In the New York Times on May 20, 2021, there was a story about a government program to pay off early loans to black farmers, to compensate for past oppressive lending practices. Bankers were criticizing the program because early payoffs hurt bank profits. Some white farmers sued and won a TRO, the court finding that “Plaintiffs will suffer irreparable harm absent a temporary restraining order.” Faust v. Thomas J. Vilsack, 2021 WL 238232 (E.D. Wis. June 10, 2021).
It hit me that although decisions based on race are treated by the courts as being inherently evil if the harms bought by these acts are attempted to be cured, there are problems with giving a remedy. One has a right to be free of racism but there always seems to be a countervailing value that hinders relief for racism against minority groups. Sometimes it is as blatant as “We would lose money.”
There are many examples:
In Shelby County, Alabama v. Holder, 570 U.S. 529 (2013), the Supreme Court, led by Chief Justice Roberts, invalidated a provision of the Voting Rights Act that required certain southern states to get prior approval from the Attorney General or a three-judge panel before they could make any changes to voting laws.
In order to declare this provision invalid, Chief Justice Roberts created an equal protection right for states: “Over a hundred years ago, this Court explained that our Nation ‘was and is a union of States, equal in power, dignity and authority.’”
Here Chief Justice Roberts performs the paradigmatic formula. First, there is no question that racial discrimination is totally unlawful — “The Fifteenth Amendment commands that the right to vote shall not be denied or abridged on account of race or color, and it gives Congress the power to enforce that command.” But in the case at hand, there is a countervailing value that prevents the ban from being fully applied. The Amendment is not designed to punish for the past; its purpose is to ensure a better future … To serve that purpose, Congress—if it is to divide the States—must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions. It cannot rely simply on the past.”
Qualified immunity is another doctrine that protects from liability government officials who violate another’s civil rights. It was created in Pierson v. Ray, 386 US. 547 (1967), which involved fifteen ministers arrested for occupying a segregated waiting room.
Pearson v. Callahan, 555 U.S. 223 (2009), is the Supreme Court’s latest ruling on the required procedure for qualified immunity: “In Saucier, 533 U. S. 194, this Court mandated a two-step sequence for resolving government officials’ qualified immunity claims. First, a court must decide whether the facts that a plaintiff has alleged … make out a violation of a constitutional right … Second, if the plaintiff has satisfied this first step, the court must decide whether the right at issue was ‘clearly established’ at the time of the defendant’s alleged misconduct.” The Court ruled that the two-step procedure should no longer be mandatory.
Note that the plaintiff can only proceed to trial (where he may win or lose) if he can establish that the defendant violated a clearly established constitutional right. If the existence of the right is in any way questionable, the defendant is dismissed.
The first thing wrong with qualified immunity is that the Supreme Court made it up. Lawsuits versus state officials are normally brought under 42 U.S.C. Sec. 1983, but there is nothing in Sec.1983 giving immunity to state officials—its purpose was the opposite, to protect those injured by state action. The Court has redrafted the statute to protect state officials from having to stand trial.
It also can prevent reaching a decision on its prerequisite, whether or not a constitutional right is clearly established. A Catch-22—if there is no clearly established right, the defendant is dismissed, which prevents the claimed right from being established.
In Rucho v. Common Cause 139 S. Ct. 2484 (2019), the Court ruled the partisan gerrymandering political is not justiciable because it is a political question.
“The question here is whether there is an ‘appropriate role for the Federal Judiciary’ in remedying the problem of partisan gerrymandering—whether such claims are claims of legal right, resolvable according to legal principles, or political questions that must find their resolution elsewhere.
But the history is not irrelevant. The Framers were aware of electoral districting problems and considered what to do about them. They settled on a characteristic approach, assigning the issue to the state legislatures, expressly checked and balanced by the Federal Congress.”
Here, handing the problem over to the state legislatures or Congress is absurd. At present, Congress is deadlocked. The state legislatures are not the solution to the problem; legislators who have been elected due to gerrymandering are the problem.
Gerrymandering in 1789 was completely different than it is today. Computers today can precisely achieve partisan gerrymandering. Contrast Chief Justice Roberts’ finding that conditions had changed since the passage of the Voting Rights Act with “The Framers were aware of electoral districting problems and considered what to do about them.” Id. Whatever Chief Justice Roberts’ views are on history, he comes out with the same result: voters lose.
FEDERAL COMPLAINTS- THE PLAUSIBILITY STANDARD:
The Court changed the standard for federal complaints in Ashcroft v. Iqbal, 556 U.S. 662 (2009).
The pre-Iqbal standard was that dismissal was proper only when there is no set of facts on which the plaintiff would be entitled to relief. Iqbal, building on Bell Atlantic v. Twombly, 550 U.S. 544 (2007), set forth a standard of plausibility:
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ … A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
It is up to the judge to determine plausibility: “Determining whether a complaint states a plausible claim for relief will, as the Court of Appeals observed, be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.”
The Court ruled that the plaintiff had not pleaded a plausible claim and dismissed the case. The countervailing value in Iqbal isn’t immediately obvious. Iqbal does partially discuss the values that underlie qualified immunity. Plaintiff had argued that, rather than dismissing the case, the trial court should limit discovery, thus protecting the defendants to an extent. The Court rejected this proposal, stressing the importance that officials not be distracted by litigation.
What’s wrong with Iqbal?
It is hard to apply in practice. Lower courts have made inconsistent rulings:
“At the district and appellate levels, courts performing the conclusory analysis have taken irreconcilable positions on, for example, allegations that a defendant engaged in bribery, that a defendant exercised day-to-day control over workers or an enterprise, that prison officials deliberately denied inmates medical care, and that employers harbored discriminatory mindsets.” [Susan A. Provenzano, Can Speech Act Theory Save Notice Pleading?, 96? Ind. L.J. Cite(2020) ].
It can put plaintiffs in a Catch-22 situation. A plaintiff may not know facts that are in the defendant’s possession and thus is unable to plead them to escape a motion to dismiss, but if his case is dismissed, he can’t use discovery to find them.
The worst part is the enshrinement of the judge’s subjective assessment of plausibility. We all suffer from confirmation bias—we see what we want to believe and look for confirmation of our opinions. Giving free reign to judicial subjectivity empowers this tendency. Iqbal enshrines majority prejudices, greatly hindering relief for minorities.
Other instances could reign be mentioned. The Court has rewritten statutes, elevated and disregarded state rights, broadly interpreted free exercise of religion, and upheld arbitration, which limits minority rights
This dichotomy allows judges to have it both ways. They don’t see themselves as racist—there just happens to be (always) a countervailing value. When courts protect the majority interest, there does not seem to be a countervailing consideration. In the case discussed at the beginning, Faust v. Thomas J. Vilsack, there was no countervailing consideration that will rescue the aid to minority farmers. As stated by Jamie Lee Crofts in Wonkette, “It’s racist to remedy race discrimination.”
Given the reality, what should we do? The first step is to realize that the roulette wheel is rigged.
Allen R. Kamp, Professor Emeritus, John Marshall Law School, University of Illinois Chicago.
Suggested Citation: Allen R. Kamp, Relief for Racism—Can’t Get No (Satisfaction), JURIST – Academic Commentary, July 5th, 2021, https://www.jurist.org/commentary/2021/07/allen-kamp-racism-satisfaction/.
This article was prepared for publication by Vishwajeet Deshmukh. Please direct any questions or comments to her at email@example.com