The Supreme Court has developed three tests that can be used to evaluate the constitutionality of legislation that targets a select group and poses a potential violation of equal protection rights. Laws that violate the most fundamental rights granted to individuals are subject to ‘strict scrutiny‘ which forces the government to prove that the legislation in question is the best way of furthering an important interest. Laws the violate rights that are less fundamental, but still important, are subject to ‘intermediate scrutiny’ which forces the government to prove that the legislation in question is closely tied to an important state-interest.

Tax breaks to the elderly (or tax impositions on the young) are subject to the least rigorous scrutiny, the ‘rational basis test.’ The rational basis tests asks the government to prove that it is furthering any legitimate interest.

I believe that tax-breaks for the elderly very clearly fall into the least rigorous category of scrutiny although it looks like AJ doesn’t agree. AJ misconstrues the Age Discrimination in Employment Act to prohibit private entities from favoring older workers over younger ones. In General Dynamics Land Systems v. Cline (2004), the Court held that “the text, structure, purpose, and history of the ADEA, along with its relationship to other federal statutes, as showing that the statute does not mean to stop an employer from favoring an older employee over a younger one.”

AJ contends that ageist legislation should be considered equal to racist legislation with respect to its reprehensibility when applied to the Fourteenth Amendment. I couldn’t agree more. What AJ ignores however, is all the legislation on the federal and state level that favors one group over another. Not all legislation that considers race is ‘racist’ (implying the pejorative) and not all legislation that considers age is ‘ageist.’ Tax breaks to the married couples, economic incentives for inner-city development, and grants for AIDS research are all examples of economic decisions that are designed to promote an interest that elected officials find desirable. Unfortunately, promoting these ends comes at the cost of ignoring other portions of society (single individuals, suburban development, and SARS research, respectively) but that is what makes legislating a difficult job.

In his follow up to James’ comment, AJ argues that:

I touched on this distinction in my post by addressing the concern that the elderly are less able to pay this tax. While some elderly may be less able, the remedy is not to favor all elderly but is to favor all the unable.

AJ makes a massive policy decision that flies in the face of the judicial ideal that grants deference to the legislative branch in policy matters. AJ addresses the ‘concern’ of the government by proposing that ‘the remedy is not to favor the elderly.’ What if the legislature feels that their tax is a better way of achieving their desired end?

AJ’s US v. Butler analysis is also way off. The Court in Butler very specifically choose to defer a ruling on the legitimacy of the law that benefited agricultural interests:

We are not now required to ascertain the scope of the phrase “general welfare of the United States,” or to determine whether an appropriation in aid of agriculture falls within it. Wholly apart from that question, another principle embedded in our Constitution prohibits the enforcement of the Agricultural Adjustment Act. The act invades the reserved rights of the states. It is a statutory plan to regulate and control agricultural production, a matter beyond the powers delegated to the federal government. The tax, the appropriation of the funds raised, and the direction for their disbursement are but parts of the plan. They are but means to an unconstitutional end.

Butler contained more than “overtones of federal-state relation”- it flat-out refused to rule on any other subject. AJ’s Steward analysis is too convoluted to be constructed into an argument: “demonstrably for the general welfare as opposed to blatantly in favor purely of farmers.” I’ll let him explain later.

Choosing to grant across-the-board tax cuts to elderly individuals is simply another tool in the legislative budgetary armament. If elected officials believe that their constituency desire tax breaks for the elderly then I see no reason why they should not be allowed to turn that sentiment into law.

Related posts

• WSJ Op-ed on Judicial Elections (March 22, 2008)
• Wisdom (May 23, 2007)
• Which Justices Write The Most 9-0 Opinions? 5-4 Opinions? (February 27, 2009)

The gist of the article is that the city has decided to raise property taxes by 6.6 percent and also by removing an exemption of $69,000 from the minimum taxable value of a home. However, any resident aged 65 or elder currently enjoying this exemption remains exempt. This means that basically, they get a tax cut for being old. A quick Google search revealed that Congress too likes to play at age discrimination even though they made agism illegal for anyone who isn’t the government.

I don’t understand at all how that falls under the equal protection provision of the14th Amendment. I don’t see much difference between agism and racism. If racist legislation is a big 14th Amendment faux pas, agism should be too.

