Supreme Court Seminar

8 February

• Other groups that get heightened scrutiny. Ginsburg had started working in the 60s on a planned series of sex/gender discrimination cases. Her first case before SCOTUS was 1971.
• So, the question of whether equal protection applied to sex (i.e., not just to race) was settled, essentially, in the 1970s: intermediate scrutiny, which turns out to be almost exactly like strict scrutiny in practice.
• The strict scrutiny test: "narrowly tailored to serve a compelling state interest." Intermediate: "substantially related to an important government objective.
• As an historical matter, it's pretty obvious that the founders did not intend to give women the vote or treat them as equal. And there's good reason to think that 14A as passed was not meant to cover women: there was serious debate about it at the time, and explicit language extending rights to women was ditched. It wasn't until 19A (1920?) that the vote was extended to women.
• As late as 1971, discrimination against women was still getting the rational basis test. Reed v. Reed (1971) still uses rational basis, but it's obvious that something is up, because the woman wins and the law is found to be irrational.
• And indeed, the ERA never got ratified. Apparently Nixon saw the integration of women into the workforce as a strategic economic advantage.
• VMI and whether the "adversative" method is suitable for women. Well, it's not suitable for most men either-- and that's why they don't apply.
• The only real outstanding issue in this area is military service: that's still undecided, and it's the only area that is still unsettled. The problems now are more complex: disparate pay, different career paths, etc.
• Additional categories... Alienage is likely to get a lot more coverage in the future (see Plyler on education for illegal immigrants' children; also the AZ immigration laws). Sexual orientation is also a hot topic, obviously. Transgender is coming. So far, age is not a protected category (there are rational reasons to discriminate on that bases) under the constitution, although there are statutory prohibitions. There's not constitutional protection for disability either (that's Cleburne, which maybe smuggles in a new category, even though it claims not to); again, though, the constitutional debate on disability is mostly supplanted by statute.
• Affirmative action. None of the holdings give much solid guidance, and perhaps that's intentional. One policy side of this might be that racial tension, on the world historical stage, leads to catastrophe, and our problems are only going to get worse if we don't force integration. The problem will actually go away (as it largely did in the European majority) if everybody intermarries, and sooner or later you can't figure out against whom you're discriminating.

  A note on the racial debt theory: if a corporation commits some torts, and then the management all changes, the corporation is still liable to make the wronged party whole. And the heirs of the victims can collect.

  But affirmative action does pit one minority against another (cf. African Americans versus Asian Americans). And meritocracy is what got the US to where it is-- the SATs were instituted to diminish discrimination.

• Free speech is a bit part of liberty, but it's also a sign that society trusts individuals enough to let them say whatever they want.
• The establishment and free exercise clauses are incorporated against the states in the 1940s.
• When a Catholic diocese goes bankrupt, does that raise establishment clause issues? (i.e., does getting caught up in the tort system impact your ability to practice your religion)