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Friday, May 08, 2009
The Supreme Court, Socio-Economic Rights, and Separation of Powers
The U.S. Supreme Court has issued numerous decisions where it has ruled against implying positive socio-economic rights, though it has not hesitated to find an implied right to privacy, abortion, travel, etc. One of the Court's major arguments has been separation of powers. For example, in Dandridge v. Williams, the Court said there was no equal protection violation when a welfare cap meant that a large family could get no more assistance than a small family. In San Antonio Indep. School District v. Rodriguez, the Court refused to find any fundamental right to education, nor that being poor was a suspect class. Another related objection is that forcing government to implement positive rights is fundamentally different than negative rights. The South African Constitutional Court decisions that I've discussed in earlier posts show these separation of powers objection are flawed.
First, Constitutional Court cases like Grootboom (Court says national government must adopt policy regarding the homeless) and Olivia Road (Court orders municipality to "meaningfully engage" with squatters) show how separation of powers concerns can be alleviated in a pragmatic and transformative way. In both cases, the Court said that the government must act, but left some discretion regarding what the government must do. Several commentators have argued that both cases turned a potentially head on conflict, between the judiciary and another part of government, into a meaningful dialogue in which each branch is acting within their roles. Similarly, nothing in Rodriguez or Dandridge would have prevented the Court from ruling both laws unconstitutional and yet leaving significant (but not absolute) discretion to the state to remedy the situation.
Second, the positive versus negative rights distinction is troubling. Government spends money affirmatively to guarantee "negative" rights e.g. funding elections, funding police to protect property or controversial speakers, etc. Moreover, so-called positive rights often have a negative component. Thus, the right to access housing includes a right against arbitrary evictions. Numerous other scholars have made these points. I'm not saying there's no distinction at all betweeen positive and negative rights. But the distinction is certainly not so great as to preclude enforcement of positive socio-economic rights.
Now the more complicated theoretical question is whether the Ninth Amendment and the Fourteenth Amendment should be read as encompassing such rights. I argue in my book that one key to that is the U.S. Supreme Court's artificial reliance on three levels of scrutiny. First, the reality is that the Court has used numerous additional levels of scrutiny. Second, if the Court adopted a sliding scale, then its results in these areas might not be that different from South Africa. As Justice Marshall wrote in Rodriguez, if one combines the importance of education, with the social stigma of being poor, it's apparent that a higher level of srutiny should be used when there is a law that impacts both. Then the question becomes whether the potential slippery slope and clarity problems with a sliding scale (or something like South African proportionality) are too serious. I think the benefits in providing a more just and equal society from such an approach (not to mention a more candid Court -- think of Plyer v. Doe) outweigh the costs of some unpredictability.
Posted by Mark kende on May 8, 2009 at 04:25 PM | Permalink
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See here and here for an argument that the 14A guarantees a positive right to "protection of the laws," i.e., law-enforcement and remedial services.
Posted by: Chris | May 8, 2009 10:47:54 PM
"I think the benefits in providing a more just and equal society from such an approach (not to mention a more candid Court -- think of Plyer v. Doe) outweigh the costs of some unpredictability."
By definition, everyone wants a more "just and equal society." But what the Constution does is govern people according to what the Framers and states thought would constitute a just and equal society, not any of us. The fact that we would prefer the Constitution to grant more rights can't make them appear -- that's what the legislatures and the amendment process is for. Otherwise the Constution simply becomes a wishing well into which 9 lawyers peer into and 'discover' whatever rights they think "outweigh the costs."
Posted by: Aaron | May 9, 2009 4:49:37 PM
"The South African Constitutional Court decisions that I've discussed in earlier posts show these separation of powers objection are flawed."
Mark, if you'll allow me a non-substantive comment, this strikes me as an unusual situation in which to use the word "show." The word "show" suggests "to prove" or "to establish." But as best I can tell, there is no proof here: It's just that you think the separation of powers objections are flawed, and you prefer the approach of the South African Constitutional Court. In other words, you don't think the separation of powers concerns are that big a deal. But I'm not quite sure how that "shows" that the concerns are "flawed."
