Weekly Roundup—June 24, 2016

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

Ten down, three to go. The Court released ten of its thirteen remaining opinions of the term.

On Monday, the Court discussed labor, the Fourth Amendment, patents, the Hobbs Act and RICO.

Encino Motorcars, LLC v. Navarro: the Court held that because the Department of Labor issued its interpretation of the overtime compensation provision of the Fair Labor Standards Act without an explanation, the case should be remanded without placing controlling weight on the Labor Department interpretation. Lydia Wheeler of The Hills details the Court’s opinion here.

Utah v. Strieff: The Court decided that evidence seized during an unlawful stop does not trigger the exclusionary rule if the officer discovers an outstanding warrant. The key to the majority’s holding: the discovery of the warrant breaks the causal chain between the initial stop and the seizure of evidence. Joshua Waimberg of the National Constitution Center explains the case, here. Much of the coverage of the case has focused on Justice Sotomayor’s passionate dissent. See Meghan Daum in the LA Times; Janell Ross in the Washington Post; Matt Ford in Atlantic; John Nichols in the Nation.

Cuozzo Speed Technologies, LLC v. Lee: In Monday’s only unanimous opinion, the Court held that the Patent and Trademark Office can apply “the broadest reasonable interpretation” standard in an inter partes review. Ronald Mann of Scotusblog breaks down what he calls “the most important patent case of the year.”

Taylor v. United States: the Court held that the commerce element in a prosecution for robbery under the Hobbs Act is satisfied when the government shows that the defendant robbed or attempted to rob a drug dealer of drugs or drug proceeds. Bloomberg.com comments on this broad application of the Hobbs Act, here.

RJR Nabisco, Inc. v. European Community: The Court decided that section 18 U.S.C. §1962 of the Racketeer Influenced and Corrupt Organizations Act (RICO) may include offenses committed abroad, provided that the offenses violate an extraterritorial statute. Also, the private RICO plaintiff must prove a domestic injury. Stephen Dockery of the Wall Street Journal discusses the case.

On Thursday, the Court handed down five more opinions, including the highly anticipated affirmative action and immigration cases.

Fisher v. University of Texas at Austin: This was the second time this case reached the Supreme Court. The first time, in 2012, the Court held that the erred in giving too much deference to the University of Texas (UT) in justifying the need for a race-conscious admissions policy. (UT achieved much of its racial diversity through a “race-neutral” policy that admits a set percentage of students from each Texas high school.) The Fifth Circuit took another look at the case and once again upheld the University’s race-conscious policy. This time, the Supreme Court, with Justice Kennedy writing the majority opinion, upheld UT’s admissions policy. Higher education officials may continue to use race as one of many factors when making admission decisions. Adam Liptak of the New York Times discusses the case, here. Slate.com weighs in on the complexity of the decision. Here at ISCOTUS we offer two takes on the decision: ISCOTUS Director Christopher Schmidt describes how Justice Kennedy broke from his previous patterns in this case; and Vinay Harpalani explains how the decision puts affirmative action on firmer constitutional footing than it’s had in some time.

In Birchfield v. North Dakota, the Court decided that warrantless breath tests following a drunk driving arrest are permissible under the Fourth Amendment. However, warrantless blood tests are still prohibited. Tal Kopan and Ariane de Vogue of CNN report on this 5-3 split decision.

Mathis v. United States: The Court held that Richard Mathis cannot be sentenced under the federal Armed Career Criminal Act that requires a minimum sentence to felons possessing a firearm. The Court decided that Mathis’s prior convictions do not trigger the ACCA because Iowa’s burglary laws are broader than generic burglary laws. The National Constitution Center briefly explains the case, here.

Dollar General Corp. v. Mississippi Band of Choctaw Indians: The Court handed down a split 4-4 decision that upholds the Fifth Circuit’s decision. The Circuit Court decided that Dollar General could not sue for an injunction on the Tribal Court proceedings because tribes have jurisdiction to regulate business with consenting, non tribal members. Victoria Massie from Vox clearly explains the history and case, here.

United States v. Texas: The Court’s 4-4 split upholds the Fifth Circuit Court’s decision to issue an injunction on President Obama’s DAPA program. The Circuit Court held that the program created an a direct and concrete injury on Texas to provide driver’s licenses to immigrants. The Fifth Circuit also determined the program failed to meet the rulemaking standards of the APA. Adam Liptak and Michael Shear from the New York Times offer a concise background and summary of the case, here.

