McConnell and Bolling v. Sharpe:

Like Orin and Eugene, I'm an admirer of Judge McConnell. Among other things, he once offered a seminar at the University of Chicago on "Economic Liberties and the Constitution." I have no idea what his views are on such issues (I'm recalling, from seeing his syllabus many years ago, that the seminar discussed Lochner, commercial speech, takings, the constracts clause, and the dormant commerce clause, but my memory may be faulty), but I like the idea that a potential Supreme Court nominee thinks that constitutional protection of economic liberties is important enough to warrant teaching a class on the subject.

However, I think that if McConnell were to be nominated, his opponents would have such a good (albeit unfair) soundbite against him that I'm not sure that he could survive it. He wrote, in discussing the 1954 case of Bolling v. Sharpe, that "[t]he suggestion that the Due Process Clause of the Fifth Amendment prohibits segregation of public facilities is without foundation." Balkin, ed., What Brown v. Board of Education Should Have Said, p. 166. The view that the Fifth Amendment does not prohibit discrimination by the Federal Government is a perfectly respectable originalist viewpoint, though, as I discuss in a recent Georgetown Law Journal article, I believe that originalists have vastly exaggerated the perceived problems with Bolling specifically, and more generally with the idea that the Fifth Amendment's Due Process Clause includes an antidiscrimination principle (indeed, I believe that Bolling was arguably more justified in terms of text and history than its companion case, Brown v. Board of Education).

But regardless of how plausible, sincere, or even correct McConnell's view of the Fifth Amendment and Bolling is, I'd hate to be on the receiving end of a People for the American Way ad stating that "Bush nominee Michael McConnell believes that the federal government may establish Jim Crow, segregated schools." Or, "McConnell believes that the federal government is allowed to discriminate based on race, sex, or ethnicity." Either such ad, while not exactly fair, would be accurate.

Related Posts (on one page):

  1. McConnell and Bolling v. Sharpe:
  2. Michael McConnell:
  3. The Miers Withdrawal:
Been There Done That:
Bernstein's completely right; and I think he's pre-emptively sunk McConnell's nomination. This blog is read by people in the White House and on the Hill.
10.27.2005 11:59pm
ChrisS (mail):
The man wrote an entire law review in 1995 dedicated to why de jure segregation was unconstitutional. I'd say there's more than enough ammunition to rebut that charge.
10.28.2005 12:02am
Larry Faria (mail):
I wouldn't be too concerned with anything PAW or any other far left organization puts out. I'm a moderate/conservative democrat (there are still a few of us around) and I discount vitually everything they produce. They're just scaring up money from the "true believers", not persuading anybody, least of all the senate Republican majority. From what I've heard of McConnell, he's articulate enough to finesse that quote to just about any Republican senator's satisfaction.
10.28.2005 12:07am
Andrew Hyman (mail) (www):
I think there are a lot of problems with a possible McConnell nomination, but Bolling v. Sharpe really isn't one of them. McConnell correctly wrote that Congress never "required that the schools of the District of Columbia be segregated." MICHAEL W. MCCONNELL in WHAT BROWN V. BOARD OF EDUCATION SHOULD HAVE SAID 168 (Jack M. Balkin ed., N. Y. Univ. Press 2001). Thus, Bolling v. Sharpe could have and should have been grounded on the fact that the segregation of DC public schools was unauthorized.

But let's suppose that Congress had specifically authorized segregation of DC public schools, meaning that the Court didn't really have power to end the segregation in the DC schools without congressional help. Is that such a horrible notion? Everyone agrees that the Court doesn't have any power to desegregate private schools in the 50 states without legislative help. So what's the big difference? There really isn't one.

I think that the main problems with a McConnell nomination would include his assertions during his previous Senate hearings that anti-polygamy laws are unconstitutional now and were also unconstitutional going all the way back to the 1800s when the Court decided the Reynolds case. This view of the Free Exercise clause is sharply at odds with that of Justice Scalia who took a much different approach in Employment Division v. Smith. For a president who has staked so much on protection of traditional marriage, it would be difficult to reconcile a nominee who opposes anti-polygamy laws.