Posted by: Orin Kerr | May 10, 2009 12:10:01 PM
Dear Orin:
Thanks for your important comment. I agree that I can't prove anything in the sense of a "mathematical proof" or a scientific empirical proof. But I read you as saying something different. I hear you saying that the word "show" doesn't work because all I've indicated is my own preference for the South African approach and my own view that these sep. of powers issues aren't major.
My definition of "show" (from the dictionary) says it means making something more visible, or putting it on display, or revealing something. In that sense, I respectfully think the South African cases put on display, or reveal, an approach whereby courts can enforce these rights while minimizing separation of powers problems (by deferring significantly to the other branches). The U.S. Supreme Court cases by contrast suggest it's impossible to minimize those problems. If the U.S. Supreme Court were correct, I actually would take the objection seriously so I'm not minimizing the objection in theory. I just think the South African cases show that the U.S. Supreme Court did not contemplate such creative solutions and thus engaged in flawed reasoning. Of course, you may well disagree with my conclusion (e.g. one could argue that comparative work such as this is inherently problematic, or that this is still a major sep. of powers problem, etc.). But haven't I "shown" some evidence (these South African cases) from which it is at least reasonable to draw this conclusion? (sorry I ended up making this more substantive as an argument but it seemed to have to go in that direction) Best, Mark
Dear Aaron:
Thanks for your useful comment. I don't believe I read much into the Constitution at least compared to the Court itself. Think of the levels of scrutiny. Where are they in the Constitution? They are developed as a matter of Supreme Court precedent and decision-making. I'm just saying that a more candid view of those scrutiny levels yields the conclusion that the Court in Rodriguez, as one example, could and should have used a level of scrutiny beyond rationality (whether one calls education a fundamental right or not -certainly Brown thought it was important). I'm also suggesting that South African proportionality analysis engages in this more nuanced assessment of the importance of "rights" in an open and candid manner. Indeed, I'm not alone. Numerous American scholars have authored articles saying the scrutiny levels have broken down. The question is what to do with that. Thanks again for your comments and I welcome your disagreement. Mark
Posted by: Mark Kende | May 10, 2009 8:33:22 PM
Mark,
Thanks for the interesting response. I'm at a little bit of a disadvantage not having read your book, and not being entirely sure of who you have in mind as raising separation of powers issue. But let me offer some amateurish and only half-formed thoughts in response, with the hope that they might be useful in some way.
I agree that in theory, a court could choose from an extraordinary set of possible remedies in its effort to push other branches to act a particular way. It could say that the legislature needs to pass a law in 90 days, and that it will then review the law to say if it is good enough. It could say that the head of the legislature needs to come and visit the members of the court every 30 days and given them an update in person. The court could say that it will dock the legislators' pay $100 a day until the legislature acts. The Court could say that it will send bullies to the playgrounds of the legislators' children and steal their lunch money every other Wednesday until their parents in the legislature solve the problem. Or maybe the court can order every legislator to do a push-up on national TV for every day the problem goes unsolved. As a theoretical matter, any of these are possible: Any of these could be considered "creative solutions" that a court could try to minimize separation of powers concerns (and by docking pay and stealing kids' lunch money, paying for the court system to boot! At least assuming the judges don't spend it on beer money.).
I gather everyone agrees that these are theoretically possible remedies (albeit ones not seen in U.S. law). At the same time, it's not clear how the hypothetical possibility of these remedies minimizes rather than aggravates the separation of powers concerns here. I would think that a court that grants itself the power to impose whatever remedy it thinks might work to push the legislature to act is actually more dangerous from a separation of powers perspective, not less: If a court wants to send bullies to steal the lunch money of legislators' children, nothing can really stop it. I find that very scary.
Put another way, my sense is that the folks who see separation of powers problems here see "creative solutions" as essentially giving a court powers to act as a king, ordering anyone in the government to do whatever the king says until the king is satisfied. To use the example of South Africa, I think you need to do more than just show that creative solutions can address the problem, I think you have to do more than say that there's a court out there that imposed a creative solution. I think you would need to make the case that a court that grants itself this power and can exercise it freely won't abuse that power, will actually end up respecting the democratic process, won't try to enlarge its influence, etc. Perhaps that's in the book, and perhaps that's how it worked in South Africa, but I think the fact that the court tried to fashion these remedies doesn't really cut either way from the standpoint of the normative question of separation of powers.
