THE RETURN OF REGIONALISM, AND WHY IT MAY AFFECT THE DISPOSITION OF THE SUPREME COURT'S UNIVERSITY OF MICHIGAN AFFIRMATIVE ACTION CASES

By EDWARD LAZARUS

Thursday, Jan. 09, 2003

In the wake of the controversy over Senator Trent Lott's remarks endorsing Strom Thurmond's segregationist presidential campaign of 1948, analysts have reawakened to the importance of region - especially the region of the South - and regionalism in American political life.

It's a little baffling, however, that this issue has emerged with force only now. It's been there all along. The GOP and the South go way back, and the Lott scandal is only a single flashpoint in a long relationship.

Moreover, the influence of regionalism isn't confined only to election campaigns. The influence of geography, and the power of place, are deeply felt in the judicial system as well. At the Supreme Court, they play a significant role in shaping meaning of our Constitution.

During this Supreme Court Term, regionalism is likely, for example, to be influential in shaping the Court's resolution of the two paired University of Michigan affirmative action cases - concerning the use of race as a factor in undergraduate and law school admissions, respectively. It is also likely to be influential in a case involving the criminalization of same-sex sodomy.

This time, though, the significant region will be the West, not the South - for it is Western perspectives and values that have shaped the decisionmaking of the "swing vote" Justices, Anthony Kennedy and Sandra Day O'Connor.

The GOP/South Connection Is Longstanding, and Shows Regionalism Still Matters

Suddenly, in the wake of the Lott scandal, commentators are swarming around the question of whether the Republican Party is overly beholden to, and excessively controlled by, southern conservatives - good ole boys (like the erstwhile Majority Leader) whose political roots lie in the adamant resistance to desegregation in the 1950s and 60s.

Yet one need look no further than 2000 and 2002 election campaign maps to see that the Republican party's current dominance is built on the foundation of a GOP sweep of the South. (Remember the slogan "Tennessee is Bush Country"? And how it turned out to be true?)

This regional orientation is longstanding and intentional: For 35 years, at least since Nixon rode his "southern strategy" to the White House in 1968, the GOP has catered to southern voters who never became comfortable with the civil rights revolution, and traced their cultural heritage to the Confederacy.

Over the last generation, the GOP/Old-South connection has been firmly cemented. Where once the party was led by pro-business anti-Communists (the Rockefellers and even Ronald Reagan), GOP leadership now rests solidly with Southern or Southern-flavored social conservatives and evangelicals. These include folks like Lott, Jesse Helms, Phil Gramm, Pat Robertson, and Bush's Attorney General, John Ashcroft, who, long before the Lott affair, expressed open sympathy for Confederate ideals.

The challenge for President Bush is whether he - together with other GOP fresh faces such as the new Majority Leader Bill Frist - can distance themselves from the racist taint of the Trent Lotts of the world and sell themselves to the ever-growing roster of Hispanic and suburban voters as a new brand of compassionate, inclusive conservative. In doing so, however, they must be careful not to alienate the southern base on which their national party depends. (Witness Bush's comments on Lott: Clearly condemning, but not actually aggressive.)

This will be a tough but necessary tightrope walk. Given the demographic trends in the electorate, the long-term health of the Republican Party probably depends on the success of this repackaging venture. For that reason, political analysts have vowed to play close attention to regional factors on the 2004 presidential race, and the respective fortunes of both the Republican and Democratic parties.

And it's not only political analysts who should look to the influence of the South: As noted above, Supreme Court watchers, too, should watch for regional influences.

Justices O'Connor and Kennedy Will Be the Key Votes In This Term's Key Cases

In particular, as I mentioned earlier, regionalism is likely to play a significant and perhaps decisive role in several of this terms biggest cases: the challenges to the University of Michigan's affirmative action programs (Grutter v. Bollinger and Gratz v. Bollinger) and the challenge to Texas' law criminalizing sodomy only between homosexuals (Lawrence v. Texas).

It doesn't take a PhD in mathematics to realize that the outcome of these cases will depend on the views of two justices - the two justices who have been the swing votes at the Court for more than a decade, Sandra Day O'Connor and Anthony Kennedy. And, as I will discuss below, regionalism is likely to influence how each of these "swing" Justices will vote on these two important cases.

