III. Marshall's Understanding of Equal Citizenship
Marshall looked forward to serving on the Warren Court, the Court that in Brown and other cases had revived the equal citizenship project. Sadly, it was not to be. In 1968, Richard Nixon was elected President and, as the result of retirements and resignations, was able to appoint four Justices including Warren Burger and William Rehnquist. Thus, within a few years of joining the Court, Marshall was in the minority. Further, his service on the Court coincided with a period in which progressives became increasingly disillusioned. Michael Harrington characterized the 1970s as a period of “collective sadness,” a period in which the dreams of the two great periods of social reform in twentieth century America, the 1960s and more distantly the 1930s, seemed to end. The dreams were not entirely defeated and did not disappear, but the forward movement stopped, and hope was replaced by a new conservatism, which only became more pronounced during the 1980s.
Although serving during such a period undoubtedly dampened Marshall's enthusiasm for his work, its most tangible effect was that instead of writing majority opinions, he wrote dissents. And Marshall became one of the Court's great dissenters. Many of his dissents, like some of those of the first Justice Harlan, offer a path to a more generous future. Marshall wrote wonderful opinions on many legal subjects. Scholars have praised his opinions in such diverse areas as administrative law, antitrust law, bankruptcy law, disability law, environmental protection, federal alienage law, Indian law, prison law, and women's rights, as well as his better-known work in constitutional law. As discussed, my focus here is on Marshall's understanding of the equal citizenship principle. I first discuss his ideas generally and then turn to some opinions in which he applied these ideas in different areas of the law.
A. Marshall's Ideas Generally
After the Reconstruction Amendments were enacted, the Supreme Court construed the concept of equal citizenship very narrowly. The Court considered it sufficient that blacks could enter into contracts and own property even though they had to live under a system of segregation and were prevented from voting. After Brown, however, the Court moved toward a new understanding of equal citizenship, utilizing the concepts of fundamental rights and suspect classifications. Under this approach, the Court interprets the Equal Protection Clause as protecting citizens from abridgements of fundamental rights such as the right to free speech and barring different treatment on the basis of suspect grounds such as race.
Although this understanding of equal citizenship represented a significant advance, it obviously does not address many inequalities. For example, while Brown makes clear that equal educational opportunity is essential to establishing equal citizenship, the fundamental rights/suspect classification approach has not produced anything resembling equal educational opportunity. Because the United States has long been in a process of resegregation, “[l] argely white suburban and exurban school districts ring central city school districts” that are composed almost entirely of minorities and provide far less educational opportunity. Thus, while legal segregation no longer exists, it has been replaced by a new world of inequality, a world that the Supreme Court regards as being entirely consistent with equal citizenship.
Marshall's vision of equal citizenship was broader and more inspired. He believed that all citizens are entitled to the dignity of full membership in society and the opportunity to realize their full potential as human beings. In Marshall's words:
[T] he goal of a true democracy such as ours, explained simply, is that any baby born in these United States, even if he is born to the blackest, most illiterate, most unprivileged Negro in Mississippi, is, merely by being born and drawing his first breath in this democracy, endowed with the exact same rights as a child born to a Rockefeller.
Of course it's not true. Of course it never will be true. But I challenge anybody to tell me that it isn't the type of goal we should try to get to as fast as we can. To Marshall, the equal citizenship principle represented a commitment, expressed primarily in the Equal Protection Clause of the Fourteenth Amendment but also permeating the entire post-Reconstruction Constitution, that every individual is entitled “to be treated by organized society as a respected, responsible, and participating member.” The equal citizenship principle involved equality of legal status, a relatively narrow concept, but it also required the repudiation of all inequalities that, like racial inequality, imposed the stigma of caste and thus belied the understanding that “people are of equal ultimate worth.” And, for Marshall, equal citizenship values extended to persons other than citizens. This was so both because the Equal Protection and Due Process Clauses spoke of “persons” and because the United States was a community in much more than a political sense, and aliens were members of that community. Because the chief target of the equal citizenship principle was the stigma of caste, the question in most equal protection cases was whether a particular governmental action reinforced such stigma and to what extent. If it did so only remotely or indirectly, the governmental interest justifying the action did not have to be as compelling as if the action involved the purposeful infliction of discriminatory harm. In either case, however, in Marshall's view, the government had to justify the action by providing persuasive reasons for it.