I could understand the city allowing a tax cut for the retired elderly who have a miniscule income and who honestly can’t afford the tax increase. The progressive nature of our income tax affirms this reasoning. However, a blanket tax cut based on age for the millionaires and destitute alike is clearly unfair and is likely unconstitutional.

Maybe it’s just because I’m still in college, but I don’t like being punished just for being young. I’m already paying into a social security system that I’ll never benefit from, and I don’t see why old people and oil companies get all the tax breaks.

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Kedar: Hey, do you think the Supreme Court has become too conservative? 

Random Person: Yeah, that race ruling about the schools was crazy- I thought we had gotten past discrimination!

Kedar: Would you be in favor of appointing some liberal justices?

Random Person: Umm…I don’t think I want any activist judges on the court either.

Kedar: So what do you think is the best thing for the court?

Random Person: This court thing is complicated. Lets talk about Iraq!

The democrats need to capitalize on the American people’s disapproval of the Court ASAP. October Term 2007 is likely to be more subdued than OT 2006 by virtue of the fact that the court doesn’t always stumble upon so many high-profile cases in a single year. It just happened that all of the planets aligned last term to produce conservative victories in a race-based case (Parents Involved), an abortion case (Carhart), a womens-rights case (Ledbetter), and a free speech case (Morse). Thus far, the court has accepted review in only one high-profile case, Boumediene, and detainee-rights don’t invoke the same reactions that abortion, free speech, discrimination, and civil rights do.

Chuck Shumer has declared that he would rather not confirm any new Bush nominees but I’m not sure that Bush will have the opportunity to nominate any more justices. Most Supreme Court watchers aren’t expecting a new appointment until after the 2008 election although then the Court’s makeup is up for grabs. More likely than not, one or more of the liberal justices will leave in the next 5 years and none of the conservative justices will leave their post (save for the possibility of a Thomas resignation if a Republican wins in ’08.) If a Republican wins in ’08, John Paul Stevens will be 92-years old by the time the Oval Office is up for grabs again in 2012. At 92, he will be old even for a Justice and will face the tough decision to step down (dooming the liberals on the court) or fighting through 4-years of Supreme Court coursework (dooming himself during what should be his retirement.) If he serves until 2012, he will be the oldest Justice to ever sit on the court, beating Oliver Wendell Homes who served until he was 90. If a democrat wins in the White House in ’08, I would not be surprised to see Stevens and/or Souter retire. Stevens will be as old as antiquity and a lot of people are under the impression that Justice Souter isn’t too pleased with his current job.

Court-watchers are also expecting Ginsburg to step down, but after the whipping that liberals got from conservatives this during OT 2006, I’m not sure if Ginsburg is going to retire anytime soon. She’s only 74 right now and she’ll be almost 80 in 2012 when the White House is up for grabs again. Stevens is 87 right now and has shown no signs of letting up any time soon so its not inconceivable that Ginsburg will take full advantage of her tenure and stay another decade (or two!).

To summarize: If a Democrat wins in ’08, the court’s dynamics won’t change much. If a Republican wins in ’08, there is a very good chance that the court will shift even further to the right than it already has.

Related posts

• President Obama and the Future of the Supreme Court (December 4, 2008)
• Surprisingly Candid McCain and Obama Discuss Current SCOTUS Makeup, Nomination Process at the Saddleback Civil Forum (August 17, 2008)
• Which Justice Will Author The Medellin Opinion? (March 19, 2008)

Morse v. Fredrick: HA. This student would have been beaten to death by a teacher. Thomas would support it. Not only would the teacher have won in the Supreme Court, but there wouldn’t be a suit in the first place.

Gonzalez v. Carhart: A women’s right to an abortion?! Not so much. Forget about a woman bringing a suit in court. Women had rights, they just didn’t have the right to question the actions of their state legislature. Griswold found its core by applying the Fourteenth Amendment to the states but there was no Fourteenth Amendment until 1868. Justice Ginsburg’s riveting dissent? Forget it, she wouldn’t be on the Court. Maybe they would have let her write a riveting court transcript?

Ledbetter v. Goodyear: “Sex-based discrimintation? Isn’t that the best kind?” — reads the Opinion of the Court in a 9-0 decision penned by the Court’s most liberal member: Justice Scalia.

