Playing it Safe
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Playing it Safe

How the Supreme Court Sidesteps Hard Cases and Stunts the Development of Law

Lisa Kloppenberg

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Playing it Safe

How the Supreme Court Sidesteps Hard Cases and Stunts the Development of Law

Lisa Kloppenberg

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About This Book

It is one of the unspoken truths of the American judicial system that courts go out of their way to avoid having to decide important and controversial issues. Even the Supreme Court from which the entire nation seeks guidance frequently engages in transparent tactics to avoid difficult, politically sensitive cases.

The Court's reliance on avoidance has been inconsistent and at times politically motivated. For example, liberal New Deal Justices, responding to the activism of a conservative Court, promoted deference to Congress and the presidency to protect the Court from political pressure. Likewise, as the Warren Court recognized new constitutional rights, conservative judges and critics praised avoidance as a foundational rule of judicial restraint. And as conservative Justices have constituted the majority on the Court in recent years, many liberals and moderates have urged avoidance, for fear of disagreeable verdicts.

By sharing the stories of litigants who struggled unsuccessfully to raise before the Supreme Court constitutional matters of the utmost importance from the 1970s-1990s, Playing it Safe argues that judges who fail to exercise their power in hard cases in effect abdicate their constitutional responsibility when it is needed most, and in so doing betray their commitment to neutrality. Lisa Kloppenberg demonstrates how the Court often avoids socially sensitive cases, such as those involving racial and ethnic discrimination, gender inequalities, abortion restrictions, sexual orientation discrimination, and environmental abuses. In the process, the Court ducks its responsibility to check the more politically responsive branches of government when "majority rule" pushes the boundaries of constitutional law. The Court has not used these malleable doctrines evenhandedly: it has actively shielded states from liability and national oversight, and aggressively expanded standing requirements to limit the role of federal courts.

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Information

Publisher
NYU Press
Year
2001
ISBN
9780814749357
Topic
Law

1
The Court Avoids Scrutinizing “Official English” Mandate

Maria-Kelly Yniguez frequently spoke both Spanish and English as an insurance claims manager for the state of Arizona. She managed medical malpractice claims filed against state hospitals, interviewing claimants about their injuries, explaining state compensation policies, and drafting settlement documents in both languages to ensure that claimants understood the ramifications of their signatures. In 1988, Arizonans by a one percent margin passed an initiative amending their state constitution to declare English the official state language. After the election, Ms. Yniguez stopped using Spanish with her clients, because she and other Arizona employees feared discipline. She was offended by the new law and worried that it would prevent her from doing her job effectively. She felt concerned for monolingual and bilingual persons who would be unable to communicate effectively with her and other governmental employees. Ms. Yniguez was born in Arizona and her parents were Mexican. As a Latina, she felt that she could express important ideas and emotions more vividly in Spanish. Spanish was also part of her cultural heritage, which fostered a sense of community and government accessibility for Spanish speakers as they processed their malpractice claims.1
Maria-Kelly Yniguez brought the first challenge to the constitutional amendment in federal court, alleging that the law violated the First Amendment, Equal Protection, and a federal civil rights statute.2 The law was put on hold while the case proceeded. Ms. Yniguez had never been a civil rights activist, yet she knew there might be a downside to filing suit. Shortly after she sued, someone shot out the windows on her daughter’s car one night while it was parked in the family driveway. She also received dozens of mean-spirited letters and calls telling her to “go back to Mexico.”3

