Wednesday, November 10, 2004

Cards on Minorities and the Courts

Some Cards on minority access to the courts I've found interesting.

William Brennan, Plurality Opinion Fronteiro v. Richardson 411 US 677 at 684-686 and n.17 (1973)
"There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which, in practical effect, put women, not on a pedestal, but in a cage...As a result of notions such as these, our statute books gradually became laden with gross, stereotyped distinctions between the sexes and, indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names, and married women traditionally were denied the legal capacity to hold or convey property or to serve as legal guardians of their own children...It can hardly be doubted that, in part because of the high visibility of the sex characteristic, women still face pervasive, although at times more subtle, discrimination in our educational institutions, in the job market and, perhaps most conspicuously, in the political arena...It is true, of course, that when viewed in the abstract, women do not constitute a small and powerless minority. Nevertheless, in part because of past discrimination, women are vastly underrepresented in this Nation's decisionmaking councils...this underrepresentation is present throughout all levels of our State and Federal Government"

Jack Balkin, Professor of Law at Yale University. "WHAT BROWN TEACHES US ABOUT CONSTITUTIONAL THEORY." Virginia Law Review Vol. 90, No. 6, October 2004. Pg. 1531-1577
"Law students are usually taught that it is the job of courts to pro-tect what United States v. Carolene Products [304 US 144, 152, n.4, (1938)] called 'discrete and insular minorities.' These are groups that have suffered a long history of discrimination, are relatively politically powerless, and are unable to protect themselves in the political process. This portrait is quite misleading. In general, courts will protect minorities only after minorities have shown a fair degree of clout in the political process. If they are truly politically powerless, courts may not even recognize their grievances; and if they have just enough influence to get on the political radar screen, courts will usually dismiss their claims with a wave of the hand. Conversely, as a reform movement for minority rights gains prominence through political protest and legislative lobbying, courts will increasingly pay attention to minority rights and take their claims more seriously." (1551-1552)

Jack Balkin, Professor of Law at Yale University. "The Constitution of Status", 106 Yale L.J. 2313, 2340 (1997)
"[L]egal elites...usually respond to ‘disadvantaged’ groups only after a social movement has demanded a response. Ironically then, a status group must display some degree of political power—whether at the ballot box or in the streets—before it can be considered ‘politically powerless’ and hence deserving of legal protection...[G]roups that are truly politically powerless usually do not even appear on the radar screen of legal decisionmakers—including courts—because the status hierarchy is so robust that few in power even notice that there is a problem."

This one's just funny:
Jack Balkin, Professor of Law at Yale University. "WHAT BROWN TEACHES US ABOUT CONSTITUTIONAL THEORY." Virginia Law Review Vol. 90, No. 6, October 2004. Pg. 1531-1577
"Judges are sort of like place kickers in football. Most place kickers are pretty bad at making an open-field tackle to stop a speedy running back returning a kickoff. But place kickers can help pile on after the other players have tackled or slowed down a runner. That is sometimes how I imagine courts and their relationship to social change: They see the running back lying on the ground, groaning under the weight of a huge pile of linebackers. The judges say to themselves, 'It’s time for us to do some justice!' and they throw themselves on the pile." (1549)

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