Here's why O'Connor and Kennedy will be the swing votes: Based on past votes in the relevant areas of law, Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer are all but certain to vote to uphold Michigan's affirmative action in admissions, and vote to strike down Texas' criminalization gay sex. Conversely, Justices William Rehnquist, Antonin Scalia, and Clarence Thomas are just as likely to reach the opposite conclusion.

Justices O'Connor and Kennedy, however, are more difficult to predict - which makes this a genuinely exciting term, for the issues the Court will confront are not only interesting, but up for grabs.

On the issue of affirmative action, O'Connor has sent mixed signals on whether she see will put her stamp of constitutional approval on a system of race-based preferences in college and graduate school admissions that is, like Michigan's, designed to foster diversity in institutions of higher education. (In a column to be posted tomorrow on this site, my fellow FindLaw columnist, Vikram David Amar, will discuss these mixed signals in more detail.)

Justice Kennedy is even more skeptical of affirmative action than Justice O'Connor. Nevertheless, he has not yet placed himself in the abolitionist camp of Rehnquist, Scalia, and Thomas. And only one of these two Justices' votes is needed to ensure a solid majority for allowing programs like Michigan's to continue.

In addition, regardless of their views on the merits of the issue, O'Connor and Kennedy may have qualms about overruling Bakke, the earlier decision that gave rise to affirmation action programs like Michigan's in the first place. In Planned Parenthood v. Casey - a prior decision on a very different topic, the right to abortion - O'Connor and Kennedy were both persuaded by stare decisis concerns not to overrule Roe v. Wade. (Professor Amar's column will also discuss the stare decisis issue.)

As for gay rights, Justice O'Connor voted with the majority in the 1986 decision in Bowers v. Hardwick. There, the Court rejected a claim that Georgia's anti-sodomy law violated the constitutional right to privacy.

Obviously, that means Justice O'Connor does not have a problem with states' outlawing sodomy for everyone (as a more libertarian justice might). But it leaves open the question whether she might be disturbed by the statute under consideration, which criminalizes only same-sex sodomy, while leaving it perfectly legal otherwise.

Now the issue is not whether the state can regulate sexual conduct (O'Connor clearly thinks it can), but whether when it regulates, it can criminalize the sexual conduct of some, while leaving others free to do the very same thing. The issue, thus, is now only of equality, not liberty.

And O'Connor is already on record upholding a gay rights challenge based on principles of equality. Specifically, she was in the majority in the 1996 decision in Romer v. Evans, where the Court struck down an amendment to the Colorado constitution that prohibited any state action designed to protect homosexuals as a distinct group within society.

And Justice Kennedy - who joined the Court after Bowers was decided -authored the Court's opinion in Romer, and used strong language in striking down the amendment. Interestingly, Justice Kennedy seemed to see Romer as an easy case, and the amendment as a true outrage - in part because he read the amendment as extreme and unprecedented in its denial to homosexual citizens of basic rights to the law's protections that others enjoy.

Both facts bode relatively well for those who hope to get the anti-same-sex-sodomy law at issue in Lawrence struck down - although Romer was such an extreme case, as Kennedy interpreted it, that predictions based on it are necessarily limited.

How Regionalism Plays A Role In Justices O'Connor and Kennedy's Voting Patterns

In my view, the similar (though not identical) voting patterns of these Justices, in cases such as Romer and Casey, is explained at least in part by their shared regional roots. O'Connor and Kennedy are the Court's two indigenous westerners, an Arizonan and Californian, respectively. And their votes in the areas of affirmative action and gay rights are certainly consistent with (and, I believe, reflective of) the western perspective of rugged individualism that, especially in the case of O'Connor, was part and parcel of their coming of age.

To take O'Connor (the more striking example), every chapter of her recently published autobiography, LAZY B: Growing Up on a Cattle Ranch in the American Southwest, suggests a deep connection between her western experience and her deep reluctance as a jurist to think of individuals as members of a group or class, rather than simply as individuals. The central lesson of her childhood - where she mixed easily with the ranch's black and Hispanic employees - was to measure all people by their willingness to work and the standards they set for themselves, not by race or class or educational achievement.

