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IN THIS ISSUE

Table of Contents

Letter from the President: Connecting the Dots

Notes on the Right: The Enduring Importance of Strategy

EJS December 8 Fundraiser Features Harriet Tubman Jazz Oratorio

Vote Yes on 89: 'Clean Money' Initiative

First California, Now Michigan: Putting Race up for a Vote

Supreme Court to Revisit Brown v. Board in School Cases

EJS, CTA Look at Unconscious Bias in Schools

U.N. Committee Criticizes Racism in U.S.

New Voting Rights Act Under Attack

A First Look at the Roberts Court

Latina/o Law Student Symposium

Foundations Support EJS Efforts to Balance Racial Justice Debate

Farewell from our Irmas Fellow

Staff News and Notes

Newsletter Editors:
Elaine Elinson
Miguel Gavaldón

Email Feedback

A First Look at the Roberts Court

By Melyssa Mendoza

The Supreme Court underwent many changes in the October 2005 term.  John Roberts became the new Chief Justice, and Samuel Alito replaced Sandra Day O’Connor, the first female Justice.  How have Roberts and Alito affected the Court so far?

The Roberts Court

The Roberts Court’s first term found itself trying to establish a new ground by striving to achieve a good number of unanimous decisions. Unanimous decisions demonstrate a lack of partisan ideologies, with the ideal result being a strong, impartial and unified judiciary. However, many of the  cases decided unanimously came  at the beginning of the term; moreover, these decisions were decided on extremely close votes.  The more complicated cases,  handed down at the end of the term, revealed the true conservative tendencies of the court, including the ideologies of its two new members.

Chief Justice Roberts voted in the majority over ninety percent of the time.  Justice Kennedy became the swing vote on many of the 5-4 decisions, and wrote the majority opinion on many of the Court’s more high profile cases. Justice Stevens, widely regarded as the most liberal justice, wrote the most opinions of any of the Justices, including the Hamdan case.  Stevens also wrote the most dissents, suggesting that the court ruled more conservatively on the non-unanimous decisions.

Justice Alito joined the Court after the term already started;  Justice O’Connor and the rest of the Court had already decided twenty cases. Alito voted the most with Roberts and the least with Stevens. Alito also tended to vote more often with Justices Scalia and Thomas. O’Connor voted with the more liberal justices 16% more than Alito did this past term. He also voted with the more conservative justices 15% more than she did.  His conservative impact can be seen in three cases closely followed by EJS, Garcetti v. Ceballos (whistleblower case), Samson v. California (warrantless search of a parolees), and Hudson v. Michigan (evidence admissible after an illegal “knock-and-announce” case).  Those cases were all heard twice. Presumably, the justices were at a 4-4 decision upon O’Connor’s absence, and Alito became the decisive vote in those cases.  His impact is particularly felt in Hudson, because during the first arguments O’Connor seemed to be in disagreement with Scalia, who eventually ended up writing the majority opinion.

Noteworthy Cases

EJS was particularly concerned about the impact of the Court’s holdings on women and communities of color, and these were the cases that we followed most closely. 

EJS filed an amicus brief in Randall v. Sorrell citing that campaign finance reform is needed if communities of color are to gain meaningful access to the political arena.  Randall held that campaign spending limits were unconstitutional, and that campaign contribution limits were extremely restrictive and therefore unconstitutional as well.  Neither the plurality opinion nor the two dissents discussed the impact of this decision on communities of color. Stevens’ dissent raises the fact that when only the rich have the ability to enter politics, government has failed to keep itself from the undue influence of money and fails to promote individual responsibility for a democratic government.  Unfortunately, Stevens refrains from following through with the logic that rich people disproportionally are not from communities of color. Thus the issues raised in the EJS brief were therefore not addressed.

