Category Archives: SCOTUS & Litigation

Denunciation then and now: Korematsu and CIA Torture

Just over a week ago the Pew Research Center published the results of their poll on the American public’s reaction to the content of the Senate Intelligence Committee’s “CIA Torture Report”, the huge report released PewPoll_CIAtortureby outgoing Democrat Senator Diane Feinstein on the CIA’s “enhanced interrogation techniques” during the months immediately after the September 11, 2011 attack on the World Trade Center and the Pentagon.

A table showing the detailed results is at right, but it can be summed up by saying that the public seems to be much more understanding of the exigencies of the time than the left wing media would prefer them to be.  While I don’t think that sleep deprivation and waterboarding can be appropriately defined as torture, they certainly are practices better left to the regimes of South American dictators than to the repertoire of the United States government.  Still, the judgment cannot be intelligently made without an understanding and consideration of the circumstances.

In considering this national guilt spasm initiated by Senator Feinstein’s questionable release of the report, I am reminded of the condemnations that took place in the decades after World War II over the U.S. government’s internment of the Japanese in the months after the attacks on Pearl Harbor.  Indeed, the condemnations are even now not so far removed, as conservative author Michelle Malkin found when she wrote a heavily criticized book just ten years ago entitled “In Defense of Internment”.  In her book, Malkin argues that, in hindsight, the internment may have been unwarranted, but at the time the fear of sabotage by the Japanese living along the west coast was plausible and very real, and that fear cannot simply be dismissed from the arguments.

Today, in the minds of many, the issues surrounding the Japanese internment are encapsulated in Korematsu versus United States, a landmark case in which SCOTUS upheld President Franklin Roosevelt’s 1942 Executive Order #9066, which directed all Japanese Americans to report for internment in a series of camps established at various points around the lower 48 states.  Here’s an excerpt from the WikiPedia page on the case:

In a 6–3 decision, the Court sided with the government, ruling that the exclusion order was constitutional.  Six of eight Roosevelt appointees sided with Roosevelt.  The lone Republican appointee, Owen Roberts, dissented.  The opinion, written by Supreme Court justice Hugo Black, held that the need to protect against espionage outweighed Fred Korematsu’s individual rights, and the rights of Americans of Japanese descent.  (The Court limited its decision to the validity of the exclusion orders, adding, “The provisions of other orders requiring persons of Japanese ancestry to report to assembly centers and providing for the detention of such persons in assembly and relocation centers were separate, and their validity is not in issue in this proceeding.”)  During the case, Solicitor General Charles Fahy is alleged to have suppressed evidence by keeping from the Court a report from the Office of Naval Intelligence indicating that there was no evidence that Japanese Americans were acting as spies or sending signals to enemy submarines.

The decision in Korematsu v. United States has been very controversial.  Korematsu’s conviction for evading internment was overturned on November 10, 1983, after Korematsu challenged the earlier decision by filing for a writ of coram nobis.  In a ruling by Judge Marilyn Hall Patel, the United States District Court for the Northern District of California granted the writ (that is, it voided Korematsu’s original conviction) because in Korematsu’s original case, the government had knowingly submitted false information to the Supreme Court that had a material effect on the Supreme Court’s decision.

Even the Obama administration has gotten into the act.  Judge Patel’s ruling notwithstanding, SCOTUS has never explicitly overturned their decision in Korematsu v. United States.  However, in 2011 Eric Holder’s Department of Justice filed an official notice stipulating that the decision was in error, thus erasing the case’s value as precedent for interning citizens.

For more information on Fred Korematsu, who died in 1985, click his WikiPedia page, HERE.  Likewise, for more information on Korematsu versus United States, that WikiPedia page is HERE.

Another “Disparate Impact” Case

I am beginning to think that the Obama administration may set a new record for the number of regulations and/or executive actions that have or will be struck down by the federal courts.  The most recent instance happened on the day before the mid-term election, when Judge Richard Leon of the D.C. circuit (appointed by G.W.B.) wrote in his opinion that the Justice Department’s interpretation of the Fair Housing Act language “appears to be nothing more than wishful thinking on steroids.”

