasizes the point that any district that appeared to be drawn
on the basis of race would be subject to strict scrutiny.
42
And, although not reaching the
constitutional issue of racial gerrymandering, other redistricting cases were addressed
43
and none indicated an approach at odds with Shaw, or, by implication, Croson and/or
Adarand.
37
Shaw et al. v. Hunt, Governor of North Carolina, et al. 517 U.S. 899 (1996).
38
515 U.S. 900 (1995).
39
Bush, Governor of Texas, et al. v. Vera et al. 517 U.S. 972 (1996).
40
Abrams et al. v. Johnson et al. 521 U.S. 74 (1997)
41
Hunt, Governor of North Carolina, et al. v. Cromartie et al. 526 U.S. 541 (1999).
42
Ibid., p. 544.
43
See Johnson v. DeGrandy 512 U.S. 997 (1994) and United States v. Hays 515 U.S. 737(1995).
140
The majority-minority redistricting cases present an interesting puzzle. “From
the beginning, the Court has characterized Shaw’s limitations on race-conscious
districting as a routine application of longstanding principles of its equal protection
jurisprudence,”
44
but also “[f]rom the beginning, critics have charged that the limitations
on race-conscious districting and its progeny have no foundation in the Equal Protection
Clause. Justice White has accused the Court of ‘imagining an entirely new cause of
action [that] the Constitution does not justify, much less mandate’ (Shaw I, dissenting).
Justice Stevens has charged the Court with having invented a new right – a ‘right to
color-blind districting [that has] no basis’ in the Constitution (Shaw II, dissenting).
Justice Breyer has said that he ‘do[es] not believe that the Constitution embodies the
doctrine that the majority enunciates’ (Abrams v. Johnson, dissenting).”
45
Given this, this series of cases can be treated as following the
Croson/Adarand/strict scrutiny caselaw. More likely, however, these cases likely
represent a nexus between race, as it pertains to equal protection, and a separate line of
districting cases. It’s not uncommon for the line of cases to be discussed as a separate
body of law and Shaw, and its progeny, is usually thought of primarily as districting cases
with racial overtones than race cases with districting overtones. As one observer noted,
“[t]he United States Supreme Court’s 1993 decision in Shaw v. Reno marked a significant
44
Saunders 2000, p. 1608.
45
Ibid., p. 1604.
141
turning point in the legal construction of legislative districts.”
46
Notice that Shaw was
not viewed as one in a line of affirmative action cases.
Regardless, given the consistency with the strict scrutiny doctrine, even without
extensive dialogue, these cases fit nicely with the need for citations in future cases, and
help to demonstrate the governing status of the jurisprudence doctrine.
Legal and/or academic validation of that test or establishing case
The legal and academic community was clear that a consolidating decision had
been reached by the Court. Contemporary writings in 1989, just after Croson was handed
down, reveal excitement and relief at the apparent end to the earlier uncertainty.
Croson is also a welcome clarification and coming together
by this Court under its new leadership of some themes that
have been troubling the Court for more than a decade.
47
Croson is significant. For the first time a majority of the
Court holds unequivocally that all racial classifications…
must pass strict scrutiny and be justified by a compelling
governmental purpose.
48
Emerging from this jurisprudence of dim uncertainties and
fragile pluralities, the Court's ability to assemble a majority
in its recent decision in City of Richmond v. J.A. Croson
Co. therefore marks an important turning point.
49
46
Crain 2001, 193.
47
Fried 1989, p. 160, heralding the decision in Croson.
48
Fried 1989, p. 156.
49
Rosenfeld 1989, p. 1731.
142
A few years later, after Adarand is handed down in 1995, one scholar still finds
Croson to be the turning point, noting that “[i]t was not until 1989 that the Court finally
settled on a standard of review.”
50
Another seems willing to understand that Adarand
plays a role with Croson in the standardizing of the strict scrutiny doctrine, claiming that
“[i]t is only in recent years that we have seen a consolidation of the Court’s doctrine
regarding race-based affirmative action.”
