News

What Scalia’s death means for the current SCOTUS term (updated)

IMG_0182These things became abundantly clear within hours of the death of U.S. Supreme Justice Antonin Scalia.

President Obama intends to meet his constitutional obligation of filling the vacancy on the court as soon as possible, by naming his choice and sending that candidate to the U.S. Senate for approval.

Republicans in the Senate intend to do everything in their power to block any such appointment, arguing that that should be the prerogative of the next president.

And in the midst of what’s already shaping up to be an historic general election cycle, Americans are about to get a lesson on the critical importance of the presidential judicial appointments power and the impact the Senate’s obstruction of that power has had in recent years.

The President theoretically can make a recess appointment to the high court (former Justice William J. Brennan, Jr., got his start on the court that way), but as Lyle Denniston at SCOTUSblog notes, the Court last term restricted that recess appointment power to the point where the Senate controls what constitutes a “recess.”

And given the already-announced recalcitrance by the leaders of that body to an Obama Supreme Court nominee — especially now — the qualifying recess is unlikely to happen.

In the short term then, what does an eight-justice court mean for cases before the nation’s highest court?

The justices will continue with the term, deciding cases already argued, hearing those set for argument and reviewing new requests for review (likely for argument next term), along with requests for emergency relief — including North Carolina’s pending petition for a stay of last week’s federal order requiring a redrawing of the congressional voting map by Feb. 19.

In cases in which Scalia has already voted but an opinion has not yet been announced, his vote is void and the decision then turns on how the other justices have voted. 

Where there’s a 4-4 split, the justices could let the decision of the lower court from which the appeal arose stand, as Tom Goldstein at SCOTUSblog notes here, “affirmed by an equally divided Court.” Such a decision has no precedential effect, though.

Or they could schedule the case for reargument in the term that begins next October with the hope that a full court could decide the issue at hand.

Plenty of controversial cases remain pending at the high court for decision this term — some already argued — in which a 4-4 split decision is possible. They include abortion rights in Whole Womens Health v. Ellerstedt, affirmative action in Fisher v. University of Texas, redistricting one person one vote in Evenwel v. Abbott, union fees in Friedrichs v. California Teachers Associationdeferred action for immigrant parents (DAPA) in United States v. Texas, and religious exemptions to the Obamacare contraceptive mandate in Zubik v. Burwell.

(For the specific impact predicted in these and other cases, see the New York Times graphic here.)

North Carolina has its own share of controversial cases that will work their way to the Supreme Court — most notably the redistricting cases pending in state and federal court and the voting rights cases before Judge Thomas Schroeder — but none of those are on the high court’s docket for decision this term.

The biggest impact the Scalia vacancy will have on those cases will be on emergency applications for relief from court orders — as in the current federal congressional district case, and possibly in the federal legislative district case, should a similar map-redrafting order — as well as in the voting law case, should Schroeder or the Fourth Circuit on appeal require changes.

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(Note: This post has been updated to add as an option for the court this term the rescheduling of split decision cases for reargument next term in the hope that a full court can rule determinatively — as opposed to letting the decision of the court below stand.)

News

Deep divide over affirmative action at SCOTUS

The U.S. Supreme Court took a second look at admissions at the University of Texas Wednesday morning and by most accounts, the prognosis for its affirmative action policy is not good.  

The case before the justices, Fisher v. University of Texas, had already been heard in 2012 after a white student denied admission to the school lost at the Fifth Circuit, but the high court sent it back for further findings.

The university had set up admissions so that it automatically accepted Texas high schoolers in the top ten percent of their class. UT then evaluated the remainder of applicants based upon a number of factors and gave them two scores: one based on essays, leadership activities, and background, including race, and one based on grades and test scores.

Abigail Fisher, the student challenging that policy, had just average academic qualifications and the university argued that she wouldn’t have been admitted even if she had received a boost because of race.

(For a more detailed explainer from Vox, read here.)