Roe v. Wade: Assuming Thomas Jefferson adhered to originalism himself, he would have found that George Washington and John Adams did not acquire more land for the United States through treaties and he was therefore not authorized to buy land from France. This set the precedent for future Presidents and Texas never would have been annexed in 1845. No Roe v. Wade (in US Federal Court, at least.)

Brown v. Board: Thurgood Marshall would never be admitted to the Supreme Court Bar so he never would have given his rather brilliant defense of Brown in this case. Also, a 9-0 court would have somewhat easily squashed the notion that fourteenth amendment equated to protection of people against de facto racism. How can the government force people to get along with one another?

Oh, don’t forget that the Bill of Rights didn’t even apply to the states until the ratification of the 14th Amendment following the Civil War.

Jack Balkin finds fault at Clarence Thomas’s views in some of the latest cases before the Court. Professor Balkin legitimately contends that one form of originalism searches for the meaning of certain words and another searches for the application of those words to real-world scenarios. Where Balkin and I diverge, however, is on the legitimacy of those approaches. Balkin seems to support the search for definitional clarity while disapproving of the search for interpretation- I disapprove of both.I disapprove of the theory of original intent so categorically because of both its theoretical motives and the way in which it is (nearly) always implemented.

The generally accepted intent of originalism is to search for the way in which our forefathers viewed matters and apply those notions to issues today. The problem with looking to our forefathers for advice is that when we try to mimic the past we have to first assume that the past was better than the present in a certain area. In the case of Morse, Justice Thomas makes the assumption that since schools were better when we beat children, we should allow our children to be beaten today. That type of presupposition isn’t nearly as universally accepted as Justice Thomas would like us to believe and he offers no reason for us to join in his logic. Well, I contend that things weren’t better when teachers treated students like pinatas of knowledge. In so many other fields of study, we consider the present to be superior to the past. For example, most people (Justice Thomas included) would say that mankind has made great strides in civil rights. Hopefully Justice Thomas would not roll back the clock on civil rights to say….before the Thirteenth, Fourteenth, and Fifteenth Amendments? Even outside the realm of civil rights, I contend that mankind has made huge strides in closing the socio-economic gap, making food storages more available, and enhancing the role of education in the populous. Even if Justice Thomas disagrees, it is presumptuous at best to assume that the past is always right. If he offered justification for adhering to the past, it would be originalism with arguments from today and I don’t see anything wrong with that (although I imagine I would disagree with his logic.)

If Justice Thomas disagrees with me on this point, he forgets that his opinion never would have been heard because he wouldn’t be a Supreme Court Justice in his own beautiful world. If the Senate chose to follow original intent during his confirmation process, they would have found that neither George Washington nor any of our nations first 35 executives were interested in appointing an African-American to the nation’s highest court. In fact, in order for the Senate to find solace in confirming Justice Thomas, they would have to flip back only 20 years in their history books, making sure to ignore quite a bit of history before then. We wouldn’t know who he was because his role (and mine) as a second-class citizen would have been cemented in society long after the War of Northern Aggression. In reality, why did the Senate confirm Justice Thomas (or Justices Louis Brandeis, Thurgood Marshall, and Sandra Day O’Connor before him)? Because they felt that the American people were ready to buck the trend of racial, gendered, and religious inequality. Our representatives knew that at the time, the American people were ready for something different and acted upon that.

I realize that a lot of people will reply with the predictable response- “The legislature is a political body but the Court is supposed to work with precedent. Therefore, Originalism is simply the purest way to adhere to precedent.” Try not to act surprised– but I disagree. The difference between adhering to precedent and subscribing to originalism is the notion that originalist believe that a single fixed period of time should be our method of evaluating whether or not a given action is appropriate. Adhering to precedent means looking at recent applications of a law and maintaining a constant evaluation. In many cases, originalism and ‘judicial restraint’ are in conflict. (I use the word ‘judicial restraint’ casually but I know it has all sorts of connotations that could spark a war of their own.) For example, Justice Thomas could contend that our founding fathers originally owned slaves and very intentionally did not abolish slavery in the Constitution of 1787. Justice Scalia could come back and say, like he has in the past, that he wishes that we still lived in the good ol’ days, but he has to stick to the way the court’s current (~150 year old) interpretation despite his personal reservations. Both those types of logic have been hailed as conservative hallmarks for decades now but they are obviously contradictory.