51
By the time of Croson, the Court had managed to consolidate a majority in favor
of the application of strict scrutiny for affirmative racial classifications. By Adarand, the
Court had assembled more than a majority. Croson clearly marked a turning point
however. “The Reagan administration, acting primarily through the Department of
Justice, openly challenged race-conscious affirmative action programs implemented by
public and private institutions within the reach of federal jurisdiction.”
52
By Croson,
these challenges had likely taken their toll, and, by Adarand, the Reagan/Bush regime
had appointed new justices, fundamentally changing the judicial landscape.
Even from a legalistic point of view, Croson clearly signaled the beginning of a
new era. “Croson does not read like Bakke. Gone is Powell’s nuanced reading of race
and society, his recognition or the need to find ways to permit institutions to include
historically excluded groups while reaffirming the potential harm of race-based
50
Sunstein 1996, p. 1186.
51
Mishkin 1996, p. 876.
52
Ivers and O’Connor 1990, p. 65.
143
classifications, and a balancing of the benefits to the preferred group against the norms
imposed on the dispreferred.”
53
Regardless, Adarand definitively makes the point that strict scrutiny is here to
stay. In fact, “[t]o stress its focus on scrutiny, the Court in Adarand used the term
scrutiny 89 times in its opinion”!
54
III. The Post-Governance Phase? (2003-Present)
For the first time since its pronouncements in Adarand, in 2003, the Court
constitutionally addressed affirmative action claims. Two cases handed down on the
same day provide seemingly inconsistent results.
55
Although we are in new and very
recent territory, these two decisions indicate that the Court may have shifted into a post-
governance phase regarding its consideration of classifications that benefit minorities.
Even with the small sample size of two cases, we can see some familiar signs: both
decisions were 5-4 split decisions, consensus on the utility and the test’s meaning have
begun to break down, and the two outcomes seem contradictory, although there are
attempts to smooth the discrepancies over. It is difficult to project where the Court will
53
Aleinikoff and Issacharoff 1993, p. 599-600.
54
Rice and Mongkuo 1998, p. 84.
55
See Gratz v. Bollinger (2003), striking down a University of Michigan affirmative action program using
strict scrutiny (as we would expect given the Court’s previous jurisprudence on this issue), but then see also
Grutter v. Bollinger (2003), upholding a different affirmative action policy at the same university also
using strict scrutiny.
144
take this issue next, but this preliminary information certainly implies that we are
witnessing at least the early stages of the decline of this third jurisprudential regime.
Gratz v. Bollinger
56
was one of two companion cases handed down by the Court
that dealt with two University of Michigan affirmative action programs. The program at
issue in Gratz was for admission to the undergraduate program of study in the College of
Literature, Science, and the Arts, which gave under-represented minorities a set number
of “points” toward admission that virtually guaranteed admission for anyone qualified;
white students did not receive the same automatic point grant and, therefore, qualified
white applicants were often turned away for not having the requisite point totals. The
Court, commanding a majority, applied strict scrutiny and found that portion of the
program unconstitutional because the guidelines were not narrowly-enough tailored.
Grutter v. Bollinger,
57
decided the same day as Gratz, reached the opposite
conclusion, yet the Court still maintained that it applied the strict scrutiny level of review.
At issue in Grutter was still a University of Michigan admissions program, but this time
for their Law School. The admission program had the same objective as the
undergraduate program – to increase diversity in its student body by reaching out to
traditionally underrepresented minorities. However, the Law School program had a less
formalized system, instead requiring individualized evaluations of each applicant’s
profile, yet directing reviewers to give special consideration to candidates from the
unrepresented groups. The Court upheld this program, determining that that
56
539 U.S. 244 (2003).
57
539 U.S. 306 (2003).
145
individualized consideration and the conceptual affirmative action was narrowly-enough
tailored to meet the requirements of the strict scrutiny standard.
