Justices Make It Tougher for State Universities to Discriminate, But Not Tough Enough

Fisher v Texas(This is the third of several short commentaries on recent Supreme Court decisions. see HERE and HERE)

The Supreme Court’s recent decision in Fisher v. University of Texas has made it tougher for state universities to run their ethnic spoils systems. But not tough enough.

First, the background:

The Fourteenth Amendment requires states to extend “equal protection of the laws” to their citizens. The primary goal of the Equal Protection Clause was to stop states from discriminating against racial and ethnic groups. But the actual wording of the Clause covers more than just racial and ethnic discrimination.

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Do the Feds Belong in Indian Adoption Law?

Rob Natelson writes: “There is little more heart-rending than the sorrow of a child.

The sorrow of a child—and of her adoptive parents—created one of the Supreme Court’s more compelling cases this term. I was happy to be cited extensively in one of the opinions. And, much more importantly, happy that the Court acted to minimize the sorrow of the child and of her adoptive parents.”

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Federalism and the DOMA Decision

Federalism and DOMAby Randy Barnett, for SCOTUSblog

Because the logic of Justice Kennedy’s opinion for the majority in Windsor is novel, it is likely to confuse observers as it seems to have confused the dissenters.  So in this post, I want to lay bare this logic, by explaining how it resembles, but also differs from, the federalism argument we made in our “Federalism Scholars” amicus brief (cited by the Court at page 23).

In our brief, we contended that DOMA was unconstitutional because (a) Congress had no enumerated power to regulate or “defend” marriage by imposing its definition on the states, and (b) DOMA was not necessary and proper for carrying into execution any of its enumerated powers.  By operating in so sweeping and undiscriminating a manner, DOMA was exceeded its enumerated powers by enacting a law that by design interfered with the operation of the traditional state regulation of marriage.  But overlooked in debates about our argument, we also made this federalism claim in the context of equal protection:

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The Constitution: Birthed In Self-Determination

Self-determination means the right of the people to decide upon its own political status or form of government without outside influence. Consent of the governed is a phrase based upon the principle of self-determination. Any political society – government—that prohibits self-determination explicitly rejects popular sovereignty, whether the form and style of government is a republic or a democracy is, therefore, completely irrelevant and inconsequential.

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