Equal Protection and Leveling Down as Schadenfreude

by Michael Dorf

My Verdict column this week explores Monday's Supreme Court ruling in Sessions v. Morales-Santana, in which the Court invalidated a federal statutory provision that confers citizenship on children born outside the U.S. to unwed U.S.-citizen mothers in some circumstances in which such citizenship is denied to children born outside the U.S. to unwed U.S.-citizen fathers. Among other things, my column explores the potential implications of the case for the Travel Ban litigation. Here I want to focus some attention on the Court's remedy and how Justices Thomas and Alito approached the case.

As I note in my column, an equal protection violation can be remedied either by leveling up (everyone gets the benefit) or leveling down (no one does). The leading case is Heckler v. Mathews. Justice Ginsburg's majority opinion in Morales-Santana parses what I call Congress's "fallback" intent to conclude that the right remedy (absent further congressional intervention) is leveling down. On Take Care, Ian Samuel argues that this "mean remedy" could harm people who thought they were U.S. citizens. Yet the Court says that its holding applies only "prospectively." Not good enough, Samuel complains, because, he says, the Court does not explain what "prospectively" means. I agree that Justice Ginsburg's opinion could have been clearer but she approvingly cites the Solicitor General's merits brief and reply brief on this point. The SG's argument at the relevant pages really only makes sense on the assumption that "prospective" application means application to children born abroad to U.S.-citizen mothers after the date of the Court's opinion--unless and until Congress changes the law.

Because Samuel reads the opinion as harsher than I believe it is, he ends up preferring the approach--at least in practical effect--of Justices Thomas and Alito. Yet, as I shall explain, I do not think that their approach is possible without overruling Heckler v. Mathews.

To see why, we need a brief recap of Heckler v. Mathews. The Social Security Act contained a provision that conferred certain benefits on women but not men. In what Congress no doubt thought was a fiendishly clever poison pill, the statute also provided that in the event that the courts struck down the sex-based preference, no one would get the benefit, i.e., the fallback was leveling down. Then, when a man challenged the law as sex discrimination, the government argued that he lacked standing, invoking the poison pill: Even if the male challenger prevailed on his equal protection claim, the government said, he wouldn't get any benefit; thus his injury was not redressable by a favorable ruling.

The SCOTUS disagreed. Although validating Congress's right to level down via a fallback provision, the Court said that the plaintiff's injury was nonetheless redressable by a favorable ruling. Sure, he wouldn't receive the financial benefit but he would get something else of value, namely, equal treatment.

When I teach Heckler v. Mathews to my students I analogize it to my (fairly typical) experience as a parent. Suppose a friend offers me one ticket to a Beyoncé concert. I accept and tell my older daughter that she can have it. She's thrilled. Then my younger daughter complains: "why don't I get to go?" I say something like "because your sister is old enough to go to a concert by herself; you're not." She says that's not fair; the two of them should go together. I say that would be fine but we only have one ticket and the concert is sold out. (Assume for purposes of this exercise that tickets from scalpers are unavailable at any price I'd be willing to pay.) Younger daughter at this point says "well if I can't go too, she shouldn't be able to go." And she means it. Her first choice would be for me to level up. But if that's not an option, she prefers that neither she nor her sister go to the concert than that only her sister goes.

Leveling down as a remedy for an equal protection violation has an element of schadenfreude about it. But it nonetheless comports with our notions of what equality is about.

Now let's turn back to Morales-Santana. Here's how Justice Thomas begins his concurrence in the judgment: "The Court today holds that we are 'not equipped to' remedy the equal protection injury that respondent claims his father suffered under the Immigration and Nationality Act (INA) of 1952." That is flat-out wrong.

Here is the full quote from the majority opinion that includes the "not equipped to" language: "this Court is not equipped to grant the relief Morales-Santana seeks, i.e., extending to his father (and, derivatively, to him) the benefit of the one-year physical-presence term [the statute] reserves for unwed mothers."

Do you see the difference? The Court says that it is not equipped to give Morales-Santana the relief he seeks, but it is equipped to give him a constitutionally adequate remedy for his equal protection violation: namely, leveling down. If it were true that the Court could not provide any remedy for Morales-Santana's injury, then the injury would not be redressable, there would be no standing, and Justices Thomas and Alito would be justified in refusing to reach the merits.

But it isn't true. So long as Heckler v. Mathews is the law, there is a remedy that the Court is prepared to provide and that it in fact provides: the equality that comes from leveling down. Thus, Justices Thomas and Alito are simply taking a powder here. By mischaracterizing the Court's holding they evade responsibility for judging the case on the merits. Why did they do that?

I honestly don't know, but I think we can rule out inadvertence. To me this does not look like an accidental slip-up by Justice Thomas (or one of his law clerks). He appears to have deliberately ended the quotation from the majority opinion after "not equipped to" and then substituted "remedy the equal protection injury" for "grant the relief" that Morales-Santana sought. That's not a mistake. It takes careful attention to cut and paste like that so as to change the meaning to the interpretation he favors without literally misquoting.

Another possibility is that Justices Thomas and Alito don't like Heckler v. Mathews for the same reason that some of my students don't like it: schadenfreude is unbecoming. I have some sympathy for this view. Even if leveling down can be said to confer equality, a leveling down-remedy deters legal challenges. But if Justices Thomas and Alito want the Court to overrule Heckler v. Mathews they should say so openly.

I suppose one other possibility is that Justices Thomas and Alito wanted to duck the merits. Maybe they agree with the stereotyped thinking about men and women underlying the law but don't want to say so for fear of looking like (and let's face it, being) sexists. Or maybe they think that in the immigration area, all bets are off but they don't want to say that openly just yet because they want to keep their powder dry for the impending Travel Ban cases.

Bottom Line: I really don't know why Justices Thomas and Alito pursued the course that they did. I do know that it is inconsistent with Heckler v. Mathews.