That isn't to say that O'Connor rejects every class-based notion in the law. But her background and experience seem to made her suspicious of "group-think" and stereotyping - and have caused her to demand a high level of specific justification for group-based preferences.

This much was evident from almost the instant O'Connor joined the Court - when, in one of her first major opinions, she ruled in favor of a male applicant seeking admission to the Mississippi University for Women nursing school. O'Connor explained, in her 1982 decision in Mississippi University for Women v. Hogan that she could find no substantial justification for running an all-female institution in this field.

When she did so, she sent a strong message that the government must treat applicants as individuals, not members of a particular gender. (Later, when Justice Ruth Bade Ginsburg dealt with the reverse scenario, in a decision striking down VMI's all-male admissions policy, it seemed fitting that the Court's second female Justice had dealt with the flip side of the case that had proved one of Justice O'Connor's early hallmarks. The cases formed a nice diptych: men can be nurses; women can be soldiers; everyone must be judged on his or her individual merits, they proclaimed.)

Justice Kennedy cannot claim Justice O'Connor's rancher background. But you cannot visit his office without appreciating, from the frontier images included there, the pride Kennedy takes in his western roots. And it is also impossible to read Justice Kennedy's impassioned opinion in Romer, where he emphatically denounces the group stigmatization of gays - without sensing his profound commitment to individualism. The idea that the state would not treat individuals as individuals is clearly deeply troubling to the Justice.

How O'Connor and Kennedy's Shared Western Perspective May Play a Role This Term

The application of this western perspective to the currently pending cases bodes well for those who find Texas' anti-gay sodomy law abhorrent. O'Connor and Kennedy are likely to demand a high level of justification for a double standard that rests solely on sexual orientation - even when the standard is within a type of statute that O'Connor, in Bowers, already approved. The premium they place on individualism requires a high level of scrutiny whenever the state, as in the anti-same-sex-sodomy statute, says that a certain class of citizens can never do a certain thing, while another class can.

The state of Texas's argument, moreover, is likely only to emphasize the parallel with Romer, in which both Justices voted to strike down the anti-gay law. That is because Texas is likely to present the very same moral justification for its sodomy prohibition that Colorado used to defend its anti-gay amendment in Romer, inviting the same passion on Kennedy's part, and the same rebuff on the part of both swing Justices.

By the same token, the University of Michigan's affirmative action program faces tough sledding. To overcome O'Connor's and Kennedy's in-bred inclination against group treatment of individuals, the University will have to convince these justices of two things, and both points will be very hard to win.

First, the University of Michigan will have to persuade the swing Justices that its desire for diversity on campus does not reflect group stereotyping - the idea that every member of every non-white ethnic or racial group has a unique perspective that should be reflected on campus, while no white student does. The University will have to argue, to the contrary, that it needs to recruit a critical mass of minority students precisely because different ethnicities and races bring a range of unique perspectives - say, from Eldridge Cleaver to Clarence Thomas - all of which should be embodied on campus.

Accordingly, it ought to emphasize the "melting pot" atmosphere of the campus, and concede that white students, too, have interesting perspectives, but that those perspectives are already represented, and minority students', generally are not. Also, it should urge the Court that everyone's perspectives will be sharpened by the interchange. It should present Michigan as the anti-Mississippi University School of Nursing, and the anti-VMI, a campus striving to be integrated precisely because it believes in what individuals can do, and does not want to bar a particular type of individual.

Second, the University will have to convince O'Connor or Kennedy that admissions decisions, even with race-conscious preferences, remain to a very substantial degree case-by-case individualized determinations. In other words, these justices must be convinced that, although a candidate's race may be a factor in admission, the school's ultimate decision whether or not to admit that candidate is still sufficiently individualized. Obviously, a plus-system is more individualized than a quota system, but is it individualized enough?

One argument the University can make to this effect is that such decisions are, at least, no less individualized than, say, the decisions respecting candidates who gains an advantage by virtue of athletic talent, alumni connections, geographic origin, or any of the many factors other than grades and test scores that schools customarily use to round out their student body.

Whether the University will succeed in this mission with one or both of these justices is a close question. But either way - on this issue, as on the issue of gay rights - the basic truth that judges, like the rest of us, are indelibly shaped by where we come from, will have its way with the law once again.


Edward Lazarus writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books - most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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