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Monday, June 24, 2013

Strategic Compromise on the Supreme Court

We may be at the height of strategic compromise at the Supreme Court.  Justices are tempering their likely ideological views to reach consensus on broader issues, trying to maintain the integrity of the institution in the process.  It happened today in Fisher, the affirmative action case, and it is quite possible that we will see this judicial tactic repeat itself throughout the week in the Court’s other most significant cases, on the Voting Rights Act and gay marriage.

This morning, the Court ruled, 7-1 (Justice Kagan was recused), to send the biggest affirmative action case in several years, Fisher v. University of Texas, back to the Fifth Circuit.  In doing so, it agreed that considering race as one factor in college admission decisions is permissible, but it told the Fifth Circuit to consider the plan under a stricter standard of review to determine whether the University “narrowly tailored” its program.  This was classic strategic compromise:  the conservative Justices, who normally would have ruled that all affirmative action programs are unconstitutional, agreed with the result because it narrowed the scope and reach of affirmative action.  The liberal Justices, who likely would uphold most affirmative action plans, went along because the decision maintained the ability of universities to consider race as one factor in their admission decisions, even if affirmative action lives on in a narrower form.  Neither side achieved all of its goals, as the opinion has something for everyone:  a statement sanctioning affirmative action in theory but requiring those programs to be as narrow in scope as possible.  Both sides of the Court used strategic compromise to ward off the likely more extreme approaches of the other side.  The Court as a whole comes out looking better in the process.

Just as many worried that Fisher would spell the end of affirmative action in college admissions, most observers believe that Section 5 of the Voting Rights Act is in peril in Shelby County, which the Court will also decide this week.  The question is whether Congress may require certain “covered jurisdictions,” which are mostly in the South and have a history of racial discrimination, to seek preapproval, or “preclearance,” before making any change in their election machinery.  Section 5 is intended to forestall the worst abuses in racial discrimination in voting before states and local jurisdictions can implement them.  Strategic compromise saved Section 5 just a few years ago, when the Court used a tortured statutory analysis to punt on the constitutional question.  That question is now squarely before the Court in Shelby County.  But the Court could well use strategic compromise again to issue a more nuanced opinion, leaving Section 5 largely intact but narrowing its scope.  The plaintiffs in Shelby County brought a “facial” challenge to Section 5, saying that it is unconstitutional in all of its applications, but as I have recounted elsewhere, the Court has shifted to requiring only as-applied challenges in election law litigation.  The Court could similarly reject the facial challenge in Shelby County but remand for the lower court to consider an as-applied challenge should the plaintiffs wish to amend their complaint.  The plaintiffs would then have to prove why, regarding their specific circumstances, they should not be required to submit all election changes for preclearance under the Act.  The Court could give teeth to an as-applied constitutional challenge to a jurisdiction falling under the coverage formula, even if that jurisdiction cannot meet the statutory “bail out” requirements of the Act.  This would once again demonstrate strategic compromise:  the liberals would agree because the ruling would maintain Section 5 of the Voting Rights Act as a tool Congress can use to root out racism in election administration; the conservatives would go along because it would provide another “way out” (in addition to the statutory “bail out” mechanism) for jurisdictions that prove they are no longer discriminating in their voting process.  This approach is more tempered then either side probably would like, as it maintains but narrows the reach of Section 5.  But it takes the Court out of making what otherwise would seem like a political decision either way.

Finally, the Court could use strategic compromise in the same-sex marriage cases.  In both cases there is a significant question of standing – whether the plaintiffs are the proper parties to bring these suits.  The case involving California’s Proposition 8 is probably the more significant of the two given that the decision could sanction gay marriage for the entire country.  But if each side of the Court engages in strategic compromise, it might punt on the constitutional issue by ruling that the plaintiffs do not have standing to appeal the lower courts’ decisions.  This would in effect uphold the lower courts’ ruling that Prop 8, which banned same-sex marriage, is unconstitutional, but it would only affect California.  The question of gay marriage in the rest of the country would remain open to resolve on a state-by-state basis.  To be sure, when the Court decided to hear the case it was well aware of the standing issues, but in the process of negotiating the language of the opinions the Justices might have realized that a more nuanced approach would be better for the Court and the country.  The liberals would go along with this judicial “punt” to avoid a ruling that a state can ban same-sex marriage; the conservatives might agree to avoid a ruling that gay marriage is a constitutional right for the entire country. 

The Roberts Court has exhibited strategic compromise before, most notably in last year’s health care case.  Chief Justice Roberts wrote an opinion that upheld “Obamacare” under a tax theory but curtailed Congress’s Commerce Clause authority.  In some ways, neither side fully liked the decision:  the liberals were able to uphold President Obama’s signature legislation but had to swallow the Commerce Clause analysis; the conservatives lost the battle on the health care law itself but achieved a narrowing of Commerce Clause jurisprudence.  And the Court stayed out of the political fray, at least in the public’s view. 

Ever since Bush v. Gore the Supreme Court has been extremely cognizant of its institutional standing, particularly after John Roberts became the Chief.  By invoking strategic compromise and cajoling his colleagues on both sides to give a little, he can avoid decisions that are too far-reaching either way.  Neither side may be completely happy, but both achieve some success.  The Court could similarly use strategic compromise in both the Voting Rights Act case and the gay marriage cases – which are the decisions the public is paying attention to the most.  In the process, the Court will avoid groundbreaking, political-sounding decisions, and will improve its standing as the apolitical branch of government.

The legacy of the Roberts Court may be one of strategic compromise.  We will know in a few short days.

Posted by Josh Douglas on June 24, 2013 at 07:06 PM | Permalink

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