Grutter's Denouement: Three Templates from the Roberts Court

Ellen D. Katz*

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This month, the Supreme Court will hear argument in Fisher v. University of Texas at Austin,[1] a case that is widely expected to end race-based affirmative action in higher education. A decade ago, Grutter v. Bollinger[2] upheld that practice, holding that public universities and colleges could lawfully include race as one factor in admissions decisions to foster racial diversity on campus. At the time, the Court speculated that such diversity would be achieved in twenty-five years and that race-based affirmative action thus would no longer be necessary in 2028.[3] The Roberts Court now appears ready to ditch the practice much sooner.

This prospect should come as no surprise. Vulnerable from the start, Grutter was the product of a deeply divided Court and has lacked majority support among the Justices ever since its author, Justice O'Connor, retired in 2005. Since then, the Roberts Court has voiced its hostility to race-based criteria in a host of contexts and has also repeatedly shown its willingness to displace precedent it dislikes.[4] Adding the fact that Fisher contains none of the characteristics that typically justify Supreme Court review and it looks like a safe bet that the Roberts Court did not take the case to affirm the wisdom of diversity-seeking affirmative action. It is far more likely that it will use Fisher as a vehicle to condemn Grutter and the type of decisionmaking it fosters.

Affirmative Action, Justice Kennedy, and the Virtues of the Middle Ground

Allen Rostron*

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When the Supreme Court hears arguments this fall about the constitutionality of affirmative action policies at the University of Texas,[1] attention will be focused once again on Justice Anthony Kennedy. With the rest of the Court split between a bloc of four reliably liberal jurists and an equally solid cadre of four conservatives, the spotlight regularly falls on Kennedy, the swing voter that each side in every closely divided and ideologically charged case desperately hopes to attract. Critics condemn Kennedy for having an unprincipled, capricious, and self-aggrandizing style of decision-making.[2] Though he is often decisive in the sense of casting the crucial vote that determines a case’s outcome, his opinions can be maddeningly indecisive in the sense of failing to establish clear rules of law. Yet in Fisher v. University of Texas, Kennedy’s irresolute nature may prove to be a blessing. By taking a middle-ground position that significantly sharpens judicial scrutiny of affirmative action programs but does not absolutely bar them, Kennedy can finesse the issue in a way that accommodates the American public’s conflicted feelings about racial preferences, but simultaneously forces everyone to start thinking more seriously about how racial components of affirmative action can be phased out in a manner that will minimize disruption and bitterness.

A Modest Memoir: Justice Stevens's Supreme Court Life

Laura Krugman Ray*

Editor's Note: This book review is a Colloquy companion piece to the forthcoming Northwestern University Law Review Volume 106, Issue 2, which celebrates Northwestern Law alumnus and former Supreme Court Justice John Paul Stevens's life and career.

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The title of Justice John Paul Stevens's new book, Five Chiefs: A Supreme Court Memoir, tells us several things about the author before we have read a single page. By deflecting attention from the author to his subject, the title makes clear that this book will not be a celebration or even an exploration of Stevens's long tenure on the Court. And by designating the book a memoir rather than an autobiography, the title also cautions us not to expect a detailed account of the author's path to the Court. Instead, the modesty of the title prepares us for the modesty of the author, whose focus will be on the ways in which five Chief Justices ran their Courts. Stevens himself will be at the forefront only when needed to illuminate their successes and flag their occasional errors. Even this project is treated with self-deprecatory irony: the epigraph, borrowed from Lincoln's Gettysburg Address, announces that "[t]he world will little note, nor long remember, what we say here . . . ."[1] This is, in short, a book about the Court itself rather than about the author.

Justifying Diversity in the Federal Judiciary

Carl Tobias*

Editor's Note: This Essay is a response to Nancy Scherer, Diversifying the Federal Bench: Is Universal Legitimacy for the U.S. Justice System Possible? , 105 NW. U. L. Rev. 587 (2011).

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Introduction

Professor Nancy Scherer has offered a proposal to maximize diversity and legitimacy in the federal judiciary, a profound enigma that vexes judicial selection.[1] This is important because the selection process involves the very core of law and politics:[2] the President chooses nominees whom the Senate approves; once confirmed, these judges resolve controversial political issues.[3] Scherer proceeds by first examining rationales for and against a court-appointment strategy that would enhance diversity. She observes that both champions and critics of diversity share the goal of increased judicial legitimacy, although they obviously differ on how best to achieve it. Scherer then suggests a new solution, predicated on this common ground, to resolve the disagreement—urging diversity advocates to articulate the concrete benefits that expanding diversity can afford majorities and to collect and synthesize empirical information confirming these advantages.

This Essay descriptively and critically reviews Scherer's article. Although her account provides valuable insights into increasing diversity and legitimacy, it understates the crucial influence of politics. Indeed, the growing politicization of the selection process, which implicates the debate over diversity, could seriously undermine judicial legitimacy. However, President Barack Obama's approach to judicial appointments elucidates the issue and could point the way forward. This Essay thus scrutinizes Obama's judicial selection effort, which confirms many ideas that Scherer espouses while showing how political deficiencies in the modern selection process erode diversity and legitimacy, and perhaps Scherer's provocative solution. This response ultimately discusses some promising measures beyond Scherer's recommendation that could enhance diversity and legitimacy in light of the threat that politicization poses.

Hosanna-Tabor and Supreme Court Precedent: An Analysis of the Ministerial Exception in the Context of the Supreme Court’s Hands-Off Approach to Religious Doctrine

Samuel J. Levine

Editor's Note: This essay is the second in a five-part series on Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, a major religion case currently pending in the Supreme Court. For the first time, the Court may squarely address the ministerial exception, a controversial doctrine that grants religious organizations immunity from employment discrimination suits by ministers, even where the discrimination is not religiously required. Our contributors, representing both sides of the scholarly debate, discuss the important doctrinal and policy implications of this landmark case.