Another problem with a McConnell nomination would be his statement in his Senate hearings that the "only" way to overturn Casey and Roe would be by constitutional amendment. He spoke at his hearings very uncritically of the Casey decision, and he also said he supports the Court's other substantive due process cases involving family planning rights. He can point to other writings in which he opposed "substantive due process," but it's clear from his testimony that he does support the doctrine to at least some extent. Justice Scalia clearly does not.
10.28.2005 12:12am
Goober (mail):
Of course, if McConnell really did believe that the 5th Amendment's guarantee of Due Process did not, in fact, incorporate the 14th Amendment Equal Protection Clause, then not only would Congress be able to segregate, but it would also be empowered to establish explicit race-based affirmative action (or even racial quotas). Perhaps even if Due Process forbade Jim Crow as violative of Due Process, the Congress might even then be able to practice affirmative action---and the discussion would be about whether the American people had to trust the Congress or the courts to tell the difference between good and bad. So I'm not entirely sure that would work against McConnell.
10.28.2005 12:15am
CrazyTrain (mail):
Bush nominee Michael McConnell believes that the federal government may establish Jim Crow, segregated schools.

Well, he does. He better be able to explain why he believes this in a coherent manner.

10.28.2005 12:41am
Simon (391563) (mail) (www):
On this issue, folks might be interested in knowing that Bollingremains, to this day, somewhat of an outlier.

Since Bolling, the Supreme Court has never declared a federal statute or regulation unconstitutional on the grounds that it discriminates against members of a racial minority group. Nor has the Court ever invalidated any other kind of federal action on those grounds. The Court has never found that a federal prosecutor impermissibly struck a juror from a venire on account of race, that a federal law enforcement officer engaged in unconstitutional racial discrimination against criminal suspects, or that a federal employer fired an employee for unconstitutional racial reasons. This does not mean that reverse incorporation has had no progeny at all. In an important develoment decades after 1954, the courts have invoked Bolling to limit the use of affirmative action. Courts have also struck down federal measures as unconstitutionally discriminatory in nonracial contexts like sex and alienage. But in the Supreme Court's decisions with respect to the heartland of equal protection—the defense of racial minority groups against governmental discrimination—reverse incorporation has been a rule for Bolling alone

Richard Primus, Bolling Alone, 104 Colum. L. Rev. 975, 978-79 (2004).

Oh, and by the way, McConnell has written elsewhere that "[a]s a matter of judicial statecraft, the imperative in Bolling was clear." Id. at 977 n.9.

There are legitimate (if ultimately unpersuasive) arguments against Bolling, just as there are about Brown, Roe, Bob Jones, and almost every other Court decision ever handed down. That McConnell on occasion voiced such criticisms should hardly disqualify him for the Court; if anything, we should look to those criticisms — and the response of his peers — to see the quality and carefulness of his thought.
10.28.2005 1:02am
He's right, of course.

How Senators could chastize him for this, while claiming they are his moral superiors is puzzling.

Not good PR, but it's good originalism. Score one for McConnell.
10.28.2005 1:16am
Been There Done That:
It does NOT matter how justified or reasonable McConnell is in his arguments; what does matter is that the spin in the popular press will be VERY negative. The public perception supersedes the reality. Politics rules.
10.28.2005 1:55am
Christian Brower (mail):
ChrisS is right.
McConnell does not believe that the federal, or state government may establish Jim Crow laws or segregate based on race. Many originalists have stated that Brown v. Board of Education cannot be sustained on originalist principles. They are right at to the reasoning in that decision.

But, McConnell argued very pursuasively in a law review article 81 Va. L. Rev. 947 that the original understanding of the 14th amendment prohibited racial segrecation when civil rights were involved. He writes that the Brown court's conclusion that school segregation was unconstitutional ir right, but that the reasoning is wrong. And that the faulty reasoning amd method used in that case cause great harm.

To claim that he thinks segregation or Jim Crow laws are constitutional is just plain wrong. He may be the best originalist defender of the point.

He would be a great nominee!
10.28.2005 2:28am
Christian Brower (mail):
"[t]he suggestion that the Due Process Clause of the Fifth Amendment prohibits segregation of public facilities is without foundation."

