Regents of the University of California v. Bakke Was Wrongly Decided

17 April 2012 14:15 | Articles, Civil Rights, Constitutional

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VIII. If All Persons Who Could Raise A Particular Issue Are Excluded, The Issue Is Excluded Too!³³⁹

The Supreme Court lacked subject-matter jurisdiction³⁴⁰ in Regents of the University of California v. Bakke through the Fourteenth Amendment. 28 U.S.C. §1257³⁴¹ did not apply because the Equal Protection Clause presupposes that a state law or state policy is at issue in a case.³⁴² Further, the Supreme Court is not permitted to give advisory opinions on the constitutionality of an admissions program.³⁴³ Even if the Supreme Court of California had ruled against Allan Bakke, Allan Bakke’s case should have received the same outcome as William Jacob Johnson’s case in Johnson because Allan Bakke failed to allege specific, concrete facts³⁴⁴ about “how he is harmed more than the rest of us.”³⁴⁵ Because the Supreme Court lacked subject-matter jurisdiction under the Fourteenth Amendment and neither party would have had standing to sue under the Fourteenth Amendment, the issue of race-based affirmative action should have been excluded too.³⁴⁶ The 14^th Amendment was not created to give a state school an advisory opinion on the constitutionality of an admissions program³⁴⁷ nor was it created to guard against a student’s personal right to admission into a specific school;³⁴⁸ the 39^th Congress never thought that that’s what it meant and nobody ever voted for that.³⁴⁹

Bakke v. Regents of the University of California³⁵⁰ should never have gone past the Supreme Court of California; the State of California had already resolved the issue the case raised.³⁵¹ Although not all people will buy into an originalist interpretation of the Fourteenth Amendment, such an interpretation serves significant purposes: “Careful adherence to the ‘state action’ requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.”³⁵² Further, when the state action requirement is ignored, the Supreme Court is unconstitutionally aggrandizing itself at the expense of the states;³⁵³ thus, an originalist interpretation of the Fourteenth Amendment ensures that a federal court does not assume the role of a state legislature or Congress.³⁵⁴ When the prerequisites for standing under the Fourteenth Amendment are ignored, the Supreme Court is undermining a state’s right and ability to address their citizens’ concerns.³⁵⁵ When a state’s right and ability to solve problems are undermined, the citizens of a state have less incentive to learn and take advantage of state government remedies.³⁵⁶ The Supreme Court’s decision to rule on the merits in Regents of the University of California v. Bakke and disregard the original interpretation of the Fourteenth Amendment is bigger than race-based affirmative action; Regents of the University of California v. Bakke took legitimacy away from the Tenth³⁵⁷ and the Fourteenth Amendment. The Supreme Court demonstrated a lack of “judicial self-restraint”³⁵⁸ when it decided to rule on the merits in Bakke³⁵⁹ because a ruling on the merits in Bakke should never have taken place under the Fourteenth Amendment.³⁶⁰

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References ( returns to text)

See Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 892.
The United States Constitution Online, http://www.usconstitution.net/const.html (Article III, Section 2, Clause 1 of the US Constitution: “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority”); and Federal Rules of Civil Procedure.info, http://www.federalrulesofcivilprocedure.info/frcp/ (Rule 12, Section (h), Clause (3): “Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”).
28 USC § 1257- State Courts; Certiorari, http://www.law.cornell.edu/uscode/text/28/1257 (“Final judgments or decrees rendered by the highest court of a State in which a decision could be had, may be reviewed by the Supreme Court as follows: (1) By appeal, where is drawn in question the validity of a treaty or statute of the United States and the decision is against its validity. (2) By appeal, where is drawn in question the validity of a statute of any state on the ground of its being repugnant to the Constitution, treaties or laws of the United States, and the decision is in favor of its validity. (3) By writ of certiorari, where the validity of a treaty or statute of the United States is drawn in question or where the validity of a State statute is drawn in question on the ground of its being repugnant to the Constitution, treaties or laws of the United States, or where any title, right, privilege or immunity is specially set up or claimed under the Constitution, treaties or statutes of, or commission held or authority exercised under, the United States.”).
The United States Constitution Online, http://www.usconstitution.net/const.html (“nor deny to any person within its jurisdiction the equal protection of the laws“); and Slaughter-House Cases, 83 US 36, 81 (1873) (“The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class, was the evil to be remedied by this clause, and by it such laws are forbidden.”).
United States v. Fruehauf, 365 U.S. 146, 157 (1961) (“We do not reach that question on this appeal. For we cannot but regard it—abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees’ motions to dismiss an indictment incontestably valid on its face—as other than a request for an advisory opinion.“). See Regents of the University of California v. Bakke, 438 U.S. 265, 410-411 (1978) (Justice Stevens: “The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded ‘that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke’s failure to be admitted.’ Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke’s admission. Since that order superseded paragraph 2 of the trial court’s judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications. It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate.“).
Warth v. Seldin, 422 U.S. 490, 508 (1975).
See Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 894 (“Unless the plaintiff can show some respect in which he is harmed more than the rest of us (for example, he is a worker in the particular plant where the Occupational Safety and Health Administration has wrongfully waived legal safety requirements) he has not established any basis for concern that the majority is suppressing or ignoring the rights of a minority that wants protection, and thus has not established the prerequisite for judicial intervention.”).
See Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 892.
Flast v. Cohen, 392 U.S. 83, 95 (1968) (“Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”); or United States v. Fruehauf, 365 U.S. 146, 157 (1961) (“We do not reach that question on this appeal. For we cannot but regard it—abstracted as it has become, in the course of these proceedings, from the immediate considerations which should determine the disposition of appellees’ motions to dismiss an indictment incontestably valid on its face—as other than a request for an advisory opinion. Such opinions, such advance expressions of legal judgment upon issues which remain unfocused because they are not pressed before the Court with that clear concreteness provided when a question emerges precisely framed and necessary for decision from a clash of adversary argument exploring every aspect of a multi-faced situation embracing conflicting and demanding interests, we have consistently refused to give.”).
See Marbury v. Madison, 5 US 137, 166 (1803) (“But where a specific duty is assigned by law, and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy.”); or Antonin Scalia, The Doctrine of Standing As an Essential Element of the Separation of Powers, 17 Suffolk U. L. Rev. 881, 885 (“But legal injury is by definition no more than the violation of a legal right; and legal rights can be created by the legislature“); or John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1223-1224 (“As the Court has explained, any effort to flesh out the concept of injury and other standing principles must be based on ‘reference to the Art. III notion that federal courts may exercise power only in the last resort, and as a necessity, and only when adjudication is consistent with a system of separated powers and [the dispute is one] traditionally thought to be capable of resolution through the judicial process.’”).
Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg.
Bakke v. Regents of the University of California, 18 Cal. 3d 34 (1976).
Id. at 64 (“However, on appeal the University has conceded that it cannot meet the burden of proving that the special admission program did not result in Bakke’s exclusion. Therefore, he is entitled to an order that he be admitted to the University. The judgment is affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. Bakke shall recover his costs on these appeals.”).
Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982).
See John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1230 (“Separation of powers is a zero-sum game. If one branch unconstitutionally aggrandizes itself, it is at the expense of one of the other branches.”).
See Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cinn. L. Rev. 849, 854 (“Central to that analysis, it seems to me, is the perception that the Constitution, though it has an effect superior to other laws, is in its nature the sort of ‘law’ that is the business of the courts-an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law. If the Constitution were not that sort of a ‘law,’ but a novel invitation to apply current societal values, what reason would there be to believe that the invitation was addressed to the courts rather than to the legislature?”).
See, e.g., Bakke v. Regents of the University of California, 18 Cal. 3d 34, 64 (1976) (“However, on appeal the University has conceded that it cannot meet the burden of proving that the special admission program did not result in Bakke’s exclusion. Therefore, he is entitled to an order that he be admitted to the University. The judgment is affirmed insofar as it determines that the special admission program is invalid; the judgment is reversed insofar as it denies Bakke an injunction ordering that he be admitted to the University, and the trial court is directed to enter judgment ordering Bakke to be admitted. Bakke shall recover his costs on these appeals.”); or Coalition for Equity v. Wilson, 122 F.3d 692, 697 (9^th Cir.) (1997) (“The initiative, which appeared on the ballot as Proposition 209, provides in relevant part that ‘[t]he state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting.’ Cal. Const. art. 1, §31(a). The California Legislative Analyst’s Office portrayed Proposition 209 to the voters as a measure that would eliminate public race-based and gender-based affirmative action programs.”).
See Scalia: Constitution does not protect women against discrimination, http://voices.washingtonpost.com/44/2011/01/scalia-constitution-does-not-p.html?referrer=emaillinkpg (“If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws. You don’t need a constitution to keep things up-to-date. All you need is a legislature and a ballot box. You don’t like the death penalty anymore, that’s fine. You want a right to abortion? There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it. Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.”).
The United States Constitution Online, http://www.usconstitution.net/const.html (Tenth Amendment: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”).
John G. Roberts, Jr., Article III Limits On Statutory Standing, 42, Duke L.J. 1220, 1221 (“Standing is thus properly regarded as a doctrine of judicial self-restraint.”).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
See id. at 408-409 (Justice Stevens: “It is always important at the outset to focus precisely on the controversy before the Court. It is particularly important to do so in this case because correct identification of the issues will determine whether it is necessary or appropriate to express any opinion about the legal status of any admissions program other than petitioner’s. This is not a class action. The controversy is between two specific litigants. Allan Bakke challenged petitioner’s special admissions program, claiming that it denied him a place in medical school because of his race in violation of the Federal and California Constitutions and of Title VI of the Civil Rights Act of 1964, 42 U. S. C. § 2000d et seq. The California Supreme Court upheld his challenge and ordered him admitted. If the state court was correct in its view that the University’s special program was illegal, and that Bakke was therefore unlawfully excluded from the Medical School because of his race, we should affirm its judgment, regardless of our views about the legality of admissions programs that are not now before the Court.“); and id. at 410-411 (Justice Stevens: “The California Supreme Court, in a holding that is not challenged, ruled that the trial court incorrectly placed the burden on Bakke of showing that he would have been admitted in the absence of discrimination. The University then conceded ‘that it [could] not meet the burden of proving that the special admissions program did not result in Mr. Bakke’s failure to be admitted.’ Accordingly, the California Supreme Court directed the trial court to enter judgment ordering Bakke’s admission. Since that order superseded paragraph 2 of the trial court’s judgment, there is no outstanding injunction forbidding any consideration of racial criteria in processing applications. It is therefore perfectly clear that the question whether race can ever be used as a factor in an admissions decision is not an issue in this case, and that discussion of that issue is inappropriate.“).

Regents of the University of California v. Bakke Was Wrongly Decided

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