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Introduction

The United States Supreme Court’s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court’s Religion Clause jurisprudence.  On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations.  The narrow issue at the center of the case is the "ministerial exception," a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees.  This Essay suggests, however, that the real significance of Hosanna-Tabor goes beyond the Court’s application of the ministerial exception to the particular facts of the case.  This Essay looks at the ministerial exception through the broader prism of the Supreme Court’s "hands-off" approach to religious doctrine, which prohibits judicial inquiry into a wide range of questions relating to religious practice and belief.

The Legacy of Justice Stevens

On May 12th, Northwestern University and the Northwestern University Law Review held a symposium celebrating the legacy of Justice John Paul Stevens (JD '47).  A number of leading scholars and court watchers gathered to participate in the event, as did the Justice himself.  The participants covered many different aspects of the Justice's life and legacy throughout the day.

Ricci v. DeStefano: End of the Line or Just Another Turn on the Disparate Impact Road?

Charles A. Sullivan[*]

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Introduction

Reports of the death of Title VII’s disparate impact theory of discrimination in the wake of Ricci v. DeStefano[1] may be exaggerated.[2]  Widely praised and widely criticized in the newspapers[3] and the blogosphere,[4] Ricci is the latest, but not the last, chapter in a long-running feud between Congress and the Supreme Court regarding disparate impact.

As the Supreme Court summarized the theory in International Brotherhood of Teamsters v. United States, disparate impact discrimination is the use of “employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.”[5]  First announced by the Supreme Court in Griggs v. Duke Power Co.,[6] the theory required a plaintiff to establish a prima facie case of disparate impact discrimination by showing that the challenged employment practice, although facially neutral in its treatment of different groups, in fact fell more harshly on one group, say African Americans or women, than another group, say whites or males.  Once that prima facie case was established, the defendant had the burden of persuading the court that a “business necessity” or “job relation” justified the challenged practice.[7]  When the challenged practice was a test with a disparate impact, the employer carried this burden by establishing its validity under technical testing standards developed originally by industrial psychologists and later articulated in federal agency guidelines.[8]

Keeping the Government's Religion Pure: Pleasant Grove City v. Summum

Christopher C. Lund[*]

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In January, the Supreme Court decided Pleasant Grove City v. Summum.[1]  Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park.  At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display.  But this was a Free Speech case, not an Establishment Clause case.  The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their monument as well.

Most people expected the plaintiffs to lose.  And they did, clearly and unanimously.  I publicly predicted that Summum would lose on the day the Supreme Court granted certiorari,[2] and suggested that it might be unanimous a few hours after oral argument.[3]  But I do not claim any special powers of foresight.  My point is actually the opposite—anyone with experience in this area could recognize that the plaintiffs faced an uphill climb.  They were asking for a sweeping change in the law, and it was no surprise that they did not get it.

This Essay explains the decision in Summum, giving special focus to the religious dimensions of the case.  Summum, again, was decided on Free Speech grounds.  It was not an Establishment Clause case.  But it nevertheless reveals much about the course that the Supreme Court is now charting with the Establishment Clause.

Lessons Learned from Forest Grove School District v. T.A.: How the Supreme Court Can Refine the Approach to Private School Tuition Reimbursement Under the IDEA

Courtney Rachel Baron[*]

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I.  Introduction

On April 28, 2009, the Supreme Court heard oral argument in Forest Grove School District v. T.A.,[1] a case that addresses a deeply contested issue in special education litigation.  Reviewing the Ninth Circuit’s decision in Forest Grove, the Court will decide whether the Individuals with Disabilities Education Act (IDEA)[2] entitles parents to reimbursement for their child’s private school education if the child has never received special education services provided by a public school.[3]  Forest Grove represents the latest of many cases to perpetuate the circuit split on this issue.  In fact, in 2007, the Supreme Court addressed the same question in Board of Education v. Tom F.[4]  Just two weeks before the Court heard argument in Tom F., however, Justice Kennedy recused himself,[5] resulting in a 4-4, non-precedential decision affirming the Second Circuit’s grant of reimbursement to parents facing circumstances similar to those presented in Forest Grove.[6]  Currently, the Second,[7] Ninth,[8] and Eleventh Circuits[9] recognize the availability of reimbursement, while in contrast, the First Circuit[10] has refused to do so.

Because of the growing divide between the circuits, many parents of children with disabilities face uncertainty about whether they will be reimbursed if they choose to enroll their children in private schools.[11]  The Supreme Court should end parents’ uncertainty by affirming the Ninth Circuit’s decision in Forest Grove and holding that parents who enroll their child in private school before that child has received publicly provided special education services are not precluded from tuition reimbursement under the IDEA.  The language and intent of the IDEA and the balance of policy considerations support the Ninth Circuit’s decision.  More importantly, the Court should capitalize on its opportunity to refine the judicial approach to private school reimbursement cases by adopting an analytical framework that encourages parents and schools to cooperate more closely.

Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality

Bidish J. Sarma,[*] Robert J. Smith,[**] & G. Ben Cohen[***]

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Introduction

The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana[1] and Kansas v. Ventris.[2]  Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves.  Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment[3] prophylactic rule with the Sixth Amendment right to counsel.[4]  The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at interrogations into the Fifth Amendment Miranda[5] framework.[6]  This short essay explains why the Court should resist the temptation to do so.