This is the quote Bernstein uses to claim that Demos might attack him. As I said the attack would be unfounded easily proven false.

Further, it doesn't matter whether the fifth amendment prohibits segregation, the 14th does. McConnell clearly believes that the 14th amendment prohibits segregation of public facilities so this is no cause for concern.
I believe he would be superb in defending his position before the senate.
10.28.2005 2:36am
McConnell as Son Of Bork ?
10.28.2005 3:05am
Nunzio (mail):
I think McConnell is proof positive why esteemed law professors will not be nominated to the Supreme Court. His writings are provocative and well developed but they don't show him to be much of a pragmatist. You've got to be a bit of a politician to get confirmed, especially with the T.V. coverage. People read headlines, and some of the headlines against McConnell would look pretty bad, even if they're a bit unfair.
10.28.2005 3:56am
Simon (391563) (mail) (www):
What is it, exactly, that suggests to you that McConnell is unpragmatic? The quote I supplied early about Bolling suggests quite the opposite, I think.

The easiest way to judge pragmatism is to compare a justice's views on what ought to be (and his or her willingness to vote in support of those views) with what currently is. By that measure, Justice Thomas (he of the ultra-originalist understanding of the First Amendment) is hardly pragmatic, but Judge McConnell, whose views on all these issues are well within the jurisprudential mainstream, is. (You could also measure pragmatism along a Breyer-Scalia axis in Booker, i.e., willingness to upset the applecart v. overriding desire to make the system "work." I don't know where McConnell would come down on that measure, but he can't be more unpragmatic than Scalia.)

His quotes on Bolling are a narrow non-issue. How many non-lawyers would recognize the case or it's importance? My guess is less than 5%. And probably less than 50% among lawyers, too, at least those more than 5-10 years out from law school. As Christian pointed out above, no one with even a passing familiarity of his writings could McConnell somehow favors de jure segregation. And I imagine that if this was the charge that opponents tried to stick against him that a large number of well-known and very liberal law professors would rise to his defense (on this issue, at least).

Finally, to put all my cards on the table I think: 1) that the original opinions in both Brown and Bolling are underrated; 2) that Scalia's lack of pragmitism, at least as described above, is a good thing; and 3) that McConnell's argument about the original meaning of the equal protection clause is a noble failure. Come to think of it, there are probably very few issues on which I agree with McConnell's conclusions. But I'd still like to see him on the Court. Or, if he is rejected, that he is rejected for good reasons, not stupid ones.
10.28.2005 7:35am
DavidBernstein (mail):
McConnell's article on Brown and Originalism defended Brown only, not Bolling. The 14th Amendment applied in Brown, and that's what McConnell was talking about in that article. The Fifth Amendment was at issue in Bolling.

To be clear, I agree that McConnell's views on Bolling shouldn't affect his prospects--what are the odds that the federal government is going to establish Jim Crow public schools, anyway, and not all bad policies are unconstitutional--but why question is, will it?
10.28.2005 9:45am
Simon (391563) (mail) (www):

I think you're reading too much into McConnell's "opinion." Consider what he wrote in 1992:

The first such holding was in Bolling v. Sharpe, 347 U.S. 497 (1954), a companion case to Brown v. Board of Education, 347 U.S. 483 (1954), involving the District of Columbia public schools. As a matter of judicial statecraft, the imperative in Bolling was clear: If the Court had allowed the federal government to continue to segregate its schools the apparent hypocrisy would have made Brown all the more unenforceable. The opinion in Bolling consisted of little more than the statement that "it would be unthinkable" that the "same Constitution" (putting aside the fact that two quite different clauses were involved) would impose "a lesser duty on the Federal Government" than on the states. Bolling, 347 U.S. at 500.

Bolling expressly denied that due process and equal protection "are always interchangeable phrases." Id. at 499. But ever afterward, the Court has treated them as such, and has never seen fit to explain its rationale.
Bolling could have been predicated on a structural argument that in its capacity as general local government for the District of Columbia and the territories, Congress is bound by the same constitutional norms that bind the states. Compare Examining Bd. of Eng'rs v. Flores de Otero, 426 U.S. 572 (1976) (applying heightened scrutiny to discrimination against aliens by territorial or District of Columbia governments) with Matthews v. Diaz, 426 U.S. 67 (1976) (applying rational basis scrutiny to national legislation discriminating against aliens). This would not explain the later cases applying equal protection to national legislation.