Other News:

President Obama gave remarks about the Court’s immigration decision. Politico.com explains that legal experts say, “[t]he Supreme Court’s big decision — or non-decision — on immigration, they say could lead to the shutdown for the president’s original program to aid so-caleld Dreamers, known as Deferred Action for Childhood Arrivals or DACA.”

NBC News discussed how this week’s decisions could affect the upcoming presidential election, especially for the Republican party. “[t]wo major Supreme Court ruling Thursday on immigration and affirmative action would help provide more justification for uneasy Republicans to back [Trump’s] presidential campaign,” Leigh Ann Caldwell reports.

The Fishing Expedition is Over: Victory for Affirmative Action in Fisher v. Texas

Guest Post by Vinay Harpalani, Associate Professor of Law, Savannah Law School

Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions. And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost. Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court. The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand. While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.

Justice Kennedy’s majority opinion affirming UT’s use of race was surprising. He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan. I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions. But Justice Kennedy’s majority opinion did not do that. It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions.

In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies. The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity. However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.

In Fisher II, however, Justice Kennedy’s majority opinion discusses how UT met this standard. He notes that UT “‘conducted months of study and deliberation, including retreats, interviews, [and] review of data.’” The majority opinion also referenced UT’s overall demographic data, its classroom data on minority enrollment, and its anecdotal evidence that minority students “experienced feelings of loneliness and isolation” on campus. Everything UT did can serve as a template for justifying race-conscious admissions; universities can now surmise that if they gather and present data similar to UT’s evidence, their policies can survive a legal challenge. Justice Kennedy did note that UT’s “program is sui generis” because of Texas’s Top Ten Percent Plan. Nevertheless, this model will still be very helpful to universities across the nation.

Most surprising to me was Justice Kennedy’s statement that UT “had no reason to keep extensive data on the [Top Ten Percent] Plan or the students admitted under it—particularly in the years before Fisher I clarified the stringency of the strict scrutiny burden … [.]” I would have thought that, given his general aversion to race-conscious policies and his Fisher I emphasis on necessity, Justice Kennedy would have obligated UT to collect and analyze such data. Justice Alito’s dissent also raised this point. However, as my colleague Professor Shakira Pleasant astutely pointed out, Justice Kennedy framed the evidentiary scope of this case in narrow terms: he noted that studies conducted since 2008 would have “little bearing on whether petitioner [Abigail Fisher] received equal treatment when her application was rejected in 2008.” This, combined with the lack of notice to UT to keep extensive data on its Top Ten Percent Plan admits prior to 2013, let UT off the hook for not having more evidence on the record.

The majority opinion also notes that “the Court properly declines to consider the extrarecord materials the dissent relies upon, many of which are tangential to this case at best and none of which the University has had a full opportunity to respond to.” Whatever his aversion to the use of race, Justice Kennedy was not willing to let UT be blind-sided by every conceivable attack on affirmative action.

The only pause for proponents of affirmative action is that UT’s race-conscious policy had a very small impact: in fact, Petitioner Fisher argued that it was too small to meet the narrow tailoring test because it could not help UT achieve its diversity goals. The majority soundly rejected this argument, but Justice Kennedy, in his Grutter dissent, had noted that the “modest use of race” was not unconstitutional. There is a weak but plausible inference that his affirmance derived from the modesty of UT’s plan, and that admissions policies that use race to a greater extent can still be effectively challenged.

Justice Alito’s dissent in Fisher II was interesting and ironic. He raised several arguments that proponents of affirmative action might well support in other contexts. For example, Justice Alito referenced “racial and cultural bias” in the SAT and questioned why UT weighted SAT scores as much as it does if the test is biased and/or favors wealthy applicants. To bolster this critique, he actually cited several amicus briefs that had been submitted in support of UT. Plenty of other champions of racial justice—most notably the late Professor Derrick Bell—have also highlighted problems with the SAT. Justice Alito does not explicitly endorse critiques of the SAT (as Justice Clarence Thomas has in the past), but his dissent points to an interesting conundrum for affirmative action at elite universities.

