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Unpublished Paper
“Nixon’s sabotage”: How Politics Pushed the “Discriminatory Purpose” Requirement into Equal Protection Law
ExpressO (2013)
  • Danieli Evans, Yale Law School
This article describes the way that politics—resistance from the elected branches coupled with President Nixon appointing Chief Justice Burger—shaped the Court’s unanimous decision in Swann v. Charlotte-Mecklenburg, 402 U.S. 1 (1971), a school desegregation case that played a crucial role in limiting the forms of state action considered unconstitutional discrimination. Chief Justice Burger defied longstanding Supreme Court procedure to assign himself the majority opinion even though he disagreed with the majority outcome. Justice Douglas alleged that he did this “in order to write Nixon’s view of freedom of choice into the law.” Justice Burger’s opinion laid the foundation for limiting constitutional remedies to segregation caused by deliberate (invidiously motivated) state action, rather than segregation caused by state action that inadvertently or indifferently reinforced private segregated patterns, as the majority preferred. But the majority assented to Justice Burger’s opinion because they feared a split decision would fuel already powerful opposition from President Nixon and Congress. The Swann decision was cited throughout subsequent cases leading to the contemporary settlement that Equal Protection prohibits only actions taken “because of,” and not merely “in spite of,” foreseeable adverse effect on a minority group. Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279 (1979). The Swann decision provides an opportunity to evaluate whether political compromise corrupts, or is a legitimate component of, the Court’s constitutional decisionmaking. Should Swann be seen as a less legitimate constitutional decision because the unanimous opinion reflects a compromise to appease the elected branches, rather than the majority’s independent reading of the Constitution? Or is Swann a successful example of democratic constitutionalism, where popular movements properly informed the constitutional line drawn by the Court? Swann may well represent the best constitutional outcome—taking account of popular values in order to preserve the authority of the Court and the Constitution. But this raises an additional consideration: If it is legitimate for popular political values (distinct from the Court’s own political values) to influence a constitutional decision, should the Court candidly acknowledge this influence? This suggestion is contrary to common sentiment that a Court must deny political considerations in order to preserve the legitimacy of its decisions. But legitimacy in a democracy is associated with candor, transparency, accountability, public understanding, and engagement. And it seems that acknowledging when political preferences inform a decision would enhance the public’s understanding of why their law is what it is. By raising these questions I hope to prompt further inquiry into whether it might be possible to move toward norms for judicial opinion writing that more accurately capture the interplay between courts and politics, enabling the public to better understand and participate in the development of their law.
Publication Date
February 9, 2013
Citation Information
Danieli Evans. "“Nixon’s sabotage”: How Politics Pushed the “Discriminatory Purpose” Requirement into Equal Protection Law" ExpressO (2013)
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