The Importance of the English-Only Challenge

The Yniguez litigation was monitored around the country by the media, politicians, academics, civil rights activists, supporters and opponents of the English-Only movement, state officers and employees, and members of the public. The initiative’s primary sponsor, Arizonans for Official English (“AOE”), was led by a retired federal immigration agent. The campaign was financed by U.S. English, the oldest advocacy group for English-Only laws, with more than 1 million members nationwide. The Arizona measure went further than previous symbolic measures in other states had gone, requiring state and local governments to conduct business in English. It contained a few exceptions. Languages other than English could be spoken to educate foreign-language students, to protect the rights of criminal defendants, to protect public health and safety, and to comply with federal law. Other English-Only laws were often more symbolic, reaching far fewer conversations and persons. For example, some of these laws required official documents to be written in English. Although Arizona’s English-Only law was the most restrictive,4 many states or localities faced similar proposals or had recently enacted English-Only laws. Laws imposing or encouraging a common language are not new in the United States, and the English-Only issue reemerged in the 1980s, particularly in areas with many Spanish-speaking persons.5 By 1997, over twenty states and forty municipalities had laws that made English the official state language. Between 1970 and 1990, the Latino population of the United States more than doubled, while the Asian population quadrupled. Latinos will be the largest minority group early in the twenty-first century. According to the 1990 census, nearly 32 million people communicated in a language other than English and more than half of these persons spoke Spanish.
The national importance of the English-Only issue was demonstrated by the unusually large number and tone of amicus briefs filed by many persons, politicians, and organizations when the Supreme Court agreed to hear the case. (Such “friend of the court” briefs are filed by persons or groups with a strong interest in the subject matter of a case who are not parties. Amicus briefs are often filed in appellate courts on matters of broad public interest.) Civil rights groups warned the Court that the stakes extended far beyond language choice. Resolution of constitutional questions surrounding English-Only laws might have legal and political significance for related controversies such as bilingual education, restrictions on immigration, and affirmative action. Civil rights briefs warned the justices that English-Only laws are part of a racist exclusionary system and a “racist strategy to negate nonwhite racial and cultural groups.”6 During the Yniguez litigation, the U.S. Court of Appeals for the Ninth Circuit recognized that language can be a proxy for national-origin discrimination and expressed concern that the burden of English-Only laws falls disproportionately on non-English speaking persons. Indeed, civil rights groups criticized a wave of laws in the 1990s burdening minority groups, including harsh immigration restrictions, denials of welfare benefits to legal and illegal immigrants, limitations on health care and education for illegal immigrants, and anti-affirmative action programs. In this anti-immigrant environment, Congress and many states considered English-Only laws.
Opponents of Arizona’s law saw the 1990s wave of English-Only laws as an extension of a history of discrimination, of the legally authorized destruction of minority groups by the dominant Anglo-American population. Examples abound, such as the restrictions on the use and teaching of Native American languages by the U.S. and state governments,7 and congressional restrictions on the use of Spanish in western states, including Arizona and New Mexico. At the turn of the twentieth century, California’s constitution provided that laws could be published only in English, and English literacy was a voting prerequisite. One brief filed in the Supreme Court by civil rights advocates summarized the concerns:
Article 28, Arizona’s English Only amendment, is not about national unity versus balkanization. Nor is it about the encouragement of immigrant assimilation versus cultural group separatism. These descriptions conceal the ill-will of many English Only supporters toward immigrant-racial minorities and further mislead persons of good will about the amendment’s consequences.
Arizona’s English Only amendment is about negation and exclusion. It is designed to achieve a false sense of unity through an apparently homogenous polity by rendering invisible those who do not look and talk like “Americans.” If enforced, the amendment would destroy many immigrant group members’ ability to function in day-to-day interactions with government and to participate meaningfully in political life. Moreover, the amendment will, for many, eviscerate their cultural groups and deprive immigrants of the cultural base of identity and support needed to cope with continuing mainstream racism and nativism.
