Schuette and the executive branch’s function in constitutional litigation

John Neiman is Solicitor General for the State of Alabama, which joined Arizona’s amicus brief supporting the petitioners in Schuette. The views expressed in this post are his own.

Most of the headlines about Schuette focus on the fundamental questions it presents about democracy and affirmative action. But the case also raises, in a way that could easily slip under the radar, important questions about the role executive officials play in constitutional litigation. A substantial debate arose over this issue last Term, and Schuette may demonstrate that this debate is going to continue for some time.

Everyone agrees that when someone challenges the constitutionality of a government’s laws, the executive branch of that government, typically through its attorney general, generally has a duty to defend those laws. Everyone also agrees that there are exceptions to that rule. The debate that has now arisen concerns precisely what those exceptions are.

The more traditional view holds that as a general matter, AGs must defend these laws even when they might acknowledge, in their heart of hearts, that there is a substantial chance that the courts eventually will strike them down. Under this view of things, the dispositive factor is not whether the AG personally believes a law to be constitutional. Instead, the dispositive factor is whether the AG can offer a reasonable argument that the law ought to be sustained. As long as the answer is yes, then this theory says that the AG should serve as the advocate for the law, urging judges that it is should be allowed to stand. This theory views the relationship between AGs and their governments as largely equivalent to the relationship between private attorneys and their clients. It is simply the AG’s job, under this way of thinking, to give the government’s laws a zealous defense in the courts.

Michigan has chosen to defend the law at issue in Schuette, and that choice was consistent with the traditional view of what the executive branch does. The law in Schuette is a state constitutional amendment that bars the use of racial preferences in public-university admissions. Michigan adopted this amendment in 2006, a decade after California ratified a virtually identical amendment to its own constitution. In 1997, the U.S. Court of Appeals for the Ninth Circuit had upheld California’s amendment against the same constitutional challenge the plaintiffs would later bring against Michigan. And the Ninth Circuit had offered principled reasons for doing so. That court’s opinion, standing alone, could have been reason enough for Michigan’s executive branch to conclude that it had a duty to defend this law in court.

Schuette thus took an interesting turn last Friday, when California filed an amicus brief asking the Court to declare Michigan’s law unconstitutional. California, joined by five other states and the District of Columbia, is now effectively arguing that the Ninth Circuit was wrong. The brief doesn’t explain precisely why California has changed its position. But it notes that California’s amendment is virtually identical to Michigan’s, and it all but acknowledges that if the Court strikes down Michigan’s law, the same fate will befall California’s law as well.

The same-sex marriage cases last Term gave rise to a similar dynamic. The executive branches for two governments in those cases – the United States’ and California’s – asked the Court to invalidate their governments’ laws in that context as well. But California may be taking things to a new level in Schuette. When the same-sex marriage cases arrived at the Court, the lower courts had agreed that those laws could not be sustained. The Ninth Circuit, by contrast, has upheld the California amendment that Schuette implicates. So California doesn’t just have a reasonable argument that this amendment should continue to stand. It has a binding appellate decision that holds this argument to be correct.

These developments suggest an alternative theory about when executive officials should defend their governments’ laws – one that clearly played a role in the same-sex marriage cases, and one that may now be playing a role in Schuette. Under this theory, a reasonable argument for the law may not, by itself, be enough. The dispositive factor may instead be whether the executive branch can conclude, in its own judgment, that the law is constitutional. The executive branch, under this theory, might consider that question at the outset of the case. Once that has happened, then the executive branch might approach the law’s defense – or its non-defense – in a manner consistent with that initial determination. The United States openly operated under this theory in the same-sex marriage cases, and it may explain what California is doing in Schuette, too.

There was plenty of debate during the same-sex marriage cases about which of these theories makes for better government; I’m not going to summarize all those arguments or take a particular side in that debate here. The mere fact that this dynamic may have reemerged in Schuette is, for present purposes, noteworthy enough. Many people assumed that these happenings in the same-sex marriage cases were attributable to the once-in-a-lifetime nature of the issues presented there. But if Schuette is any indication, we may be seeing governments take a similar approach in a variety of contexts. And if that happens, it could mark substantial changes in both the way we think about constitutional litigation and the way our constitutional system works.

[Disclosure:  Kevin Russell of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents inSchuette.  However, the author of this post (like all of the contributors to this online symposium) is not affiliated with the law firm.]