September 21, 2020

In celebration of Ruth Bader Ginsburg

By Marty West, Professor Emerita

(Remarks delivered at a Sept. 19 vigil in Davis honoring Justice Ginsburg’s life and legacy)

We are here tonight in Davis Central Park to celebrate the life of Justice Ruth Bader Ginsburg. She has always been a part of my professional life and our lives have intersected many times. I will miss her.

In fall 1971, when I was beginning my second year of law school at Indiana University in Bloomington, Ruth argued and won her first case in the U.S. Supreme Court. The case was Reed v. Reed, and she convinced the Court to rule, for the first time, that a sex-based classification in a law violated the Fourteenth Amendment’s Equal Protection Clause. The Supreme Court ruled that Idaho’s law automatically preferring a father over a mother as the executor of a child’s estate was unconstitutional.

In the fall of 1972, when I was a third-year law student, I went to a conference at Yale on how to create a law school course on Women and the Law. Ruth was there with her co-author Herma Hill Kay, law professor at UC Berkeley. They were the first ones to publish a law school textbook on sex-based discrimination.

As the founder of the ACLU Women’s Rights Project in New York in 1972, Ruth had been pleased with the result in Reed v. Reed, but really wanted the Court to find that a sex-based classification created a “suspect class,” mandating the highest level of judicial review, the same level of review given to a classification based on race. So Ruth tried again.

In 1973, Ruth argued Frontiero v. Richardson, involving a woman in the Air Force and her right to claim dependent’s benefits for her husband. The Court ruled in Ruth’s favor, and she got four members of the Court to agree with her that a sex-based classification created a “suspect class” subject to the most stringent judicial review. However, she did not get that fifth vote needed to adopt the higher standard.

That same year, 1973, I published my student law review article on the sex-based classifications in the Social Security system. I cited a lower-court case, then pending, brought by Ruth and the Women’s Rights Project: Weinberger v. Wiesenfeld. That case challenged the denial of any father’s benefits when a mother, covered by Social Security, died leaving young children. Ruth won the case before the Supreme Court in 1975, and the Court actually cited my law review article in the footnotes!

Ruth’s genius was demonstrated by her decision in these two cases to pursue fact patterns where striking down the sex classifications would benefit men, not women. Arguing before nine men on the Supreme Court, she wanted to find examples they could possibly identify with. She continued to follow this policy throughout the 1970s.

In 1976, I was the treasurer of the Equal Rights Amendment campaign in Indiana. We were the last state to ratify the ERA before the time expired, leaving the amendment three states short. Our ERA campaign got financial and other support from the ACLU Women’s Rights Project in New York, still headed by Ruth Bader Ginsburg.

In 1980, Ruth was appointed by President Carter to the federal Court of Appeals, joining the District of Columbia Circuit.

In 1982, I joined the faculty of the UC Davis Law School.

Justice Ginsburg took her seat on the U.S. Supreme Court in 1993.

In 1994, I received an invitation from Professor Herma Hill Kay, then dean of the UC Berkeley Law School, to join her as co-author of the law school textbook, Sex-Based Discrimination. Herma had been producing new editions by herself ever since Ruth had gone on the federal bench in 1980, but Ruth had been urging her for some time to get help. At some point, Ruth sent me a note, thanking me for agreeing to be Herma’s co-author. Herma and I published three more editions of the textbook over the next 12 years.

In 1996, Justice Ginsburg authored the Supreme Court opinion in U.S. v. Virginia, finding that the exclusion of women from the Virginia Military Institute, a public university, violated the Equal Protection Clause. She relied on all those cases she had litigated in the 1970s overturning sex-based classifications and got as close as she could to “strict scrutiny” of a “suspect class.” She labeled the level of judicial review as “skeptical scrutiny” for sex-based classifications. Five other justices joined her majority opinion.

In 2006, I was in Washington, D.C. on sabbatical. I called up Justice Ginsburg’s office and asked if I could sit in on a couple of oral arguments. I got to sit in the “family” section of the chambers, in Marty Ginsburg’s seat, and after the first set of oral arguments, the guard escorted me up to Justice Ginsburg’s office. We had a very pleasant fifteen-minute conversation. That was the last time I saw Justice Ginsburg.

