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The Supreme Court punted today in the affirmative action case, Fisher v. University of Texas at Austin, sending the case back to the Fifth Circuit — and possibly even the district court — for a reconsideration of the university’s affirmative action policy under a strict scrutiny standard.

In the 7-1 decision by Justice Anthony Kennedy, 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.

Earlier in the term, the Court had already signaled that it would be revisiting its landmark 2003 decision validating affirmative action in Grutter v. Bollinger by agreeing to hear a new challenge, Schuette v. Coalition Against Affirmative Action, next term.

That means that the Court may render a decision on the merits of affirmative action policies next term even before the Fisher case makes its way again through the lower courts.

The composition of the Court has changed since Grutter, with Justice Sandra Day O’Connor, who wrote that opinion, retiring and the more conservative Justice Samuel Alito taking her place.

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Here’s quick run down of today’s action in the U.S. Supreme Court, courtesy of AP, plus links to the decisions and orders:

— Struck down, by a 7-2 vote, Arizona’s proof-of-citizenship law that asks would-be voters for additional documentation before allowing them to register using a federal form designed to make signing up easier. (Arizona v. Inter Tribal Council)

— Ruled 5-3 that agreements between the makers of name-brand and generic drugs to delay the generics’ availability can be illegal, an outcome cheered by consumer groups. (FTC v. Actavis)

— Held 5-4 that prosecutors in some instances may use a suspect’s silence at an early stage of a criminal investigation against him — before the suspect has been arrested or informed of his constitutional rights. (Salinas v. Texas)

— Decided 5-4 that judges may not increase mandatory minimum prison terms when sentencing defendants unless the facts justifying the increase have been found by a jury. (Alleyne v. U.S.)

— Barred lawyers, in another 5-4 ruling, from obtaining state driver license records to recruit clients, saying the practice is prohibited by a federal law aimed at shielding motor vehicle information. (Maracich v. Spears)

— Agreed to decide in its next term a new dispute involving race, whether federal housing law requires proof of intentional discrimination. (Mt. Holly v. Mt. Holly Gardens Citizens)

— Said it would review a state court ruling upholding a $1.24 million defamation judgment against a Wisconsin airline that reported one of its pilots was potentially dangerous, despite a post-9/11 law that encourages airlines to report potential safety threats to federal officials. (Air Wisconsin v. Hoeper)

The court will next hand down decisions in some of the 14 merits cases still awaiting decision this term — including highly anticipated and perhaps historical cases involving affirmative action, marriage equality and voting rights — on Thursday, June 20.

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The Supreme Court agreed today to decide whether, under the Fair Housing Act, proof that a residential property practice had a disparate impact on a particular group suffices for a claim of discrimination, or whether challengers must prove instead intent to discriminate.

In the case, Township of Mount Holly v. Mount Holly Gardens Citizens in Action — which will be argued in the fall — African-American and Hispanic residents of a neighborhood pegged for demolition and redevelopment in Mount Holly, N.J., sued to block the project, saying it targeted a predominantly minority area.

As noted here , the housing act does not explicitly cover disparate impact claims, unlike other anti-discrimination laws.  The outcome could affect other laws as well, including one that prohibits discrimination in lending and is enforced by the Consumer Financial Protection Bureau.

 

 

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In a 7-2 decision by Justice Antonin Scalia, the U.S. Supreme Court held today in Arizona v. Inter Tribal Council that the National Voter Registration Act preempts an Arizona law that required local election officials to refuse to register any would-be voter who did not present satisfactory evidence of U.S. Citizenship.

In separate opinions, Justices Clarence Thomas and Samuel Alito dissented.

The Constitution gives the states the authority to decide “the time, place and manner” of holding elections for federal officials, but also gives Congress back-up authority to “make or alter such regulations.” The Constitution also provides that when federal and state law clash, federal law will prevail.

The NVRA was passed in an effort to increase the number of eligible voters in federal elections, and to ensure that voter registration rolls are accurate and current.  It spells out three methods for registering voters for federal elections.  Voters may sign up to vote when they apply for a driver’s license, apply by mail using a federal form, or register – using the federal form – at sites designated under state law or by state voter registration officials.  States must create a combined driver’s license (or non-driver ID) and voter registration form, and the law requires federal officials to draw up a federal form — a nationally uniform voter registration application to be used in getting registered by mail or at a registration office. On the federal form, the would-be voter must declare that he or she meets voter eligibility requirements, including U.S. citizenship.

Under Arizona law, the requirement of proof of  citizenship was a separate mandate, not fulfilled by having the federal form.

 

 

 

 

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The Fourth Amendment makes strange bedfellows.

Today’s 5-4 U.S. Supreme Court decision in Maryland v. King—that police can take DNA samples from individuals arrested for serious crimes—found the unlikely combination of Justice Antonin Scalia with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joining on the dissent.

States allow the collection of DNA for those convicted of a crime, but lower courts are split on whether states can collect DNA without a warrant from people who have only been arrested. The federal government and 28 states allow the collection of DNA from arrestees.

In 2009, after Alonzo Jay King Jr. was arrested on assault charges in Wicomico County, Md., police obtained his D.N.A. profile by swabbing his cheek. That profile matched evidence in a 2003 rape case, and King was later convicted of that crime. The Maryland Court of Appeals ruled that a state law authorizing D.N.A. collection from people arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

Writing for the majority and reversing that court, Justice Anthony M. Kennedy said:

When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s D.N.A. is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

But Justice Scalia and his colleagues typically on the other side of court rulings disagreed, with Scalia summarizing his opinion from the bench—a rare move signaling sharp disagreement among the members of the Court.

Scalia wrote:

“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous.

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes. Then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

The Court has yet to issue its decisions on another 25 pending cases, among them the controversial and potentially historical cases involving affirmative action, marriage equality and voting rights.

The next round of rulings are expected on Monday, June 10.