Senator Spivey, thank you for providing this opportunity to share with the committee thoughts on two recent decisions of the Supreme Court of the United States. The questions posed concern whether or not there is a right to abortion, and whether or not colleges and universities may allow for consideration of race in making admission decisions. 

Senator, due to the number of questions which your fellow committee members have requested that I address, and the period of time allocated to this response, allow me to discuss the use of race in public college admissions in light of the Fourteenth Amendment leaving aside the issue of private colleges and universities. 

A

The second Supreme Court decision mentioned in your question, that regarding the use of race in college admissions is determined by the Fourteenth Amendment to the Constitution which states: “No State shall …; nor deny to any person within its jurisdiction the equal protection of the laws.”  

One might read the Equal Protection Clause of the Fourteenth Amendment, cited above, as requiring that all persons be treated equally, without exception by the government.  This is not the case.  Prosecutorial discretion allows, within the scope of the Equal Protection Clause, disparate treatment of individuals.  An example is plea deals, agreements in which an indicted person receives favorable (unequal) treatment in exchange aiding in the prosecution of others indicted for the same breach of the laws. Similarly, the Equal Protection Clause does not require that benefits are provided equally to all individuals.  The Equal Protection Clause does not provide the individual a basis for claiming that a benefit received by another individual, or by a class of individuals, be provided to him as well. The government may require individuals to meet specific requirements in order to receive a particular benefit. Among the benefits accorded to some individuals and not others are: social security benefits (forty quarters of employment, age, certain occupations excluded); additional federal tax exemptions (sixty-five years, or more, of age); and veterans benefits (honorably discharged from the armed forces of the United States). In each case, an individual must meet certain criteria to receive the benefit.  That the individual might be prevented, through no fault of their own, for example, through disability or early mortality, from being able to qualify does not violate the Equal Protection Clause. 

The Equal Protection Clause does prohibit disparate treatment of similarly situated classes of individuals, provided that the classes are similar in “significant respects.” Individuals waiting to be seated at a restaurant need be treated similarly; however, the number of individuals in a group waiting to be seated, as a group, differentiates between groups of patrons in “significant respects” Lizardo v. Denny's, Inc., 270 F.3d 94, 101 (2d Cir. 2001).  Restaurants may seat such groups according to availability of seating, including seating a smaller, later arriving group, ahead of a larger, earlier arriving group, irrespective of the larger group containing, in part or in the entirety, individuals of a protected class, such as race or sex. 

The population of students applying for admission to colleges and universities contains within the whole a number of  classes protected under the Equal Protection Clause of the Fourteenth Amendment including those of race and sex.  The recent decision of the Supreme Court requires that the these students receive equal protection under the law.

Discrimination based upon membership in a protected class offends the Equal Protection Clause of the Fourteenth Amendment. “College admissions are zero-sum. A benefit provided to some applicants but not to others necessarily advantages the former group at the expense of the latter.” SFFA v. Harvard,  600 U. S. ____ (2023) (slip op., at 27)    Prohibition of discrimination against individuals of a protected class has a long history in our law. Brown v. Board of Education, 344 U.S. 141, (1952)  While the Court allowed race-based admissions programs, it did so with the requirement “[a]t some point, the Court held, they must end.  SFFA at 21 (quoting Grutter v. Bollinger, 539 U. S., at 342). The recent decision of the Supreme Court determines that the time for such allowances has past, that “[e]nshrining a permanent justification for racial preferences would offend this fundamental equal protection principle.” 

Consequently, the Court has determined that the time has come to end race-based admissions programs in conformance with the Fourteenth Amendment.

B

Regarding the right to abortion, the first decision mentioned in your question, concerns a right not found, explicitly, in the text of the Constitution or the amendments thereto. There is a rich and fertile field of constitutional interpretation regarding rights not found, explicitly, in the text. Indeed, this area of the law has become a distinct area of study with an extensive literature. Many of the rights that we hold to be self-evident are not enumerated in the Constitution. Among these rights, to name but a few, are: to travel within the United States (Shapiro v. Thompson, 394 U.S. 618 (1969)); to choose and follow a profession (Allgeyer v. Louisiana, 165 U.S. 578 (1897)); and to marry the person of one's choice (Loving v. Virginia, 388 U.S. 1 (1967)). Numerous others could be listed.  Time does not permit a full enumeration; indeed the impossibility of a full enumeration was recognized by the Framers. Whether or not to include a partial enumeration, with the danger that some might contend that the partial enumeration is a full enumeration, constituted a significant point of debate between the Federalists and the Anti-Federalists.  That debate determined the outcome of the ratification convention in Virginia, thought be the participants to be the final vote required for adoption of the Constitution and so, determinative of ratification.

