How to Think About Justice Ginsburg’s Trump Comments

The trial of Justice Ginsburg for violations of judicial propriety has concluded, the jury has deliberated, and the defendant has been found guilty. The Justice was wrong to publicly and repeatedly attack Republican presidential nominee Donald Trump.

The Justice has her defenders of course. Some simply believe Ginsburg can do no wrong. Some argue normal rules need not apply when it comes to Trump. Some see her comments as justified because there is value in judicial candor and bursting the myth that the Court somehow floats above politics.

But these are minority voices. The clear consensus is that Ginsburg was in error for speaking out as she did. Republicans and conservatives unanimously denounced her comments. But so did most judicial ethicists who expressed a view on the matter. A number of leading liberals chastised, ever so gently, their beloved Justice, noting that while they agreed with everything Ginsburg said, she shouldn’t have said it. Newspaper editorial boards reprimanded the Justice. Who would have thought the New York Times would run an editorial under the title “Donald Trump Is Right About Justice Ruth Bader Ginsburg”?

Ginsburg herself has now joined the chorus of her own critics. Today she issued an official mea culpa, describing her remarks as “ill-advised” and accepting that “[j]udges should avoid commenting on a candidate for public office.”

So Ginsburg was wrong. This much is clear. But it is less clear why she was wrong to say what she did. Why is it such a bad idea for Supreme Court justices to discuss presidential politics?

The quick answer is that justices talking politics somehow demeans the Court, that it compromises the Court’s legitimacy. My sense is that these fears tend to be exaggerated—when it comes to legitimacy, the Court is a remarkably hardy institution—but let’s accept that there is something to this critique. Let’s accept, that is, that when the justices engage in partisan disputes, popular respect for the Court takes a hit. For critics of controversial extrajudicial speech, this is pretty much the end of the story. The lesson is simple: justices should not say things that undermine the legitimacy of the Court.

But the discussion should not end here. We must not forget the potential value of controversial extrajudicial speech. Justices speaking directly and bluntly about controversial topics when off the bench can serve a valuable role: they can educate, they can explain workings of the Court, they can reveal the thinking of that particular justice, they can spark debate. For this reason, many controversial off-the-bench statements by Supreme Court justices should not be condemned simply because they threaten public respect for the Court. (I believe many of Justice Scalia’s most controversial extrajudicial statements were often too quickly condemned as categorically inappropriate. One thing the late Justice was uniquely good at was inspiring debate over important issues about the Court and the law.) Their value might balance out this risk. We need a legitimate Court. But we also need a public that thinks about the Court, that struggles with the issues the Court is struggling with. And we need justices who think that part of their job is to engage with the American people in ways beyond writing opinions few people ever read.

This is where Justice Ginsburg’s comments about Trump fall short and why they deserve the condemnation they have received. They are of minimal value. They offer no particular insight into anything that Justice Ginsburg is uniquely positioned to speak about. They are not about legal interpretation, about the Constitution, about the role of the judge in a democratic society. They are rather predictable criticisms on a topic that does not need Justice Ginsburg’s insights to spark public debate.

Some have argued that her comments have value in that they, as Noah Feldman put it, “help put to rest the myth that the justices are uninterested in politics and unaffected by it.” I agree that this myth should be challenged. I agree that there is value in giving the public a more accurate and constructive view of the Court, a view that goes beyond simplistic descriptions of judges as umpires calling balls and strikes. But what Justice Ginsburg did was to inject partisanship, not politics, into the discussion. Partisanship is about Republicans and Democrats, about Trump and Clinton. Politics, in the sense that the Supreme Court is (and always has been) a “political” court, is about something else. It is about conflicting understandings of principles of federalism and separation of powers, of the history of liberty and rights in America, of the core values of a constitutional democracy and the role of a Supreme Court in it.

If Justice Ginsburg said something in an interview that crossed a line of judicial propriety but got us talking about these kinds of issues, then her defenders would have had a case. But this time, as Justice Ginsburg finally realized, her critics were right.

Weekly Roundup—July 2, 2016

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The Supreme Court released its final decisions of the 2015 term on Monday. The most closely watched was Whole Woman’s Health v. Hellerstedt, the Court’s most significant abortion ruling since 1992. In a 5-3 decision, with Justice Breyer writing for the majority, the Court struck down two Texas abortion regulations that would have sharply reduced the number of abortion providers in the state. Justice Alito registered his disagreement with the Court’s holding in a lengthy, strongly worded written dissent, portions of which he read from the bench.

For further reading: Oyez’s Body Politic offers an interactive walk through the history of abortion at the Supreme Court, from Roe to Whole Woman’s Health. The New York Times has SCOTUS reporter Adam Liptak’s story on the decision, an approving editorial lamenting that even three justices voted to uphold the law, an approving Linda Greenhouse lamenting the muted tone on Breyer’s opinion, and a roundup of reactions to the decision. The Economist analyzed Justice Kennedy’s votes in this case and in last week’s affirmative actions decision. Finally, ISCOTUS Director Christopher Schmidt dissected how Justice Breyer revised abortion doctrine in a post on this blog.

