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Excerpted From: W. Kerrel Murray, Discriminatory Taint, 135 Harvard Law Review 1190 (March 2022) (442 Footnotes) (Full Document)

KerrelMurrayIf the federal government implements a facially neutral, country-targeted travel ban, does it matter that it closely follows, and invokes the same justifications, as two similar bans, both enjoined on Establishment Clause grounds? What if Louisiana invokes neutral reasons for reaffirming a law permitting nonunanimous jury verdicts, seventy-six years after adopting it for racist reasons? Or if Texas's redistricting maps draw partly on older maps that a court concluded were unconstitutional? Or if a city closes pools, ostensibly for safety and cost reasons, but only after a court enjoined their segregated operation? Assuming it does matter, how much, and for how long?

Judging from the majority and separate opinions in these (and other cases, the Supreme Court's answer resembles a shrug. Of course, as conventional antidiscrimination doctrine recognizes, the past can matter. Throughout the federal judiciary, however, that general recognition has not generated consistency in cases posing what we might call the “discriminatory predecessor” problem, i.e., where an older policy can credibly be called the progenitor of a contemporary policy actually under review.

These diverse recurrences reveal practical importance. The varied approaches reveal theoretical importance. Despite deploying the mens rea--inflected language of “intent,” courts in constitutional antidiscrimination cases necessarily infer wrongful discrimination from the circumstances. We seem to intuit that discriminatory predecessors might be unusually relevant--but past that intuition, we splinter.

The theoretical muddle may stem from the tricky questions relating to just how powerful evidence of discriminatory predecessors should be. If the key is the permissibility of contemporary action at Time 2 (T2), surely some earlier (Time 1/T1) action “cannot, in the manner of original sin, condemn government action that is not itself unlawful.” Or take the very idea of a “predecessor.” Naturally, “the world is not made brand new every morning,” and some past events connect causally to some present events. But, formally, new policies are just that: new. As such, they may have new facially legitimate justifications, or deviate in form from their ostensible predecessors. Indeed, at least sometimes defendants might challenge the predecessors' wrongfulness and insist that this contestability renders their character uninformative to the present substantive question. Safer, perhaps, to say only that history broadly matters as context that might aid an all-things-considered analysis of T2 policies, which must stand and fall on their own merits.

Greater illumination is possible. Start with pretext. Those who disagree on the frequency of wrongful discrimination should nevertheless agree that wrongdoers should not be able to continue acting with unreconstructed unconstitutional aims. But policy change over time can cloak precisely that behavior, especially when we often must infer a policy's illegitimacy from a context that bad faith actors can manipulate. We can thus gain much from better understanding temporal pretext. This Article accordingly describes a type of relationship distinguished by the formal and functional continuity of temporally separated policies. At minimum, this contribution richens our account of how change over time affects pretext-based claims.

But taking constitutional continuity seriously can tell us more. Once comprehendible, these relationships do more than just suggest pretext. The persistence of an older policy's operative core can manifest a “discriminatory taint” that alone should impugn an otherwise facially legitimate policy. Understanding what taint is and how to find it advances antidiscrimination discourse in multiple areas. It can help courts navigate what taint means for adjudication (for example, whether and when they should deem taint purged and how to proceed when it is not), guide nonjudicial decisionmaking (for example, choosing how to act and justifying said choices), and inform scholarly understanding of wrongful discrimination (both over time and as a generalizable phenomenon).

In pursuit of the foregoing, this Article makes three contributions.

First, this Article opened with diverse examples to emphasize the wide-ranging need for careful thought about the relevance of time and change in this context. To be sure, the broad idea that problematic history could affect present-day analysis is not new. Nor are more specific considerations of a discrete past policy's possible relevance to an arguable descendant's constitutional meaning. In the October 2019 Term alone, dueling opinions in a redistricting case invoked “taint” explicitly, and multiple other cases grappled with the concept under other names. Commentators, too, have noted the potential thorny issues the T1/T2 pattern can raise, but almost invariably in passing.

This Article probes deeper. The passing commentary has spent little time on details like whether taint requires perfect identity, and, if not, how to determine which differences preclude it. Courts forced to address the issue without reliable theoretical frameworks have done so in inconsistent and undeveloped ways. This Article aims to flesh out the taint concept as a detectable type of relationship between an earlier policy and a later policy. I accordingly offer a framework that looks first to the earlier policy's operation and next to markers of material continuity in the subsequent policy. In so doing, I draw on and build upon diverse areas in which continuity over time shapes assignments of legal responsibility, including mootness law and criminal law, constructing my proposal for constitutional responsibility as a species of institutional temporal realism. A tainted relationship embodies a historical fact that is uniquely relevant to any T2 inquiry--so relevant, in fact, that it justifies treating the T2 policy with increased skepticism.

