Bolling Alone

Abstract

Under the doctrine of "reverse incorporation," the principles of equal protection bind the federal government even though the Equal Protection Clause by its terms is addressed only to states. This doctrine is generally identified with the Supreme Court's 1954 decision in Bolling v. Sharpe. But since Bolling, the Supreme Court has never held any federal action to violate the equal protection rights of any racial minority group. Lower courts have entertained hundreds of racial discrimination claims under Bolling but almost never grant relief. This is not to say that reverse incorporation plaintiffs are never successful: courts have periodically found unconstitutional federal discrimination on non-racial grounds such as sex and alienage, and reverse incorporation has also limited the scope of federal affirmative action. But in the presumed core area of preventing federal discrimination against members of racial minority groups, Bolling has virtually no successors.

Why are there no successor cases? One possible answer is that the federal government has internalized the reverse incorporation rule into its decisionmaking. If that is so, then the absence of cases testifies to the success of the rule. Unfortunately for this account, there is no historical or empirical evidence of changed federal decisionmaking to take account of the rule. Another possible answer is that the federal government does not have jurisdiction to act in most of the areas of life where racial discrimination appears as a problem. Education, law enforcement, transportation, family law, and housing are generally matters of state and local concern. Unfortunately for this account, the federal government actually does have (and has historically had) plenty of opportunities to practice racial discrimination in areas like the military, immigration, federal employment.

A better account focuses on the relationship between the federal courts and the other federal branches. The absence of successful race discrimination claims against the federal government does not mean that the federal government does not discriminate in some abstract sense; it means only that federal practices do not meet the federal courts' definition of actionable discrimination at any given time. That definition changes through time in a way that tracks the norms that influence the entire federal government, courts as well as other branches. Activities that the federal courts are willing to call "discriminatory" are largely activities that the other federal branches do not engage in, and when federal officers engage in authorized discrimination, subconstitutional rules created by the other branches are sufficient to police their behavior. No single factor explains this absence of cases, but this third factor has more explanatory power than the first two.

Keywords: constitutional law, equal protection, reverse incorporation, discrimination