The Fourteenth Amendment: A Second American Revolution or the Logical Culmination of the Tradition?, 25 Loy. L.A. L. Rev. 1159, 1176 n.9 (1992)
10.28.2005 9:56am

As a card carrying liberal law professor who joined the large group that supported McC for his current post, I would hope that similar support next time (like the broad support Roberts got from the DC bar when nominated for the circuit) would be enough to give cover for Senators to ignore efforts like the ones that David worries about. I don't doubt they would be made, but they shouldn't win.
10.28.2005 10:01am
magoo (mail):
The Bolling quote would be a fatal problem only if he also subscribed to the extreme view, shared by no one on the court (including Thomas, see his Lopez dissent, note 8) that originalism always trumps precedent, no matter how strong. Barnett and Bernstein probably couldn't be confirmed, but Judge McConnell would be fine.
10.28.2005 10:22am
Anderson (mail) (www):
I know next to nothing of McConnell, but it seems he would be able to finesse any such attack at his hearings. He seems to have a good personality and some degree of charm, for a federal judge at least.

Part of Bork's problem (and it shouldn't have been, but TV is unfair) is that he looked so much like a B-movie villain. You could look at him and believe he'd rule to reinstate the pillory.

McConnell, in the pix I've seen, looks more like a goofy sidekick on the Partridge Family bus.
10.28.2005 10:27am
djd (mail):
Not Bolling again. This is the case Arlen Specter obsesses about. He's said more than once that he voted against Bork because Bork was critical of the holding in Bolling.
10.28.2005 11:54am
Goober (mail):

I think McConnell is proof positive why esteemed law professors will not be nominated to the Supreme Court.

Breyer and Scalia.
10.28.2005 12:00pm
Does McConnell extend his pro-relgious-practice beliefs to permit same sex marriage? Some faiths celebrate gay marriage, believing that God made gay people gay and would not want to deprive them of the joys of life-long monogamy.

Under McConnell's theory (as presented in the comment sections of this blog), you can argue that laws restricting marriage to a man and a woman discriminate in favor of conservative Christianity and Orthodox Judiaism and against liberal Christianity and Reform Judiaism.

McConnell sounds like a brilliant but unconfirmable man.
10.28.2005 12:22pm
Christian Brower:
The polygamy view does not necessarily extend to same sex marriage. I doubt that McConnell meant that the government was required to certify polygamous marriages and grant them special benefits reserved for monogomous couples. They simply had a right to marry (under a religious ceremony not necesarily a civil ceremony). Similarly, gays can marry if they choose, that marriage just may not be recognized by the state.

The law in question in Reynolds criminalized polygamy and jailed people for marrying. I know of no laws criminalizing gay couples marrying or cohabitating or living in any other similar arrangement.

Note that I talk about marrying as separate from the granting of a state marriage license or additional benefits to heterosexual, monogomous relationships.
10.28.2005 12:44pm
Christian Brower:
In otherwords, the polygamy laws would be similar to laws porhibiting gay people from participating in gay relationships. Since no such laws exist, the extention of religious protection to gays fails.
10.28.2005 12:47pm
Clayton E. Cramer (mail) (www):

The law in question in Reynolds criminalized polygamy and jailed people for marrying. I know of no laws criminalizing gay couples marrying or cohabitating or living in any other similar arrangement.
Exactly. And that's why the continual analogy to miscegenation and Loving is incorrect. The Lovings were threatened with prison if they didn't leave Virginia; the state wasn't refusing to recognize their marriage; it recognized it, and was horrified enough to send them to prison.
10.28.2005 1:13pm
Clayton E. Cramer (mail) (www):
Reynolds (the polygamy case) was the right result, but the wrong method. The Court wanted to pretend that polygamy laws were predicated strictly on secular grounds, rather than admit that they were based on moral disapproval of a minority religion's actions.
10.28.2005 1:16pm
"Further, it doesn't matter whether the fifth amendment prohibits segregation, the 14th does."

