Retail Jurisprudence:

The Judge as Entrepreneur in the Marketplace of Ideas

Cynthia L. Catest Wayne V. Mclntoshtt

he best test of truth is the power of the thought to get itself accepted in the competition of the market….

-Abrams v. United States, 250 U.S 616, 630 (1919)

(Holmes, J., dissenting).

INTRODUCTION

Oliver Wendell Holmes’ simple metaphor of a “marketplace of ideas” created the enduring image of ideological goods vying for supremacy in a democratic marketplace. As in perfect commercial competition, the public purchases the valuable concepts, rejects the ill-conceived, and demands constant cultivation of both. In this way, the free market yields valuable ideas and, ultimately, truth. According to Holmes, this metaphorical scenario embodies “the sweeping command” of the First Amendment.1

While Holmes’ Abrams dissent arguably represents both the most eloquent of judicial statements and the most succinct assertion of grand jurisprudence, it noticeably and rather ironically neglects a key element of the economic allegory it embraces-the role of the entrepreneur. The hapless revolutionary Jacob Abrams suggests the role an “idea entrepre neur” might play, and the risks he might incur. But the doctrine which Holmes propounds in a single very “impressive” paragraph concerns the interplay of markets, goods, and consumption. 2 Holmes’ summary train of discourse addresses the movement of ideas, rather than the movers. He

t Assistant Professor of Political Science, Towson

Endorsement as “Adoptive Action:”

A Suggested Definition of, and

an Argument for, Justice O’Connor’s Establishment Clause Test

By JOEL S. JACOBS*

Table of Contents

Introduction 30

Justice O’Connor’s Endorsement Test and the Coercion Test. 32

Justice O’Connor’s Endorsement Test 32

Endorsement as a Clarification of Lemon 35

The Coercion Test 37

Problems with O’Connor’s Formulation of

Endorsement 38

Problems with Focusing on Real People 38

Problems with Using the Objective Observer

Standard 40

Response to the Criticism 41

Endorsement as “Adoptive Action” 42

The Actor: Who Cannot Endorse? 43

The Subject-Matter of the Action: What Cannot Be Endorsed? 43

Relationship Between Actor and Subject-Matter:

What Is Endorsement? 48

Explicit Endorsement: Primarily Communicative

Acts 48

Acts That Are Not Primarily Communicative 51

Purpose Defined 52

Problems with the Purpose Prong 52

* Law Clerk, Honorable D. Lowell Jensen, United States District Court for the Northern District of California. J.D., Boalt Hall, 1993; B.A. Wesleyan University, 1989. Professor Jesse Choper was enormously helpful to me while I was writing this article. Rob ert Holland, Howard Shelanski, Professor Mervin Verbitt, Danny Cloherty, and the mem bers of the 1991 Boalt Hall Church and State Seminar also provided useful input.

[29]

The Relevance of the Purpose Prong 55

Determining Whether Primarily Uncommunicative Action is Adoptive 56

The Individual, Religion, and the State

COMMENT

FAILING HONORABLY: BALANCING TESTS, JUSTICE O’CONNOR AND FREE EXERCISE OF RELIGION

“Why aren’t you angry with me?”

“Because I understand you-all sides I think-Harriet, Signor Carella, even my mother.”

“You understand wonderfully. You are the only one of us who has a general view of the muddle So what are you going to do?” said Miss

Abbott.

Philip started, not so much at the words, but at the sudden change in her voice. “Do?” he echoed, rather dismayed…. “I dare say we may fail altogether, but we shall fail honourably ”

”That’s not doing anything!… To fail honourably! To come out of the thing as well as you can! Is that all you are after?”

“Why yes,” he stammered…. “What else is there?”…

“I do expect you to settle what is right and to follow that. Do you want the child to stop with his father, who loves him and will bring him up badly, or do you want him to come to Sawston, where no one loves him, but where he will be brought up well? There is the question put dispassionately….

Settle it. Settle which side you’ll fight on.” 1

INTRODUCTION

THE Supreme Court crafted a broad rule in Employment Division v. Smith2 that the Free Exercise Clause3 of the First Amendment does not

1. E. M. FORSTER, WHERE ANGELS FEAR TO TREAD 146-47 (First Vintage lnt’I Ed. 1992). 2. 494 U.S. 872 (1990).

Together with the Establishment Clause, the Free Exercise Clause states: “Congress shall make no law respecting an establishment of religion or prohibiting the free

A Not Quite Color-Blind Constitution: Racial Discrimination and Racial Preference in Justice O’Connor’s “Newest” Equal Protection Jurisprudence

JUSTIN SCHWARTZ*

Under the leadership of Justice O’Connor, the Supreme Court has fashioned a uniform standard for examining the constitutionality of racial classifications under the Equal Protection Clause. Though her standard is appropriately labeled as strict scrutiny for both invidious and benevolent classifications, it should not be understood as “strict in theory, fatal in fact” and it is not color-blind. Instead, Justice O’Co,uwr’s newest equal protection jurisprudence is “not quite color-blind.” The standard is consistently high and it demands that for a classification to be acceptable it must nonnall;y be confined to remedial aims and that the claims to a benevolent purpose must be genuine and justified.