Another case EJS followed was LULAC v. Perry,  the Texas Redistricting cases that  examined various constitutional issues surrounding a mid-decade redrawing of congressional districts by Texas Republicans in 2004.  The particular question that one plaintiff, MALDEF, raised was whether the redrawing of Texas District 23 amounted to vote dilution in violation of § 2 of the Voting Rights Act of 1965 (“VRA”).   The ultimate purpose of §2 is to ensure minority groups equal “opportunity... to participate in the political process and to elect the representative of their choice.” The Court held that the totality of the circumstances demonstrates the redrawing of the Texas districts amounted to a §2 violation. 

Kennedy wrote the plurality opinion and noted that the former District 23 showed an increase in Latino voter registration and overall population.  The Latino voter’s voice gained momentum with each successive election to the point where Latinos nearly elected the representative of their choice in 2002, which would have unseated the Republican incumbent. The redrawn districts diluted the Latino vote by giving Latinos 16% of the total opportunity districts, while Latinos make up 22% of the Texas voting-age population.

An important note to take from this case is that the Court recognizes that minorities do not hold static interests, nor do they necessarily share similar backgrounds.  Indeed, Kennedy uses an antiessentialist argument in order to provide support for his analysis.  Taking into consideration that the Latino communities in District 25 are separated by 300 miles and have different socio-economic status he states, “there is no basis to believe a district that combines two far-flung segments of a racial group with disparate interests provides the opportunity that §2 requires.”  He continues, “(w)e do a disservice to these important goals by failing to account for the differences between people of the same race. … [T]he different characteristics, needs and interests of the Latino community near the Mexican border and the one in and around Austin are well supported and uncontested.”  Kennedy concludes, “[t]he practical consequence of drawing a district to cover two distant, disparate communities is that one or both groups will be unable to achieve their political goals.” 

Roberts wrote a strong dissent in this case., stating  “I do not believe it is our role to make judgments about which mixes of minority voters should count for purposes of forming a majority in an electoral district….It is a sordid business this divvying up by race,” he noted. .” (emphasis added).  Needless to say, he completely disagrees with the majority’s antiessentialist argument and adopts a “colorblind” stance.  This may give us some insight into his  thought process on race for future cases involving race-based distinctions.

Antiessentialism recognizes the fact that people are not just minorities, women or men, but are people with diverse interests and needs that sometimes intersect, and sometimes do not. The Court’s discussion of antiessentialist concepts may result in a conversation about how a “colorblind” society does not account for the fact that although some minorities may start off differently socio-economically, they still face racial and/or gender discrimination which may hinder their goals.  This remains to be seen and will be closely watched in the upcoming Seattle and Louisville school desegregation cases in the 2006 Term. (see story on these cases in this issue)

For more information, readers may find the Georgetown University  Law Center  Supreme Court Institute a very useful source of analysis and statistics about the court (download PDF).

Sharp Drop in Female Supreme Court Clerks

Justice Sandra Day O’Connor was not the only female to leave the United States Supreme Court, there seems to be a dearth of women law clerks as well. In a New York Times article, “Women Suddenly Scarce Among Justices’ Clerks,”  Supreme Court reporter Linda Greenhouse, highlights a disappointing drop in the number of female law clerks for the 2006 Term.

Despite the fact that around 50% of law school graduates are female, there are only 7 female clerks out of 37 law clerkships with the Supreme Court. Last term there were 14 females. This term is the first since 1994 to have the female clerks number in the single digits.  Possible explanations for the drop in numbers range from a statistical variation, few female law review editors at top schools, and few women working for feeder judges (judges whose clerks tend to become Supreme Court clerks).  Another theory is that not that many women hold the conservative ideologies of Scalia and Thomas, both of whom did not hire any females this time around. Greenhouse notes  that there is no reliable data, but the clerks also seem to be mainly white. Whatever the reason for the low numbers females and relative lack of people of color, there appears to be enough discussion in the law-blog world as well as mainstream media to potentially embarrass the Court into reviewing their hiring practices for the next Term.

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