I retired from the law school in 2007, and retired from teaching Gender and Law in Women’s Studies in 2012.

But, of course, Justice Ruth Bader Ginsburg never retired.

In the 1970s, Ruth Bader Ginsburg was responsible for developing the law of constitutional Equal Protection which has benefited all of us ever since. We owe her our deepest gratitude.

June 20, 2016

Article of the Day: The Racist Algorithm? by Anupam Chander

Cross-posted from Immigration Prof Blog.

I want to highlight a forthcoming article by Professor Anupam Chander: "The Racist Algorithm?" Michigan Law Review (2017 Forthcoming)

ABSTRACT:  Are we on the verge of an apartheid by algorithm? Will the age of big data lead to decisions that unfairly favor one race over others, or men over women? At the dawn of the Information Age, legal scholars are sounding warnings about the ubiquity of automated algorithms that increasingly govern our lives. In his new book, The Black Box Society: The Hidden Algorithms Behind Money and Information, Frank Pasquale forcefully argues that human beings are increasingly relying on computerized algorithms that make decisions about what information we receive, how much we can borrow, where we go for dinner, or even whom we date. Pasquale's central claim is that these algorithms will mask invidious discrimination, undermining democracy and worsening inequality. In this review, I rebut this prominent claim. I argue that any fair assessment of algorithms must be made against their alternative. Algorithms are certainly obscure and mysterious, but often no more so than the committees or individuals they replace. The ultimate black box is the human mind. Relying on contemporary theories of unconscious discrimination, I show that the consciously racist or sexist algorithm is less likely than the consciously or unconsciously racist or sexist human decision-maker it replaces. The principal problem of algorithmic discrimination lies elsewhere, in a process I label viral discrimination: algorithms trained or operated on a world pervaded by discriminatory effects are likely to reproduce that discrimination.

I argue that the solution to this problem lies in a kind of algorithmic affirmative action. This would require training algorithms on data that includes diverse communities and continually assessing the results for disparate impacts. Instead of insisting on race or gender neutrality and blindness, this would require decision-makers to approach algorithmic design and assessment in a race and gender conscious manner.

August 5, 2014

How to Read Justice Kennedy’s Crucial Concurring Opinion in Hobby Lobby: Part II in a Series

Cross-posted from Justia's Verdict.

In my last column, Part I of this Two-Part series, I argued that lower courts are justified in paying (indeed perhaps required to pay) close attention to Justice Kennedy's concurring opinion in this summer's blockbuster Burwell v. Hobby Lobby ruling, even though the "Opinion of the Court" in that case had the support of five Justices. Because Justice Kennedy was one of the five in the majority in this 5-4 case, his understanding of the majority opinion-on which he based his decision to join and which is explained in his concurring opinion-essentially represents the narrowest common grounds on which a majority of Justices agreed.

In the space below, I suggest a number of significant ways in which Justice Kennedy's take on the majority opinion, which he says are among the "reasons . . . [he] join[ed] it[,]" counsels in favor of a narrow reading of what the Court decided. To see why this is so we must directly compare Justice Alito's majority opinion (and the language and tone it used) with Justice Kennedy's writing.

The Basic Structure of Justice Alito's Opinion of the Court

Justice Alito's opinion can be broken down into two big questions: (1) Does the Hobby Lobby corporation partake of protection under the federal Religious Freedom Restoration Act (RFRA)?; and (2) Is the contraception mandate in the Affordable Care Act (ACA) regulations the "least restrictive means" to accomplish the "compelling" government interest-that female employees receive contraceptive service insurance at no cost-as required under RFRA?

On the first question, Justice Alito reasons quite broadly, and rests statutory protection for Hobby Lobby on the ground that a for-profit closely held corporation is itself a "person" capable of the "exercise of religion" under RFRA (rather than resting protection on the idea that the persons whom RFRA protects are the owners of a corporation, and the fact that Hobby Lobby's owners are operating through the corporate form should not strip them of the statutory protection they have as individual human beings to practice religion). Because of this broad reasoning, and because Justice Kennedy did not say anything in his concurrence on this question, the Court (and lower courts) may find it difficult to deny RFRA coverage to publicly traded corporations whose managements try to assert claims for religious exemptions in the future.