This is where my second reservation to originalism comes into play- It appears illogical at best and downright malicious at worst to pick-and-choose at the past for advice in today’s legal arena. Looking at 1787 without looking at every year in between ignores the trials and tribulations of history that Americans have been through. We change over time precisely because we experience things as a nation that force us to change our perceptions and attitudes to actions that we never would have ordinarily considered. Originalism always involves very clear activism on the behalf of a judge who is operating under the disguise of ‘judicial restraint’ and is a blatant use of ‘activism’ that should never, ever be labeled as anything other than a judge using the past to rationalize his true (usually personal) attitude towards a subject. Today, we look at the recent behavior of the court or the trend in interpretation and evaluate decisions based off of that. If Justices have reservations about the current trend, they rule on the facts of the current case as they deem appropriate. I have no idea why we need to act like 1787 is somehow the benchmark for society in 2007. We’ve made great strides in the last 200 years and we certainly hope to better ourselves over time- there is no reason why we should pick that arbitrary date and try to mimic it. Our founding fathers certainly weren’t concerned about adhering to norms of their day. I’d say that American Revolution was quite the act of judicial (political) activism…

Related posts

• Kelo Turns Three Today (June 23, 2008)
• President Obama and the Future of the Supreme Court (December 4, 2008)
• Originalism Reconsidered (August 9, 2007)

The best candidate is City Hall veteran Ed Oakley. Oakley, 54, is an experienced city councilman who currently serves as chair of the Trinity River Project. Oakley’s strong showing in the May election can be attributed in part to his support from the gay and Hispanic communities, specifically in Oak Lawn and Oak Cliff. Leppert, 52, is a former Reagan staffer who rose to prominence in Dallas while serving as CEO of the Turner Construction Company. Mr. Leppert’s campaign brilliantly exploited the Park Cities and corporate Dallas to become a formidable fundraiser. Oakley – a Democrat – has struggled to win support from conservative areas, and has faded over the last week as Leppert continues to secure more local endorsements. Only this morning, the Dallas Mayor Pro-Tem Don Hill – himself a peripheral candidate last month – urged his supporters to vote Leppert.

All four of the other Dallas citizens who watched Friday’s mayoral debate (full video) will also be voting Oakley. Repeatedly, Oakley’s use of details made Leppert’s tangential and rehearsed answers appear foolish. Leppert, who has never held public office, could not avoid looking inexperienced when directly juxtaposed with a candidate who was clearly better prepared, more knowledgeable, and more articulate. At times, some of Leppert’s ideas seemed like they hadn’t been fully thought through.

The best example is Leppert’s policy position on public education. He spoke frequently of how education changed his life, invoking his Harvard scholarship no fewer than three times. Although Leppert’s optimism about education is refreshing, he fails to explain how he can legitimately impact the system from the largely detached post of Mayor. I giggled when Leppert deconstructed the DISD acronym for his perplexed St. Mark’s-graduate supporters, and wondered how a man with a Harvard education could have such an amusingly bizarre interpretation of an “independent” school district. Fortunately, DMN political correspondent Gromer Jeffers used the word “specific” in his follow-up question. Leppert then conceded that he could not actually guarantee any logistical changes – but he promised that several unnamed members of the DISD board had already given him assurances that they would “appreciate his support.” Desperately looking to save face on his lead campaign issue, Leppert then confusingly explained how the mayor has certain (conspicuously unnamed) tools – presumably a reference to a Johnson-esque bully pulpit – with which he can influence education.

When it comes to the Trinity River, Oakley is clearly the better candidate. During the course of the entire debate, Leppert mentioned the Trinity only once, and even then only in passing. As Chair of the committee that translated Laura Miller’s generalized promises into detailed, financially responsible blueprints, Oakley has proven that he can exhibit forceful leadership on environmentalism. Leppert’s company, on the other hand, was fined over $6 million for illegal dumping (a fact that could not be simply refuted or explained during the debate, even when Leppert was given direct opportunity).

Perhaps the largest single individual issue in the race, however, is Oakley’s sexuality. Oakley, who has publicly acknowledged his homosexuality since the beginning of his work in local politics during the early 90s, says that the issue “never comes up” and that, even after the election, his orientation will still be “a part of who [he is].” If elected, Oakley would be the first openly gay mayor of a major city in US history – a fact indicative of the progress Dallas has recently made on issues of tolerance and racial harmony.