“[Marshall] developed a sophisticated conception of the Constitution as . . . powered by an engine of equality which led him to a holistic set of views on all aspects of the post-Reconstruction Constitution.” Among these views was Marshall's strong belief that the equal citizenship principle required government to provide reasons for its acts. “More than perhaps any other justice, Marshall insisted that government actions be supported by public reasons, to assure” that government acts in the interest of all citizens or, in other words, in “conformity with [its] obligation to promote the common . . . good.” Marshall “would not have articulated [[the equal citizenship principle] as requiring government to act in the common good. Rather, he would have said that the principle required that government have valid, non-discriminatory reasons for everything that it did.” Regardless of how the obligation of government was framed, Marshall believed that the constitutional guarantee of equality entitled people to know the reasons for government action. Conversely, he believed that requiring government to provide reasons for its actions promoted equality. As he put it, “the government may only act fairly and reasonably,” and therefore it “must say why [it acted] for it is only when the reasons underlying government action are known that citizens feel secure and protected against arbitrary . . . action.”
Marshall's belief in the necessity of reasons was at the heart of his disagreement with the Court as to how it should review governmental actions under the Equal Protection Clause. As discussed, after it decided Brown, the Court developed a so-called two-tier mode of review in which it strictly scrutinized suspect classifications and distinctions involving fundamental rights but allowed all other classifications and distinctions to be justified on almost any ground. Marshall came to see this approach as a means by which the Court avoided meaningful scrutiny of government decisions. Review of actions that did not involve what the Court had previously categorized as a fundamental right or suspect classification was overly deferential. Thus, a law that treated people unequally with respect to an important interest that the Court had not said was a fundamental right, such as access to education, or a law that burdened a group that the Court had not designated a suspect class--such as the poor--was almost always upheld.
Marshall persistently called for a different method of determining when the Equal Protection Clause was violated, one that would better effectuate the Clause's core purpose of promoting equality. His “realist point” was that describing interests as fundamental or not fundamental and classes as suspect or not suspect fails to capture important differences among nonfundamental interests and nonsuspect classes. He advocated a more finely tuned approach according to which the degree of judicial scrutiny would vary depending on the significance of the interest affected, the character of the classification at issue, and the nature of the asserted government interest in support of the classification. Marshall argued that his approach would enable the Court to develop a body of precedent that, unlike its rigid categories, would create “a ‘principled foundation for determining when more searching inquiry is to be invoked”’ in an equal protection case.
B. Marshall's Ideas Applied
1. Government Action Affecting Access to Education
Access to education was not considered by the Court to be a fundamental right. For Marshall, however, access to education was an important component of equal citizenship. This was so because “education directly affects the ability of a child to exercise his First Amendment rights, both as a source and as a receiver of information and ideas,” and because education enables individuals to participate in government and to overcome disadvantages. Milliken v. Bradley provides a good example of how Marshall's understanding of the equal citizenship principle, his more nuanced approach to equal protection analysis, and his belief in the importance of education led him to a different result than the Court's majority. Milliken dealt with the fact that, because of the movement of white families to the suburbs, desegregation could not succeed without interdistrict remedies. Nevertheless, the Supreme Court declined to permit federal courts to include suburban school districts in their desegregation plans. This decision largely brought school desegregation to an end.
In dissent, Marshall called the decision an “emasculation of our constitutional guarantee of equal protection” stating that “where, as here, state-imposed segregation has been demonstrated, it becomes the duty of the State to eliminate root and branch all vestiges of racial discrimination. Marshall's opinion expressed clearly his understanding of the equal citizenship principle. At issue was “the right of all of our children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens.” In Marshall's view, the State's refusal to extend desegregation to suburban school districts directly reinforced the stigma of caste without a compelling justification. As he saw it, the decision was based on nothing more than “a perceived public mood that we have gone far enough in enforcing the Constitution's guarantee of equal justice.”
