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

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

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The 39^th Congress decided to make the Fourteenth Amendment broader than the 1866 Civil Rights Act to ensure that “all persons,” not merely “citizens,” would enjoy equal rights under the law.¹⁶⁵ Equal rights under the law means that “equal protection and security should be given to all under like circumstances in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens should be laid upon one than are laid upon others in the same calling and condition; and that in the administration of criminal justice no different or higher punishment should be imposed upon one than such as is prescribed to all for like offences.”¹⁶⁶

III. Johnson v. Committee on Examinations and its relevance to Bakke

In Defunis v. Odegaard, 416 US 312 (1974) and in Hadley v. State of Alabama, 409 U.S. 937 (1972), Justice Douglas made a reference to the Johnson v. Committee on Examinations case that the Supreme Court denied certiorari.¹⁶⁷ In the history of race-based affirmative action cases, Johnson came before Defunis, which came before Bakke.¹⁶⁸ Justice Douglas believes the Supreme Court should have taken certiorari in Johnson because William Jacob Johnson,¹⁶⁹ a white candidate for admission to the Bar of Arizona, claimed discrimination against him as compared with the treatment given to black candidates.¹⁷⁰ The passing grade on the Arizona Bar Exam was a 70; the white candidate alleged that he got below a 70 and was rejected while the bar examiners reconsidered the papers submitted by failing minority applicants whose scores were below a 70.¹⁷¹ Those minority applicants were admitted to the Bar.¹⁷²

Johnson brought a civil rights action under the Civil Rights Act of 1964 in Federal District Court,¹⁷³ seeking both damages and injunctive relief but the District Court dismissed the action and the Court of Appeals affirmed.¹⁷⁴ The Ninth Circuit Court of Appeals held that the lower federal courts did not have jurisdiction to review the decisions of the Arizona Supreme Court on admissions to the state Bar¹⁷⁵ and that the complaint failed to state a claim.¹⁷⁶ The US Supreme Court denied the petition for writ of certiorari in Johnson v. Committee on Examinations,¹⁷⁷ denied the petition for writ of mandamus and/or prohibition and/or certiorari in Johnson v. Wilmer,¹⁷⁸ and denied the petition for a rehearing in Johnson v. Wilmer.¹⁷⁹ Although Johnson is different from Bakke because Johnson was not a Fourteenth Amendment case,¹⁸⁰ both cases are similar because standing should have been an issue in both cases;¹⁸¹ William Jacob Johnson’s petition for writ of certiorari and the Regents of the University of California’s petition for writ of certiorari failed to state a claim upon which relief could be granted.¹⁸²

IV. The Supreme Court Should Have Denied The Regents of the University of California’s Writ of Certiorari

Petitioner and Respondent in Bakke¹⁸³ agreed that the Supreme Court had subject-matter jurisdiction through 28 U.S.C. § 1257(3)¹⁸⁴ and the Supreme Court determined that the Equal Protection Clause of the Fourteenth Amendment applied.¹⁸⁵ However, a federal court “can and must notice” if subject-matter jurisdiction does not exist. ¹⁸⁶ The Supreme Court has ruled on several occasions that they cannot give advisory opinions.¹⁸⁷ In Flast v. Cohen, the Supreme Court stated that “it is quite clear that ‘the oldest and most consistent thread in the federal law of justifiability is that the federal courts will not give advisory opinions.’”¹⁸⁸ The Supreme Court cannot give advisory opinions because such opinions create separation of powers issues¹⁸⁹ and such opinions do not address “concrete legal issues, presented in actual cases.”¹⁹⁰

In Bakke, the Regents of the University of California filed the writ of certiorari to the Supreme Court.¹⁹¹ The Supreme Court of California ruled that Davis Medical School’s special admissions program was invalid in the context of Allan Bakke’s case and directed the trial court “to enter judgment ordering [Allan] Bakke to be admitted.”¹⁹² The granting of Allan Bakke’s injunction was based on Davis Medical School’s concession that it could not meet the burden of proving that the special admissions program did not result in Bakke’s exclusion.¹⁹³ The Regents of the University of California filed the writ of certiorari because they wanted the Supreme Court to overrule the Supreme Court of California’s ruling that the special admissions program at Davis Medical School violated the Equal Protection Clause of the Fourteenth Amendment.¹⁹⁴

