Special Issue JHU POLITIK
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JHU POLITIK May 2013
THE
POLITICS OF
LAW
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INTERVIEWS & EDITORIALS
INTRODUCTION
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Matt Varvaro ’13
INTERVIEW with JOEL GROSSMAN ................................
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POINT-COUNTERPOINT: AFFIRMATIVE ACTION ...........
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Matt Varvaro ’13 & Alex Clearfield ’14
Collette Andrei ’14 & Christopher Winer ’14
INTERVIEW with AKHIL AMAR .......................................
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INTERVIEW with STEVEN DAVID ..................................
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Eric Feinberg ’12
Randy Bell ’13, & Virgil Doyle ’14
A publication of
JHU POLITIK jhupolitik.org
EDITORS-IN-CHIEF Jeremy Orloff, Matt Varvaro MANAGING EDITOR Alex Clearfield CREATIVE DIRECTOR Victoria Scordato ASSISTANT EDITORS Julia Allen HEAD WRITER Rachel Cohen Ari Schaffer Colette Andrei EVENTS CHAIR/PUBLICITY Randy Bell PHOTO EDITOR Anna Kleinsasser Cover and Back Cover Photos Courtesy Flickr, The US Supreme Court
JHU POLITIK
AN INTRODUCTION By Matt Varvaro ’13, Editor-in-Chief As an opinion-based political organization, JHU Politik devotes most of its attention to the art of politics and the realworld impact of public policy. Our weekly political magazine, The Politik Press, covers the political campaigns that determine who controls the legislative agenda, the legislative process itself, and the practical effects of proposed and enacted legislation. In this semester’s special issue, we focus on an equally important topic that political magazines like ours oftentimes overlook: namely, the interpretation of the law and the central role that courts play in the political process. The law is not some abstract entity whose practical relevance extends to the limited confines of academia and the Judicial Branch. Indeed, law is the heart of politics. Political campaigns and legislative battles are fought over precisely who crafts law, what the law’s text states, and what the law is interpreted to mean.
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“The law is not some abstract entity whose practical relevance extends to the limited confines of academia and the Judicial Branch.”
altogether. As a magazine dedicated to robust discussion and debate among Hopkins students, we decided to put two of our best writers head-to-head on an issue that is particularly relevant on a college campus. In their essays, Colette and Chris address not only the legal, but also the practical and moral issues at stake in the Supreme Court’s affirmative action case.
And make no mistake about it: the legal system touches every single one of our lives each and every day. Major Supreme Court decisions in recent years impact everything from the type of firearms Americans are allowed to possess, to the First Amendment rights of corporations, to the future of the American healthcare system under the Affordable Care Act. This year, the Court will issue rulings affecting the future of gay marriage, affirmative action, and the Voting Rights Act of 1965. The outcome of these cases will affect real people’s lives in very meaningful ways. This special issue covers each of these topics, as well as many others, in its examination of the critical nexus of politics and law.
Our third piece is an exclusive interview conducted by former Politik staff writer Eric Feinberg with renowned constitutional scholar Akhil Amar, the Sterling Professor of Law and Political Science at Yale University. In the interview, Amar answers four questions on constitutional issues submitted by Hopkins students and staff. We are proud to present the insights of one of the most well-respected thinkers in his field, and we thank Eric for conducting the interview for the Politik.
Our first piece is a wide-ranging interview with Joel Grossman, a Professor of Political Science at Johns Hopkins and an expert in constitutional law. In the interview, Professor Grossman discusses the major cases currently on the Supreme Court’s docket, as well as the fascinating political dynamic that exists between President Obama and the Roberts Court.
Finally, the special issue concludes with an interview of Steven David, a Professor of Political Science at Johns Hopkins, an expert in international relations, the Vice Dean for Undergraduate Education, and the Politik’s faculty advisor. In the interview, Professor David discusses the politically pertinent topic of drones strikes and the legal issues surrounding their expanded use.
Our second feature is a point-counterpoint debate between two Politik regulars, Colette Andrei and Chris Winer, on the issue of affirmative action. One of the most contentious legal issues of recent decades, affirmative action takes center stage in the case of Fisher v. University of Texas. In fact, many Court observers believe that the anticipated outcome of the Fisher case may jeopardize the future of affirmative action
With that, JHU Politik is proud to present our special issue on the Politics of Law. We feel that you, our readers, will enjoy both the diversity of opinion and subject matter covered in these pages. As always, we thank our readers for your loyal support and look forward to continuing our mission to make JHU Politik the center of political conversation on the Johns Hopkins University Campus. PP
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Photo Courtesy Library of Congress Prints and Photographs Division, Joseph Ferdinand Keppler (1885)
INTERVIEW WITH PROFESSOR OF CONSTITUTIONAL LAW
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JOEL GROSSMAN By Matt Varvaro ’13, Editor-in-Chief & Alex Clearfield ’14, Managing Editor Joel Grossman is a Professor of Political Science at Johns Hopkins University, specializing in the areas of American Politics, and Law and Politics. Professor Grossman’s answers have been condensed for the purpose of brevity.