2. Legislative Classifications Based on Wealth
The equal citizenship principle did not, in Marshall's view, require that capitalism be dismantled. On the other hand, it did require “judicial intervention when economic inequalities make it impossible for a person to have ‘a fully human existence’ and the political branches of government turn a blind eye” to that person's plight. Further, unlike the Court's majority, Marshall saw no reason why legislative classifications based on wealth should not be reviewable under the Equal Protection Clause. Strangely, the requirement of equal protection does not generally apply to the state's raising and spending money. It is as if the Court believes that government decisions that affect wealth distribution are unrelated to equality under the law. Marshall argued that some government decisions involving a classification based on wealth should be rigorously scrutinized and that his method of analyzing equal protection cases provided a reasoned basis for determining which ones. He noted that the Court had previously reviewed wealth classifications, as in Harper v. Virginia Board of Elections, in which it struck down a state poll tax on equal protection grounds, stating that “lines drawn on the basis of wealth or property, like those of race . . . are traditionally disfavored.”
Dandridge v. Williams provides an example of how Marshall determined whether a law that discriminated based on wealth violated the equality requirement. Dandridge involved a cap on welfare benefits that had the effect of penalizing beneficiaries based on the number of children they had. Hemmed in by its rigid equal protection analytic framework and not wishing to treat the poor as a suspect class, the Court upheld the law. The majority demanded almost no justification from the State despite the fact that the law denied many children a benefit that the State itself had found to be the minimum needed for their subsistence. In dissent, Marshall applied his less formulaic approach and concluded that the legislation punished poor children in large families, that the benefit was of great importance to these children, and that the State's reasons for the classification were meager. As Marshall saw it, Dandridge was a case involving a classification based on wealth that made it impossible for the children who were affected to live a fully human existence.
Sometimes, government action could offend the equal citizenship principle in more than one respect. One of Marshall's great dissents came in a case that involved both equal educational opportunity and the discriminatory expenditure of government funds, San Antonio School District v. Rodriguez. In Rodriguez, the Court upheld a school-financing system in Texas that resulted in significant disparities in per-pupil expenditures. The Court decided that the right to an equal public education was not fundamental and that poor students were not a suspect class. As a result, it applied a low level of scrutiny to Texas's policy and upheld it even though the State's justifications for it were so thin as to be virtually nonexistent.
Marshall's dissent illustrated his belief that in some cases, the Equal Protection Clause should extend to class-based as well as race-based discrimination. In his opinion, Marshall questioned how the judiciary in a democracy committed to equality could reach the result endorsed by the majority. He explained that the discriminatory expenditures at issue seriously impaired the ability of the disadvantaged to participate as effective members of society and insisted that more searching scrutiny was required because of the close connection between education and political participation, which is at the heart of citizenship. After citing statistics that showed that educational levels affect voter participation, he said, “[A] s the nexus between the specific constitutional guarantee and the nonconstitutional guarantee draws closer, the nonconstitutional interest becomes more fundamental.” The majority responded that Marshall's approach to equal protection would require the Court to create “substantive constitutional rights” and turn itself into a “super-legislature.” But by advocating a less constrained approach to equal protection analysis, Marshall sought only to enforce the rule that he believed the Fourteenth Amendment had established: that in the absence of a legitimate, public-regarding, and noninvidious reason, the government had to treat all citizens equally.
