The Supreme Court Will Be Open on Monday, and Here's the Agenda

Equal protection, age discrimination, and campaign finance are on the menu—and that’s just for October.
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For most of this week, it seemed possible that the first Monday in October might come and go without the opening of the Supreme Court term, breaking a streak begun in 1917. “In the event of a lapse of appropriations,” the SCOTUS website said yesterday, “the Court will continue to conduct its normal operations through October 4.”

Today, however, the Court promises to be open for at least another week—which is good news for those who track the Constitution at a level slightly less fraught than debt ceiling nail-biting. This Term may be less dramatic than the past two, but the Court majority’s itch to do a little constitutional tinkering is already in evidence.

In October alone, the Court is scheduled consider new questions about the Equal Protection Clause, the law of campaign finance, and affirmative action. Here are the constitutional highlights of the October arguments:

Monday, October 7Madigan v. Levin is a kind of warm-up game for the bigger cases the following week. The question concerns state employees who claim to have been discriminated against because of their age. That kind of discrimination is strongly forbidden—to government and to private employers—by the Age Discrimination in Employment Act, passed in 1967. But it is also, so to speak, weakly forbidden to state governments in particular by the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court has held that governments can discriminate by age if they have a “rational basis”—that is, a decent reason—for doing so. State troopers, for example, need to be fit; fitness declines with age, so a rule requiring retirement at 50 is okay for the state police. But the government can’t discriminate against the aging just because employers like having young folk around.

In May 2006, Lisa Madigan, attorney general of Illinois, fired Harvey Levin from her consumer protection division. Levin was 55 and says he was replaced by a lawyer in her 30s. He sued under both the ADEA and the Equal Protection Clause.

The Equal Protection claim is important for two reasons. First, Levin’s ADEA claim was thrown out of court because the act doesn’t protect personal staff or legal advisers of elected officials, and a federal court found that he was one. Second, even if he could proceed under the ADEA, he couldn’t win a judgment for his back pay. The Eleventh Amendment bars an ADEA action for money damages against a state. That restriction doesn’t apply, however, to a lawsuit under the Equal Protection Clause.

So the question is whether Congress intended to make ADEA the only way employees could sue for age discrimination. The Seventh Circuit held that it did not; all other circuits that have ruled on the issue have held that it did. In practical terms, the resolution will matter to thousands of state employees. It will also give another glimpse of the Court’s attitude toward civil rights and discrimination plaintiffs generally. Thus far, that attitude has been fairly grudging. (The latest cutbacks on sex-discrimination suits afforded minor fireworks at the end of last term, when Justice Samuel Alito now famously pulled a face during Justice Ruth Bader Ginsburg’s reading from the bench of her dissent in one such case.)

A group of law professors has filed an amicus brief arguing that the Seventh Circuit improperly considered the constitutional-remedy issue. The Court could dismiss the case on those grounds, curing the circuit split by vacating the decision below but not resolving the issue. It may, however, prefer to settle it.

Tuesday, October 8McCutcheon v. Federal Election Commission offers the Court majority a chance to open a new front in its war on campaign-finance regulation. The Roberts Court has decided two major cases on this issue in the past three years—Citizens United v. Federal Election Commission and Arizona Freedom Club’s Freedom Club PAC v. Arizona. Those cases struck down state and federal efforts to reduce expenditures—that is, the amount of money that independent groups and candidates can spend to get their political message out. But until now, the Court has left alone most restrictions on contributions (money given by individuals and groups directly to candidates or political parties). Contributions, the Court has said, raise the specter of undue influence—“corruption or its appearance”—and thus can be limited as long as the limits aren’t so low they prevent challengers from “mounting an effective campaign.”

However, the conservative majority hates the idea of limits on money in politics, and three of its members—Antonin Scalia, Anthony Kennedy, and Clarence Thomas—have written that the First Amendment protects the right to give money directly to candidates as strongly as it does the right to speak publicly about politics.