It is possible that Grutter signals that the Court is growing impatient with its
current doctrine. As Jack Balkin puts it, “[t]he … possibility is that Grutter’s doctrinal
awkwardness signals that the model of scrutiny rules has become increasingly unwieldy,
and it is in the process of breaking down, to be replaced in succeeding decades by a new
and as yet undetermined model of constitutional citizenship.”
58
Regardless, it must be
noted that “Grutter, to be sure, is only one case.”
59
More time and more cases are needed
to determine whether the Court is indeed getting increasingly exasperated with its own
doctrine. For now, “Grutter could signal the beginning of the end, or it could mean
nothing, just a blip on the screen.”
60
For the purposes of this project, it’s an interesting
exercise to apply the criteria of the post-governance phase to see where this period fits in,
and where it might be lacking.
A break-down of any unanimity that may have existed during the governance phase
Since the affirmative action caselaw never really had any significant unanimity,
the lack of it in these two cases can hardly be considered determinant. However, what is
significant is that the majority in each case is completely different, with the exception of
Justice O’Connor. This means that only one justice really believed in this interpretation
58
Balkin 2005, p. 130.
59
Ibid., p. 138.
60
Ibid., p. 140.
146
of the strict scrutiny doctrine and eight did not. While this shouldn’t be described as a
breakdown in unanimity, it does something interesting about the way that almost every
justice viewed these issues.
Alterations to the doctrinal test
Although there is no direct alteration to the existing doctrine, as we saw with the
exceptions carved out in Chapter 4, the Court in Grutter is criticized for the lack of
intellectual fidelity to the typical meaning of strict scrutiny. “Like Brown v. Board of
Education and Bolling v. Sharpe, Grutter v. Bollinger is doctrinally awkward. … Grutter
does not fit easily into a well developed edifice of equality law that mostly conservative
courts had created over the course of three decades. Instead… Justice O’Connor’s
opinion in Grutter tends to paper over rather serious doctrinal difficulties.”
61
In fact, pointing to one of the more serious pieces of evidence that the Court
engaged in analysis that was outside the confines of strict scrutiny, it can be pointed out
that “[t]he fact that the Court engages in … deference [to the University in Grutter] is a
tell-tale sign that it is not applying a scrutiny as strict as it claims. When courts apply
strict scrutiny, they do not usually defer to the judgments of government decisionmakers,
especially when the government decisionmakers have deliberately made racial
classifications.”
62
61
Ibid., p. 130.
62
Ibid., p. 136.
147
Cases with similar factors are decided differently
Most of the justices that heard Grutter and Gratz believed that reaching both
decisions using the strict scrutiny vehicle was intellectually impossible. “The obvious
question [about Grutter and Gratz] is whether there is a reasonable basis for the
distinction. [Many critics] doubt it, and so do at least six of the nine Justices. Those
Justices most favorable to racial and ethnic preference policies (Stevens, Souter, and
Ginsburg) were joined by those most opposed (Rehnquist, Scalia, and Thomas) in
suggesting that the cases are not distinguishable: Either both preference schemes pass
constitutional muster (as Stevens, Souter, and Ginsburg believe) or both fail (Rehnquist,
Scalia, and Thomas think).
63
As noted, it’s difficult to tell, on the basis of one case, if the Court is moving
toward a different jurisprudence and into the post-governance phase. Although one
scholar claims that, “[f]or the Rehnquist Court, Grutter is a testament to continuity, not
change”
64
there appears to be other support for seeing the Court as pushing into a
different direction. In addition to meeting the above criteria, there appears to be a general
sense that the Court is just… doing something different.
The … possibility … is that the awkwardness of Grutter’s
doctrinal compromise reflects something far larger: it
suggests that the system of implementing rules that
63
George 2003, p. 1634.
64
Devins 2003, p. 349.