In contrast, numerous conservative groups and leaders supported Arizona’s English-Only law, claiming that its intentions were benign: to foster unity, not promote discrimination. During his presidential campaign, for example, Bob Dole supported the English-Only movement to protect “national unity,” and Newt Gingrich cautioned that because of bilingualism, the “very fabric of American society will eventually break down.” Thus, language differences fostered “linguistic and cultural isolation,” giving non-English-speaking groups political leverage that could result in political and social unrest.8 In the 1988 Arizona ballot pamphlet, supporters of the English-Only law encouraged voters to “stop [the] erosion of our common bond … threatened by language conflicts and ethnic separatism.” Another argument in the pamphlet described Arizona at a crossroads: “It can move towards the fears and tensions of language rivalries and ethnic distrust, or it can reverse this trend and strengthen our common bond, the English language.”
Thus, the English-Only issue is closely linked to other struggles over racial and ethnic relations. The link is frequently subtle because the laws are directed at language and the racial undertones may not be explicit. Supporters of English-Only measures refer to “American” culture, rather than race or ethnicity. As Justice Scalia said in an affirmative action case: “In the eyes of government, we are just one race here. It is American.”9 The Washington Legal Foundation, a conservative group fostering states’ rights, advised the Supreme Court in Yniguez that Arizona’s law encouraged unity, calling upon a very Anglo-American portion of our shared heritage including the Mayflower Compact and the Federalist Papers. The group cautioned against a new “cult of ethnicity … [that] denounce[s] the idea of a melting pot, … challenge[s] the concept of ‘one people,’ and … perpetuate[s] separate ethnic and racial communities.”10 As presidential candidate Pat Buchanan put it in 1992: “I think God made all people good, but if we had to take a million immigrants in, say Zulus, next year, or Englishmen, and put them in Virginia, what group would be easier to assimilate and would cause less problems [sic] for the people of Virginia?”11
Sometimes the discrimination is even more overt, with proponents of English-Only laws arguing that the laws are needed to prevent the U.S. from becoming a non-white, non-English-speaking “mongrel nation.” “‘Mongrel’ clearly conjures images of the menacing savage Indian, the sinister ponytailed Chinese or the barbarous brown-skinned Hawaiian, and echoes early fears of diminishing white racial purity.”12 Such claims resonate with legal efforts by Virginia to support its law forbidding whites from marrying non-whites. Virginia argued that the law served legitimate purposes such as “to preserve the racial integrity of its citizens,” “[to prevent] corruption of blood,” “a mongrel breed of citizens,” and “the obliteration of racial pride.” The Supreme Court ducked the issue with shaky jurisdictional reasoning in 1956, after the Virginia Supreme Court had found that the law did not violate Equal Protection. Alexander Bickel acknowledged that it would have been “unthinkable” for the Court to uphold the law after Brown v. Board of Education. Nevertheless, he defended the Court’s avoidance. “[W]ould it have been wise, at a time when the Court had just pronounced its new integration principle, when it was subject to scurrilous attack by men who predicted that integration of the schools would lead directly to ‘mongrelization of the race’ and that this was the result the Court had really willed,… to declare that the state may not prohibit racial intermarriage?” Twelve years later, the Warren Court again faced an equality challenge to Virginia’s law. About one-third of the states still prohibited and punished interracial marriage in 1967. Another fourteen states had repealed such laws within the prior fifteen years. The Court noted that these laws first arose in the U.S. as part of slavery, but many of the modern laws were adopted during a period of “extreme nativism” following World War I. Finding Virginia’s justifications an unconstitutional “endorsement of white Supremacy,” the Court finally voided the law on Equal Protection grounds in Loving v. Virginia.13
Similar fears about mongrelization and impurity support the English-Only movement. John Tanton, the founder of the national advocacy group U.S. English which financed the Arizona campaign for an English-Only law, warned of a “Latin onslaught.” In comparing Caucasian and Latino demographics, he said that Latino fertility will cause “those with their pants up [to] get caught by those with their pants down.”14 English-Only supporters also warn of “rampant bilingualism,” “linguistic ghettos,” and “language rivals,” conjuring up intimidating images of gangs and ghettos, racial violence, and unrest while preying on stereotypes of poor, uneducated, desperate immigrants who only bring crime and problems to the United States. These fears are often disguised in rational and legal, politically palatable discourse about safeguarding the English language, the Constitution, and the American way of life.15
In sum, the English-Only issue is of broad symbolic import, testing our polity’s ability to tolerate language diversity, which is closely linked to other aspects of cultural, ethnic, and racial identity and diversity. Was the Arizona law designed to encourage social harmony through use of a common language, as its proponents claimed? Or was it, as one Ninth Circuit judge found in Yniguez, “a mean-spirited, nativist measure” that embodied discrimination and repression of ethnic and cultural differences?