A similar challenge to admissions at the University of North Carolina at Chapel Hill is pending in federal court in Winston-Salem, but has been stayed until the Supreme Court hands down its decision in Fisher.

Questioning at the argument confirmed that the justices were leaning along party lines.

Justice Antonin Scalia shared his own peculiar take on affirmative action, as shared here at Talking Point Memo:

Referencing an unidentified amicus brief, Scalia said that there were people who would contend that “it does not benefit African-Americans to — to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less — a slower-track school where they do well.”

He argued that “most of the black scientists in this country don’t come from schools like the University of Texas.”

“They come from lesser schools where they do not feel that they’re — that they’re being pushed ahead in — in classes that are too — too fast for them,” Scalia said.

The court’s swingman, Justice Anthony Kennedy — already no fan of affirmative action — hinted near the end of argument that the time may have come to put the Texas policy out to pasture.

Because Justice Elena Kagan is not participating in the case, a Kennedy vote for the university would leave the Fifth Circuit decision upholding the program in place.

Here’s Adam Liptak from the New York Times:

Justice Anthony M. Kennedy devoted almost all of his questions to exploring whether the case should be returned to the trial court to allow the university to submit more evidence to justify its use of race in deciding which students to admit.

By the end of the unusually long and tense argument, Justice Kennedy indicated that the Supreme Court might have all the evidence needed to decide the case. That could mean that the Texas admissions plan is in peril and that affirmative action at colleges and universities around the nation may be in trouble as well.

For additional coverage of Wednesday’s argument, see the Washington Post here and the Los Angeles Times here.

The full transcript of the argument is available here.

News

UNC asks court to stay affirmative action case pending U.S. Supreme Court review of similar Texas challenge

UNCAttorneys for the University of North Carolina have asked U.S. District Judge Loretta C. Biggs in Winston-Salem to stay proceedings in the case challenging its admissions policies pending review by the U.S. Supreme Court of an affirmative action case out of Texas, Fisher v. University of Texas at Austin.

How the high court rules next term in Fisher will have some bearing on the case filed here in November, Students for Fair Admissions v. UNC, alleging similar flaws in the university’s admission policies. (A separate lawsuit was filed in Massachusetts federal court against Harvard by the same group on the same day.)

As SCOTUSblog’s Lyle Denniston described the Harvard and UNC lawsuits:

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

In the lawsuits, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs  selected after a nationwide search by backers of Project for Fair Representation argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.

As counsel for UNC pointed out in papers filed yesterday:

The primary issue before the Supreme Court in Fisher II—whether the Fifth Circuit properly concluded that the University of Texas at Austin’s use of racial preferences in its undergraduate admissions program complies with the Supreme Court’s precedents—is the central issue in this case brought by Plaintiff Students for Fair Admissions, Inc. challenging the University’s undergraduate admissions policy. Critical questions in Fisher II will be whether UT-Austin’s admission policy is narrowly tailored to achieve the educational benefits of diversity, what evidence UT-Austin must present to prove that proposition, and how a court must apply strict scrutiny to evaluate whether UT-Austin has met its burden. Because Fisher II presents the Supreme Court with an opportunity to clarify further the law governing how public universities may consider race in the admissions process, it is certain to affect the standards that govern this litigation.

The same attorneys representing Fisher at the Supreme Court are representing the students in both the UNC and Harvard cases.

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News

Affirmative action heads back to the Supreme Court

In a case with implications for admissions policies at UNC-Chapel Hill, the U.S. Supreme Court agreed today to review for a second time admissions policies at the University of Texas at Austin.

The high court first reviewed the case filed by Abigail Fisher, a white student denied admission to the University of Texas at Austin allegedly because of her race, in 2012. In a 7-1 decision the following spring, the justices sent Fisher v. University of Texas at Austin back to the 5th U.S. Circuit Court of Appeals for further review.