148
supported the model of scrutiny rules has been stretched to
the breaking point, and that the model has outlived its
usefulness.
65
Grutter suggest that the present system of constitutional
citizenship, which rationalizes equal citizenship through
scrutiny rules, has become increasingly complicated and
unwieldy.
66
[I]f we are indeed on the cusp of significant social change
… we might be in a period of transition like the years
before and after Brown, in which the doctrine in fairly ad
hoc and does not make too much sense.
67
IV. Conclusion – How Does It All Fit?
As we have seen, the affirmative action caselaw, which could have simply been
an extension of the Brown era, since at issue are still classifications drawn on the basis of
race, is a separate body of jurisprudence, even if they did ultimately choose the same
doctrinal test. This regime period follows the life cycle pattern of initially struggling to
establish a governing doctrine, then announcing a doctrine that stood for between eight
and fourteen years, then showing some signs of deterioration. As we know, Bakke began
the Court’s back-and-forth debate about the proper nature of judicial analysis into this
new model of racial classifications. Croson established that strict scrutiny would be the
level of review ascribed to racial classifications benefiting minorities. Although Metro
Broadcasting appeared to be a blip in that doctrinal philosophy by adding an exception,
65
Balkin 2005, p. 138.
66
Ibid. p. 138.
67
Ibid., p. 139.
149
Adarand quickly remedied the confusion by overturning that case without it ever
becoming a controlling precedent. Grutter potentially indicates a Court that is growing
restless with the structure that strict scrutiny imposes.
The early period of this regime is the textbook model example of the pre-
governance phase. In addition to the criteria extrapolated from APD literature, one other
feature of the governance phase also seems relevant, based on the affirmative action
regime. As we have seen, once the law appears clearly settled, in a governance phase,
sometimes few cases are appealed or accepted due to the potentially settled nature of the
issue.
But what about jurisprudential regimes? From a qualitative perspective, the
affirmative action era also reinforces the central holding of the jurisprudential regime
literature – that there is one case or group of cases that serves as a turning point in the
Court’s doctrinal analysis of a given area of law. Croson and Adarand, to the extent that
it brought the federal government into the fold, serve that purpose. Over the course of
this chapter, we have seen the way that those cases were a catalyst for a different
understanding of affirmative action case evaluation methodologies. As with Plessy, it
remains for someone else to validate this claim quantitatively, but it seems likely to be
reinforced.
150
CHAPTER 6
CONCLUSION
I. Review of Purpose
The primary purpose of this dissertation has been to argue that the doctrinal
aspect of constitutional change has an overall change process that parallels a life cycle.
Doctrine develops, reigns, and then deteriorates; the complete life cycle is referred to as a
regime.
1
By discussing three regimes within the same relatively narrow area of law, I
have also made the argument that this life cycle pattern is repetitive and cyclical, as
opposed to an occasional one-time occurrence.
Secondarily, I have taken the opportunity to examine the related and helpful
notion of jurisprudential regimes, a concept that can be simplified for the purposes of this
project as meaning that during certain periods of time, the Supreme Court’s analysis of
cases in a particular area of law will be governed by a particular method of analysis, or
doctrine. A second, related feature of the notion of jurisprudential regimes is that they
emerge in the form of clearly understood doctrine in one or two specific cases. The
generalized former concept is unquestionably accurate; however, in this project, while
discussing the phases of my hypothesized regimes, I applied qualitative criteria to
determine if the latter assertion is borne out.
1
An analysis of the factors that push said doctrine from one stage to the next was repeatedly very tempting
to get drawn into, but has been left for future research.