Delineating taint's contours generates the Article's second contribution. Taint can aid searches for present-day bad intent, but its implications for longstanding debates over how we detect wrongful discrimination go further. The Supreme Court's antidiscrimination doctrine is widely understood as requiring specific, subjective intent to harm because of a protected trait. Whatever might be said about that approach generally, taint accentuates its weaknesses. As described in this Article, taint can coexist with genuinely pure-hearted T2 decisionmakers. The same facts that concretize the taint concept, however, also indicate that more matters than pure-heartedness when evaluating a tainted T2. That is, properly understood, taint describes a scenario where a decision rule focused on specific intent is uniquely inapt. In making this point, the Article offers a novel, targeted critique of antidiscrimination decision rules focused on decisionmaker “intent” and engages recent literature on the necessary prerequisites to wrongful discrimination.

Finally, the Article addresses implementation. Taint is a fact about a T2 policy that triggers a taint-sensitive way of evaluating validity, not an independently sufficient demonstration of invalidity. That understanding of taint as a trigger facilitates a nuanced approach that both prevents the perpetuation of wrongful discrimination and enables taint's genuine purging, rather than its laundering. I argue that this can aid both judicial and nonjudicial actors.

Courts that find taint should focus on whether the state can re-earn whatever clean-slate treatment the T2 policy would otherwise have received. Key here is a targeted disinterring of constitutional disparate impact, notwithstanding usual judicial skepticism. On this two-pronged approach, courts first ask whether the state can show that the contemporary policy has eliminated any meaningful disparate impact. Second--if the state cannot so show--it must make a heightened showing of why it cannot eliminate the disparate impact and why the legitimate need for this means of pursuing a nondiscriminatory government interest outweighs the harm of shielding the disparate impact of a tainted rule. Although I offer a unique approach to that heightened showing, I draw on analogies to other examples of heightened scrutiny to show that courts are well equipped to conduct such analyses.

Moreover, taint offers utility beyond adjudication. Many limits on judicial action (for example, institutional role, judicial procedure, and the countermajoritarian difficulty) do not constrain nonjudicial actors. Moreover, nonjudicial status does not terminate an actor's duty to consider independently how constitutional norms ought to shape its self-conception, obligations to its polity, and actions. For those actors, this Article's framework can be a tool of democratic empowerment. For example, in some cases where a court might not find taint judicially actionable, political actors can deploy it--if they choose--to locate taint and justify ostensibly purgative policy.

Two prefatory limitations warrant mention. To facilitate depth over breadth, I treat taint as a constitutional concept and do not attempt full-bore engagement with the vagaries of statutory antidiscrimination law. Furthermore, I elaborate the concept in the “status-based discrimination” context, that is, discrimination relating to “the cultural markers ... that distinguish groups.” Accordingly, my paradigm cases embrace the equal-treatment problems familiar to the Equal Protection Clause and constitutional contexts with some convergent doctrinal evolution, such as the Religion Clauses. With the concept in hand, I plan in a future work to offer a more comprehensive taxonomy of the different settings in which taint might manifest and explore whether those different settings require treating taint differently.

This Article proceeds in five Parts. Part I starts by elaborating the problem from earlier core manifestations through to contemporary, murkier examples. Part II steps back to consider the relevance of intertemporal continuity to legal responsibility and how such continuity can shape a functional, rigorous, and transsubstantive concept of discriminatory taint. Part III types the descriptive phenomenon as a constitutional concept that ought to trigger a taint-specific anti-discrimination decision rule that, importantly, rejects the centrality of specific intent. Part IV offers prescriptions for various actors in implementing the concept, and Part V concludes by engaging the most pressing critiques and noting potential implications of the analysis for other legal questions.

[. . .]

It is useful, but sometimes inadequate, to know that history “matters.” When constitutional discrimination is at issue, cases of policy continuity over time show that truism's limits. Here, at least, we can and should say more about how that history matters. By letting us identify problematic continuity in a regimented way, discriminatory taint offers one novel way to do so.

The concept does not answer every associated question. Indeed, properly understood, knowing that a policy is tainted does not dictate its validity. But taint offers reasoned guideposts that shape an important inquiry in ways consistent with broader commitments and consonant with the need to eradicate discrimination and avoid unwarranted “lock in.” In so doing, it advances antidiscrimination principles in a transsubstantive way and offers insight into what we mean--and should mean--when we talk about wrongful discrimination.

Associate Professor of Law, Columbia Law School.

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