First principles, the Supreme Court, and our common life

 

Justice George Sutherland

Peter S. Canellos, The Great Dissenter: The Story of John Marshall Harlan, America's Judicial Hero (Simon & Schuster, 2021), 624 pp.

Isabel Wilkerson, Caste: The Origins of Our Discontents (Random House, 2020), xvii + 496 pp.

In writing the 1926 Euclid v. Ambler decision upholding local government zoning powers, U.S. Supreme Court Justice George Sutherland justified excluding multifamily housing because it harmed single-family homeowners:

Very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by others, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupation, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play... (272 U.S. 394)

People, it seemed, had the right to have government protect them from nuisances, and for Justice Sutherland apartment buildings clearly fell into that category. Never mind that he was shamelessly stereotyping in place of research, the regulations made it more difficult for potential residents of those buildings, who were also people, to find housing, or that, in the words of Michael Kubartler, "one wonders... whether Justice Sutherland knew children were raised in apartment buildings" (quoted at Jacobsen 2012: 229). Did he know at all what he was talking about, or was getting to the decision good enough?

Zoning map (creative commons via Cvillepedia)

Euclidean zoning, and its legacy of ill effects (Gray 2022), was enabled from the start by an argument from first principles, in this case that people have a right to be protected from any "nuisances" that negatively affect the value of their property or their quality of life. Sometimes a first principle is all you've got ("We hold these principles to be self-evident..."), but the weaknesses in this style of argument are evident in the Euclid decision: single-minded pursuit of a single principle admits no countervailing claims, it is used to justify a conclusion the writer already prefers (hence the selective application), and worst of all the real-world effects of the principle or its application are not considered. Did Justice Sutherland know some children also live in apartment buildings? And what might those children have the right to be protected from?

The use and abuse of first principles play a major role in two books I read this summer. It is mere coincidence that I read them back-to-back, and another coincidence that I read them while, nearly 100 years after Euclid, the Supreme Court was again holding fast to first principles while oblivious to the reality around them. 

Justice John Marshall Harlan

The journalist Peter S. Canellos's most recent book is a biography of Supreme Court justice John Marshall Harlan. Harlan is remembered for a number of prominent lone dissents from around the turn of the last century; he forcefully poked holes in the rigid arguments of bipartisan Court majorities, whether they were arguing for the power of government to segregate people by race (Plessy v. Ferguson) or prohibitions on government power to protect black citizens (The Civil Rights Cases), consumers (U.S. v. E.C. Knight Co.) or industrial workers (Lochner v. New York). Eleven years separated Harlan's and Sutherland's service on the Court, but Harlan had plenty of Sutherlands to deal with in his day. 

Canellos credits Harlan's way-ahead-of-his-time perspective to his relationship with his black half-brother Robert Harlan, which gave the justice insight into how black people were really living. Harlan's arguments would in time be well-received, as Canellos details in part three of the book, but as he wrote them the Court majority was clinging to first principles about government power, sometimes those that favored it, sometimes those that proscribed it, and about racial characteristics. In the end their arguments always managed to serve the interests of the powerful.

Harlan famously said, "But in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here." That, however, is not how it has worked out; as Isabel Wilkerson argued in her best-selling book from a few years ago, long after the end of slavery and generations after the Civil Rights Act was passed, America retains "a caste system that is central to its operation as are the studs and joists that we cannot see in the physical buildings we call home... the shape-shifting, unspoken, race-based caste pyramid in the United States" (2020: 17). 

Isabel Wilkerson 
(Source: isabelwilkerson.com)

Wilkerson uses the psychology of social rank to explain historical and contemporary American social behavior. In a chapter entitled "The Urgent Necessity of a Bottom Rung," Wilkerson describes the ongoing efforts since 1865 to bar blacks from education and entrepreneurial opportunities, enforce racial codes, and highlight the most pathological black behavior. Justice Ketanji Brown Jackson compiled an even more exhaustive recitation in her dissent in SFFA v. University of North Carolina, discussed below. Even if such efforts were stopped completely--which they have not been--it wouldn't make race suddenly and magically irrelevant. They have combined to produce the world inherited by today's minorities, in which today's black children must make their way. 

March for Our Lives, Washington 2018

The U.S. Supreme Court, though, continues to insist that race is indeed irrelevant in today's society, only invoked by racial liberals with one of their legally impermissible remedies. Last month, a prominent pair of cases barred the use of affirmative action in admissions by a state university (Students for Fair Admissions v. University of North Carolina) and a private university that receives government money (Students for Fair Admissions v. Harvard College). 

Affirmative action comes in more than 57 varieties, but all are generally intended to compensate for the effects of past injustices and/or ensure a demographically diverse group. But the literal wording of the 14th amendment and the 1964 Civil Rights Act both require equal treatment without regard to race. "Equal treatment" can only be "the same," however, if the races are similarly situated. As Wilkerson and others have shown, the races are not similarly situated, because of a long series of very intentional actions by white people, often using the authority of government. Willful naivete may get us to an easy answer to affirmative action, but they leave us with no available remedy to arguably the wickedest problem our society faces.

A different first principle enabled the Court to support the appeal of a Colorado website designer who was sued under that state's civil rights law for refusing to design a website for a gay couple's wedding, explicitly because she doesn't approve of gay marriage (303 Creative LLC v. Elenis). Here individual freedom, not non-discrimination, is the banner flown by the majority.  "Tolerance, not coercion, is our Nation's answer," wrote Justice Neil Gorsuch. Again, we are called by the Court to exercise virtue by not stopping the abuse of power. (So intent were the majority on getting to their desired conclusion that they overlooked the facts that Lorie Smith does not actually design wedding websites, and that the 2016 letter that started this case is quite clearly a forgery. See sources at Katz 2023.)

Never mind, apparently, that if enough actual web designers and bakers refuse to work for queer people, queer people can hardly be full members of society. Never mind that, like any controversy, "This case cannot be understood outside of the context in which it arises," as Justice Sonia Sotomayor said in her dissent from the bench. To the Court's current majority view individual choice is all about tolerance for the choice, not about context or the real-world effects of those choices. Unless you're choosing to address racial caste, or the choice to have an abortion...

Habitat, flood control, carbon sink, but
not protected by the Clean Water Act
(Creative Commons by Wikipedia)

We can see similar rigidity on the Court's narrow reading of the Clean Water Act as it applies to wetlands, and lower court rulings on antitrust and social media regulation. The ruling on President Biden's student loan order is harder to argue with, but it's worth wondering how presidents are supposed to handle public problems if Congress is too dysfunctional to pass laws.

The U.S. Constitution surely is doomed if it requires us to be oblivious to the fundamental social realities of our time. If our life in this country is going to be anything remotely close to common, constitutional law, and politics writ large, has to be more than using handy first principles to require that the socially-advantaged retain their advantages. Sotomayor again: "In a society where opportunity is dispensed along racial lines, equality cannot be attained through race blindness." Naively or willfully, the Court majority has chosen to ignore that, in order once again to comfort the comfortable while afflicting the afflicted.

Justice Sonia Sotomayor

For reviews of the Court's 2022-23 session, see Liptak and Murray 2023, Barnes 2023.

SEE ALSO:

"Religious Freedom for Whom?" 15 December 2020

"Green Book and Wedding Cakes," 5 February 2019

"Color Blindness vs. Opportunity," 21 January 2019