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The Court is hearing two cases concerning gay marriage. Let’s start with Hollingsworth v. Perry, which is the challenge to Prop 8, California’s same-sex marriage ban. Many Court observers believe, based on oral arguments, that the Court will dismiss the case due to an inability to reach a majority, and this would essentially uphold the circuit court decision upholding Prop 8. Do you expect a dismissal, and would you consider a dismissal a victory for the gay marriage movement or a missed opportunity?
Scalia has gone out of his way to trash homosexuality off the bench; I suspect Thomas’s views are as strong but I don’t know. Alito might come along on the Tenth Amendment argument.
If the Supreme Court rules that federal marriage law denying recognition to same-sex couples violates Equal Protection, then would it not also have to strike down similar state laws on Equal Protection grounds? Is one appeal of the Tenth Amendment argument that it could allow the Court to avoid taking this drastic step?
It’s more complicated than that. Normally speaking, when the Court makes a decision, it applies everywhere. In this case, the government specifically asked the Court to decide on the California issue, not the national issue. The politics of it are very strange—there are 31 states that have constitutional amendments or laws which prohibit gay marriage. It’s unlikely any of those states would change their minds, so it would be a futile gesture on the part of the Court if it wanted to do that. It would be like Brown all over again.
It’s close. They wouldn’t have to do it in that case, but they may say, “We find this to violate equal protection.” That doesn’t automatically hold the state laws unconstitutional but it sends a message. It might be that Kennedy, assuming he writes the opinion, would try to make it as narrow as possible. There’s no way of saying that DOMA doesn’t apply to Mrs. Windsor but it does to everybody else.
Some justices, particularly Kennedy, seem skeptical of establishing a right to gay marriage given its relatively recent acceptance as a social phenomenon. Is it appropriate for the Court to take these social factors into account, or should it adjudicate solely on the text of the Constitution?
They could write a broader opinion and hold, by the Equal Protection Clause, that gay marriage should be protected nationally. With this court, that strikes me as very unlikely. The other escape hatch is writing a narrower decision. Another is the issue of standing; remember that the District Court and the Ninth Circuit came out in favor of gay marriage and held Prop 8 unconstitutional. Then the governor of California decided the state would not defend the law, which is what happened with the Defense of Marriage Act. The Ninth Circuit permitted other litigants to represent the state, which is unusual. The Court might not go for that.
The latter is a scam. Of course they take it into account; they are smart, living people and they aren’t oblivious to what’s going on. They are very aware of the current situation, and they might dismiss the case as improvidently granted because it gets them out of a tight situation. Even Ginsburg, Breyer, Kagan and Sotomayor, who will surely support gay marriage, will not necessarily want to support it in a way that creates another civil war and starts 35 more lawsuits from states saying it doesn’t apply to them. Kennedy has, on this issue, been very forward-looking. He wrote Lawrence v. Texas, and Romer v. Evans.
On balance, they’ll probably find a way to dismiss the case or decide it as narrowly as possible. I’m not sure I can choose which is the case; it’s probably a matter of Justice Kennedy’s vote. I don’t know it would be a defeat for same-sex marriage; some may say that, but given the case they might be better off. Some say, “Who are you, you’re not involved in the gay marriage issue, who are you to say we’d be better off?” In the long run, that’s not the case the gay marriage people can win on in terms of state laws. A number of states have gradually enacted laws favoring gay marriage, but many states, like Mississippi and Louisiana, will not. Look how far same-sex marriage and tolerance for gay people has advanced, at an incredible speed in constitutional terms. While I’m not prepared to say every state will suddenly see the light, in the long run that might be the better strategy.
And what are they waiting for? Things aren’t going to change particularly. Ginsburg, funnily, despite her reputation on gender issues, has been a friendly critic of Roe v. Wade. Before she was on the Court, she said the Court had moved too fast and that the right to privacy argument was not the way to go, and that maybe they should have gone with the equal protection argument. Her emphasis was on not doing too much to aggravate the opposition. She might exercise some kind of restraint on that by voting for a dismissal as improvidently granted.
Fisher v. Texas, the affirmative action case, was argued before the Court recently. It hinges on how the Court deals with the Equal Protection Clause. Do you think there is a solid argument for eliminating all race-based affirmative action from public college admissions as violating the Equal Protection Clause?
