The anti-antidiscrimination agenda.

AuthorRubenfeld, Jed
PositionOf the U.S. Supreme Court

People are pretty sure there is something going on in constitutional law these days, but they don't know what it is.

Since about 1995, the Supreme Court has issued groundbreaking decisions on so many subjects--for example, the commerce power, affirmative action, the Eleventh Amendment, Section 5 of the Fourteenth Amendment, and expressive association--that observers are beginning to step back from the various doctrinal debates to see if a bigger picture is emerging. One recent symposium asked whether constitutional law was undergoing a "sea change," as opposed to minor modifications in disparate areas. (1) Those who sympathize with the Court's decisions have seen a new "textualism" at work; (2) critics have claimed, on the contrary, that a new "judicial activism," especially in the area of federalism, can be seen below the recent tectonic shifts. (3)

But the epithet "activism" is just a colorful way of disagreeing, and both the "textualism" and "federalism" tags are manifestly insufficient. Take Boy Scouts of America v. Dale, (4) in which the Court held that the Scouts had a constitutional right to expel a scoutmaster because of his homosexuality. The right at issue, the Court held, was the "First Amendment's expressive associational right," (5) but of course the First Amendment does not enumerate any freedom of association (this right being effectively a creation of Warren Court cases (6)), so Boy Scouts cannot remotely be explained as a "textualist" decision. Moreover, Boy Scouts involved a state law, so the case is antifederalist as well. The fact is that the Court has been by turns textualist and antitextualist, federalist and antifederalist, in its pathbreaking decisions--a fact that itself encourages one to step back from the compartmentalized doctrinal wrangling to try to get a larger picture.

In place of judicial activism, textualism, or federalism, I want to suggest a different unifying thread behind the Court's innovative constitutional case law. I offer this suggestion in an exploratory vein. It is possible that an anti-antidiscrimination agenda, deeply felt but as yet poorly theorized, is working itself out in the current Court's jurisprudence.

What is an anti-antidiscrimination agenda? Imagine someone who believed that the "liberal" antidiscrimination movement had taken off in a direction threatening fundamental American values and freedoms. These perceived threats would include: the erosion of meritocracy, the creation of a sense of entitlement among undeserving people, the insistence that homosexuality be protected instead of condemned, the fomenting of a victimization culture, and so on. A person who held this view might say the following:

Of course discrimination is bad. But liberals and minorities have gone too far. If you oppose homosexuality, you're "discriminating." If you don't pay hundreds of thousands of dollars to make readers available for blind people who want to be lawyers, you're "discriminating." Domestic violence is supposed to be "sexual discrimination." Don't get me wrong: Domestic violence is bad, but calling it "sexual discrimination," is ridiculous. And the most ridiculous thing of all is "affirmative action," which is discrimination, but which they say we have to have to "promote diversity." These points line up in an interesting way with a series of the most important and most novel decisions handed down by the Supreme Court in recent years. In Boy Scouts, as just noted, the Court held that associations have a right to exclude homosexuals. In Garrett (7) and Morrison, (8) the Court held that the Americans with Disabilities Act and the Violence Against Women Act, respectively, did not "enforce" the Equal Protection Clause's antidiscrimination guarantee and hence exceeded Congress's power under Section 5 of the Fourteenth Amendment. In Adarand, (9) the Court held that governmental affirmative action measures are subject to the nearly-always-fatal strict scrutiny standard of review. And this is only a partial list.

The anti-antidiscrimination view need not openly contest "traditional" antidiscrimination law. It can embrace the idea that everyone should have equal opportunities regardless of race, sex, creed, or color. But it is hostile to the more "radical" extensions of antidiscrimination law, especially those that seek to protect traditionally unprotected groups, extend antidiscrimination ideas to unusual contexts, or push the law beyond the principle of formal legal equality.