But on the second question-concerning what RFRA protection means once RFRA applies-the breadth of the Court's ruling is more open to debate, because Justice Kennedy did say things that might diverge from what Justice Alito said. I mention four such possible divergences here.

Some Ways in Which Justice Kennedy's Understanding of the What the Majority Held Might Be a Narrow One

First, and perhaps least significant doctrinally but potentially important optically, while Justice Alito characterizes the test the government must meet to justify denying an exemption under RFRA as "exceptionally demanding," Justice Kennedy is content to call it "stringent" (citing his own opinion in a prior case). This subtle language difference may send slightly different messages to lower courts about how tough to be in evaluating arguments put forth by the federal government in future cases.

Second, on the question whether the government has a "compelling" interest (the kind of interest it needs under RFRA) "in ensuring that all women have access to all FDA-approved contraceptives without cost sharing," Justice Alito spends a great deal of space explaining why it is "arguable" that the government should lose on this question. In particular, he discusses how the exceptions the Affordable Care Act creates for existing health plans to be "grandfathered"-and thus not required to provide contraceptive coverage-undermine the notion that the government's interest is compelling. Justice Alito ultimately finds it "unnecessary to adjudicate this issue [because] [w]e will assume that the interest in guaranteeing cost-free access . . . is compelling."

Justice Kennedy on this question writes in a way that suggests a much stronger likelihood that he would, if push came to shove, find (as the four dissenters did) the government's interest to be compelling, notwithstanding the grandfather exceptions. He says that is "it is important to confirm that a premise of the Court's opinion is its assumption that the . . . regulation here furthers a legitimate and compelling interest in the health of the female employees." It is true that he uses the word "assumption"-which reminds us that the Court assumed but did not decide the government's interest was compelling. But one wonders why it is important to "confirm" an "assumption" unless the assumption is likely to be correct. Also, Justice Kennedy starts this part of his discussion by saying that the federal government "makes the case that the mandate serves . . . [a] compelling interest" (emphasis added). "Makes the case" is a term that can be read to mean simply "argues" or "contends," but more often it is used to mean "provides good reasons to think."

If Justice Kennedy is, in fact, sending a signal here that government-granted grandfather exceptions based on convenience and ease of transition do not undermine the compelling nature of a government interest, and if that is how lower courts read his tone here, then such a signal could have important consequences for the range of other government interests that are asserted in subsequent RFRA cases, and other cases in which the government needs to establish a compelling interest. Government often needs to grant exceptions to facilitate enactment of big new regulatory schemes, and if the inclusion of such exceptions jeopardizes the idea that the government has compelling interests on which it is acting, a great deal more government regulation would be vulnerable.

The Key Questions of What the Less Restrictive Alternative in Hobby Lobby Was and How Competing Interests Should Be Weighed

 Third, on the important question whether the Government should lose because it could pay for the contraceptive coverage itself (rather than requiring employers to provide it), and government payment is a "less restrictive means" to accomplish the government's (compelling) objective, Justice Alito seems to try to have his cake and eat it too. He says ultimately that "we need not rely" on this possible accommodation as a basis for Hobby Lobby's victory because the federal government could also simply tell insurance companies (rather than employers) to provide the coverage (as the government does for non-profit corporations), but this language comes only after Justice Alito had already spent a lot of ink explaining why the government-payment option seems to be required under RFRA. Indeed, Justice Alito observes that it is "hard to understand" the Government's argument to the contrary. Moreover, even though Justice Alito writes that the Court "need not rely" on this accommodation, he doesn't say whether he means simply that there are two possible accommodations that explain Hobby Lobby's victory (in which case neither of them is one that must be relied on), or instead that the second accommodation (having the insurance companies provide the coverage) is the statutorily required accommodation in this case, such that the Court doesn't decide whether, in the absence of such an option, the government would have to pay itself. Note that, unlike the language concerning whether there is a compelling interest, Justice Alito does not say the Court declines "to adjudicate" this issue.