Justice Alito’s dissent also denounces UT for “the baseless assumption that there is something wrong with African-American and Hispanic students admitted through the Top Ten Percent Plan, because they are ‘from lower-performing, racially identifiable schools.’” Here, Justice Alito again usurps and misapplies an argument from progressives such as Professor Lani Guinier, who have critiqued the classist nature of affirmative action at elite universities.

Additionally, Justice Alito referenced discrimination against Asian Americans, both historically in America and specifically in UT’s admissions plan. This comment should be viewed in light of pending lawsuits by Asian American plaintiffs against Harvard and the University of North Carolina at Chapel Hill, which are being litigated by the so-called Project on Fair Representation—the same organization that brought Abigail Fisher’s case. Also, the Asian American Coalition for Education recently filed a Title VI complaint against Yale, Brown, and Dartmouth, alleging racial discrimination against Asian American applicants. Of course, many other Asian American organizations unequivocally support affirmative action. Nevertheless, the specter of these lawsuits creates another dilemma: how can progressives address “negative action”—the allegation that elite universities hold Asian Americans to a higher standard than all other groups, including White Americans—without disrupting affirmative action.

These issues raised by Justice Alito’s dissent do present future battlegrounds for affirmative action. The debate over race-conscious university admissions is by no means going away.

But Thursday’s ruling in Fisher II was the clearest victory for affirmative action since that day 13 years ago when Grutter came down. And with a strong likelihood that the late Justice Antonin Scalia’s replacement will move the Court further to the left, universities can proceed confidently with race-conscious admissions policies, so long as they thoroughly explain and document their reasons for doing so.


The Unpredictable Justice Kennedy

The line on Justice Kennedy is that he’s tough to predict. Ever since Justice O’Connor’s retirement, he’s been the Supreme Court’s swing vote, and the swing of the swing vote introduces an element of suspense to many of the most contentious Supreme Court cases. His vote, to a greater extent than any of his colleagues, is thought to be up for grabs. Advocates write “Kennedy briefs” in an effort to curry his favor. At oral arguments all eyes are on Justice Kennedy, his often opaque remarks parsed in the post-argument recaps.

This unpredictability has always been somewhat exaggerated. Although Kennedy has surely been the swing vote on many of the Court’s recent major cases, he has a pretty well established pattern. On questions of federal authority, he swings conservative. On gay rights, liberal. On First and Second Amendment claims, conservative. On the death penalty, mostly liberal.

And until today, when it came to the constitutionality of racial preferences, he was a predictably conservative vote. He dissented in Grutter v. Bollinger, the 2003 decision in which Justice O’Connor, writing for the Court, upheld flexible, “holistic” racial preferences in university admissions. He voted with the majority in Parents Involved v. Seattle Schools, in which the Court struck down the use of racial preferences in public school assignments. He was never as strict an adherent to the “color-blind Constitution” ideal as his conservative colleagues. He did not see government classifications based on race as categorically prohibited. He saw some role for taking racial factors into account when deciding where to draw school district lines, for example. But he made clear that using race as a factor in individualized assessments of people was hard to square with his reading of the Fourteenth Amendment’s Equal Protection Clause. “Preferment by race, when resorted to by the State,” he wrote in his Grutter dissent, “can be the most divisive of all policies, containing within it the potential to destroy confidence in the Constitution and in the idea of equality.”

The Justice Kennedy who today wrote the majority opinion in Fisher v. University of Texas (since this was the second time this case came before the Court, this case was know as Fisher II) struck a different tone. He clearly retains his sense of discomfort with using race in admissions. He wants any school that uses race as a factor in its admission process to proceed with caution, to use race no more than necessary, and to constantly assess its program to make sure it’s actually serving a necessary role in increasing diversity. But he did not focus on what he had previously described as the costs of race conscious decision making on its beneficiaries as well as those who did not receive the preferences. This could make a significant turn in his approach to this volatile civil rights issue.

Kennedy’s jurisprudence has developed over time, but usually along predicable paths. Fisher II was less predictable. It was a shift of direction. Not an about face by any means, but it was a shift. (Yes, I called this one wrong.)

