There Is Such a Thing as Too Much Judicial Restraint
The Supreme Court leaves big decisions for future justices.

The Wall Street Journal, Monday, July 13, 2009

When the Supreme Court ruled last week in favor of 17 Connecticut firemen claiming racial discrimination, what the justices did not say was at least as important as what they did say. Ricci v. DeStefano raised an important question of constitutional law, but the court left the answer for another day. It decided the case solely by interpreting civil rights statutes--and it did so on the narrowest possible grounds.

This modest jurisprudential approach is typical of the Roberts court, and especially of Justice Anthony Kennedy, who wrote the majority opinion. It belies the claim that the court has embraced a radical conservative agenda. When the court produces results congenial to conservatives, it usually does so in ways that avoid major pronouncements on constitutional law.

In Ricci, the city of New Haven made the curious claim that federal civil rights laws forced it to discriminate on the basis of race. The plaintiffs had earned promotions by outperforming their colleagues on a test, but the city threw out the results because almost all the top performers were white. Officials claimed they feared black firemen would sue under the Civil Rights Act of 1991, on the ground that the test had a "disparate impact" on minorities.

There is a strong argument that the city's interpretation of the law violates the 14th Amendment, as Justice Antonin Scalia noted in a concurring opinion: "If the Federal Government is prohibited from discriminating on the basis of race, then surely it is also prohibited from enacting laws mandating that third parties--e.g., employers, whether private, State, or municipal--discriminate on the basis of race. . . . The war between disparate impact and equal protection will be waged sooner or later." Later, it turns out, as none of Justice Scalia's colleagues joined his opinion.

It was in fact unnecessary to reach the constitutional issue in this case. The Civil Rights Act of 1964 prohibits "disparate treatment"--that is, the denial of a job, promotion or other benefit on the basis of race. The court could have held that disparate treatment--out-and-out discrimination--is unlawful even as a means to avoid disparate impact. But Justice Kennedy's opinion did not even go that far. It held only that the city had failed to show "a strong basis in evidence" that it would have faced disparate-impact liability had it promoted the plaintiffs.

Ricci was a 5-4 decision, the liberal justices siding with the city (and with their presumptive future colleague, Judge Sonia Sotomayor, who was on the appellate panel that upheld the decision to deny the firemen a trial). In another race-related case, Northwest Austin Municipal Utility District No. 1 v. Holder, Chief Justice John Roberts was able to command an 8-1 majority, again on the narrowest possible grounds.

At issue was Section 5 of the Voting Rights Act, which prohibits certain states and localities from making any change in balloting procedures without "preclearance," certification from Washington that the change will not adversely affect minorities. The nine covered states, along with some counties and towns in seven other states, were chosen on the basis of criteria that are generations out of date, including voter turnout in the 1972 election. The Texas utility district that sued was created in 1987. There was no evidence it had ever discriminated in elections for its board.

All nine of the justices agreed that Section 5 raises "serious constitutional questions"--about the scope of federal power over the states and Washington's obligation to treat individual states equally. But only Justice Clarence Thomas was prepared to answer those questions. His colleagues, led by the chief justice, held instead that the utility district may sue for a "bailout"--relief previously available only to political subdivisions that register their own voters.

The court's restraint in these cases, and in others that fit the conventional conservative-liberal judicial taxonomy, can largely be laid to Justice Kennedy, its most reliably unpredictable member. But Chief Justice Roberts seems to be adjusting his own jurisprudence to accommodate Justice Kennedy's.

Contrast Ricci with Parents Involved v. Seattle (2007), in which the court ruled against two school districts that attempted to achieve racial balance by assigning students on the basis of race. In that case, Chief Justice Roberts argued that such discrimination was unconstitutional, memorably declaring, "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."

But Justice Kennedy, while agreeing with the result, declined to join this portion of the chief justice's opinion. In Ricci, on the other hand, Chief Justice Roberts joined only Justice Kennedy's majority opinion, not Justice Scalia's concurrence or Justice Samuel Alito's, which made a strong case, based on the factual record, that New Haven's decision to discriminate was based on political rather than legal considerations.

To be sure, not every case pits the court's "liberals" against its "conservatives," and Justice Kennedy sometimes joins either bloc in reaching a more venturesome conclusion, as in last year's D.C. v. Heller (reviving the Second Amendment) and Boumediene v. Bush (extending constitutional rights to terrorists at Guantanamo Bay). On the same day it decided Ricci, the court announced that it will rehear Citizens United v. Federal Election Commission, which challenges Austin v. Michigan Chamber of Commerce, a 1990 case upholding limits on corporate funding of campaigns. Justice Kennedy dissented from Austin on First Amendment grounds. His view may prevail this time.

Still, it is fair to say that the Roberts court is only as conservative as Justice Kennedy will allow it to be. On subjects like abortion and the exclusionary rule as well as on race, that is only very modestly conservative.

With a liberal Democrat in the White House, the court's current balance is almost certain to survive the retirement of Justice David Souter--or, for that matter, the replacement of the oldest justices, John Paul Stevens, 89, and Ruth Bader Ginsburg, 76. But if President Obama wins a second term, by the time he leaves office Justices Scalia and Kennedy will both be 80--the age at which Chief Justice William Rehnquist died.

By declining to resolve major constitutional questions now, the justices leave open the possibility that a future majority, more liberal and less scrupulous about constraining its power, will decide them. Such is the hazard of judicial restraint.

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