The Journey to the United States Supreme Court

Shortly after Maria-Kelly Yniguez filed her lawsuit in federal court challenging Arizona’s law, the Arizona attorney general released a legal opinion advising that the new law allowed state employees to use languages other than English when doing so would facilitate the delivery of government services.16 Despite the law’s broad wording, the attorney general interpreted it narrowly to mean that only official acts such as rendering a judicial decision or promulgating laws must be in English. Because judicial decisions and laws had been written in English previously, the new law was of very little significance under the attorney general’s interpretation. The attorney general used this narrow interpretation to avoid conflicts between the English-Only law and other federal and state laws, including federal constitutional guarantees. Because Arizona has a substantial population of bilingual persons and persons for whom English is not their primary language, the attorney general’s construction recognized a substantial exception to an English-Only requirement. According to the 1990 census, more than 20 percent of Arizonans are bilingual. Over 10 percent of Arizonans speak Spanish fluently. A small percentage of Arizonans cannot speak English well or at all.
The state urged the federal trial court to dismiss the lawsuit because there was nothing left to fight about. Ms. Yniguez would still be able to speak Spanish to non-English or bilingual persons to facilitate service delivery. She had not been disciplined or even threatened with discipline for speaking Spanish on the job. The state also argued that the law posed a novel state law question (the breadth of the English-Only law) which should be decided by the Arizona Supreme Court instead of the federal courts. Nevertheless, the federal trial court reached the merits of the First Amendment claim and invalidated the law, finding that it was overly broad and infringed on protected speech by governmental employees.
After the federal district court’s decision, Ms. Yniguez resigned from her state job to accept a more lucrative position at a private hospital. Both she and the state initially chose not to appeal the trial court’s decision. But procedural complexities kept the dispute alive. The initiative’s primary sponsor, AOE, sought to appeal and then the attorney general sought to appeal. The Ninth Circuit allowed both those parties to intervene, and it allowed the primary group opposed to the initiative to intervene as well. Ms. Yniguez then decided to appeal, asserting a claim for nominal damages. Although she had left government service, a Ninth Circuit panel found the controversy sufficiently concrete because of the adversity of the litigants and her damages claim. The three-judge panel agreed with the trial court that the law violated the First Amendment by inhibiting Arizona employees’ speech.
This ruling was so important and controversial that the rest of the Ninth Circuit judges voted to hold an en banc hearing, where the decision of the three judges would be reconsidered by a larger segment of the court. Usually, the entire court of appeals for the particular circuit would decide a case en banc, but the Ninth Circuit is so large that eleven of the twenty one full-time circuit court judges constituted an en banc panel at that time. By only a 6-5 margin, the Ninth Circuit en banc agreed that the English-Only law was unconstitutional. The majority and dissenting opinions authored by nationally known and outspoken liberal and conservative judges, offered thoughtful disagreement about the First Amendment speech rights of public employees. The Ninth Circuit did not reach the litigants’ Equal Protection claims or the First Amendment rights of those seeking government services or any federal statutory claims. The procedural wrangling and extent of the substantive controversy among the judges during the Ninth Circuit appeals process added significant time and expense to pursuing the dispute.
Finally, the case was ready for appeal to the Supreme Court. The Court did not have to hear the case. It could have let the Ninth Circuit en banc decision stand, but the Court granted certiorari and heard from the parties and many interested politicians, organizations, and individuals through amicus briefs about the constitutionality and significance of Arizona’s English-Only law. While Yniguez wound through the federal courts, other plaintiffs challenged the English-Only law in the Arizona state court system. In Ruiz v. Symington, four of Arizona’s elected officials, five state employees, and a public school teacher sued the governor, alleging, like Ms. Yniguez, that the English-Only law violated the federal Constitution.17 Again, AOE intervened to defend the law. The Arizona Supreme Court put the Ruiz litigation on hold once the U.S. Supreme Court agreed to hear Yniguez.

The Supreme Court Finds the Dispute Moot

More than eight years after Arizona voters passed the law, the Supreme Court unanimously vacated the lower court opinions. The Court, however, did not reach the merits of the constitutional challenges presented. Instead, it threw the case out of the federal court system because it found the case “moot” as of the point Ms. Yniguez left government service. The dispute had dissolved, the Court reasoned, because Yniguez’s personal stake in it disappeared once she left government service. The Court began: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” The Court interprets Article III to require that all federal court controversies involve a person or entity with a real, personalized stake in the dispute to bring and continue litigation. This requirement serves to ensure good advocacy to sharpen the presentation of issues for the courts and ensures a serious commitment of skill and resources from the parties.
Although other government employees were clearly affected by Arizona’s law after Ms. Yniguez left state service, her lawyers had not included them in the lawsuit. Under the Court’s restrictive Article III interpretation, it must ignore others a...

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