Supreme Court preview 2015- 2016
Dec 22
This past year was the 10th year of the Roberts Court. It was
generally felt that following Chief Justice Rehnquist’s death and the
appointment of Justice Roberts to replace him and the almost
simultaneous retirement of Justice Sandra Day O’Connor and the
appointment of Justice Alito to replace her, that the Roberts court
would be as conservative as the Rehnquist Court, and with Justice
Alito replacing Justice O’Connor perhaps more so. And for the first
9 years that was certainly so. Among those decisions was Citizens
United v Federal Election Commission which upended Congress’s
attempt to control the amount of spending in political campaigns,
Shelby County v Heller which totally undermined Congress’s
attempt to protect the right of minorities to vote, District of
Columbia v Heller which, by its interpretation of the Second
Amendment, limited what the government could do to control guns,
and AT&T Mobility v Conception which provided corporations in
the United States with the means to prohibit their defrauded
customers from seeking redress by pursuing class actions against
those corporations. Each of those decisions was 5-4. Clearly, it
would have been the other way if Sandra Day O’Connor had not
resigned.
Then, last year was a bit of a surprise. First, upholding the
Affordable Care Act and then finding a Constitutional right to Same
Sex marriage.
We will shortly see whether the surprise will continue. There
are 5 cases the court will hear this year which will answer that
question:
First: Affirmative Action, what is going to happen to Affirmative
Action? Will this be the end of it? The Court will answer that
question in Fisher v University of Texas. The Supreme Court has
long upheld the use of Affirmative Action such as in Regents of the
University of California v Bakke (1978) and again in Grutter v
Bollinger (2003). This Fisher case was before the Court before.
Fisher, a white student, first sued in 2008 claiming that her failure to
gain admission to the University of Texas was a violation of her
equal protection rights under the 14th Amendment. The University
of Texas accepts 10% of the best students in every high school in
Texas. That program provides for about 60% of the student body
and thus assures that there are a fair number of blacks in the
University. The remaining 40% are admitted based on their
academic performance and personal characteristics and it is in this
category the admission officer may consider race. Fisher’s claim
was that but for the granting racial preferences, she would have
been admitted in that second group.
The District Court denied her relief and upheld the procedures
used by the University of Texas and the Fifth Circuit affirmed.
Fisher appealed to the Supreme Court which reversed and sent it
back to the District Court to reconsider, with instructions to apply
“strict scrutiny” to the procedures used by the University of Texas.
Strict scrutiny means that to pass the constitutionality test, the
questioned action must be in furtherance of a “compelling
governmental interest” and in addition such action must be narrowly
tailored to achieve that interest. The District Court upon such
review found that the action met “strict scrutiny”, and once again
upheld the position of the University of Texas and the Fifth Circuit
once again affirmed. Fisher once again sought Supreme Court
review. And the Supreme Court and 4 Justices granted certiorari to
once again hear the case. Since the case had already been reviewed,
Fisher had already graduated from another college, and her
“standing” to bring the appeal was questionable, it appears to us that
at least four Justices of the Supreme Court intend to end Affirmative
Action. We will have to wait and see.
Second: Abortion: What is going to happen to a woman’s right to
an abortion? In the past the Supreme Court has upheld the right to
abortion, in Roe v Wade (1973) the Court held that a woman has a
constitutional right to seek an abortion before fetal viability and
then in Planned Parenthood v Casey (1993) the held that states may
not place an “undue burden” on that constitutional right. The issue
is again before the Supreme Court in Woman’s Heath v Cole.
Texas passed a law requiring all clinics that provide abortions
to be retrofitted to meet the requirements of a hospital and requiring
doctors who perform abortions to have admitting privileges at a
hospital no further than 30 miles away. The issue is whether that
law places an undue burden on a woman’s constitutional right to an
abortion. Texas claims that the law was passed “to raise standards of
care and ensure the health and safety of all abortion patients”.
Plaintiffs question the veracity of that claim, and contend that it was
a deliberate attempt to prevent women seeking abortions.
The District Court and the Fifth Circuit upheld the Texas law.