151
II. Review of Findings
In terms of the life cycle pattern, each regime follows the pattern we would
expect. At the outset, I must stipulate that there are three regimes. The first, the Jim
Crow era, covers the period of time from the ratification of the 14
th
Amendment, through
Plessy, until Brown, and is known for the separate but equal test. The second regime, the
civil rights era, covers the period of time beginning with Footnote Four in Carolene
Products in 1938, through Brown, through the anti-miscegenation cases of 1964 and
1967, takes a turn in the mid-1970s, until the present, and is known for establishing strict
scrutiny as the method of review when classifications are drawn that disadvantage
minorities. The third regime, the affirmative action era, covers the period of time
beginning with Bakke in the late 1970s, through the government set-aside cases in 1989
and 1995, appears to have taken a turn in 2003 with Grutter, until the present, and is
known for establishing strict scrutiny as the method of review when classifications are
drawn that benefit minorities – also known as “benign” classifications.
In the pre-governance phase of all three regimes, the Court either had no binding
precedent or elected on its own to start with a clean slate, there was no settled evaluative
method governing case areas, decisions were often split and sometimes could not
command majorities, similar cases were handled differently or different cases were
handled the same with no explanation, and language and concepts were taken from these
early cases to weave the eventual doctrinal test. The affirmative action regime case study
provides an excellent example of a pre-governance phase.
152
In the governance phase of all three regimes, the Court establishes a clear doctrine
to use in reviewing cases, other courts or future Courts either consistently apply the test
or refer back to the deciding case as representing the doctrine, and respected Court
observers are aware that a coherent governing legal reasoning has been articulated. The
Jim Crow regime case study provides an excellent example of a governance phase.
In the post-governance phase of all three regimes, consensus among the justices
begins to deteriorate sometimes resulting in an increase of split decisions (especially
when unanimity was frequent in the previous phase), the doctrinal test is altered or
undermined, similar cases are again handled differently or vice versa, important interest
groups (often the U.S. government) begin to take an aggressive position to persuade the
Court to change directions, and different outcomes than the doctrinal test’s originators
envisioned occur. The civil rights regime case study provides an excellent example of a
post-governance phase.
In fact, as a result of the analysis contained herein, additional factors have come
to light. Table 5 brings back the list of criteria from Chapter 2, adding, in italics, criteria
that emerged as a result of my inquiry.
153
TABLE 5
Final Criteria for Identifying Regime Phases
Pre-Governance Phase
• No settled doctrine for evaluation of the issue/area
• Cases that raise parallel claims are handled
differently
• No previous Supreme Court jurisprudence exists
• Closely-divided decisions
• Switching “winning” majorities
• Frequent plurality opinions
• Language or concepts in opinions that is/are later
used to weave the doctrinal test
Governance Phase
• A settled, broadly applicable doctrinal “test” for a
given area of caselaw
• Repeated citations either to test or establishing case
in future relevant cases
• Legal and/or academic validation of that test or
establishing case as settling the matter of doctrine in
that area of law
• Few cases appealed or accepted, reflecting the
settled nature of the jurisprudence
• High degree of consensus or unanimity among the
justices
Post-Governance Phase
• A break-down of any unanimity that may have
existed during the governance phase
• Alterations to the doctrinal test
• Dicta in majority opinion, undermining the test
• Mobilized parties take a new and aggressive position
on the issue with the Courts
• Different outcomes occur than were initially
envisioned at the doctrine’s creation
• Cases with similar factors are decided differently
• Cases are decided by methods outside the expected
area of jurisprudence (e.g. a case of one type will be
analyzed using the methodology of another type)
• Legal and/or academic validation that the Court is
undergoing a shift away from its understood doctrine
Regarding the specific tenet of jurisprudential regimes, that there is one case or
group of cases that “trigger” a new regime, the results are mixed. Recently, like me,
154
Bartels and O’Geen have focused attention on “how the Court’s legal policy in a given
issue area changes over time. Specifically, what explains the dynamics of legal doctrine
and policy?”
2
We all agree that the Kritzer and Richards argument, when taken
seriously, goes beyond a conceptual plea for understanding Courts as represented by
governing regimes and instead also articulates something of development hypothesis
itself: that, from the Kritzer and Richards perspective, “a jurisprudential regime
represents a ‘revolutionary’ perspective to legal change on the Court. There is a clear
break from existing policy and the beginning of a new policy and mode of decision
making that is colored by the new regime.”