The other marriage case, United States v. Windsor, challenges Section 3 of the Defense of Marriage Act, which defines marriage as between one man and one woman for federal purposes: eligibility for survivors’ benefits, joint tax filings, etc. Most of Section 3’s opponents argue that it violates the Equal Protection Clause. But some, including Justice Kennedy, have suggested that it could actually be a Tenth Amendment issue on the grounds that marriage law should be left up to the states. Which argument do you find more convincing?
Do I think so? No. I think the stronger argument, both socially and legally, is that affirmative action has played a constructive role in the reformulation of American values on issues of race. But I think it has remained unpopular with the public. Justice Roberts telegraphed his great hostility towards it in PICS v. Seattle, where he said, “The best way to not discriminate is to stop discriminating.” Those are pretty prophetic words. In a sense, Kennedy will also be the deciding vote, but he might go the other way. Most people think that at least at the college level, affirmative action is dead.
I think the notion that it ought to be left to the states will possibly play a role in bringing either Kennedy or Roberts to the anti-DOMA side. Marriage has always been the province of the states. DOMA affects millions of people, because there are something like 1,800 federal provisions dealing with marital status. The simplest is the federal income tax, where a gay couple moves to Kansas and they cannot file together. That case will be 5-4 or 6-3 against DOMA. I think Kennedy will go against it and write the opinion, and may bring Roberts with him. I think Scalia, Alito, and Thomas are unmovable on this issue.
There’s another case they’ve just accepted involving a Michigan law prohibiting any state institution from engaging in affirmative action. That’s essentially the same issue, and will be decided to some extent
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SPRING SPECIAL ISSUE on how they rule in Fisher. My prediction is that the Court will use Fisher to overrule Grutter v. Bollinger. That’s all they have to do at that time, but I think that will lead the way to other cases.
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“At the moment, the Court is very unbalanced: four Jews and five Catholics, all but one from the Northeast, and all having attended either Harvard or Yale. That’ s not exactly what America looks like.”
Here’s the dilemma. I think affirmative action as a concept is widely accepted in our society. All the big institutions—Sears, Walmart, the military—couldn’t exist without affirmative action, because what are they going to do, stop hiring minorities? In that sense, affirmative action will continue at a different level. When you’re hiring for Walmart, you might have admissions criteria, but it’s not like college admissions. Secondly, private schools like Johns Hopkins wouldn’t be affected by this, at least not immediately, because they’re not covered directly by the Fourteenth Amendment. There is an issue if a school receiving federal aid is covered by Section 6 of the Civil Rights Act of 1964, the cut-off provision. But the public universities would have to do what the University of Texas did after Hopwood v. Texas, which is drop their affirmative action program. They had a different kind of affirmative action; instead of giving points to black applicants, it used color-blind substitutes. For example, in Texas, the valedictorian of every high school is admitted to the University of Texas. That will bring you a fair number of black students. You could also do it on the basis of family income, which Justice Douglas suggested in 1974.
tion requirements, photo ID, and so on and so forth. Now, today, there is no more overt discrimination of the kind that we encountered when the law was passed. There are many jurisdictions where there is no credible evidence that they are discriminating anymore and, therefore, they should allowed to “bail out.” So, Congress might reasonably say, “Okay, we won this ballgame. It’s time to clean off the bases and start again.” But I think that’s a decision for Congress, not for the Court.
If the Court sides with Fisher in that case, which I do believe will happen, affirmative action is too strong a current in our society to simply disappear. You’ll have other strategies that are employed, and it depends on the region and the state. I don’t think the Court would say the whole idea is unconstitutional, but they will find fault with the particular system. It follows Grutter, so you really can’t hold the Texas system as unconstitutional without overruling Grutter. That will leave a big mess, and hundreds of lawsuits.
Do I think the Court will overturn the entire Voting Rights Act? No, because there’s another section in there which is a blanket but openended anti-discrimination clause. In Section 2, Congress declares that the policy of the American government is that there shall be no voting discrimination, and I don’t believe the Court will go so far as to overturn that. But preclearance is on the ropes. And I regret that, but that’s the way it is.
Let me add this: while I think it has generally had a positive effect on America, I recognize it’s a very divisive issue. Americans all believe in equality, but they don’t necessarily believe equality should be equally distributed. They believe more in equality for themselves. We have equality of opportunity and equality of result, and affirmative action is the latter. So there are ways of dealing with this, but there’s pretty strong public opinion that agrees with Roberts. This case won’t be the end of the affirmative action wars, but it will be a major step.
Do the voter ID laws that cropped up before the 2012 election run afoul of Section 2? There was a case a few years ago in which Stevens wrote the opinion and in which the Court upheld voter ID laws in general. My view, which is not the liberal position, is that given the nature of this country, it makes a certain amount of sense to have a national ID card. We don’t have one now. The social security card does not serve that purpose, but almost everybody has a driver’s license. And if you don’t drive, you can get the equivalent of a driver’s license from the state motor vehicle bureau. So I’m not terribly sympathetic to the argument.