“Something strange has happened since our prior decision in this case,” wrote Justice Alito in the opening of his dissent. He argues that Kennedy, who wrote the first Fisher opinion, made a demand on the University of Texas, but then failed to follow through on that demand. So what strange thing happened? Maybe Kennedy’s triumphant performance in last term’s gay marriage decision pulled him a bit closer to his liberal colleagues. Maybe the slashing dissents in that case pushed him a bit further from his conservative colleagues. Maybe national events—the renewed focus on racial inequality in the wake of Ferguson and Black Lives Matter; the stark racial divides that the Trump campaign is exacerbating—played a role. We may never know the answer. (Kennedy himself may not have really known the answer.) The key question now is whether this decision marks the beginning of a new path for Justice Kennedy’s affirmative action jurisprudence, or whether he has just become less predictable.


Weekly Roundup—June 18, 2016

Did you miss your Supreme Court news this week? Let our Weekly Roundup help. (To stay on top of the latest Supreme Court happenings, follow ISCOTUS on Twitter.)

All together (for) now! The Supreme Court handed down six opinions this week, all but one unanimous.

The justices held in Puerto Rico v. Franklin California Tax-Free Trust that the Bankruptcy Code preempted the Puerto Rico Public Corporation Debt Enforcement and Recovery Act. Lyle Denniston of Scotusblog wrote that the ruling “left the financial fate of the island entirely in Congress’s hands.” This week the Court also declined to reconsider a case about citizenship for people born in American Samoa. CNN reports the consequences of the Court’s choice.

In Halo Electronics, Inc. v. Pulse Electronics, Inc., the Court decided that the Federal Circuit’s two-part Seagate test dealing with damages in infringement cases was “unduly rigid” and inconsistent with Section 284 of the Patent Act. Greg Stohr of Bloomberg.com sums up this case by saying the Court “eased the way for larger damage awards” in patent cases.

The final opinion released on Monday was United States v. Bryant, which held that there is no constitutional violation for using tribal-court convictions as predicate offenses. Scotusblog’s Amy Howe details the case here.

Kirtsaeng v. John Wiley & Sons, Inc., decided that the award of attorney’s fees under the Copyright Act’s fee-shifting provision should give substantial weight to the losing party’s objective reasonableness while also taking into account all other circumstances. At Scotusblog Ronald Mann breaks down Justice Kagan’s opinion. The Jurist reviews the history behind the case.

In Kingdomware Technologies, Inc. v. United States, the Court held that Section 8127(d) Veterans Benefits, HealthCare, and Information Technology Act applies to all contracting determinations by the Department of Veterans Affairs. Lydia Wheeler of The Hill explains more about the Court’s decision in favor of veteran-owned small businesses.

Finally, in Universal Health Services v. Escobar, the Court held that parties who make “implied false certification” can be held liable under the False Claims Acts. The Washington Post’s Robert Barnes breaks down Justice Thomas’ opinions in both Kingdomware and Universal Health Services.


What’s Next?

The Supreme Court has sixteen opinions left to hand down in this term, including big ones on abortion, affirmative action, and immigration. The abortion case, Whole Woman’s Health v. Hellerstedt, revisits the “undue burden standard” the Court established in Planned Parenthood v. Casey (1992). Worth revisiting is Dahlia Lithwick’s exuberant account of oral arguments in the case. (“It felt as if, for the first time in history, the gender playing field at the high court was finally leveled, and as a consequence the court’s female justices were emboldened to just ignore the rules.”) And for a guided tour of the history of the Supreme Court and abortion rights, check out Oyez’s brand new online guide!

In another blockbuster case, the Court will weigh in on the immigration debate. United States v. Texas asks whether President Obama’s Deferred Action for Parents of Americans program (DAPA) is constitutional. At issue is the scope of presidential powers, including the limits established by the “Take Care” Clause, and Article II provision the Court has rarely considered. The Washington Post weighs in on that topic, here. Check out Forbes for some thoughts on how Scalia’s death affects this case (among others).

Finally, the Court will decide Fisher v. University of Texas, an affirmative action case it has now seen twice in the past two years. The challengers argue that the University of Texas’s use of racial preferences in undergraduate admissions violates the Equal Protection Clause of the Fourteenth Amendment. Complicating the issue is Texas’s “top-10%” plan, by which a percentage of students from every high school are guaranteed admission to the University of Texas system. Since the “race-neutral”  top-10% plan achieves a substantial measure of diversity at the university, the conservative justices expressed skepticism at oral arguments that the state could justify also using race-conscious policies. Note that Justice Kagan once again recused herself from the case since she worked on it when she was Solicitor General, so a seven-justice Court will be deciding the case. Scotusblog and the Washington Post offer summaries of the issues.