3. Distinctions Based on Ascriptive Characteristics Such as Disability, Gender, and Age
For Marshall, the equal citizenship principle did not automatically supply an answer to the questions raised in equal protection cases. Rather, it constituted a guide to the exercise of judgment, and Marshall was confident that courts could make such judgments without having to rely on rigid categories. He understood that unfair hierarchies could be maintained on many bases and looked askance when government treated some people differently from others. He was particularly skeptical of distinctions based on ascriptive characteristics such as disability, gender, and age because he understood that such distinctions were often based on stereotypes, served no useful purpose, and undermined the principle that people are ultimately of equal worth. Consider City of Cleburne v. Cleburne Living Center, Inc., which involved the denial of a permit for a group home for the mentally disabled. Although the denial was almost certainly motivated by distaste for close association with mentally disabled people, the City argued that an emergency evacuation would be difficult because of the nature of the residents' disabilities. The Court properly rejected this justification as weak and disingenuous. Marshall agreed with the result but not with the Court's refusal to subject statutes discriminating against people with mental disabilities to “searching scrutiny.” Marshall believed that, in the absence of a very good reason, people should be treated as equals and that the risks of evacuating people with and without mental disabilities were not different enough to justify the City's action.
Applying the same approach in Rostker v. Goldberg, Marshall dissented from a decision upholding a statute requiring men but not women to register for the draft. The majority's rationale was that the primary reason for a draft was to satisfy the military's need to fill combat positions and that women were disqualified by statute from doing so. Marshall objected to this “categorical” exclusion of women “from a fundamental civic obligation.” Relying on statements from members of the military that females could perform many jobs in the military as well as males, Marshall opined that there was no good reason for excluding women from registration and the draft. As he saw it, performance, not ascriptive characteristics, should be the basis for awarding social benefits and imposing civic obligations.
In Massachusetts Board of Retirement v. Murgia, in which the Court upheld a statute requiring state troopers to retire at fifty years old, Marshall expressed the same idea in the age discrimination context. The majority accepted the state's justification that the physical abilities of people decline with age, but Marshall stated that it was unreasonable to assume that a fifty-year-old trooper was not physically able to perform his duties. In his view the statute told “able-bodied police officers, ready and willing to work that they no longer have the right to earn a living in their chosen profession.”
4. Equal Citizenship in “Liberty” Cases
As previously mentioned, for Marshall, the constitutional guarantee of equality transcended the Equal Protection Clause. He believed that the equal citizenship principle contained in the Reconstruction Amendments infused the entire Constitution with a commitment to equality. As one of the great civil libertarians in the Court's history, he believed that constitutional liberties contained a strong equality component and that liberty and equality, properly understood, complemented each other. Guarantees of individual liberty promoted the equality of subordinated groups, as did guarantees of fair procedure.
The complementary nature of liberty and equality can be seen in Marshall's First Amendment jurisprudence. Marshall regarded expression as a means to self-realization and personal dignity. The First Amendment promoted these values both by protecting a speaker's right to express a view on any aspect of life and a listener's right to hear other people's views. The First Amendment also promoted equality and social justice because it afforded members of subordinated groups, whose voices are most likely to be suppressed, an opportunity to give voice to their concerns. On the Supreme Court, Marshall almost always voted with the free speech claimant, and his opinions in public forum, freedom of association, press, commercial speech, and obscenity cases bear witness to his determination to accord broad protection to expression. At the same time, he was highly attentive to the equality component of the First Amendment.
Take, for example, Clark v. Community for Creative Non-Violence, which involved a request to protest the plight of the homeless by creating a sleeping camp in Lafayette Park, across the street from the White House, and in other national parks. The problem that the protesters encountered was a regulation prohibiting sleeping in certain national parks. The Supreme Court displayed little tolerance for the protesters' First Amendment argument that in the context of a protest by the homeless, sleeping could be regarded as speech. The Court also held that the regulation satisfied the applicable First Amendment standard; namely, it was content neutral, advanced the substantial government interest of keeping the parks clean, was narrowly tailored, and left the demonstrators with adequate alternative methods of communication.
Marshall was dismayed both by the majority's attitude toward the plaintiffs and by its application of the First Amendment standard. He argued that while the government might have a substantial interest in keeping the parks clean, the majority failed to require that the government show how the demonstrators actually impaired that interest. In Marshall's view, the majority merely assumed that the ban on sleeping advanced the government's interest and satisfied the remaining elements of the standard. Marshall's own approach was much more speech protective. He insisted that the government produce evidence that the ban on sleeping advanced its substantial interest.