Remember what Justice O’Connor wrote in Grutter, approving of affirmative action in law schools, saying she assumed it would be temporary, for about 25 years—a number that has no basis in anything and is wholly arbitrary. We’re 10 years past Grutter.
In Shelby County v. Holder, Section V of the Voting Rights Act, which outlines the process some areas must go through to change their voting laws, is at stake – along with possibly the rest of the law as well. Do you think the Section V formula, which deals with preclearance status for various states, counties, and municipalities, is out of date and unfairly burdensome, or does preclearance still serve a valuable purpose?
There are ways of having minimally intrusive voter ID laws. I’m not in favor of people voting who have no IDs but, on the other hand, I’m in favor of IDs being easily available.
Some have speculated that Justice Roberts’s decision to uphold the Affordable Care Act gives him cover to pursue an even more aggressively conservative agenda in the years to come. Do you anticipate an even more conservative Roberts Court, or was the ACA decision a sign that the Court may actually be more moderate and deferential to the political process than many people expected?
Preclearance is not outdated, but it is in need of updating. A case about this came up a few years ago, and after that case a number of counties were able to “bail out” of Section V, and that’s part of what is needed. It’s not fair to include counties or states based on what voter registration was in 1972. That makes no sense to me. On the other hand, I think that it should be kept in place for at least most of the states because look at what happened last year, when states tried to fence out black citizens with ridiculous voter registra-
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The current Court is not going to ever be more moderate, except on a couple of issues. I think that Roberts decided that he didn’t want to go down in the ashes of history. Was that a cover? I don’t think so.
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SPRING SPECIAL ISSUE After the healthcare case was argued, President Obama basically put out a public warning to the Court against engaging in “judicial activism” in striking it down. Do conservatives have sole claim over the term, due to the common perception of liberal using the judicial system to accomplish legislative goals, or is there room for “conservative” judicial activism? I think that conservatives have hijacked that term. It was originally a concept, known at the time as non-restraint, that liberals used against conservative justices who struck down portions of the New Deal. Since then, conservatives have effectively hijacked the term to essentially say that judicial activism is a liberal pathology. And of course that’s not true. The current Court, particularly if it decides some of the cases we’ve talked about in the way I’ve suggested, is clearly engaging in conservative activism. So I think that activism is, as it’s currently used, essentially a pejorative term. It’s an epithet. I once was interviewed by a newspaper and, at the end, they asked me exactly that question. I said that judicial activism is “the other guy’s principles.” I think that’s correct. We use the term as an epithet to describe decisions we don’t. So that covers it all. It means you disagree.
Who do you think President Obama will nominate to the Court in the event that Justice Ginsburg, or any other justice, retires before the end of his second term?
Photo Courtesy Library of Congress Prints and Photographs Division, Harris & Ewing (1905-1945)
Roberts didn’t want to go down with that Act, very much like [Chief Justice Evans] Hughes didn’t want to go down with the NRA [National Recovery Act] in 1937 and saved it. If you read the history books, Hughes got enormous credit for that. Everybody who writes about it writes positively about him and nobody writes positively about the so-called Four Horsemen, the four conservatives who blocked the New Deal for a while. So I think that’s the main reason. Do I think Roberts will act in the way that you suggest? Possibly.
What long-term impact do you see Justices Kagan and Sotomayor having on the direction of the Court? Their long-term impact on the Court will depend on who else is on the Court, and that ultimately depends on the presidency. Until the Court changes, they will essentially be dissenters. If the Court changes, it will depend on, number one, who leaves the Court and, number two, who replaces them. I think that Ginsburg is going to hold out for at least a year. She might or might not want to take a chance like Stevens did, who waited another ten years after he was 80. Obviously, Obama’s not going to be president after 2016 and if she could be sure that Hillary was president, she’d wait. But I suppose none of us could be sure of those things. So how one functions in the role that one has is often determined by the configuration of the Court.
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The common assumption is that, number one, he has to appoint a woman; I don’t know if that’s true or not. Number two is that the two large groups of Americans that are not represented on the Court are Asians and Hispanics, and you tell me which of those is more important electorally. So that would be my guess; but everybody makes claims. There’s reason to believe he was grooming an Asian California law professor, Goodwin Liu, who was also the head of the American Constitution Society, which is the liberal alternative to the Federalist Society. He was beaten by Congress, which refused to hold a vote, so Jerry Brown put him on the California Supreme Court. And that doesn’t make a difference in that he can still be appointed. But Obama, who is very much a political animal, wouldn’t do that unless he had 60 votes in the senate. At the moment, the Court is very unbalanced: four Jews and five Catholics, all but one from the Northeast, and all having attended either Harvard or Yale. That’s not exactly what America looks like.
