'Reverse Carolene Products,' the End of the Second Reconstruction, and Other Thoughts on Schuette v. Coalition to Defend Affirmative Action

Cato Supreme Court Review, pp. 261-284, 2013-2014

George Mason Law & Economics Research Paper No. 15-21

25 Pages Posted: 6 Jun 2015

See all articles by David E Bernstein

David E Bernstein

George Mason University - Antonin Scalia Law School, Faculty

Date Written: October 1, 2014

Abstract

This Article tries to make sense out of the political process doctrine in the wake of Schuette v. Coalition to Defend Affirmative Action.

The political process doctrine made a certain amount of prudential sense when created in the late 1960s to invalidate referenda overturning fair housing laws; the Court correctly discerned that these repeals were motivated in substantial part by racism. Moreover, the justices likely thought that the constitutional-amendment-by-referendum process was grossly unfair to blacks for “reverse Carolene Products” reasons, preventing them from counteracting the political disadvantages of an isolated and unpopular minority with the advantages of a concentrated interest group.

The political process doctrine became entirely unstable once the issue of “what’s good for African Americans” and “what’s motivated by racism” became less clear. This had occurred both because of a huge decline since the 1960s in racist attitudes by whites, and because the issues have changed from rectifying overt racial discrimination to more complex social policies. If the political process doctrine is unstable with regard to African Americans, it becomes positively incoherent and unworkable once one considers the diversity both among and within other “minority” groups.

The Supreme Court is left with four options when it confronts the political process doctrine in the future. Option one is to limit the political process doctrine to the facts analogous to the facts that led to its adoption: a minority group and its allies manage to get a law or law passed protecting them from discrimination, but the majority overturns those laws via a constitutional amendment that changes the political process to their disadvantage.

The second option is that the doctrine would only apply when voters overturn government policy meant to mitigate an unambiguous “racial injury” identified by the Court. This category is likely to be vanishingly small, at best.

Third, if a liberal majority retakes the Court, it could follow Justice Sotomayor’s lead and embrace an expansive version of the political process doctrine. How to do this coherently remains unclear.

Finally, the Court could follow Justice Scalia’s suggestion and eliminate the doctrine. This path would have the virtue of forthrightness and clarity, but that goes against the grain of the Supreme Court’s jurisprudence on race, which has long preferred opacity and complication. Moreover, Scalia is shy three votes for this reversal.

And so, the political process doctrine, problematic thought it may be, seems likely to survive in some form for quite some time.

Keywords: equal protection, Fourteenth Amendment, Hunter v. Erickson, political process doctrine, Reitman v. Mulkey, Second Reconstruction, Schuette v. Coalition to Defend Affirmative Action, Supreme Court, U.S. v. Carolene Products, Washington v. Seattle School District No. 1

Suggested Citation

Bernstein, David Eliot, 'Reverse Carolene Products,' the End of the Second Reconstruction, and Other Thoughts on Schuette v. Coalition to Defend Affirmative Action (October 1, 2014). Cato Supreme Court Review, pp. 261-284, 2013-2014 ; George Mason Law & Economics Research Paper No. 15-21. Available at SSRN: https://ssrn.com/abstract=2614654

David Eliot Bernstein (Contact Author)

George Mason University - Antonin Scalia Law School, Faculty ( email )

3301 Fairfax Drive
Arlington, VA 22201
United States
703-993-8089 (Phone)
703-993-8202 (Fax)

HOME PAGE: http://mason.gmu.edu/~dbernste

Register to save articles to
your library

Register

Paper statistics

Downloads
83
Abstract Views
816
rank
294,906
PlumX Metrics