Re: Puzzles re: Grutter and Korematsu

[Victor Romero]

I agree with Prof. Barksdale, for the reasons I cite in this off-list exchange with Prof. Lipkin.

 

Victor C. Romero
Professor of Law
Penn State-Dickinson School of Law
150 South College Street
Carlisle, PA 17013-2899
(voice) 717.240.5245
(fax) 717.240.5126
(e-mail) [EMAIL PROTECTED]
(webpage) http://www.dsl.psu.edu/facdetail.asp?fid=26

 

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Dear Bobby, While I think the political process works most of the time, I also think we should be most concerned about the tyranny of the majority in the context of equal protection.  Raoul Berger aside, I think most agree with the Brown decision as a correct intervention on the part of the Court in the name of upholding the Constitution's equality principle.  See, e.g., John Hart Ely, Democracy and Distrust (1980).  Take good care, Victor

-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Tue 6/24/2003 1:22 PM
To: Victor Romero
Cc:
Subject: Re: FW: Puzzles re: Grutter and Korematsu

Dear Professor Romero:

       Thanks for your informative post. If it is true that "the most that can be said is that strict scrutiny is in the eyes of the beholder",  I  think we're in big trouble. One can plausibly, if not dispositively, argue that when an issue or a definition is in the eyes of the beholder, it should be resolved through the elected branches, not the courts. Thanks again for your post.

Sincerely,
Bobby

Dear Prof. Lipkin,

 

I thought I'd respond to your question directly rather than on the list.  The frustrating point about the three-tiered equal protection approach is that while strict scrutiny is generally strict and therefore leads to the invalidation of most governmental action (e.g., Adarand, Croson, etc.) and while the rational basis test in contrast is generally deferential and leads to the upholding of the same (e.g., Beazer, FCC v. Beach Comm'n, etc.), there are exceptions to both of these rules (Korematsu - strict; Cleburne, Romer v. Evans - RBT).  See generally Chemerinsky, Constitutional Law (Aspen 2002).  So it is difficult to try to articulate a rule that will lead to predictability in results other than the general statement above.  Interestingly, though, O'Connor in Grutter does reference the military's brief (made famous by Ginsburg at oral argument) noting the need for a diverse officer corps to enhance national security (hence the tie to Korematsu).  Still, the most that can be said is that strict scrutiny is in the eyes of the beholder --  for instance, is there really a principled difference between the Gratz and Grutter policies?

 

Cheers,

 

Victor Romero

 

 

 -----Original Message-----
From: Robert Justin Lipkin [mailto:[EMAIL PROTECTED]
Sent: Wednesday, June 25, 2003 8:03 AM
To: [EMAIL PROTECTED]
Subject: Re: Puzzles re: Grutter and Korematsu

In a message dated 6/24/2003 8:05:18 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:

As to whether a uniform level of deference should apply whenever the  "strict scrutiny" label is used, I think it can't if you want to make wise and just decisions.

       My original post asked whether deference, conceptually if not practically, could be part of strict scrutiny at all. Both Grutter and Korematsu seem to rely on deference as an integral feature of strict scrutiny in equal protection cases. The point of strict scrutiny, as it has developed over the years, seems to rule out deference.  (How can the Court defer to the state when the state is the defendant charged with racial discrimination?) Yet, both the first case and one of the most recent cases depend on deference in their rationale. Doesn't anyone find this odd? Or to put this point differently, since deference, typically, is a primary feature of rational basis scrutiny, isn't it (at least) presumptively odd to find it (in a particular case) an essential feature of strict scrutiny also?


Bobby Lipkin
Widener University School of Law
Delaware