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Courtney Milan
@courtneymilan
I write books about carriages, corsets, and smartwatches. Mother of dinosaurs.
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Joined November 2008

11:28 AM Jun 25, 2022

A thread:
The Equal Protection Clause has been borked by conservatives.
Also, SCOTUS has sucked for 95% of its miserable existence.

The equal protection clause of the 14th Amendment, adopted on July 9, 1868, says:

"...nor [shall any state] deny to any person within its jurisdiction the equal protection of the laws."

Now, a general understanding of this may make you think (at first) that this says you have to treat people equally.

But of course that's not true, and nothing in US law is simple.

So, for example, in Railway Express v. New York (link here: https://supreme.justia.com/cases/federal/us/336/106/#109), New York passed a law saying you couldn't have advertisements on the side of your trucks, except for the business that was operating the truck.

A truck company that sold advertising on their trucks claimed that this was discrimination. General advertisements for anything were being treated differently than specific advertisements for your specific business. This is unequal!

The Court's response was this: Is this unequal? Technically, yes. But the equal protection clause wasn't about this kind of discrimination. It was about different kinds of discrimination.

So what kinds of discrimination does the Court protect against? This is set forth in the famous and/or infamous footnote four of Carolene Products. https://www.law.cornell.edu/supremecourt/text/304/144#fn4

Nobody cares much about any part of this case except footnote 4. That footnote says that "a correspondingly more searching judicial inquiry" is appropriate for laws regarding religious, racial minorities, or other "discrete and insular" minorities.

Okay, so we're beginning to get somewhere. Heightened scrutiny for laws involving racial minorities! That sounds good! ...right? Right?

Now, Carolene Products is a case from 1938. So, height of Jim Crow era. I imagine anyone with a vague sense of history is saying ???? You applied special scrutiny to laws involving racial minorities???? How??? The answer was: ha ha ha by special scrutiny we meant racist scrutiny!

Here's the tap-dancing in Plessy v. Ferguson, which held that you could have laws that explicitly separated people on the basis of race, because that's fine.

Please understand: this is a Court explicitly saying "oh yes this amendment was absolutely supposed to make all races equal under the law, and by that we understand it to mean that segregation is great because it's an important part of our national tradition." So that [dusts hands] is how we went from an equal protection clause which the Court said explicitly was about equality under the law to decades and decades of Jim Crow.

Now, why did this stop? At this point, I don't have a source I can cite on the internet. My source is a frank conversation about court history between Stephen Breyer and Sandra Day O'Connor at the 10th Circuit investiture of a chief judge, sometime in 2008 (I believe). Their source was that they literally talked to the Justices that were on the Court at the time.

But basically, what happened was this: In the aftermath of World War II, the US Supreme Court realized some very bad facts for them.

1) They'd just convicted a bunch of judges in the Nuremberg Trials on the basis of "You should have known this was a crime against humanity."

2) Some of the crimes against humanity practiced by the Nazis were stolen from US segregation practice.

3) The Justices had the unfortunate realization that Korematsu was extremely, extremely also bad for them for similar reasons.

And this is where Brown v. Board of Education, and a whole slew of other cases start to come about: by a short period of a few decades in which the Justices came to the realization that they were the tools of white supremacy, and they did not want to be. Many of the criminal law reforms that we take for granted hail from this area. Lynching was often judicial in nature: a Black person would be accused, the jury chosen, trial held that afternoon, executed before sundown.

And so criminal law — and equality — started to take form and take hold in some tiny, tenuous manner. Conservatives hated it. "Activist judges," they said, as if it were somehow not activist judges who'd invented the fiction that "equality under the law" meant "explicit segregation."

And this is where you started to get Rehnquist and Scalia and Thomas and the beginnings of the Federalist Society. People who believed that the Court and the courts were supposed to be the tools of white supremacy, not the undoing of it.

Let's skip to the end of the Warren Court — to the point when Rehnquist was not yet Chief Justice, but was on the Court, and let's talk about equal protection again. In Washington v. Davis, two Black men sued because they wanted to be police officers. At the time, there was a test administered to evaluate you as a police officer. This test, it is admitted in the opinion, has no relationship with any of the skills required to be a police officer.

Here's the case: https://supreme.justia.com/cases/federal/us/426/229/

But Black men fail this test 4 times as often as do white men. And there were a disproportionately smaller number of Black police officers than white police officers. So, the argument was: This test is discriminatory. It has no rational reason for being applied. The impact of this test is that it's discriminatorily cutting out Black people from the candidate pool. Which: It obviously was!

Now, after some tap-dancing around prior precedent that was like "Uh yeah that's bad," here's what they came up with.

Summary: "But the test doesn't mention race???? How can test be racist if test doesn't mention???? We are nine of smartest people in country supposedly but we do not know what structural racism is??? Do not understand???"

