The Boston Globe described it as “tyranny of the majority.” Media Matters accused the Supreme Court of overturning longstanding precedent on civil rights law. And MSNBC accused the high court of refusing to acknowledge the existence of racism. This outpouring of anguish was occasioned by the Supreme Court’s 6-2 decision to uphold Michigan’s ban on affirmative action.

In reality, the court issued a very narrow ruling that affirmed past precedent while upholding Michigan’s ban. The Sixth Circuit Court based their decision on an obscure legal precedent known as “political process doctrine.” Two of the six justices, Clarence Thomas and Anthony Scalia, signed a concurring opinion arguing that the decisions establishing process doctrine should be overturned; the other four justices in the majority did not.

In 1967, Nellie Hunter sued the city of Akron after a real estate agent had refused to show her a number of houses on account of her race. The city council had passed a fair housing ordinance banning discrimination on account of race, but a charter amendment passed by referendum superseded the ordinance. The charter amendment required that any fair housing ordinance had to be approved by a majority of voters, effectively voiding the existing ordinance.

In Hunter v. Erickson, the court ruled that the voters had violated the equal protection clause by deliberately reordering the political process to make it harder for minorities to achieve beneficial legislation. By imposing the additional requirement of enacting a referendum, the voters had created a special burden for minorities.

The controlling opinion, written by Anthony Kennedy and signed by John Roberts and Samuel Alito, did not reject this reasoning; rather, they argued that the reasoning did not apply in Schuette v. BAMN. In Hunter v. Erickson, (along with Reitman v. Mulkey, and Seattle Schools), the voters had reordered the political process to protect discriminatory behavior. The majority seemed to interpret the phrase “beneficial legislation” as legislation designed to protect minorities from discrimination, which in the original cases it was.

However one wishes to characterize the opinion, it cannot be characterized as “results oriented.” For one, Arizona’s infamous “right to discriminate” bill would almost certainly have failed under the standard established by the Robert’s court. Still, judicial conservatives ought to be cautious about embracing this decision. It leaves process doctrine in place, and process doctrine in any form is antithetical to democracy.

The Warren Era

It would be impossible to understand process doctrine outside the historic context from which it emerged. Prior to the arrival of chief justice Earl Warren, the Supreme Court had been extremely reluctant to defend civil rights, particularly the rights of unpopular people such as racial minorities, subversives, and criminal defendants. The court adhered to the philosophy of Justice Felix Frankfurter, that the only way to retain their authority was to exercise restraint and deference to the legislative branch. There was also a legal dispute over whether the Bill of Rights applied to the states, or only the federal government.

The court had been extremely reluctant to protect the rights of African Americans, particularly in the South. To avoid antagonizing the Southern states the courts had taken an extremely narrow view of the 14th and 15th Amendments, allowing the south to effectively disenfranchise most African Americans without explicitly doing so. Legislators proved extremely clever at constructing laws that did not explicitly mention race, but effectively discriminated against blacks.

The presence of Earl Warren, along with a series of retirements, finally led the court to become more aggressive in protecting the rights of African Americans. But these efforts were met by massive resistance, legal and otherwise. In the case of Brown v. Board of Education, segregationists made every effort to nullify Brown, forcing the court to repeatedly revisit the issue of segregated schools.

Given this background, it is easy to understand how the Warren court could become results oriented, and go too far in trying to provide justice. It is also easy to see how the court might come to view legislation like Akron’s referendum as just another clever effort to bypass civil rights law. Unfortunately, where the court has attempted to “fill in the gaps” of our constitution they have almost always burdened us with bad law, and process doctrine is bad law.

The Problem of Process Doctrine

All judicial rulings are by definition normative. Even if all legal questions had definite answers, the decision to faithfully follow the law can only be based on a belief that one ought to follow the law. In practice, legal questions often lack a clear-cut answer, and the law frequently grants judges broad discretion to determine the meaning of a law. For example, our Constitution does not stipulate what constitutes cruel and unusual punishment, which, in effect, leaves it up to the discretion of judges.

While judges are not, and never will be, umpires calling balls and strikes, what sort of judge serves a liberal democracy? A judge who believes in democracy would show appropriate deference to the legislative branch and take into consideration the intent of the lawmakers. But a commitment to democracy is not enough; a judge also needs to believe in the rule of law. In the realm of contracts we attempt to clearly stipulate the obligations of the parties so as to eliminate as much ambiguity as possible. A judge has to hold legislators to the clear meaning of the text, even when the text implies things they didn’t intend for. Only by forcing legislators to clearly express themselves can both democracy and the rule of law flourish.

Would a judge who believed in democracy and the rule of law create process doctrine out of the equal protection clause? Process doctrine, even in narrow form, recognizes a special right held by minorities and only minorities. Under process doctrine, minorities are protected from otherwise constitutional laws, if those laws involve a reordering of the political process. The Fourteenth Amendment provides no textual support for this doctrine, mandating only equality before the law. More importantly, process doctrine is itself blatantly anti-democratic, cutting the majority off from the political process and disregarding their legitimate interests. Paradoxically, the anti-democratic nature of process doctrine is itselfa violation of the equal protection clause.

Hunter v. Erickson did not hold that housing discrimination was unconstitutional, nor that the repeal of the city council’s fair housing ordinance violated the constitution. Rather, the court found that the reordering of the political process made it more difficult for minorities to achieve beneficial legislation. The Roberts court seems to interpret “beneficial legislation” as legislation barring discrimination, something that the lower court explicitly disagreed with. Even under this narrow definition of “beneficial legislation” the law grants a special protection to minorities and only minorities. Only minorities enjoy protection from otherwise lawful legislation under process doctrine; indeed, Hunter v. Erickson specifically states that majorities have no need of protection.

Defenders of process doctrine cannot point to anything within the equal protection clause that suggests such a unique and special right for minorities to be protected from otherwise lawful ordinances.

“Section 1 - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Only a tendentious reading of the above could yield process doctrine, the text itself provides no basis for such a doctrine.

Process doctrine is also wildly undemocratic; Hunter v. Erickson assumes that the majority has no reasonable concerns about the content of a fair housing ordinance. But a citizen could object to such an ordinance for all sorts of reasons aside from a desire to protect the right to discriminate. Process doctrine seems to say that the majority has no legitimate interests that must be taken into consideration within the democratic process.

Some people believe hiring practices which bar convicted felons from becoming police officers are discriminatory. Assuming a legislative body agreed with this determination, would it be wrong for a majority of voters to overturn this determination through referendum? Even a narrow reading of process doctrine would allow a judge to find that such a decision was unconstitutional.  Process doctrine inevitably creates a system where the legitimate interests of the majority are ignored.

Denying the majority the ability to have input on certain types of decisions is itself a violation of the equal protection clause, and a distortion of the political process. If process doctrine had been passed by Congress, it would likely have been overturned as a violation of the equal protection clause. To paraphrase Justice Scalia, from a different context, “we have entered the legal twilight zone.”

In his dissent from Hunter v. Erickson, Hugo Black wrote, “In this Government, which we boast is ‘of the people, by the people, and for the people,’ conditioning the enactment of a law on a majority vote of the people condemns that law as unconstitutional in the eyes of the Court!” It is time that we recognize the wisdom of those words written so many years ago.