3
Bartels and O’Geen posit an alternative,
which seems reminiscent of the understanding of common law as a seamless web that I
have already stated my disagreement with.
“A contrasting view of dynamics is that legal change on the
Supreme Court is evolutionary. Under this approach to
dynamics, legal policy on the Court changes not in a
revolutionary way, as assumed by [jurisprudential regime
theory], but through gradual and incremental alterations to
case law.”
4
However, to the degree that they note that one case or group of cases is not
always central to a regime change, we agree. On the one hand, both the Jim Crow era
and the affirmative action era follow the model well. Separate from the life cycle pattern,
what we would be looking for is a clear “break point,” at which the stops analyzing cases
2
Bartels and O’Geen 2008, p. 1.
3
Ibid., p. 3.
4
Ibid., p. 3.
155
one way and starts analyzing them a different way. In Plessy and later in Croson and
Adarand, the Court eliminates the uncertainty of its prior jurisprudence in the relevant
area, establishes a clear doctrinal test, and that test informs decisionmaking for a period
of time.
The civil rights era, however, does not follow this model. In Brown, the Court
eliminates the uncertainty of its prior relevant jurisprudence, but it does not establish a
clear doctrinal test. Instead, Brown’s vision seems to govern for a period of time, until a
suitable doctrine is fashioned, at which point both the doctrine and the vision govern.
The civil rights area thus appears to have two break points, occurring too far apart and
with too many pertinent cases decided in between to be taken as companions, as Croson
and Adarand are. The civil rights era makes clear how inextricably linked doctrine is to
outcome, but this regime does not match up with the “revolutionary” development
process posited by Kritzer and Richards.
Although this examination of three regimes yields two that conform to the model
and only one that does not, given that the one non-conforming regime is one so central to
America’s legal, political, and social identity, it seems like a rather serious failing. In the
end, perhaps I must agree with Bartels and O’Geen, that “whether legal change is
revolutionary or evolutionary is not so clear cut.”
5
5
Ibid., p. 26.
156
III. Taking a Step Back
By the very nature of this project, I have deconstructed the process by which we,
as a legal community, have understood race and equal protection over time. In order to
make and prove my argument that three separate cycles exists, it has been necessary to
pull each regime apart from each other, and detach it from the larger picture. This is
necessary, considering that my focus is on doctrine, not the outside forces or internal
constraints that were at work at any given time. At this point, however, it may be
advantageous to re-construct the body of law as a cohesive whole.
As noted in the body of this dissertation, as a result of intercurrence,
6
multiple
phases, even within the same general type of caselaw, may be happening simultaneously.
I should therefore note that it is likely no coincidence that the Carolene Products footnote
is written at the same time that Missouri v. Gaines first indicates a Court growing hostile
to Plessy. Similarly, it is also likely no coincidence that the conservative wing of the
Court begins to wage a battle to apply strict scrutiny to affirmative action programs in
1978 through 1989 at the same time that it undermines strict scrutiny in Washington v.
Davis in 1976 and McCleskey in 1987 – both actions evince a parallel growing hostility
to civil rights as understood in the 1960s.
Although deconstructing the leaves is sometimes necessary in limited
circumstances, we should never lose sight of the forest.
6
See Chapter 4, Section I.
157
IV. Importance and Contribution to the Field
In sum, my project emanates from the idea that a complete understanding of
constitutional change must include theories of doctrinal change, in addition to case
outcome changes. I have argued that doctrinal change is neither seamless, nor
unprincipled; instead, it is patterned and cyclical. Expanding on work in the area of
American political development and jurisprudential regimes, my thesis has been that
doctrinal change in the area of equal protection race jurisprudence can be explained as
multiple regimes developing and decaying via life-cycle patterns.