Compare this to Bakke v. Regents of the University of California https://www.law.cornell.edu/supremecourt/text/438/265. In that case, the UC medical school had a special admissions program for people from "disadvantaged" backgrounds, which explicitly included racially disadvantaged applicants.

Bakke, a mediocre white dude who would not have gotten into medical school under any admissions regime, sued saying that he was discriminated against on the basis of race. Here you run into a problem: the underlying state action explicitly mentions race, and if you explicitly mention race, suddenly Supreme Court justices can see it in operation.

Are white dudes discriminated against? Who cares? Not Supreme Court Justices.

Citing Korematsu, the Supreme Court says that restrictions involving explicit racial classifications must be viewed as "inherently suspect" and be subjected "to the most rigid scrutiny." (We know how that worked out in Korematsu. Will they be similarly rigid here?)

Just feast your eyes on these cases about ending exclusion. Those are good, aren't they? Surely the Court will say "So yeah, ending institutional exclusion in the form of racial integration of higher professions is great." Surely?

Maybe we could read the 14th Amendment to allow governments to work to end discrimination? No. The Court, a group of Very Intelligent People cannot figure out who has been discriminated against. It's very complicated.

I cannot emphasize enough how common it is for the Supreme Court to just... play... dumb. When they want to.

In Washington v. Davis, they're like "We can't figure out how this is about race, just because Black people fail this test 4x more???? Relevance?" In Bakke, the Supreme Court is like, "I know you say that some people are discriminated against more than others, but how? Do we tell? Look at history? So complex. Do not know how." In Plessy v. Ferguson, the Court was like "Oh yeah, lemme tell you about our long and storied history of discrimination in this country, especially in schools, but also in transportation." They knew exactly how discrimination worked when they wanted to impose it, and could not figure it out when asked to end it.

There are other things I could get into: the affirmative action cases go through a range of "compelling interests" that might justify a racial classification, and reject things like "remedying past discrimination," "providing students with teachers who have a similar background". Etc., etc., until we get to "diversity" and that's good enough, as long as you only glance at race indirectly and take into account 97 other factors. Even then it's good for maybe 25 years (more than half elapsed).

But the thing to understand about the equal protection clause is that the Courts play dumb. That's the entire schtick. They play dumb.

So this brings me to Alito's opinion in Dobbs on Equal protection. Alito, by the way, spends many pages going into lengthy detail about history and tradition. He thinks he's smart enough to know what the fuck women did about unwanted pregnancies back in 1400. He's also more than willing to overturn precedent in this opinion.

But here's the summary of the equal protection discussion. His conclusion: Abortion is not a sex-based classification.

There are people who are not women who can get pregnant and therefore may need abortions. But the majority of people who can get pregnant are women, and so you'd think there would be some recognition that abortion regulation severely impacts women. Nope. Remember Washington v. Davis and Bakke. The Court is (by design) unable to recognize discrimination both when government tries to address it or when government enacts it without using words that explicitly make it obvious.

Alito: Smart enough to recite bad history with extreme confidence that he is correct. Stupid enough that he can't figure out discrimination happening today.

So that's where we are right now. Discrimination by government, under the equal protection clause, is perfectly legal as long as you don't use the magic words and say "and... this is about [race/sex/religion.]" On the other hand, you want to try to redress historical discrimination? No you can't.

And this is where we come to the Equal Rights Amendment. It was drafted before the slew of cases starting from the mid-1970s, in which the Court pretended that it had never heard of discrimination and wouldn't know how to find it. It was drafted back in the time when people thought the Equal Protection clause could do something about racial discrimination because we had seen it be done. It was not drafted with an understanding of the 50 following years of absolute bullshit.

The people who champion it still are largely people who are not paying attention, or who are old enough that they believe it will make a difference. They are wrong.

Alito has already said in his own opinion that abortion is not a sex-based classification, because he just can't see it! Doctors of all genders are restricted from performing abortions, don't you see?? I am not sure how best to say this, but please understand: Cases like Brown v. Board of Education (70 years old) and more recent cases like Lawrence or Obergefell may have led you to believe the Supreme Court is sometimes good.

This has historically not been the case. They have historically been the front line for discrimination. The recitation of "tradition" is normal for the kind of discrimination they do. This is on purpose and by design.

The short term solution is to expand the Court radically with justices we think will be sympathetic. But in the long term? The Court is deeply vulnerable to capture by entrenched but powerful minorities, as we currently see.

I do not think that we can have true justice in a land where Marbury v. Madison is the law of the land. I think that the counter-majoritian experiment has been a resounding failure of discrimination.

Every long term solution is going to have to rethink the structure of this country's government. This is a long, long game — decades long, I suspect. But we need to say it. The Supreme Court has historically been a tool for great evil, and we cannot be surprised that they are reverting to form.

Expect more of it.