INTRODUCTION

In a series of recent cases concerning racial preferences, the Supreme Court, largely under the leadership of Justice O’Connor, has articulated a new doctrine concerning the constitutionality of governmental racial classifications under the Equal Protection Clause of the Fourteenth Amendment.1 The Court has determined, after twenty five years of debate, that the most stringent standard of review (“strict scrutiny”) applies to all such classifications, even those intended to benefit rather than to burden historically disadvantaged minorities.2 This standard has been applied to racial preference programs in

* J.D.

A Tribute to Justice Sandra Day O’Connor From an International Perspective

Elizabeth F. Defeis*

Today, we are witnessing momentous upheavals all over the globe. Social, political and economic structures are questioned and rejected as nations struggle to replace discredited, antidemocratic systems with sys tems predicated on the rule of law. In Latin America, Africa, and na tions of the former Soviet bloc, new constitutions are debated and adopted, human rights are capturing the imagination of people every where, free and fair elections are the norm to be attained and a culture of consitutionalism is now developing. 1 The United States Constitution, with more than 200 years of continual existence, is the oldest surviving written constitution. As a result, it is one of the leading models that other nations look to as they seek to form a democratic society consonant with their own traditions and values.

This historic moment has attracted the attention and commitment of Justice Sandra Day O’Connor. Indeed, she has championed the essential elements of a democratic society endorsed by the international community and has become an eloquent spokesperson for, and teacher of, democratic values throughout the world. Justice O’Connor serves as an executive board member of the Central and East European Law Initiative of the American Bar Association (CEE Ll).2 One of CEELI’s goals is to foster a commitment to an economic and political culture that is based on the rule of law.3 The CEELI

A Decent Respect for Religious Liberty and Religious Equality: Justice O’Connor’s Interpretation of the Religion Clauses of the First Amendment

Alan Brownstein•

TABLE OF CONTENTS

I. INTRODUCTION 838

I THSUBSTANCE OF JUSTICE O’CONNOR’S INTERPRETATION OF THE

RELIGION CLAUSES 838

Free Exercise Doctrine 838

A Commitment to Religious Liberty 838

2. Balancing Religious Liberty Against State interests 840

Establishment Clause Doctrine 843

Endorsement and Religious Equality 843

The Meaning of Endorsement 845

The Scope of the Endorsement Standard 845

Neutral Observers and Social Constructs 847

Endorsements and the State Display of Religious

Symbols 851

Endorsements and Legislative Accommodations of

Religion 859

Endorsements and State Funding of Religious

Organizations 862

Beyond Endorsement-Using Free Speech and Equality Principles to inform the Meaning of the Establishment

Clause 865

THE FORM OF JUSTICE O’CONNOR’S INTERPRETATION OF THE RELIGION CLAUSES 868

Correlating Terms and Meanings 868

Standards and Balancing Tests 869

IVP.LACING JUSTICE 0′ CONNOR’S RELIGION CLAUSE JURISPRUDENCE IN

PERSPECTIVE 871

* Professor of Law, University of California, Davis; B.A., 1969, Antioch College; J.D. 1977, Harvard University. I would like to thank Vikram Amar and Fred Gedicks for reading drafts of this article and providing helpful criticism. I also wish to acknowledge the help I received from my research assistant, Benjamin Fite.

837

INTRODUCTION

Justice O’Connor’s

A COMMENT ON JUSTICE O’CONNOR’S QUEST FOR POWER AND ITS IMPACT ON AFRICAN AMERICAN WEALTH

JOAN TARPLEY*

INTRODUCTION 117

THEAFFIRMATIVEACTIONDECISIONS 120

Cases 122

Causes 127

African American Wealth 131

m. THEPoLmCIANATWORK 136

The Battles 136

Power Politics at Grass Roots Extremity 139

A Theoretical Analysis of O’Connor’s Quest/or Power 144

IV. CONCLUSION 147

INTRODUCTION

The distribution of wealth depends, not wholly, indeed, but largely, on a [society’s] institutions; and the character of [a society’s] institutions is detennined, not by immutable economic laws, but by the values, preferences, interests and ideals which rule at any moment in a given society.1

In general, African Americans didnot experience the “wealth effect” connected with the booming American economy of the 1990s.2 This Essay addresses the asset poverty of blacks in America and how the Supreme Court’s affirmative action decisions play a role in continuing that poverty. In particular, this Essay addresses how Justice Sandra Day O’Connor’s affirmative action opinions further institutionalize the “whiteness as property”3 character of America’s institutions. 0 ‘Connor is the subject of this Essay rather than one of the other conservatives on the Court because, as this Essay will demonstrate, she writes as a moderate voice so that she can be the Court’s point person on some of the “hot button” issues.

* Professor of Law, Mercer University, Walter F. George School of Law. B.A.,