Kavanaugh for Supreme Court? Rice v Cayetano Front and Center
From Education Week, July 20, 2018 (excerpt)
…Legal observers are also looking back nearly two decades ago, to a brief Kavanaugh co-wrote in a case about a racial classification in voting.
In 1999, Kavanaugh, then a lawyer in private practice, helped write a friend-of-the-court brief in a Supreme Court case about a classification based on ancestry adopted by the state of Hawaii for who could vote for the trustees of a state agency called the Office of Hawaiian Affairs.
The case of Rice v. Cayetano involved a constitutional challenge to a provision of the Hawaii Constitution that permitted only those citizens descended from people who inhabited the Hawaiian Islands in 1778 to vote for the trustees of the agency that administered benefits for that group (which included a subset viewed by the state as "native Hawaiians").
"This court's cases establish that the equal protection clause prohibits racial classification except when such classifications are necessary and narrowly tailored to serve a compelling government interest," said the brief filed by Kavanaugh in 1999 on behalf of the Center for Equal Opportunity and three other parties opposed to racial preferences.
"Outside of an immediate threat to life or limb, as in a prison race riot, a compelling government interest exists only when the government has imposed the racial classification as a remedy for past, identified discrimination in that jurisdiction and field (such as discrimination in the schools in a particular jurisdiction)," the brief said.
Kavanaugh, then a lawyer with the firm Kirkland & Ellis, was the counsel of record for the brief. But he had some distinguished help. Robert H. Bork, whose Supreme Court nomination under President Ronald Reagan went down to defeat in 1987, was one co-author. Another was Theodore W. Ullyot, then a young law firm associate of Kavanaugh's who later went on to serve as general counsel of Facebook.
And the fourth author was Roger Clegg of the Center for Equal Opportunity, a Washington policy organization that frequently expresses views against affirmative action.
"As for how much of this brief was Brett's work and how much was that of the other three authors, I do not recall," Clegg said in an interview. "I can say that this is a case where the Center for Equal Opportunity would have had substantial input. We're opposed to racial preferences in all areas."
The challengers in the Rice case were represented by Theodore B. Olson, a future U.S. solicitor general, while John G. Roberts Jr., the future U.S. chief justice, argued for the state in defense of its voting classification.
Another amicus brief came from the Kamehameha Schools, the prestigious private school established to serve children of Hawaiian descent, which feared the implications a ruling against the restrictive voting policy might have for its own admissions policy. (The school's policy was challenged on equal-protection grounds a few years later, but upheld by a federal appeals court.)
Citations in Later School Cases
In its 2000 decision in Rice, the high court held 7-2 that the state was using Hawaiian ancestry as "a proxy for race," and that allowing only the state's defined group of Hawaiians to vote in the trustee elections was an unconstitutional racial classification. Kennedy wrote the opinion for five members of the majority.
Language from Kennedy's majority opinion in Rice would find its way into some of the court's later decisions on race preferences in K-12 and higher education.
In 2007, in Parents Involved in Community Schools v. Seattle School District, the court invalidated two school districts' voluntary race-conscious student assignment plans. Roberts wrote a plurality opinion that said there were "undeniable" costs to racial classifications. He quoted from decision in the Hawaiian voting case he had lost as an advocate.
"As the court explained in Rice ... , 'one of the principal reasons race is treated as a forbidden classification is that it demeans the dignity and worth of a person to be judged by ancestry instead of by his or her own merit and essential qualities,'" Roberts wrote, quoting Kennedy's opinion in the Hawaii case.
In 2016, in Fisher v. University of Texas at Austin (Fisher II), in which the court upheld (in an opinion by Kennedy) the university's race-conscious admissions plan, Justice Samuel A. Alito Jr. wrote a vigorous dissent that quoted a passage from Kennedy's opinion in Rice: "Given our constitutional commitment to 'the doctrine of equality,' 'distinctions between citizens solely because of their ancestry are by their very nature odious to a free people.'"
The internal quotations in that passage are, as Kennedy acknowledged in his Rice opinion, from Hirabayashi v. United States, a 1943 decision which despite that lofty language upheld a curfew for people of Japanese ancestry living near designated military areas based on the wartime need to protect against espionage and sabotage. (The better-known decision in Korematsu v. United States, in 1944, upheld the internment of people of Japanese ancestry.)
Kennedy, when writing the opinion in Rice, probably did not need to rely on the briefs to find the "odious to a free people" passage from Hirabayashi. But both Olson, in the challengers' brief, and Kavanaugh and his co-authors, in the CEO brief, made sure to point it out to the court.
Clegg, who supports Kavanaugh's nomination, says the fact that Kavanaugh "was willing to write a brief with these arguments is a mark in his favor, but I don't know how much can be concluded about his own views" on racial preferences….
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