Justice Anthony Kennedy writing for the Court said that “because the Fifth Circuit did not hold the University to the demanding burden of strict scrutiny articulated in Grutter and Regents of Univ. of Cal. v. Bakke, its decision affirming the District Court’s grant of summary judgment to the University was incorrect.”

“[S]trict scrutiny does require a court to examine with care, and not defer to, a university’s ‘serious, good faith consideration of workable race-neutral alternatives,’” Kennedy added.

The appeals court did that and upheld the university’s admissions policies again in July 2014, finding that they withstood the strict scrutiny test.

In the second petition filed at the court and granted today, Fisher’s attorneys ask the court to “strike down UT’s unjustified use of race, and once again make clear that the Equal Protection Clause does not permit the use of racial preferences in admissions decisions where, as here, they are neither narrowly tailored nor necessary to meet a compelling, otherwise unsatisfied, educational interest.”

How the high court rules next term in Fisher will have some bearing on the case filed in federal court here against UNC-Chapel Hill in November, alleging similar flaws in the university’s admission policies. (A similar lawsuit was filed in Massachusetts federal court against Harvard by the same group on the same day.)

As SCOTUSblog’s Lyle Denniston described the Harvard and UNC lawsuits:

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

In the lawsuits, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs — selected after a nationwide search by backers of Project for Fair Representation — argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.

The same attorneys representing Fisher at the Supreme Court are representing the students in the UNC case here, which is pending in Winston-Salem and is now assigned to U.S. District Loretta Copeland Biggs, who took her seat on that court this past December.

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News

As affirmative action lands again in the U.S. Supreme Court, the challenge to UNC admissions policies lands before NC’s newest federal judge, Loretta Copeland Biggs

UNC Not FairAffirmative action is headed back to the U.S. Supreme Court in a case with implications for admissions policies at UNC-Chapel Hill.

In a reprise of a case that the high court first addressed in 2013, attorneys for Abigail Fisher — a white student denied admission to the University of Texas at Austin allegedly because of her race — filed a petition for review on Tuesday from a decision by the 5th U.S. Circuit Court of Appeals affirming the dismissal of her case.

In a 7-1 decision in the first go-around by Fisher, the Supreme Court sent the case back to the Fifth Circuit for a reconsideration of the university’s affirmative action policy under a strict scrutiny standard.

The appeals court did that and upheld the university’s admissions policies in July 2014, finding that they withstood the strict scrutiny test.

In the petition filed this week, Fisher’s attorneys argue that the appeals court failed to adequately give the university’s admissions policies strict scrutiny and asked the court to take the case, “strike down UT’s unjustified use of race, and once again make clear that the Equal Protection Clause does not permit the use of racial preferences in admissions decisions where, as here, they are neither narrowly tailored nor necessary to meet a compelling, otherwise unsatisfied, educational interest.”

How the high court proceeds next in Fisher will have some bearing on the case filed in federal court here against UNC-Chapel Hill in November, alleging similar flaws in the university’s admission policies. (A similar lawsuit was filed in Massachusetts federal court against Harvard by the same group on the same day.)

As SCOTUSblog’s Lyle Denniston described the Harvard and UNC lawsuits:

The basic thrust of the new lawsuits is that Harvard and the flagship university in North Carolina are using admissions programs that cannot satisfy the tough constitutional test for judging race-based policy — “strict scrutiny.”  But their broader theme is that the Supreme Court’s affirmative action efforts beginning with the Bakke ruling have failed to end racial bias in admissions programs, so it is now time to overrule Bakke and at least one other decision.

In the lawsuits, filed under the name “Students for Fair Admissions Inc.,” attorneys for plaintiffs — selected after a nationwide search by backers of Project for Fair Representation — argue that diversity at the schools can be achieved by race-neutral alternatives and that public colleges and others receiving federal funds should be ordered to end the use of race in admissions altogether.

The same attorneys representing Fisher at the Supreme Court are representing the students in the UNC case here, which is pending in Winston-Salem and is now assigned to newly-commissioned U.S. District Loretta Copeland Biggs, who took her seat this past December.