Could Republicans filibuster a possible Supreme Court nominee? They might. But Obama’s strategy has always been to meet the enemy halfway and take away their firepower: if you get too close to the cannons, they can’t hurt you. So instead of nominating Goodwin Liu, against whom there would be a filibuster, he might nominate a faceless moderate. I think the likeliest scenario is that he nominates the leftmost-leaning noncontroversial candidate he could find. Who that would be, I don’t know. PP
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{ AFFIRMATIVE In Support of Affirmative Action By Colette Andrei ’14, Assistant Editor
diverse society in which educational differences have the potential to become a progressively larger source of inequality and social conflict. And in this case, all sides agree that a ruling against affirmative action would reduce the number of African American and Latino students at nearly every selective university and graduate school, with more white and Asian American students gaining entrance instead.
The Supreme Court’s ruling in Fisher v. University of Texas will effectively decide whether affirmative action should be eliminated in public college admissions decisions, thus threatening to undo several decades of effort within higher education to create a more integrated and just education environment. The case challenges the 2003 Supreme Court ruling in Grutter v. Bollinger, which permitted, but did not require, public colleges and universities to consider race in their admissions decisions. Some states, such as California and Michigan, do not permit race to be factored into the admissions process. However, most colleges and universities employ a more holistic approach to evaluating applicants, taking achievement, test scores, race, socioeconomic status, and other factors into account.
Education has long been considered a great equalizer in the United States, capable of helping less advantaged children improve their chances for success as adults. However, the gap between rich and poor children is widening, thus threatening to dilute education’s equalizing effects. It is well known that students from more affluent families tend to do better in school. Recent studies show that the gap in academic achievement between richer and poorer students has grown substantially during the past few decades. Socioeconomic status remains closely tied to race, and minorities tend to be overrepresented in families of low socioeconomic standing.
The case, Fisher v. University of Texas, was brought by Abigail Fisher, a white student who claims that the University of Texas denied her admission because of her race. Fisher argues that she was the victim of the university’s race-conscious admissions policies, while the university asserts that its impetus for racial and ethnic diversity is educationally enriching and beneficial to all students. A Supreme Court decision forbidding the use of race in admission decisions at public universities would almost certainly extend to most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal funding.
Affirmative action in higher education represents a corrective measure to address the gap in academic achievement, but comparable efforts need to be made to address the issue of inequality in primary and secondary school achievement. Until then, it is prudent to leave in place measures that provide higher education opportunities to students that otherwise might not have the chance to enroll in college. Perhaps admissions policies like that of Texas, which guarantees admission to the state university for all students in the top ten percent of their class–a mark that Ms. Fisher did not reach–are along the right track. Such policies allow students with similar backgrounds to contend against each other, which increases their chances of admission.
As Justice Sandra Day O’Connor wrote in her majority opinion in Grutter, “Diversity encourages lively class discussions, fosters crossracial harmony, and cultivates leaders seen as legitimate.” Racial and ethnic diversity contributes greatly to college environments. College is an important opportunity for students to engage with and learn from those who are different from them. A broad range of perspectives from a diverse student body enriches both personal experiences and carries over into society as a whole. We live in an increasingly global society and it is imperative that students, the future leaders of multiple communities, learn to navigate in this modern world; and one way to do so is through a college experience infused with diversity. The outcome of Fisher has the potential to eliminate diversity as a sufficient rationale to justify any use of race in public college admissions decisions.
The reality is that race matters in our society, and it must be taken into account in fair and sensible ways. To argue that race should not be considered at all in admissions processes would be misguided. Further, the Supreme Court is ruling on a policy that the Constitution does not explicitly forbid. The authors of the 14th Amendment did not intend government to be colorblind in all circumstances, and universities have relied heavily on the Court’s repeated assurances that education diversity is a permissible goal. If the Court were to strike down this measure, it would not be acting as the representative of the people; rather, it would be a case of conservative justices codifying their own erroneous and empirically questionable beliefs against affirmative action, in place of true democratic interests.