As the end of the term approaches, the New York Times analyzes the effect on the Supreme Court of working with eight justices, with analysis of cases decided and cases we’re still waiting on. The country is only five months away from a presidential election, and Laura Little of Constitution Daily details what effect the presidential election may have on the Court. When it comes to judicial appointments, she writes, “politics are baked into the cake!”

Finally, the tragedy of the Orlando massacre has many asking if the Supreme Court will weigh in on gun laws in America. The Huffington Post says, “don’t hold your breath.”

Introducing “Body Politic”

ISCOTUS and Oyez are thrilled to announce the launch of Body Politic, an interactive exploration of the Supreme Court’s abortion jurisprudence from Roe v. Wade through today.

Designed to balance both accessibility and depth, Body Politic offers a terrific introduction for students or anyone else just looking for the basic issues, but also offers enough detail and analysis to satisfy the most serious Court-watchers. The site provides a tour of the key cases, information on the issues and the Justices, and perspective on the larger significance of the Court’s work in this area. There are also lots of fascinating clips from Supreme Court oral arguments in the most significant abortion cases, including Roe v. Wade (1973), to Planned Parenthood v. Casey (1992), Gonzales v. Carhart (2007), and this Term’s Whole Woman’s Health v. Hellerstadt.

Check it out and get up to speed on the issues as we all await the Court’s latest contribution to this dramatic line of cases.

A Report from the American Constitution Society Annual Convention

From Guest Blogger Anna Jirschele, Chicago-Kent, Class of 2018

Lawyers, judges, and legal scholars came together in Washington, D.C., last week for the American Constitution Society’s 15th annual National Convention. Vice President Joe Biden welcomed attendees at the dinner on the opening night.

One particularly interesting panel was on “Race, Speech and Inclusion on Campus.” The panelists included Payton Head, former student body president of the University of Missouri; Wendy Kainer, author, lawyer, and commentator; Theodore Shaw, who had led the NAACP Legal Defense Fund and now teaches at the University of North Carolina School of Law; and Geoffrey Stone, professor at Chicago Law School. Dahlia Lithwick, senior editor at Slate, served as the panel’s moderator.

Payton Head began the conversation by sharing his experiences as the victim of his classmates’ racist behavior at the University of Missouri. He explained that he almost transferred schools because he was so uncomfortable with the racism occurring on the college campus he calls home. Instead of transferring, he fought for a more accepting campus. In 2014 he was elected student body president. When asked about handling diversity on campus, he emphasized the importance of communication.

While communication can help mend a college campus riddled with racism, Head noted that words can also be extremely threatening. His experience with racism at the University of Missouri was, in the words of Theodore Shaw, “emotional violence.” Most of the panelists argued that this kind of emotional violence is not always subject to the protections of the First Amendment and should be regulated.

Geoffrey Stone offered a partial dissent. He explained that higher education is arguably one of the “safest spaces” in the country. And further, if schools are supposed to be preparing their students for the real world, it would be doing them an injustice to shield them from rhetoric on a college campus, when the world is far more harsh than the classroom. Kainer echoed Stone’s comments on the importance of giving students a realistic view of what the world will be like after they graduate. Kainer then began to parse out the difference between “emotionally violent” speech and physical violence, and how college campuses and the First Amendment should approach each.

As the panelists discussed solutions for the issues faced by college campuses regarding race, the First Amendment, and inclusion, they all agreed that healthy debate should be encouraged among a diverse student body. Shaw said that as much as he does not value racist speech on campus, there is the risk that regulating any speech on campus could chill speech for all.

In Praise of the Punt

The Supreme Court punted yesterday in the latest Affordable Care Act contraception mandate case, Zubik v. Burwell. As was evident during oral arguments in March, on this case the justices fell into a predictable 4-4 liberal-conservative divide. The breakdown was the same one that was on display in the last contraception mandate case, Hobby Lobby v. Burwell, where the five conservative justices sided with the religious liberty claimants and against the government. The difference now, of course, is that Justice Scalia is no longer on the Court, so the 5-4 conservative victory has become a 4-4 tie. In the case of an evenly divided court, the lower court decisions stand, a less-than-ideal scenario in Zubik, since the lower courts were divided on the issue (most federal appeals courts side with the federal government, but one sided with the plaintiffs).