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References ( returns to text)

Regents of the University of California v. Bakke, 438 U.S. 265, 293 (1978).
Yick Wo v. Hopkins, 118 US 356, 367 (1886).
Defunis v. Odegaard, 416 U.S. 312, 341 n. 22 (1974); or Hadley v. State of Alabama, 409 U.S. 937 n. 1 (1972).
Defunis v. Odegaard, 416 U.S. 312, 341 n. 22 (1974).
William Jacob Johnson, A Judicial Watergate (1976).
Hadley v. State of Alabama, 409 U.S. 937 n. 1 (1972).
Id. at 937 n.1.
Defunis v. Odegaard, 416 U.S. 312, 341 n. 22 (1974).
Respondent’s Appellate Brief at 3, Johnson v. Wilmer, (No. 73-976) (S. Ct. January 17, 1974), 1974 WL 185947; or William Jacob Johnson, A Judicial Watergate 175 (1976).
Defunis v. Odegaard, 416 U.S. 312, 341 n. 22 (1974); or William Jacob Johnson, A Judicial Watergate 169-175, 177 (1976).
Defunis v. Odegaard, 416 U.S. 312, 341 n. 22 (1974).
William Jacob Johnson, A Judicial Watergate 169-175 (1976); or Respondent’s Appellate Brief at 4, Johnson v. Wilmer, (No. 73-976) (S. Ct. January 17, 1974), 1974 WL 185947.
Johnson v. Committee on Examination, 407 U.S. 915 (1972); or William Jacob Johnson, A Judicial Watergate 177 (1976).
Johnson v. Wilmer, 415 U.S. 911 (1974); or William Jacob Johnson, A Judicial Watergate 177 (1976).
Johnson v. Wilmer, 415 U.S. 1001 (1974); or William Jacob Johnson, A Judicial Watergate 177 (1976).
William Jacob Johnson, A Judicial Watergate 169-175 (1976).
See, e.g., Defunis v. Odegaard, 416 U.S. 312, 341 n. 22 (1974) (“In Johnson v. Committee on Examinations, 407 U.S. 915… The District Court dismissed the action and the Court of Appeals affirmed, holding that the lower federal courts did not have jurisdiction to review the decisions of the Arizona Supreme Court on admissions to the state Bar.”).
William Jacob Johnson, A Judicial Watergate 174-175 (1976). See 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.”).
Regents of the University of California v. Bakke, 438 U.S. 265 (1978).
Regents of the University of California v. Bakke, 438 U.S. 265, 287 (1978); or Appellate Brief for Petitioner at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189474; and Respondent’s Appellate Brief at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189476. 28 USC § 1257- State Courts; Certiorari, http://www.law.cornell.edu/uscode/text/28/1257.
Regents of the University of California v. Bakke, 438 U.S. 265, 287 (1978).
Ruhrgas Ag v. Marathon Oil Co., 526 U.S. 574, 583 (1999) (“Accordingly, subject-matter delineations must be policed by the courts on their own initiative even at the highest level.”); or Antonin Scalia and Bryan A. Garner, Making Your Case 3-4 (2008) (“But in many courts (including all federal courts), absence of subject-matter jurisdiction, unlike most other defects, cannot be waived. And in some of those courts (including all federal courts), even if no party raises the issue, the court itself can and must notice it.“).
See, e.g., 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.“); or Golden v. Zwickler, 394 U.S. 103, 109 (1969) (“[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, `concrete legal issues, presented in actual cases, not abstractions,’ are requisite. This is as true of declaratory judgments as any other field.”).
Flast v. Cohen, 392 U.S. 83, 96 (1968).
Id. at 95.
Golden v. Zwickler, 394 U.S. 103, 109 (1969) (“[T]he federal courts established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of constitutional issues, `concrete legal issues, presented in actual cases, not abstractions,’ are requisite. This is as true of declaratory judgments as any other field.”).
Appellate Brief for Petitioner at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189474.
Bakke v. Regents of the University of California, 18 Cal. 3d 34, 64 (1976).
Id. at 64.
Appellate Brief for Petitioner at 1, Regents of the University of California v. Bakke, No. (No. 76-811) (S. Ct. June 7, 1977), 1977 WL 189474.

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

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