Justice Kennedy, by contrast, does not equivocate here, and makes clear that, as he reads the majority opinion he is joining, the Court is not deciding the question whether the Government would have to pay itself if the insurance-company-accommodation were not available: "In discussing th[e] [government-payment] alternative, the Court does not address whether the proper response to a legitimate claim for freedom in the health care arena is for the Government to create an additional program [, because] [i]n these cases, it is the Court's understanding that an accommodation may be made to the employers without imposition of a whole new program or burden on the Government." For this reason, he says, the "Court does not resolve" the question whether creating a new government spending program could be required.

Fourth, and more generally, on the question of how much cost the government must be willing to bear to accommodate religious exercise, Justice Kennedy notes: "[T]his existing model [i.e., having the insurance company bear whatever cost may be involved], designed precisely for this problem, might well suffice to distinguish the instant cases from many others in which it is more difficult and expensive to accommodate a governmental program to countless religious claims based on an alleged statutory right of free exercise" (emphasis added).

And, importantly, he also says, apparently in response to concerns that federal sex discrimination workplace protection will go by the boards-a prospect that Justice Alito's opinion pointedly did not deny-that religious exercise, while important, cannot "unduly restrict other persons, such as employees, in protecting their own interests, interests the law deems compelling." Justice Alito does acknowledge that courts must take "adequate account of the burden a requested accommodation imposes on non-beneficiaries," but he makes this concession in a footnote that literally marginalizes the concerns of third parties.

Justice Kennedy's language makes clear that he will, in deciding when an exemption under RFRA is warranted, surely consider costs, both to the government and to third persons, as a counterbalance to any assertion of religious liberty. Indeed, in some ways, Justice Kennedy's opinion is eerily similar in substance to Justice Blackmun's writing in National League of Cities that I discussed in Part I of this series; Justice Kennedy recognized the right to an exemption in the case before him, but he indicated more directly than did Justice Alito that in future RFRA cases some kind of balance-rather than an absolute or near-absolute entitlement to exemption-is called for.

If this is so, and if (as I think they can and should) lower courts take their cue from the writing of this fifth Justice in the majority in Hobby Lobby, then Justice Kennedy's writing may go a fair ways in determining exactly how many companies can successfully use Hobby Lobby to obtain exemptions by suing under RFRA.

July 21, 2014

Berkeley Journal of Gender, Law & Justice Publishes Issue on Professor Harris's Presumed Incompetent

The Berkeley Journal of Gender, Law & Justice has published a special symposium issue devoted to Presumed Incompetent: The Intersection of Race and Class for Women in Academia, the recent book edited by Professor Angela Harris with Professor Gabriella Gutiérrez y Muhs of Seattle University, Professor Yolanda Flores Niemann of the University of North Texas, and Professor Carmen G. González of Seattle University School of Law.

The book, published in 2012 by Utah University Press, features personal narratives and qualitative empirical studies that expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education. The special issue of the Berkeley Journal of Gender, Law & Justice is based upon a March 8, 2013 symposium that featured more than 40 speakers who were invited to celebrate and respond to the book. Among the contributing scholars is Dean Kevin R. Johnson, whose article "Important Lessons for University Leaders" (co-authored with Maria P. Lopez) appears in the issue.  

Angela Harris is one of the nation's foremost scholars in the fields of critical race theory, feminist legal theory, and civil rights. She joined the UC Davis faculty from UC Berkeley School of Law in 2011.

 

March 8, 2012

Presumed Incompetent: The Intersections of Race and Class for Women in Academia

Professor Angela Harris has a new book out, titled Presumed Incompetent: The Intersections of Race and Class for Women in Academia.

From the publisher: "Presumed Incompetent is a pathbreaking account of the intersecting roles of race, gender, and class in the working lives of women faculty of color. Through personal narratives and qualitative empirical studies, more than 40 authors expose the daunting challenges faced by academic women of color as they navigate the often hostile terrain of higher education, including hiring, promotion, tenure, and relations with students, colleagues, and administrators. The narratives are filled with wit, wisdom, and concrete recommendations, and provide a window into the struggles of professional women in a racially stratified but increasingly multicultural America."

To learn more, visit http://www.usu.edu/usupress/books/index.cfm?isbn=8695.