This type of research fills important holes in existing literature, in four distinct
areas. First, it extends the work in the area of jurisprudential regimes in two ways. This
dissertation focuses on equal protection in the race arena, an area as yet unanalyzed by
jurisprudential regime scholars. It also evaluates the jurisprudential regime concept from
a qualitative perspective when all current study has utilized only quantitative methods.
Second, it extends the work in the area of American political development in two
ways. Current scholarship does not generally apply its development (state-building)
principles directly to jurisprudence; this project is such an endeavor and, therefore,
provides a framework for others and a bridge between the disciplines. Also, it furthers
understandings of development cycles by adding the notion of a deterioration post-
governance phase as a component of the entire process. Even Bartels and O’Geen,
realizing that jurisprudential regime theory needs more focus on evolutionary processes,
158
do not appear to understand that “[c]onstitutional orders are not only created and
maintained. They decay as well.”
7
Third, although not my focus here, it extends the work of new institutionalists
who are interested in examining law’s constitutive effect on decisionmaking. Current
literature in this field treats law as an already-existing constraint on the Justices; my
explanation of how doctrine evolves will enable new institutionalists to tell more nuanced
narratives about decisionmaking in a given context of what phase the Court appears to be
in at that particular time. More interestingly, from my perspective, further study might
focus on the transition periods between phases.
Fourth, it expands the story of civil rights in the U.S. from beginning to its present
to its current most natural end. Current constitutional change scholarship containing
comprehensive studies of any given caselaw area are rare; when they do exist, the
narratives tend to focus almost exclusively on telling the story in terms of outcomes.
While these stories are unquestionably valuable, insightful, and interesting, they do not
account for the ways that doctrinal development was, and is, part of the process; this
project, hopefully, provides that complementary piece for such stories in this area.
8
7
Tushnet 2004, p. 1713.
8
In the area of race and civil rights specifically, Michael Klarman (2004) has published an exceptional
book that traces the Supreme Court and racial equality. He carefully discusses the Court’s history,
explaining both the impact of the Court’s decisions as well as the way that changing times pushed the Court
to become more and/or less interested in advancing the claims of racial minorities. His work is a major
step forward in the overall conceptual understanding of the movement for racial equality. He does not,
however, focus on the developmental pattern of doctrine. I consider and intend for my work to be a useful
and necessary companion to such a story.
159
V. Summing Up
If my hypotheses that Court behavior in a given subject matter can be loosely
understood by jurisprudential regimes and that those regimes follow the pre-governance,
governance, and post-governance phase structure are correct, then it is clear that the law
matters in a more important way than simply as the rationalization for a given Justice’s
policy preference, that the common law is not simply a system of ever-developing laws,
and that institutional and legal constraints do matter. Furthermore, having gained clarity
on what each phase looks like, we have likely gained some predictive value in
ascertaining where the Court appears to be relative to any particular constitutional issue,
and can potentially predict the impending downfall of an existing jurisprudential regime.
In short, through this project, I hope that I have extended the claim of APD
scholars of “bringing the state back in”
9
to truly “bringing the law back in.”
10
9
Evans, Rueschemeyer, and Skocpol 1985.
10
Kritzer, Richards, and Pickerill 1998, p. 10.
160
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Marlowe, Marcella
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Core Title
The life cycle of jurisprudential regimes: the supreme court and the constitutional law of civil rights
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College of Letters, Arts and Sciences
Degree
Doctor of Philosophy
Degree Program
Political Science
Publication Date
12/04/2008
Defense Date
10/23/2008
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Tag
14th amendment,Civil rights,constitutional law,equal protection,judicial behavior,judicial decisionmaking,jurisprudential regimes,OAI-PMH Harvest,Race,Supreme Court
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English
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), Hancock, Ange-Marie (
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Tags
14th amendment
constitutional law
equal protection
judicial behavior
judicial decisionmaking
jurisprudential regimes