He also criticized the two-tier approach that the Court was developing in First Amendment cases whereby content-neutral regulations were subject to a lower level of scrutiny than content-based regulations. In his view, the content-neutral label could easily mask discrimination toward low-income protestors. For example, by characterizing the ban on sleeping as content neutral, the Court avoided having to consider whether the ban itself was motivated by hostility toward groups such as the homeless who might express themselves in this manner. The content-neutral label also enabled the Court to ignore that sleeping in the park was essential to the advocates' message. As in the equal protection context, Marshall criticized the Court's heavy reliance on rigid categories when engaging in constitutional analysis. To Marshall, such reliance prevented the Court from examining the possibility that the government accepted inequality and engaged in actions that entrenched it.
5. Equal Citizenship in Criminal Law
Marshall also expressed his egalitarianism in his criminal law opinions. His opposition to the death penalty was based on an equality concern, the fact that racial prejudice caused the death penalty to fall disproportionately on African Americans. And his insistence on procedural fairness was based in part on his sensitivity to the fact that outcomes in the criminal justice system are hugely affected by the defendant's resources. In his criminal law opinions, Marshall continually sought to narrow the gap between the ideal of justice and the reality of social inequality. Occasionally, he persuaded his colleagues but more often saw them turn away from reality to uphold police conduct. Florida v. Bostick is a good example.
Bostick arose out of the police practice of boarding interstate buses at intermediate stops in the hopes of finding a passenger who might be carrying drugs. The police boarded a bus, woke Bostick, a young black man, and although they had no reason to suspect him of unlawful activity, stood over him, blocked his exit, and asked for his identification and ticket. When he complied with their request, the police asked to search his bag. Bostick also complied with this request, and the police found cocaine in the bag. Bostick was charged with possession of drugs, but the Florida Supreme Court suppressed the cocaine, holding that the encounter between the police and Bostick was coercive. The Supreme Court reversed and remanded, stating that a reasonable person in Bostick's position could have felt free to terminate the encounter with the police.
In his dissent, Marshall pointed out the utter unreality and out-of-touch quality underlying the Court's holding that a reasonable person in Bostick's position would have felt free to refuse to answer the officers' questions. For Marshall, Bostick faced the Hobson's choice of cooperating or leaving the bus and possibly being stranded. As Marshall put it, it is exactly because this choice is no choice at all that police engage in this technique. Marshall also noted that passengers on interstate buses tend to be poor and members of minority groups and that, although the police purported to act randomly when approaching passengers, they conceded that they targeted young black males. As Marshall stated, “[T] he basis of the decision to single out particular passengers during a suspicionless sweep is less likely to be inarticulable than unspeakable.” In Marshall's view, the Court created a “reasonable person” standard that was totally fictional and that encouraged the police to exploit social inequality.
As the dissents discussed above indicate, not only did Marshall consistently insist on the importance of the equal citizenship requirement, he also strongly objected when other Justices avoided the equality issue by refusing to recognize the actual circumstances in which ordinary Americans lived. Marshall was a realist and a truth teller, and he was impatient with judging that failed to see the world as it is. He also displayed this quality in United States v. Kras, which involved a challenge by an unemployed, indigent, and seriously ill debtor to the fifty-dollar fee that was a condition of filing for bankruptcy. The Court rejected the challenge in part on the ground that the fee was not onerous. Dissenting, Marshall stated that constitutional interpretation should not “be premised upon unfounded assumptions about how people live.”
Marshall's dissents in Bostick and Kras make clear his sensitivity to the challenges that people with limited power and few resources face. He had the ability to put himself in others' shoes. Another word for this quality is empathy, and insofar as empathy is a characteristic of Marshall's jurisprudence, it is understandable why the word so riled up conservatives at the Sotomayor hearing. It is only a short distance from a capacity for empathy to a deep concern about inequality.