Anyway, I hope that made sens. Maybe I'm just being my usual knee-jerk defender of judicial restraint and caution, but I find the idea of giving judges the power to impose creative solutions to be troubling.
Posted by: Orin Kerr | May 10, 2009 10:03:48 PM
Mark, I think the current use of levels of scrutiny is (in theory) a jurisprudential compromise between (1) the fundamental rights that are enumerated (or at least based in...) the Constitution, versus (2) Congress's and the States' regulation powers. Thus, the court had to create some system of jurisprudence to decide how it will confront, say, a case where a government uses its taxing and spending power to only tax racial minorities. If mere rational basis is the only standard then all rights would be hollow, since just about any legislation can have some rational basis in some acceptable objective. The existence of the right creates the need for scrutiny, not the otherway around.
Thus, when you say that the Court "should have and could have" used enhanced scrutiny in a particular case even though such is not a fundamental right, I would consider that a means of circumventing judges' Constitutional commitment of finding and interpreting rights that are only based in the Constitution.
So, the fact that the levels of scrutiny aren't explicitly listed in the Constitution, in my mind, hardly means that judges should use enhanced scrutiny on certain "rights" that don't exist but are otherwise considered important. It seems that this latter instance is just a more "nuanced" power-grab, raising the sort of concerns that Orin Kerr raised above.
Posted by: Aaron | May 11, 2009 11:41:22 AM
Dear Orin:
Thanks for your additional interesting post. I may steal your example of bullies as a hypothetical for a class! But more seriously, most scholars in South Africa think their court has not gone far enough in adopting remedies that specify how the other branches should act -- the exact opposite position from what you are asserting (shameless self promotion -- this is discussed in the book, especially the socio-economic rights chapter!). The court is perceived as being very deferential to democracy, and to the abuse of power concerns, which you indicated were your tentative signs of legitimacy. My earlier posts quoted from a Justice confirming this concern.
Or to be more concrete, imagine an American state court ordering a remedy in a state educational funding disparity rights violation case faced with two options (perhaps the closest we have to socio-economic rights cases in the U.S. ). The court can draft a detailed injunction covering everything. Or the court can order the parties to negotiate in good faith and try to agree upon how to resolve the problem (but then come back to court if the parties can't succeed). Isn't it apparent that the latter is less of a separation of powers problem than the former? Option 2 provides some initial flexibility to the executive and legislative branches. That's the kind of "creative solution" I'm talking about -- nothing radical. It falls well within the kinds of things courts can do here too. Best, Mark
Dear Aaron:
Thanks for your additional comments. If the U.S. Supreme Court was consistent, you are correct that they would clarify what is a fundamental right or a suspect class first, without any ambiguity, and follow the rigid scrutiny formulas. But I respectfully think that doesn't explain cases like Cleburne or Plyer. The mentally retarded were not a suspect class. Neither were the children of illegal non-citizens. Yet the Court did not use customary rationality review in either case. In Grutter, Justice O'Connor did not really use strict scrutiny -- it was something less. Don't you agree? Certainly scholars like Suzanne Goldberg, Jeffrey Shaman, Chemerinsky and others acknowledge there are multiple scrutiny levels at work. Randall Kelso has a great piece where he identifies six levels of scrutiny in the cases.
If that's the reality, isn't it more correct and traditional for a court to be candid and open about what it is doing rather than pretending otherwise? Isn't that what restrained courts do rather than hide it? Moreover, in Grutter, the result actually was that the Court upheld the affirmative action plan. Thus, this flexibility resulted in more judicial restraint in that case, not less. Just my last two cents. Feel free to have the last word if you are so inclined. Thanks again. Best, Mark
Posted by: Mark Kende | May 11, 2009 2:39:01 PM
Mark,
Why are the perceptions of the South African scholars relevant? If you tell me that United States legal scholars predominantly believe something about the United States Supreme Court, I am apt to think the belief is wrong. Scholars are a funny bunch, at least in the U.S.; I assume the same is true in South Africa.
As for what is "radical", that's a term that depends on the community you have in mind, of course.
Posted by: Orin Kerr | May 11, 2009 3:17:09 PM
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