I last wrote about the issue of “disparate impact” on October 25th, in a POST in which I noted that SCOTUS had agreed to take up the Texas Department of Housing & Community Affairs versus The Inclusive Communities Project case, and that the case would be an important one because of the potential for the Court to back away from the “disparate impact” doctrine established by Griggs v. Duke Power.

The case before Judge Leon was brought against HUD by the American Insurance Association (AIA).  The members of the AIA were burdened by the Obama administration’s over-reaching interpretations of the 1968 Fair Housing Act, interpretations which had the effect of permitting HUD to bring many of the members’ business decisions under scrutiny for civil rights violations.  In an example from 2012, the National Fair Housing Alliance (NFHA), a NYC-based public interest group, sued Allstate Corporation for refusing to insure flat-roofed houses in Delaware.  In their suit, NFHA claimed that minorities were more likely to live in such buildings, and that they were therefore subject to discrimination by Allstate’s policy.

As an aside, in his twelve years on the federal bench, Judge Leon has compiled an interesting history.  For details, check out his WikiPedia page, HERE.

SCOTUS and the Law of Unintended Consequences

Earlier this week I put up THIS post about how the United States Supreme Court has agreed to hear a case which has the potential of resulting in the curtailing, or perhaps even the rescinding, of the Court’s previous invention of the “disparate impact” doctrine.  The doctine was initially established in a case known as Griggs versus Duke Power Company, from 1971.

A couple of months ago, in the September issue of The American Spectator, Washington Free Beacon reporter and American Spectator contributor Bill McMorris put up an excellent article about Griggs v. Duke Power, and how, over the course of the last 40+ years it has been subject to the law of unintended consequences.  McMorris article is entitled “How The Supreme Court Created The Student Loan Bubble”, and here’s a taste:

The saga began in 1969 when Willie Griggs, a black man born in the segregated South, decided he was overdue for a promotion.  In order to get one, per Duke Power Electric Company rules, he had to pass two aptitude tests and possess a high school diploma.  Griggs smelled racism.  The tests surveyed employees on basic math and intelligence questions.  None of Duke’s fourteen black workers passed.  Griggs and twelve others sued the company for discrimination.  A district court and federal appeals court accepted Duke’s claim that the tests were designed to ensure that the plant operated safely.  Duke bolstered its case by pointing out that it offered to pay for employees to obtain high school diplomas and that white applicants who failed to meet the requirements were also denied promotions.

The Supreme Court wasn’t buying it.  This was North Carolina after all.  <snip>  Griggs found that if blacks failed to meet a standard at a higher rate than whites the standard itself was racist—a legal doctrine known as disparate impact.


“Despite their imperfections, tests and criteria such as those at issue in Griggs (which are heavily…dependent on cognitive ability) remain the best predictors of performance for jobs at all levels of complexity,” University of Pennsylvania Professor Amy Wax has found.


“Most legitimate job selection practices, including those that predict productivity better than alternatives, will routinely trigger liability under the current [Griggs] rule,” Wax wrote in a 2011 paper titled “Disparate Impact Realism.”

The solution for businesses post-Griggs was obvious: outsource screening to colleges, which are allowed to weed out poor candidates based on test scores.  The bachelor’s degree, previously reserved for academics, doctors, and lawyers, became the de facto credential required for any white-collar job.

We know what happened next.  The federal government’s provision of Pell Grants and low interest student loans resulted in an abundance of funding to pay for college tuition and study materials, which in turn allowed the higher education institutions to both raise tuition and create frivolous and/or easy majors (Women’s Studies, African Studies, Native American Studies, Underwater Basket Weaving) to entice even the lazy students into signing up.

McMorris’ article at The American Spectator is HERE, and the full article is well worth the time it takes to read it.

