Issue 1

Result or Reason: The Supreme Court and Sit-In Cases

How do Supreme Court justices decide controversial cases? Are the justices more interested in the result reached or the reason for reaching that result? The sit-in cases of the early 1960s present a case study of this important institutional and jurisprudential question. During the early 1960s, black college students entered segregated lunch counters and refused to leave upon the orders of the owners. Challenging this discrimination under the Equal Protection Clause, these protestors confronted the “state action requirement.” This requirement forbids only state action that violates equal protection rights, allowing individuals to be as intolerant as they please and setting up a conflict between “constitutional values of the highest order: liberty and equality.” Specifically, the liberty of individual business owners to engage in discrimination on their private property set against the right of black patrons to be served on terms equal to white customers.

The Supreme Court heard a series of cases involving the sit-ins during 1962 and 1963, overturning protestor convictions in every case yet avoiding resolution of the central constitutional question: Does the discrimination of private owners of businesses of public accommodation constitute state action? Scholars have always assumed (based on the Court’s obvious preference for overturning convictions) that the Court was prepared to find such private action to be state action, vindicating equality over liberty. Exploring internal Court documents, this Note rewrites this history and illuminates the concerns of the justices in rendering legal judgments within this morally and politically charged arena. Contrary to the conventional wisdom, a majority of the Court subscribed to a doctrinal position that dictated a narrow interpretation of the state action requirement, a position that vindicated the liberty interests of discriminating proprietors. Thus, the outcome of the sit-in controversy (overturned protestor convictions without a constitutional ruling) reflected a complicated, and often painful, balance between concrete results and the intellectual inclinations of the justices. Ultimately, three key justices compromised their intellectual inclinations in favor of their preferred result, ducked the constitutional question with its broad potential effects on individual rights, and left final resolution of the controversy to Congress in the 1964 Civil Rights Act; thereby implying underlying institutional and intellectual limitations on the Court.

Confronting Reality: Surrogate Forensic Science Witnesses Under the Confrontation Clause

In 2009, the Supreme Court in Melendez-Diaz v. Massachusetts, interpreted the Confrontation Clause to require forensic analysts to testify in court before a forensic analyst’s report can be admitted into evidence against a criminal defendant. Ever since, law enforcement groups, lower federal courts, state supreme courts, and commentators have been asking the same question: Who can fulfill the role of the testifying analyst? Put more specifically, would allowing a “surrogate witness” like a laboratory supervisor or a single member of a team of forensic analysts satisfy the Confrontation Clause? It is an issue that is currently before the Court, thanks to a petition for a writ of certiorari filed on behalf of Richard Pendergrass, who is seeking review of a decision of the Indiana Supreme Court permitting the use of surrogate witnesses.

This note seeks to answer this question by tracking the ongoing debate between originalist interpretation and policy in the context of the Confrontation Clause. It argues that given the role policy has played in the analogous right to counsel context, the continuing debate over the reliability of forensic science, and the pressure from law enforcement groups who suggest surrogate witnesses are a necessary tool to mitigate the impact of Melendez-Diaz, policy arguments will need to be addressed, and may even prove decisive in the battle over surrogate witnesses. Finally, this paper proposes a compromise approach, where the Court could allow surrogate witnesses who have direct contact with the testing process as part of the laboratory’s standard procedure.

Will Employers Undermine Health Care Reform by Dumping Sick Employees?

This Article argues that federal health care reform may induce employers to redesign their health plans to encourage high-risk employees to opt out of employer-provided coverage and instead acquire coverage on the individual market. It shows that such a strategy can reduce employer health care expenditures without substantially harming either high-risk or low-risk employees. Although largely overlooked in public policy debates, employer dumping of high-risk employees may threaten the sustainability of health care reform. In particular, it potentially exposes individual insurance markets and insurance exchanges to adverse selection caused by the entrance of a disproportionately high-risk segment of the population. This risk, in turn, threatens to indirectly increase the cost to the federal government of subsidizing coverage for qualified individuals and to exempt more individuals from complying with the so-called individual mandate. The Article concludes by offering several potential solutions to the threat of employer dumping of high-risk employees.

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