Plaintiff sought a stay from the Fifth Circuit pending an appeal to
the Supreme Court. The Fifth Circuit denied that request. Plaintiff
then sought a stay from the Supreme Court arguing that unless such
a stay was granted most of the abortion clinics in Texas would have
to close before the Supreme Court even hears the case. The stay was
granted by a 5-4 decision. That is, four Justices of the Supreme
Court would have denied the stay and permitted the Texas law to go
into effect. Thus, it appears that there are at least four Justices who
are prepared to hold that such restrictions on abortion clinics do not
constitute an “undue burden” on a woman’s constitutional right to
obtain an abortion, or even, just perhaps, to reverse Roe v Wade
and hold that the right to an abortion is no longer a constitutional
right.
Third: Public Employee Unions: What is going to happen to those
unions who represent of Public Employees? In the past the
Supreme Court has upheld the right of employees of governmental
agencies to unionize, and to protect that right, have held that those
public employees who do not join the union, but benefit by union
collective bargaining agreements, are required to pay their fair share
of the costs the union incurs in negotiating those collective
bargaining and grievance agreements. Thus in Abood v Detroit
Board of Education (1977) the Supreme Court, without dissent, so
held. Clearly if non-union employees can obtain the benefit of
whatever the union obtains without having to pay the union any
funds whatsoever, there would be little incentive to join the union.
The issue is back in Friedrichs v California Teachers
Association. It is feared that if the Court should hold that there is no
requirement for any nonmember of the union to pay anything to the
union for the benefit he or she obtains, then why they should pay
anything to the union when they well obtain all those benefits for
free. Such a decision may mean the death knell of public unions.
The Friedrichs case came to the Supreme Court in a rather
unique way. The plaintiff brought the case in the District Court and
argued in that court the case should be dismissed because the
Supreme Court in the Abood case already upheld the requirement
that non-members must pay their fair share. The case was
dismissed citing Abood. Plaintiff then appealed to the Ninth Circuit
and once again, made the same argument that the case had to be
dismissed based on Abood. The Ninth Circuit relying on Abood
dismissed the case. So the plaintiff then sought review by the
Supreme Court. And four Justices voted to hear the case. Clearly
indicating to us that four Justices are looking for the opportunity to
reverse Abood.
Fourth: Immigration: What is going to happen to Immigration
Reform? The case is State of Texas v. United States. The issue is
the extent of the President’s authority under the Immigration and
Nationality Act to issue an executive order. After Congress’s
inability to come up with an Immigration Plan to address the 11
million or so undocumented aliens in the United States, the
President issued an executive order entitled “Deferred Action for
Parents of Americans” which among other things deferred
deportation proceedings against those undocumented aliens in the
country who were the parents of American citizens. Texas claimed
the executive order violated the Constitution. The District Court
found for Texas, as did the Fifth Circuit in a 2-1 decision. The first
question was the “standing” for Texas to bring the case, since
immigration is clearly a national and not a state issue. Texas claim
is that it has the right to sue because it was damaged financially by
the executive order. That claim is based on the fact that under the
executive order the 500,000 or so undocumented aliens living in
Texas will be entitled to apply for a driver’s license and since Texas
issues those licenses at a financial loss it will suffer financial
damage if the court does not invalidate the executive order.
Interesting. We well have to wait and see.
Fifth: One Person one vote. What is going to happen to One
Person One Vote? The Supreme Court held in 1964 in Reynolds v
Sims that Legislative Districts must be of “substantially equal
populations” that is, the districts must be based on people and not
geography. When the districts were based on geography, as they
usually were, it generally benefitted the rural populations where the
districts had smaller populations than the cities, thus the decision
had the long term effect of reducing the power of the rural
populations, generally. Republican.
The issue is back before the Court in Evenwell v Abbott. Some
voters in Texas brought this case asking the Court to apply the
“substantially equal” concept not to “equal populations” as has been
the consistent practice up you now, but to base the districts on
substantially equal “populations of voters”. That is, they don’t want
to count non-citizens, undocumented aliens, and individuals under
18 years of age and others not entitled to vote. If this is adopted it
is thought that it would decrease the number of districts in the cities,
which are generally Democratic, as that is where supposedly most
of the undocumented aliens reside, and of course, will thus benefit
the rural areas which are generally Republican.
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Court by logging into SCOTUS
Alan & Paul