So the justices came together and agreed to punt. They issued an unsigned “per curiam” opinion in which they asked the lower courts to attempt to find compromise solutions that will address the concerns aired by each side of the legal dispute. Following oral argument, the Court had requested supplemental briefing on whether there may a way to satisfy both sides. In the Zubik per curiam, the Court announced, “Both petitioners and the Government now confirm that such an option is feasible.” The Court justified its punt:

Although there may still be areas of disagreement between the parties on issues of implementation, the importance of those areas of potential concern is uncertain, as is the necessity of this Court’s involvement at this point to resolve them.

It also went to some length to emphasize that this was indeed a punt, and not some trick play for one side or the other:

The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.

The White House immediately declared the opinion as demonstrating why the Senate needs to hold hearings on Judge Garland so the Court can return to full strength. President Obama, like the good sports fan he is, called the punt a punt and suggested he would have liked the outcome better if Judge Garland got his promotion: “I won’t speculate as to why they punted,” he said, “but my suspicion is if we have nine Supreme Court justices instead of eight we might have had a different outcome.”

Liberal commentary on the Court’s opinion has predictably echoed the President’s sentiment, although with a healthier dose of hyperbole. In The Week, Scott Lemieux complains that the Court is not doing its job. The unfilled vacancy “means that the nation’s top appellate court does not so much decide a case as beg litigants and lower courts to resolve the disputes so that they don’t have to.” The dispute has been consigned to an “ongoing legal purgatory.” The Supreme Court “is slowly coming undone,” warned Garrett Epps at The Atlantic. The Zubik opinion “is the latest evidence of its slide toward paralysis.” The Supreme Court is “crippled” lamented the editors of the New York Times:

The court’s job is not to propose complicated compromises for individual litigants; it is to provide the final word in interpreting the Constitution and the nation’s laws. Despite what Senate Republicans may say about the lack of harm in the delay in filling the vacancy, the court cannot do its job without a full bench.

At Slate, Dahlia Lithwick puts a more positive spin on what the Court did in Zubik. “This is the court punting in the most elegant way imaginable, by suggesting that it’s always best to leave the courts and the parties to work it out on their own. Both sides will claim victory.” The Editorial Board at the Washington Post concurred, characterizing the Court’s action as exactly the kind of judicial restraint Chief Justice Roberts advocated at his confirmation hearing. “[T]he court dropped a big hint that this matter might be best dealt with through a less polarized, and polarizing, process,” the Post concluded. “We hope the parties take advantage.” Adam Liptak at the New York Times wrote an article that echoed the themes of the Post’s editorial. “The Supreme Court has gone into hibernation”; it is a “diminished” institution. But this is not necessarily a bad thing. He notes that Justice Kagan has credited the Chief Justice for leading the Court in a more consensus-oriented direction. And he quotes law professor Eric Segall suggesting that the Court’s minimalist approach “may lead to a better solution for both sides.”

(See also—The New York Times has a lively online debate between Epps, Segall, and UPenn Law Professor Kermit Roosevelt on the question, “Is a Deadlocked Supreme Court Such a Bad Thing?”)

Weekly Roundup—April 15, 2016

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Confirmation, HBO’s new movie on the controversy surrounding Justice Thomas’ appointment to the Supreme Court, airs tomorrow. Back in 1991, Nina Totenberg broke the story of Anita Hill’s sexual harassment accusations on NPR. She joined NPR’s politics podcast to recount her experience. Check out the New York Times review of the movie here.

On Tuesday, supplemental briefs were filed on behalf of both parties in the Zubik v. Burwell case. The Court heard arguments in the case involving contraceptive-coverage and religious liberty last month, but, in an unusual move, the justices then requested more information from the parties. Scotusblog examines this unusual request here.

What’s the latest on Supreme Court nominee Merrick Garland? “Republican senators meeting with Judge Merrick B. Garland seem to take quite a long time to simply say ‘no.’” The Washington Post explains more about Garland’s Capitol Hill introductions this past week. Meanwhile, the ABA moves on with its evaluation of the nominee, conducting interviews with colleagues, lawyers who have argued before him, and the nominee himself, reports Tony Mauro.