The current case to be taken up by SCOTUS is known as Texas Department of Housing and Community Affairs versus The Inclusive Communities Project, Inc.  It is a very important case because of the potential for the Court to back away from the “disparate impact” doctrine established by Griggs v. Duke Power.  For more on the current case, check out THIS article on the ThinkProgress website from earlier this month.

SCOTUS To Review “Disparate Impact” Travesty of Griggs versus Duke Power

The US Supreme Court doctrine of “disparate impact” first arose in the 1971 Griggs versus Duke Power Company case, in which SCOTUS ruled that Duke Power Company could not require a high school diploma and a minimum IQ from their successful job applicants.  The history of the doctrine and the case from which it sprang is explained very well in THIS somewhat technical article by Amy Wax, which appeared in the pages of the National Affairs quarter back in 2012.  Here is an excerpt from that article:

At issue in Griggs was the requirement that employees hired into service jobs at the power company’s facilities had to possess a high-school diploma and achieve a minimum score on an IQ test.  The plaintiffs argued that these rules disqualified too many black job applicants, thereby violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.

The Supreme Court agreed, ruling that job criteria with an adverse or exclusionary effect on minorities — even if those criteria were “neutral on their face, and even neutral in terms of intent” — could violate the Title VII ban on race discrimination in hiring.  The Court further stipulated that employers could escape liability for “disparate impact” only if they demonstrated that their adverse selection practices had “a manifest relationship to the employment in question” or that they were justified by “business necessity.”  In examining the criteria for positions at the Duke Power Company, the Court found insufficient evidence to satisfy the job-relatedness defense, and so ruled against the utility.

According to the Griggs Court, the purpose of the newly established disparate-impact rule was to “achieve equality of employment opportunities” by removing “built-in headwinds” and “barriers that had operated in the past” to impede minorities’ workplace advancement.  In Griggs and several subsequent cases, the Court has repeatedly stressed that the doctrine’s goal is fully consistent with a competitive meritocracy — one in which businesses remain free to seek out, hire, and promote the best and most productive workers regardless of race and to adopt personnel practices that best achieve that result.  The purpose of the rule, according to the Court, is not to enact affirmative-action or group quotas for employment, but simply to eliminate arbitrary disadvantages suffered by minority job-seekers.

Despite this assertion, the development of the Griggs doctrine has proved anything but friendly to meritocratic objectives.  Although the Supreme Court has never held that all workplaces must be racially balanced, lower courts and the Equal Employment Opportunity Commission (EEOC), which is charged with administering Title VII, have firmly embraced the presumption that the racial profiles of particular workplaces should reflect the racial composition of the broader population.

The Griggs case was decided by Justices Harry Blackmun, Thurgood Marshall, Byron White, Potter Stewart, John Harlan, William O. Douglas, Hugh Black, and Chief Justice Warren Burger, who wrote the opinion for the 8/0 unanimous majority.  Justice William Brennan took no part in the deliberations or in the decision.

Now there is a new case in which disparate impact is the linchpin, and the Supreme Court has agreed to take the case on appeal.  The designation is Texas Department of Housing and Community Affairs versus The Inclusive Communities Project, Incorporated, and  Nicole Flatow of ThinkProgress has written a brief article about it.  According to Flatow, the case:

… concerns the placement of subsidized low-income housing in Dallas.  A community group that connects individuals with this housing under the federal Section 8 program for housing subsidies argued in a lawsuit that the state was approving developer tax credits for such housing only in low-income and minority-heavy neighborhoods, while denying Low-Income Housing Tax Credit applications in majority-white and majority-Hispanic neighborhoods.

This is an important case, as any ruling that effectively rescinds the disparate impact doctrine will have far reaching effects throughout the American economy.  And it is generally assumed that because SCOTUS has granted cert (agreed to take the case), there must be at least four justices who are in a frame of mind to overturn or rein in the “disparate impact” doctrine.  I certainly hope that view does not turn out to be wistful thinking.

The full article is available on the ThinkProgress website, HERE.