Each of the rights indicated above, among numerous others, are deeply embedded in the history and tradition of our nation. When the text does not explicitly provide an answer, one method used by is Court to resolve the matter is to turn to our nation's history and tradition. History and tradition may be expressed in six distinct forms: traditional conduct (marriage); non-traditional conduct (non-Christian religions); traditional conduct later determined a constitutional right (Allgeyer); non-traditional conduct later determined constitutional right (Lukumi v. Babalu); traditional conduct later prohibited (coverture, Brown, Engle v. Vitale);  and non-traditional conduct later prohibited (Reynolds v. United States).

Given that neither a right to privacy nor abortion is protected explicitly in the Constitution, the Court may look to history and tradition to determine how to address the matter, perhaps based upon the six forms or categories enumerated above. The Court, having reviewed certain legal texts and common law cases either side of  the Revolution and either side of the Atlantic, initially determined that abortion falls into the “non-traditional conduct” category. When the people, acting through the state legislatures, enacted statutes to address the matter of the abortion, the decision was to outlaw the practice. “[B]y 1868, a supermajority of States (at least 26 of 37) had enacted statutes criminalizing abortion at all stages of pregnancy ….” Dobbs v. Jackson Women's Health Organization, 97 U. S. ____ (2022) at 35.  The state laws of the nineteenth century were not anomalous;  “[b]y the end of the 1950's, a large majority of the jurisdictions banned abortion, however and whenever performed, unless done to save or preserve the life of the mother.” Roe v. Wade, 410 U. S., at 139.   Thereby, the Court determined that abortion is not a constitutionally protected right, but rather a “non-traditional conduct later prohibited”.

Thus, the Court, has embraced history and tradition as a mode of constitutional interpretation when the text is non-determinative.  Alfred Kelly provides an examples of the Court using history from the earliest days of the republic by Chief Justice John Marshall in Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816) and Calder v. Bull, 3 U.S. (3 Dall.) 386 (1798). (Kelly, Clio and the Court, 1965 at 119, and 122)

Because the right does not appear in our reading of the text, the Court turns to history and tradition: “As we have explained, procuring an abortion is not a fundamental constitutional right because such a right has no basis in the Constitution’s text or in our Nation’s history.” Dobbs, 597 U.S., at 77.

C

From this brief overview of some thoughts on the two recent decisions mentioned in your question, Senator Spivey, may I suggest that the Court does not confine itself to a single method of constitutional interpretation coercing all cases in a procrustean bed ill-suited to the populous, diverse, complex people that we have become.  Initially, the Court looks to the text of our Constitution. At times, the answer is plain, that one “who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States” is ineligible to serve as a senator. Do these requirements apply at the time of election or upon taking the oath of office? The text is not explicit. Other sections of the text require further consideration, such as the relationship between the Free Exercise and Establishment Clauses.  Yet more consideration is required when considering the Ninth Amendment and the Privileges and Immunities Clauses.

One might reconcile the methodology of these two cases thusly:  in the second case, SFFA v. Harvard, the text of the Fourteenth Amendment provides the answer, even if that amendment allows a less stringent application for a limited duration, while the first case, Dobbs v. Jackson Women's Health Organization, cannot be addressed through a reading of the text alone. In that latter case, the Court chooses to widen its gaze to comprehend a broader field, one encompassing the history and tradition of the nation as reflected in those laws enacted by the people's representatives.

*	*	*

John Adams famously called a our republic “a government of laws, not of men”  echoing James Harrington: “And as a commonwealth is a government of laws and not of men, so is this the principality of the virtue and not of the man.” Under our system of government, the Supreme Court determines the meaning of the Constitution, thus my own views on these matters, accord with those of the Court.  

Given the salience of these questions, the ongoing litigation (Cox v. State of Texas, Zurawski v. State of Texas and Coalition for  v. Fairfax County School Board) which may come before the Court, it would not be congruent with the ethics of our profession nor the structure of our government to elaborate further on these cases at this time.