And looking ahead to next week’s big case, previews on United States v. Texas, the challenge to President Obama’s immigration order, which the Court will hear on Monday, can be found at CNN, Bloomberg, and SCOTUSBlog. Reuters and HuffPost each have stories about those who would be most affected by the Court’s ruling in the case.

What Happened in Evenwel?

The big surprise from Monday’s Supreme Court decision in Evenwel v. Abbott was not how the Court ruled, but that it was unanimous in doing so. The case involved the way to measure population in applying the Court’s longstanding “one person one vote” standard when drawing voter districts. The basic question: should voting districts be apportioned by the number of eligible voters or by total population? The Court had never squarely answered this question.  At oral arguments last December, observers read the justices as closely divided. The challengers appeared to have a strong case. In the end, however, this was not so. Although there was some disagreement among the justices, they spoke as one in rejecting the challenger’s claim that the Constitution required apportionment to be based on eligible voters.

So what happened? Here are two hypotheses that attempt to explain why such a deeply divided Court produced no dissents in this case.

(1) Practicalities. The challengers in this case argued that when measuring voting districts under the one person, one vote standard, only eligible voters should be counted. But the relatively well entrenched norm today is to measure total residents. Some scholars have questioned whether it would even be feasible to gather accurate measures of eligible voters.  Justice Ginsburg, writing for the majority noted that to adopt voter-eligible apportionment would “upset a well-functioning approach to districting that all 50 States and countless local jurisdictions have followed for decades, even centuries.” The disruption costs and practical impediments likely pulled on the Court, even those justices who appeared sympathetic to the challengers’ claim. 

(2) Federalism. The Court did not rule that apportionment had to be done one way or another. Ginsburg’s opinion for the Court held that there was no constitutional requirement that it be based on eligible voters. The selection of what measure to use is not dictated by the Court; it is left to the states. This is a resolution that aligns with the federalism sentiments conservatives on the Court tend to embrace. By leaving the issue to the states, Justice Ginsburg probably envisions a continuation of the status quo–states, because of the practicality concerns mentioned above, will continue to rely on total population. But Justice Alito, who appears more sympathetic to the eligible-voter standard, may envision that states will respond by moving away from the total-population standard. This decision, then, left the door open for the Court to return to this issue in the future. In his concurrence, Justice Alito wrote that the Court can decide if a state is allowed to use some measure other than total population “if and when” a districting plan of that nature arises.

“By leaving open the possibility of using the population of voters as a redistricting measure in the future, Ginsburg may have won over the court’s conservative justices,” writes The National Law Journal. “The door is now wide open,” write the editors or USA Today, “for Republican legislators to change state or local redistricting policy to include only voters, and send the question back to the high court.” If indeed this issue returns to the Supreme Court at a future day, this time in the form of a constitutional challenge to a state that chooses to rely on eligible voters in measuring voter districts, then the unanimity of Evenwel is unlikely to be replicated.

Weekly Roundup, April 1, 2016

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Check out the latest reporting and opinion on Obama’s Merrick Garland nomination from Slate, The Washington Post, NPR, Politico, USA Today, and Vox.

George Mason University voted to rename its law school after Justice Antonin Scalia on Thursday afternoon. News reports from the Washington Post, Above the Law, and Wall Street Journal.

Oral arguments in Zubik v. Burwell, the latest religious liberty challenge to the ACA’s contraception coverage requirement, generated a predictably heated debate. “At its core, this case . . . is a case about religion’s role in civil society,” wrote Linda Greenhouse for the New York Times. Further coverage from The Atlantic, NPR and The Economist.

Is Puerto Rico its own sovereign state? This question is at the heart of the challenge in Puerto Rico v. Sanchez Valle. Read more on The Atlantic.

Justice O’Connor’s animated civics game Win the White House teaches students “to compete civilly against opponents with divergent views on issues like immigration and gun control.” Reporting from the New York Times.

On Tuesday, Friedrichs v. California Teachers Association was left in a 4-4 tie at the Supreme Court, leaving in place the appeals court ruling and snatching away what “right to work” advocates hoped would be a major blow to labor unions. Reporting from BloombergView, Reuters, and The Wall Street Journal.

For more on the challenges of an 8-Justice Court, see Richard Wolf’s article in USA Today. He write: “Change has come to the high court, and the justices are dealing with it in fits and starts.”