Read the 14th Amendment. Bolling v. Sharp's strained logic was caused because they 14th Amendment's equal protection guarantee applies to states only, not the federal government.

McConnell's analysis is obviously correct, but it's the kind of thing that just sounds bad. Of course, saying Bolling was wrongly decided not mean it should be overturned. There would be little point in doing that.
10.28.2005 2:20pm
Scalia was confirmed in a galaxy faf, far away.

He probably wouldn't be today.
10.28.2005 2:22pm
Shelby (mail):
Prof. Bernstein:
McConnell believes that the federal government is allowed to discriminate based on race, sex, or ethnicity

What about the fact that the federal government does "discriminate based on race, sex, [and] ethnicity"?
10.28.2005 2:51pm
Daniel Chapman (mail):
Lab: And that's very, very sad. Hopefully the situation changes in the future.
10.28.2005 3:19pm
Unnamed Co-Conspirator:
Tell PFTAW to bring it on. Their rhetorical firebomb would blow up in their faces. McConnell would easily deal with questions regarding Bolling. And of course the Fifth Amendment doesn't "incorporate the EPC of 14th" -- that's just silly. It's certainly possible to argue that "due process of law" includes a concept of equality under law, but if it does, why didn't the 14th include only a due process clause, perhaps with some additional language identifying equal protection as being within the scope of due process (I dunno, maybe it's because "due process" means just that, process, not substance?). There's not much within the constitution itself that suggests that EP is a subset within DP.

Let's just acknowledge the truth behind Bolling, and Brown as well, for that matter: they were the judiciary's then-urgent (in light of black WWII veterans returning to Jim Crow), moral responses to the Senate's long inability to pass any legislation under the Enforcement Clause of the 14th or, where the District of Columbia was concerned, to cause the federal government to conform to the same notions of equal protection that were applicable to the states under the 14th. Neither Brown nor Bolling would have been necessary, but for the persistent Dixiecrat filibuster. If we ever decide to make another amendment to the constitution on any issue, the one we should start (and probably end) with is quorum in the Senate. Leaving this issue to the Senators themselves has caused immense damage to our country over the last 150 years, not the least of which is the perverse expansion of judicial power that has occurred since the end of WWII, which has led fairly directly to the expansion of federal power at the expense of the States.
10.28.2005 3:20pm
Robert West (mail) (www):
Clayton - how does a law which is based on moral disapproval of actions that arise through adhering to the tenets of a minority religion not raise free exercise of religion concerns?
10.28.2005 4:32pm
George Turner (mail) (www):
The threat may come from the right, as worldmag comment #62 shows (you'll have to scroll down).

"Buyer's remorse", "BEWARE!", etc. It's based on his Senate testimony mentioned at

I got into the spirit and said, "What an uneducated, flip-flopping, pro-abortion moron."

The villagers' Borking torches are lit, and by gosh, they're going to burn some judges.
10.28.2005 7:30pm
Jonah Gelbach (mail) (www):
Ironically enough, Balkin has written wrote that

"One assumes that Messr[.] ... McConnell [is] now among the front runners for a Supreme Court appointment."

Go figure.
10.28.2005 7:41pm
Jon Rowe (mail) (www):
A much stronger case can be made that the federal government is constrained from discriminating under the 9th Amendment (and the natural law of the Declaration of Independence). Let us not forget that Equality as with Liberty is a natural right and the 9th Amendment guarantees our natural rights against the federal government.

See my post on the matter here.
10.28.2005 9:53pm
sammler (mail) (www):
Mr. Bernstein,

It seems to me that whether McConnell believes the Fifth Amendment prohibits segregation is quite different from the question of whether he believes that segretation is prohibited. The quote you give is very narrow, and it seems unjustifiable to generalize from it as you appear to have done.
If confronted with this quote, McConnell could respond that, just as the Third Amendment does not prohibit segregation, neither does the Fifth. That's why we have the Fourteenth.

[Mr. Brower, above, has already glanced upon this topic.]
10.31.2005 7:30am