Author: Katie Eyer


Fisher and the Issue of Race-Neutrality

As Gerard observed earlier this morning, the Supreme Court’s decision in Fisher v. Texas, the Term’s pending affirmative action decision, is out, and, insofar as the majority decision is concerned, breaks little new ground.

As Ilya Somin points out over at the Volokh Conspiracy, however, there is potentially ground-breaking language—in Justice Ginsburg’s dissent, in which she argues that programs like Texas’s Top Ten Percent Law (which was designed to increase racial diversity at UT by admitting the top 10% of all graduates from Texas’s high schools) are not race-neutral. See Fisher dissent at 2 (“I have said before and reiterate here that only an ostrich could regard the supposedly neutral alternatives as race unconscious”).

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Sole Motives and University of Texas Southwestern Medical Center v. Nassar, Part II

The Supreme Court’s decision in Nassar is now out.  As discussed in my earlier post, the central issue in Nassar is whether or not retaliation plaintiffs under Title VII get the benefit of the “mixed motives” burden-shifting regime (recognized by the Supreme Court in Price Waterhouse v. Hopkins, and codified by Congress in the Civil Rights Act of 1991), under which a showing that a statutorily-proscribed factor (sex, race, retaliation, etc.) motivated the Defendant in part is enough to shift the burden to the Defendant to show they would have taken the same act anyways (or in the CRA 1991 version of the test, to establish liability and entitlement to limited remedies).

In a 5-4 holding, the Court today in Nassar concludes that Title VII retaliation Plaintiffs do not get the burden of the mixed motives test. This holding is not terribly surprising in light of the Court’s 2009 decision in Gross v. FBL Financial, although there were some strong arguments as to why retaliation claims should be treated differently (most notably, the Court has traditionally treated retaliation claims as part and parcel of proscriptions on substantive discrimination, strongly suggesting that the adoption of a mixed motives framework vis-à-vis the latter must be treated as also extending such a framework to the former). The Court’s extension of Gross to Title VII retaliation claims strongly suggests that a majority of the Court is committed to extending Gross to all statutory claims lacking explicit language authorizing mixed-motives burden shifting, and is unlikely to retreat from or limit the application of Gross (a case many observers believed was wrongly decided).

On the other important lurking issue underlying Nassarwhether the rejection of a mixed motives burden-shifting regime means a requirement of “sole” motivation or causationNassar does little to dispel the confusion generated by Gross.  I discuss this issue more fully in my prior post.  To reiterate briefly here: in the aftermath of Gross, anti-discrimination defendants began to argue that claims not subject to a mixed-motives burden shifting regime should be required to show that the illegal consideration (e.g., age) was “the but for” or sole cause of the employer’s action. Many (but not all) courts rejected this argument as inconsistent with the long-standing principle in anti-discrimination law that a simple showing of but-for causation is sufficient to establish liability, even where a mixed-motives burden-shifting regime does not apply. (That is to say, a Plaintiff must—absent resort to the “mixed motives” burden-shifting regime—show that the illegal motivation was “a but-for cause,” but need not show sole or exclusive cause). As others have observed, the sole cause approach is also inconsistent in many instances with demonstrable Congressional intent.

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Sole Motives and University of Texas Southwestern Medical Center v. Nassar

I wanted to call to readers’ attention a civil rights case that in the midst of all of the blockbuster cases of this term has not attracted quite as much attention, but has the potential to very significantly impact the practical implementation of many of the nation’s civil rights laws – University of Texas Southwestern Medical Center v. Nassar.

What is formally at stake in Nassar is whether retaliation claims under Title VII—and perhaps any civil rights statute that does not explicitly provide for “mixed motives” burden-shifting—are subject to the mixed motives test first developed in Price Waterhouse v. Hopkins and codified in the Civil Rights Act of 1991. Based on the Supreme Court’s opinion in Gross v. FBL Financial, it seems fairly likely that the Court will find the answer to this question to be no (although there are also many strong arguments for why the result should be a “yes,” see e.g., here).

This outcome in and of itself would likely further depress the already dismal success rates of anti-discrimination plaintiffs. But far more troubling is the possibility that Nassar—like Gross before it—will further entrench the conceptual sloppiness that the use of the term “mixed motives” to describe a particular burden-shifting paradigm has allowed to slip into the law. In short, there is a real possibility that the Court’s decision in Nassar may encourage or require lower courts to require something approaching “sole” causation in many federal civil rights cases (i.e., that disability, age, retaliation, etc. be the “sole” cause of the employer’s actions)—a virtual impossibility in practical terms.

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Certiorari Studies and the Blackmun Digital Archive

For those who may not be aware of it, I wanted to call attention to a fantastic resource put together by Lee Epstein, Jeffrey Segal, and Harold Spaeth, the Digital Archive of the Papers of Justice Harry A. Blackmun (available here). For anyone interested in integrating certiorari denials in their research, this is a wonderful resource. It provides access to the docket sheets, showing how the Justices voted individually on certiorari, Justice Blackmun’s annotated copy of the cert pool memo, and, occasionally, other documents that Justice Blackmun attached.

The archive has some limitations. Most notably, it is for the 1986-1993 Terms only. In addition, it only provides Justice Blackmun’s records, so it doesn’t provide access to records that any of the other Justices may have maintained. It also occasionally has images that cut off parts of the text. But for someone looking to examine a pattern of certiorari denials during that time frame (or a particular certiorari denial), it is an excellent “getting started” resource. From the comfort of one’s own desk, one can get access to the vote, the cert pool memo, and—from other electronic sources like Westlaw—the petition-stage filings. If something interesting emerges, it is always possible then to search out other, less accessible sources.

To give readers a more concrete sense of what the archive has to offer, I give links to some documents after the jump.

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Certiorari Studies?

Thank you Dave for the warm welcome! I’m looking forward to participating in the discussion here at Concurring Opinions this month.

I wanted to begin my guest blogging stint here by opening a dialog on an issue that has been dominating much of my casual musings lately, which is the value (or lack thereof) of the study of certiorari review. This question has become a focus of my thinking largely because of responses I have received to a recent work in progress, Constitutional Colorblindness and the Family (in which I discuss denials of certiorari review in developing a historical account of the Supreme Court’s approach to contemporary uses of race in family law). I don’t want to focus too much here on that specific project, but instead on the bigger question of whether and how the study of certiorari review can be useful.

There seems to be relatively little controversy that the study of certiorari review on an institutional level—if done properly—can be a valuable scholarly enterprise. (Although, as pointed out by this recent book chapter addressing comparative constitutionalism, even at an institutional level, the study of certiorari review is sometimes neglected). Thus, the study of how, on a macro level, the Court (or internationally, courts) make use of their certiorari review powers, and how that relates to their institutional legitimacy, appears to dominate scholarly discussions of certiorari review.

But what about the study of certiorari review in the context of specific subject matters? For example, where the Court consistently, over a long period of time, declines to hear cases that deviate from its putative legal rule, should we view that as salient to its substantive legal commitments in that area?  What about where it declines to hear high profile and politically controversial cases in a context where failing to intervene is, rightly or wrongly, predictably understood as endorsement?

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