While the case’s central focus is the issue of race in education, it points to a greater issue in the country: the achievement gap and inequality in the American education system. African American, Latino, and Native American students continue to lag far behind their white and Asian American peers in academic achievement, and remain heavily underrepresented among young people who earn college degrees. Efforts to improve educational outcomes for minorities have been growing since the 1960s, and real progress has been made since the time when affirmative action measures were put in place. But America is a
When the Court made its decision in 2003, it stipulated that there would come a time when racial preferences would no longer be necessary to foster educational diversity. The disparities that remain along race and class lines, however, show that this time has not yet come. The real and difficult task for policymakers is to address the disparities that lead to large differences in academic achievement, so that all students may have equal opportunity to succeed. PP
8 Photo Credit United States National Library of Medicine, Portrait of William L. Poole
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In Opposition to Affirmative Action By Christopher Winer ’14, Staff Writer On May 1st, about 1,250 students mailed enrollment letters to Baltimore and Hopkins welcomed the Class of 2017— the most competitive freshman class in our school’s history. However, affirmative action meant that students of some races received preferential admissions treatment versus others. While the Supreme Court has accepted this practice to increase campus diversity, recent research from Stuart Taylor, Jr., a fellow at the Brookings Institution, and Richard Sander, a law professor at UCLA, challenges the premises justifying racial preferences. As explained in their amicus brief for the most recent affirmative action case, Fisher v. University of Texas at Austin, the Supreme Court has upheld race-based admissions policies that claim to use race as only one factor among many. But the Court has struck down “points” systems that give a favored minority applicant a pre-determined advantage. In her opinion in Grutter v. Bollinger, Justice O’Connor argued that the University of Michigan Law School’s racial preferences used a “highly individualized, holistic review of…all the ways an application might contribute to a diverse educational environment.” In contrast, the Court invalidated Michigan’s undergraduate college “point” system because it gave more weight to the “mechanical, predetermined diversity ‘bonuses’ based on race or ethnicity,” rather than “the differing backgrounds, experiences, and characteristics” of students from non-preferred groups. Despite the Court’s good intentions, a 2004 study from Richard Sander, and a 2007 report from Ian Ayres of Yale and Sydney Foster of Harvard have shown that the University of Michigan Law School’s fuzzier admissions methodology actually led to larger racial preferences and a lesser emphasis on other aspects of a candidate. The so-called “holistic” admissions system does not limit the racial preferences in college admissions, as the Court intended when Justice O’Connor stated that “we expect that 25 years from now, the use of racial preferences will no longer be necessary.” As Sander explains, these racial policies merely obscure a larger role for race compared to “points” systems.
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black applicant’s SAT score, to gain admission. According to Sander, UT-Austin may claim to seek “a critical mass of minority students,” in line with the reasoning of Grutter. But it actually pursues “racial balancing,” which Justice O’Connor called “patently unconstitutional,” by admitting blacks with an average G.P.A. of 2.57 over more qualified Hispanics with an average of 2.83. Sander also argues that constitutional law requires that racial classification serve as a last resort to achieve the compelling interest of racial diversity. In Parents Involved in Community Schools v. Seattle School District No. 1, Justice Kennedy wrote in his concurring opinion that “individual racial classification employed in this manner may be considered legitimate only if they are a last resort to achieve a compelling interest.” Mounting research shows that modest preferences for working-class students could enhance socioeconomic and racial diversity without the need for race-based preferences. According to Sander, the Court should interpret the narrow-tailoring requirement, which accepts racial discrimination in admissions only to serve the state’s compelling interest in expanding campus diversity, to make racial preferences no larger than socioeconomic ones. Justice O’Connor’s opinion in Grutter stated the Constitution prohibits “enshrining a permanent justification for racial preferences.” Universities, by law, must move away from affirmative action, so they should embrace socioeconomic preferences instead. According to Anthony Carnevale and Stephen Rose at Georgetown University, highly selective colleges draw three-quarters of their students from the top quartile of the socioeconomic spectrum and half from the top tenth. For the Class of 2018, Hopkins should reform affirmative action by implementing modest admissions preferences based on socioeconomic factors. With expanded efforts to recruit working-class students, Johns Hopkins can help can legitimate American higher education by helping to ensure that everyone, regardless of family background, has an equal opportunity to attend college. PP
Diverse classrooms offer students tremendous benefits, such as “cross-racial understanding and the breaking down of racial stereotypes,” to quote Justice O’Connor. However, in practice, racial preferences have severely discriminated against certain non-preferred groups and have tended towards the unconstitutional practice of “balancing” one race against another. The Court held in Grutter that the “race-conscious admissions program does not unduly harm nonminority applicants,” yet Sander has shown that at the University of Texas, the typical Asian applicant had to score 467 points higher and whites typically needed 390 more points, compared to the mean
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Photo Courtesy Flickr, Marbury v. Madison John Marshall (2007)
INTERVIEW WITH YALE PROFESSOR OF POLITICAL SCIENCE
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AKHIL AMAR By Eric Feinberg ’12, Staff Writer
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Akhil Amar is the Sterling Professor of Law and Political Science at Yale University and the author, most recently, of America’s Unwritten Constitution: The Precedents and Principles We Live By. Eric Feinberg, ‘12 is a former Staff Writer for JHU Politik. The following interview was conducted at Yale Law School in February 2013. JHU Politik would like to thank Professor Angus Burgin (Assistant Professor of History), Jonathan Gienapp (Ph.D. Candidate, Department of History), Jacob Grunberger ’13 (Contributing Writer), and Alex Clearfield ’14 (Managing Editor) for their help in formulating the questions below, paraphrased by Feinberg.