The DMN published a thought-provoking story earlier this week documenting the decline of “the gay factor” in influencing politics. City Hall responded yesterday by holding closed-door hearings discussing the possibility of “censuring” Oakley for being gay.

Seriously?

The “gay factor” has some Oakley extremists up in arms, though. They argue that Leppert excessively flaunts his nuclear family at joint appearances, and that this essentially amounts to homophobic campaigning. But Leppert, whose ridiculous “I Love Dallas! (and Dallasans (?))” radio spot should’ve cost him a spot in the runoff, used the debate as a forum to express his indifference to Oakley’s personal life. Equally excessive are some Leppert supporters who note that Oakley’s Wednesday TV spot stresses Leppert’s facial tick, an accusation that Oakley articulately shut down during the debate.

And then there’s the issue of negative campaigning. Many Oakley supporters (including myself) were disappointed to see the malicious ad he dropped last week. Nonetheless, the ad beautifully accomplished its goal of instilling doubt in the leadership style and “construction credentials” of Leppert. For those of you thinking of voting Leppert in protest, take a look at the direct mailing released by the Leppert camp the previous week, which was equally nasty.

On the whole, Leppert is clearly running on his admirable experience at Turner, while Oakley is leaning on an even more admirable reputation earned by dedicated service to Dallas for more than a decade. I am entirely convinced that Oakley is substantially more qualified for the post than is Leppert. Oakley is admittedly detail-oriented, but I believe this can be shaped into an asset that Dallas desperately needs after too many years of Laura Miller’s glittering generalities. Oakley might not have gone to Harvard, but he is considerably more informed when it comes to Dallas.

Early voting begins today. Election day is June 16.

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Petitioner Ledbetter is accusing Goodyear of pay discrimination based on years of sex-based discrimination. She filed suit in mid-1998, rendering the standard statute of limitations applicable only to the 180 days prior to her filing suit. She claims that because of the unique nature of pay increases, she is still being harmed for pay increases that she filed to receive years ago.

Justice Alito penned a decision that rules on reasonably narrow grounds. Unlike the Carhart abortion decision and a few others the court has handed down this term, the majority in Ledbetter opts to rule on relatively narrow grounds. The court rejected Ledbetter’s claim to give pay discrimination suits exemption from standard Title VII statute of limitations. The court upheld the decision of a lower court to look at discrimination only in the 180 days that preceded her suit and found no evidence of discrimination in the two pay-related events that fell in that time period.

Justice Ginsburg filed a strong dissent that can be summed up in a few short excerpts:

The Court’s insistence on immediate contest overlooks common characteristics of pay discrimination. Pay disparities often occur, as they did in Ledbetter’s case, in small increments; cause to suspect that discrimination is at work develops only over time.

The realities of the workplace reveal why the discrimination with respect to compensation that Ledbetter suffered does not fit within the category of singular discrete acts “easy to identify.” A worker knows immediately if she is denied a promotion or transfer, if she is fired or refused employment. And promotions, transfers, hirings, and firings are generally public events, known to co-workers. When an employer makes a decision of such open and definitive character, an employee can immediately seek out an explanation and evaluate it for pretext. Compensation disparities, in contrast, are often hidden from sight.

The problem of concealed pay discrimination is particularly acute where the disparity arises not because the female employee is flatly denied a raise, but because male counterparts are given larger raises.

Ginsburg is also concerned that this ruling wish give companies an incentive to hide information about pay disparities.

I tend to agree with Justice Ginsburg primarily for the reasons she listed but also for a few others. The idea of a ‘statute of limitations’ is to limit abuses in the law from people filing suit long after a harm is done. They are designed to prevent people from being harmed and using the threat of litigation as a way of bettering themselves in a way that they dont need. If we dont know for a fact (as is the case here), the court needs to err on the side of caution and assume that Ledbetter was actually harmed by her company and had no legitimate way of knowing that she had been discriminated against until long after the initial discrimination occurred.

Update: I found a great audio clip on the case here. Apparently you can hear Justice Ginsburg reading part of the opinion as Justices sometimes do when they are especially vehement about a decision, but I couldn’t find the link. On a related note: I love NPR.

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