Assume that five members of the Supreme Court hold the anti-antidiscrimination view. They would then believe that antidiscrimination law today (not in its traditional form, but in its excesses) poses serious threats to American values and freedoms. Their difficulty, however, would be that there is as yet no clear theory explaining why "traditional" antidiscrimination law is justifiable and constitutional, while the extensions of antidiscrimination law are not. The result could be an anti-antidiscrimination agenda: an effort, sometimes overt but sometimes covert as well, to find constitutional grounds for invalidating laws perceived to take antidiscrimination ideology too far.

Not all, but a good deal of the present Supreme Court's groundbreaking constitutional case law makes better sense when viewed not in the doctrinal terms in which it presents itself, but in terms of an anti-antidiscrimination agenda of this kind. This is so not only in cases explicitly dealing with discrimination under the Equal Protection Clause--such as the affirmative action cases--but also in other cases from far-flung, seemingly unrelated constitutional fields, including the Commerce Clause, the First Amendment (religion and speech), the Eleventh Amendment, and Section 5 of the Fourteenth Amendment. Several of the Court's decisions in these areas are so difficult to take seriously in their own doctrinal terms, I argue, that the anti-antidiscrimination agenda offers a much more credible explanation of them.

If all this is true, it would not follow that the Supreme Court's new case law is wrong. Someone might say, on the contrary, that the anti-antidiscrimination view is right, and that the Court's real task is to theorize this view more articulately, so that it can stand on its own constitutional footing, rather than disguising itself behind such stalking-horses as federalism, freedom of speech, or the Eleventh Amendment. On this question, I will have nothing to say.

What I will try to show, however, is that the Eleventh Amendment, federalism, and freedom of speech are in fact stalking-horses in the Court's new constitutional case law. In other words, I will try to show, for example, that some of the Court's federalism cases are not really federalism cases at all--that they cannot be intelligently explained or debated in the doctrinal terms in which they present themselves. This is a difficult showing to make, but an important one, if the idea of an unacknowledged anti-antidiscrimination agenda driving these cases is to have its strongest purchase.

Part I of this Essay explains how I try to make this showing. One way to suggest that certain members of the Supreme Court are deeply but perhaps covertly hostile to antidiscrimination law is to rely on biographical or personal information about them, such as stories alleging that Chief Justice Rehnquist participated as a young political operative in efforts to stop blacks from voting, (10) or certain crude psychoanalyses of Justice Thomas. (11) I expressly disclaim this kind of argument, which, whatever its merits for other purposes, is unreliable and unproductive for the law.

Instead, I pursue a kind of analysis that might be called juxtaposition across doctrines. This simply means asking how decisions from one doctrinal category relate to those from others. Unsurprisingly, given lawyers' basic training in doctrinal sorting, the relationships among different doctrines are systemically underappreciated in the legal literature. A line of cases can seem perfectly intelligible when evaluated in its own doctrinal compartment, yet its intelligibility can evaporate altogether when placed side by side with another line of cases. This is so, I argue, with respect to a good deal of the Court's "federalism" case law. Part I explains this juxtapositional method and begins its application with a discussion of the Court's recent Eleventh Amendment cases.

Part II then takes up the Court's Commerce Clause and Section 5 cases and juxtaposes them with the Boy Scouts decision. Through this juxtaposition, I hope to show that some of the Court's most important new pronouncements in constitutional law cannot be taken seriously in their own doctrinal terms, but are better understood as part of an anti-antidiscrimination agenda. Part III attempts to make the same showing in connection with the Court's affirmative action cases.


    There is a particular doctrinal trap that renders constitutional decisions impossible to take seriously in the legal terms in which they present themselves. It has to do with federalism. Constitutional law has fallen into this trap before. The question is whether it has done so again today.

    Seeing this trap requires undertaking the kind of analysis mentioned above: juxtaposition across doctrines. Lawyers are trained to assimilate cases by separating them into more or less distinct lines of doctrine. The virtues of doctrinal sorting are obvious. Without it, the legal system could not possibly digest tens of thousands of cases, nor could individuals develop expertise in particular fields. But this practice obviously inhibits vision too, as do the blinders on a horse. While directing and focusing attention, it also tends to suppress appreciation of how differing lines of case law relate to one another. By failing to see these interdoctrinal relationships, we can be misled into taking cases seriously long after they have stopped...

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