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America’s Unwritten Constitution argues that the written Constitution exists in a dynamic tension with an unwritten counterpart. In your ideal world, would the written Constitution simply be more explicit in the text about these unwritten principles? Or are they better left inexplicit because of the flexibility that it allows future generations? It’s impossible to fully specify the unwritten elements. For one, it would be extremely difficult to have comprehensive rules of interpretation that would be objective for all time. Ultimately the English language is the only final means of interpretation, and constitutional language can never foresee every scenario. An example from my book is the impeachment of a vice president: the Constitution clearly says that the Senate tries all impeachments, and the vice president presides over the Senate. Do we really expect the vice president to preside over his own impeachment?
titled “Some New World Lessons for the Old World.”
Being a judge increasingly demands a wide variety of skills. Judges are expected to rule on matters involving technology, science, philosophy, and all sorts of issues outside of a legal expertise. Is law school enough of a preparation for being a judge or should we begin looking beyond the legal profession? Law schools certainly need to embrace a more interdisciplinary approach if they want to stay relevant, and I think they undoubtedly are doing so. It’s also worth noting that in the past there was never a cut and paste approach to judges; of the Supreme Court justices who decided Brown vs. Board of Education, exactly zero of them had been judges before being appointed to the bench.
Also, there are facets of the Constitution which are clearly intended to be left open to interpretation. A prime example is the 9th Amendment, which states, “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” This amendment never specifies which rights it is referring to, only that rights are to be added but not subtracted.
Some suggest that we design specialized courts that can deal with specific matters, but I’m somewhat conservative about making changes to the more generalized judicial system we have. Of the 50 states in the Union, only Texas divides its Supreme Court between civil and criminal matters, let alone by subject matter. However, I don’t reject out of hand the idea of making changes. I think perhaps letting the states road test different ideas and arrive at a solution more organically might be the best approach.
Furthermore, it is not realistic to expect any generation to fully anticipate the problems and social circumstances that future generations will encounter. The framers never foresaw developments like the internet or assault weapons, for example, and we’re ourselves living through a time of great social and technological change and can not foresee all the developments to come either.
President Obama has so far replaced two liberal stalwarts on the Supreme Court–Justices Stevens and Souter–and Justice Ginsburg may yet vacate her seat by the end of his presidency. How do you assess this president’s legacy in terms of influencing the composition of the Court?
Are there any important principles that you think are absent from our constitution? If you were advising a newly established nation on its constitution, what might you include that isn’t part of our constitution?
So far Obama’s presidency has had the effect of preserving the balance on the Court as opposed to shifting it, and this is to be expected. Supreme Court justices are very conscious of when they choose to retire, preferring to do so under a president who will replace them with someone of a similar philosophy. Thurgood Marshall famously joked to his clerks, “If I die, prop me up and keep voting.” So unless there is a death or something otherwise unexpected happens, I wouldn’t predict any major changes on the Court.
I would never suggest that any country simply adopt the American Constitution. America’s Constitution is a product of our unique history and traditions, and the constitutions of other countries should likewise be tailored to their unique circumstances. For instance, demographic differences can be very important in designing a constitution. In this country, there have certainly been differences between Democrats and Republicans over the years, but there has always been a fundamental cooperation. If you were to change the setting to somewhere in the Middle East, you may have a demographic split between Sunni and Shia, who have far more of a historical antagonism – the constitution of this country would have to take something like that into account. You couldn’t have a country of 60% Sunni and 40% Shia passing laws by a simple majority because one side would inevitably be oppressed. Also, it’s important to note that institutions in other societies may not be exactly the same as ours and yet still fulfill the same vital functions in their own way. While we have a trial by jury, another society may have a council of elders or something like that, but the principle is nevertheless preserved. That being said, I think there are certain principles which are essential in any constitution. These would include things like freedom of speech, equality before the law, fair elections, and so on. For those interested in a more in-depth examination of this question, you can check out an article I wrote in 1991 for the Chicago Law Review en-
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That being said, if the Democrats are able to maintain a hold on the White House for a long enough period, then change on the Court might be possible. If Hillary Clinton were to be elected in 2016, for example, and hold the presidency for two terms, it’s entirely possible that some of the older conservative justices might resign. And there is always the wild card in the deck that one of the justices might pass away and create an opening, but predicting that is more of an actuarial matter than one of political science. An idea I’ve championed for some time is an eighteen-year term for each of the nine Supreme Court justices, staggered in such a way that each president gets to appoint two justices per term. After their term is up they would continue to serve as a federal judge, so their lifetime service would be maintained, but this would make the operation of the Court more predictable and make transitions less politicized. If a justice were to die while serving their term, they would be replaced by the president but the replacement would merely complete the term rather than begin a new one. We’ll see if an idea like this ever gets enough traction to become reality. PP
JHU POLITIK
SPRING SPECIAL ISSUE
INTERVIEW WITH PROFESSOR STEVEN DAVID By Randy Bell ’13, Chair of Events and Publicity & Virgil Doyle ’14, Staff Writer Steven David is a Professor of Political Science at Johns Hopkins University, specializing in the areas of International Relations, Security Studies, and Comparative Politics. He is also the Vice Dean for Undergraduate Education at Johns Hopkins and the faculty advisor to JHU Politik. How does international law tie into drone strikes? Let me first be clear that I’m not an expert on international law. I’ve done work on targeted killing and the legal aspects surrounding drone strikes, so I certainly defer to those who are more schooled in international law. My understanding of this issue is that international law traditionally has been developed as law between states, between countries. Where the confusion and complexities occur is that many of the threats America, Israel, and other countries face are not countries with uniformed armies, but rather groups, sometimes even individuals–insurgents, terrorists, whatever you want to call them. And much of international law has a difficult time accommodating this different kind of threat.