Enter Alabama businessman Sean McCutcheon. McCutcheon made contributions to 15 federal candidates in recent elections, and wishes to donate to 12 more (coincidently, those candidates will be conservative Republicans). He also wants to give $25,000 more to three Republican campaign committees. The amount per candidate is okay—federal law currently limits contributors to giving $2,600 per candidate; the amount per committee is higher but still limited. But the problem is what federal campaign-finance law calls “aggregate limits.” Those limits mean that no one person can give more than a total of $123,200 per two-year cycle to all candidates and committees nationwide. McCutcheon’s contributions will take him over that limit.

The limit was passed to prevent one donor from funneling money to committees that would funnel it to chosen candidates. With changes in the law, funneling is less of a problem, but the limit also operates to prevent any one donor from swamping the political system with direct contributions. (The Koch brothers, with a net worth of $36 billion apiece, could give the maximum to a candidate in every House and Senate race in the country for less than one year’s interest on one year’s interest of their net worth—not a bad price tag for a national legislature.)

In its recent cases, the Court majority has made clear its belief that government has no power to prevent rich people or groups from having “too much” political influence. The “aggregate contribution” limits seem likely to be struck down. The major question is whether, in doing so, the majority will signal that it is also ready to void all limits on contributions to individual candidates. This Court’s majority seems to be on a mission, but how far is it willing to go, and when?

Tuesday, October 15—Affirmative Action in higher education is a seemingly endless dialogue for this court. Neither side appears willing to understand the other side’s arguments, or even the Court’s own precedents. These cases (Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas at Austin) are absolutely clear about one thing: The constitutionally permissible purpose of affirmative action is not and cannot be to “help” minority students—to help them overcome discrimination earlier in life, to combat possible subconscious racism in admissions programs, or to enjoy academic success once admitted to a college or graduate school.

Under the cases, the only permissible purpose for an affirmative action program is to enhance the educational experience for everyone. Schools may use limited racial preferences as a means of choosing among qualified candidates—but only in order to guarantee a diverse student body, because diversity improves all students’ educational experience.

In the murky world of constitutional law, few rules are clearer. But nobody really believes it. Affirmative action is seen on one side as a measure to guarantee inclusion for minority students—and on the other as an undeserved handout.

That tension is at the core of Schuette. The issue is not whether a university could abolish its own affirmative action program—there’s no question that it could. It’s whether a state’s voters can require all the state universities to abolish their programs, even if the schools and their governing boards think the plans are necessary for educational purposes. Grutter and Gratz involved the University of Michigan. Once the Court upheld the Michigan law school’s program, a citizens’ group qualified a ballot initiative that outlawed affirmative action at any public college or university in the state. The voters approved it in 2006.

The challengers, a student- and youth- based organization of school and community leaders, rushed to court to block the initiative from taking effect. The Sixth Circuit agreed with them. Its decision was based on two cases—one from 1969 and the other from 1982—that announced the “restructuring” doctrine. That doctrine holds that government may not deliberately change the political system to make it harder for minority groups to seek relief than for others. (One case concerned a referendum barring open-housing laws; the other was about a statewide referendum that voided the city of Seattle’s diversity-oriented voluntary school busing program).

But the “restructuring” doctrine applies only to programs that minorities might seek as means of self-help. Affirmative action, as a matter of law, cannot be such a program. It’s a matter of pure educational policy, like deciding on smaller class sizes or increasing the use of iPads, and it is to be made in the interest of the student body and the state as a whole, by those trusted with the discretion to make that decision. Those decision-makers are permitted to choose affirmative action; by no stretch are they required to.

If that is the law, what basis would there be for saying the legislature, or the people, can’t make that policy choice for all state schools? To me, the idea of a statewide vote closing the doors on minority-friendly programs raises all kinds of red flags. It smacks of what the Court in other contexts calls “animus”—the desire of a majority to hurt an unpopular group or groups, or prevent them from getting “too much” access to education.

But for my suspicions to find any echo in the caselaw, the Court would have to broaden, not narrow, its approval of affirmative action. That is really, really, really unlikely to happen. So unlikely, in fact, that I don’t see this case as a likely candidate for a 5-4 split.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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