Second Intifada. You had a situation where individuals would simply strap bombs on themselves, cross into Israel, go into a bus or disco, and kill a lot of innocent people. Targeted killings along with the security wall and other factors helped end that threat. The United States faces a much different threat, but it’s still a threat nonetheless. You’ve seen in 9/11 and more recently in Boston that there are individuals who want to wreak havoc in this country. But especially when we’re discussing American citizens, I think there needs to be more safeguards regarding the decision to pull the trigger.
Do you think that these strikes are effective, notwithstanding the moral dilemma of potentially killing innocent people, in keeping us safe?
Do you think that targeted drone strikes are ever justified? I think they can be justified. The United States faces threats from individuals who mean us harm in places where capture is not feasible and eliminating these individuals sometimes is necessary, even for keeping them on the run; making sure that they don’t have time to sit and plan attacks on America is also important. But I wish there were more civilian and legal oversight over these strikes. I would favor the creation of a court, similar to the court that deals with wiretaps, that would identify in advance–because they can’t do it obviously when someone’s on the run–individuals who have been deemed subject to a drone strike so that it’s not simply the call of military and CIA officials.
What is in place right now to govern drone strikes?
I think they have been effective. From my understanding, I think there has been much greater care in reducing civilian deaths and collateral damage; but, in part because it is done under so much secrecy, it is hard to do an effective assessment. There’s some speculation that we are becoming too trigger-happy with the drone strikes. One of its attractions, but also one of its drawbacks, is that it is so easy. These drones fly for days on end armed with hellfire missiles. No American is at risk of being of being captured or being killed. So it’s easy and it’s bloodless on our side. So that makes it an attractive option, but it also may seduce us into being a little promiscuous or reckless in how we do this and that’s why I feel there needs to be constraints and oversights before it is unleashed.
Could you touch upon the chain of command required for authorizing a drone strike?
My understanding is that there is no such court. These decisions, which are literally life and death decisions, are made by officials with very little oversight, certainly from elected officials or any kind of court. So I would like to see that change.
Have you seen these kinds of targeted killing tactics throughout history or is this a relatively new phenomenon, especially given current technology? The work I focus on isn’t specifically drone strikes, but Israel’s use of targeted killings against Palestinian militants in the Second Intifada, and there’s a lot of debate about that similar to some of the debates about drone strikes because you are killing people without due process and that’s a significant thing. The Israeli argument and I think to an extent the American argument is that they were involved in war, an armed conflict. Now here you get into international law. No one is declaring war. You just have individuals who you identify as threats and marked them for execution essentially. But the Israelis can point to their strategy of targeted killings as appreciably reducing the threat against Israel. There were a thousand Israeli civilians killed during the
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I’m not sure exactly how it works. My sense is that lists are generated by the CIA and the Department of Defense and each have their own drone programs, that these lists are vetted by some elected officials and people are put on a kind of hit-list. Clearly you can’t do it when you see someone in the field and you identify that they come into vulnerable position. You want to be able to act quickly. But I would like there to be more transparency as to how this list is generated and how one can take it off and whether or not we are too quick in eliminating the prospect of capture. For humanitarian and pragmatic reasons, it makes the most sense to capture people. Now one can understand how that would be difficult. Say if you were in the badlands of Northwest Pakistan and you’re sending in American Delta Force teams or SEAL Teams; you would be putting these people at risk. But I’m not convinced that capture is as impossible enough in these cases as is portrayed. I’m somewhat sympathetic to the need and conduct of the drone campaign, but I think there needs to be a lot more oversight and a lot more transparency. I think a lot of it is needlessly secret. Obviously there are a lot of things that need to be kept secret, but a lot of things do not. I’d like to see more openness and transparency in this process. PP
JHU POLITIK
SPRING SPECIAL ISSUE
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