On Monday the Court also issued its decision in McDonnell v. United States, vacating former Virginia Governor Bob McDonnell’s corruption conviction. The Court unanimously held that McDonnell was convicted under a reading of federal corruption law that relied on too broad a reading of what was an “official act.”  In a SCOTUSblog symposium, Fred Wertheimer, President of Democracy 21, criticized the ruling: “The Supreme Court in this case leaned over backwards to protect officeholders and pretty much ignored the interests of citizens in honest government and the dangers of allowing officeholders to sell their office.” The National Law Review found much to like in the ruling, writing that Court resisted “the criminalization of ordinary politics—as distasteful and unseemly as that can often be.” Robert Bauer of The Washington Post suggests that this decision puts the responsibility on voters to “catch the crooks” in politics and vote them out of office.

In its final opinion of the term, Voisine v. United States, the Court held 6-2 that for purposes of firearm prohibition for convicted felons, a “misdemeanor crime of domestic violence” includes reckless domestic assault. Justice Thomas had already registered his strong feelings on this case during oral arguments when he broke his 10-year streak without asking a question to challenge the federal government’s lawyer. So it was no surprise that he wrong a strong dissent in this case. ” The Washington Post discussed the rarity of seeing the Court’s most conservative member, Justice Thomas, and the Court’s most liberal member, Justice Sotomayor, together as the lone dissenters. The Hill.com explained that for gun control advocates, this decision was “a victory for public safety and women and children affected by domestic violence.” At Slate, Nora Caplan-Bricker wrote that this was but a “hollow victory” for gun control.

An Eventful Term Comes to a Close:

The term stretched from October 5, 2016 to June 27, 2016 and the Justices decided 80 cases during that time. Scotusblog breaks down every holding from this term, here. Its complete “October Term 2015 Stat Pack” is here. And get a glimpse of the Court’s last day from Mark Walsh of Scotusblog.

New York Times reporter Adam Liptak gives the inside scoop on how reporters cover the Supreme Court.

The most significant event of the term was, of course, the passing of Justice Scalia. The end of the term sparked a new round of assessments of Scalia’s legacy. Lissandra Villa of Time.com explained that “Scalia’s conservative, originalist presence on the court could have changed the outcome” in key cases. Richard Wolf of USAToday.com considered how the Court maneuvered while “rowing with eight oars.”

How Justice Breyer Rewrote Abortion Law in Whole Woman’s Health

An assessment of the Supreme Court’s most recent abortion decision by ISCOTUS Director Christopher W. Schmidt

In his opinion for the Court in Monday’s Whole Woman’s Health v. Hellerstedt, Justice Breyer had two goals: to write a bland opinion and to rewrite abortion law.

Breyer’s opinion conscientiously avoids engaging with the most controversial elements of abortion law. It makes only the most limited references to the constitutional basis for the right to abortion, to questions of constitutional interpretation, and to the importance of reproductive choice to women’s rights generally. Instead of passion or principles, he gave facts. Lots of facts, gathered to demonstrate that the abortion regulations Texas claimed to be health measures achieved minimal health benefits at best, and probably made abortions riskier. He didn’t delve into the reasons Texas passed these regulations (which, as everyone knows, was primarily to advance a pro-life agenda). He collects facts, shows how they fail to meet the constitutional standard, and strikes down the regulation. Job done.

Contained within this bland, let-the-facts-do-the-talking opinion, however, was a decision that does nothing less than rewrite the way the courts do abortion law.

The new approach Breyer outlined, and then used to strike down the two Texas abortion regulations, is deceptively simply and commonsensical: he insisted that the Court’s constitutional evaluation take into account the benefits of an abortion regulation alongside the burdens it imposes on access to abortion.

Seems obvious, right? Yet before Monday, many lower federal courts relied on a constitutional test that gave only glancing attention to the health benefits of abortion regulations. The test these courts had developed were grounded in Planned Parenthood v. Casey, the 1992 decision in which the Court reaffirmed the constitutional right to abortion that it created in Roe v. Wade while modifying Roe’s test for evaluating abortion regulations. Casey’s major innovations were (a) to recognize that the government could regulate abortion throughout a woman’s pregnancy in order to advance its interests in protecting the health of the mother and protecting fetal life; and (b) to introduce the “undue burden” test, under which an abortion regulation that had “the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus” violated the Constitution.

Casey was less than clear, however, on how (a) and (b) related to one another. A number of courts developed a two-step test in evaluating abortion regulations. First (a): does the government have a constitutional basis for passing the abortion regulation? Then (b): does that regulation constitute an undue burden on a women’s access to abortion? The second step did not take into account the reason for the regulation that was the focus of the first step; it just looked to whether the regulation placed a substantial obstacle in the way of a woman seeking a legal abortion.

The reason this Casey two-step frustrated pro-choice advocates, and why a majority of the Court rejected it on Monday, had to do with the level of deference the courts were willing to give to lawmakers in step one of its analysis. The first step applied only the lowest level of judicial review, what the courts call “rational basis review.” This standard, which applies to constitutional review of most policy, only asks whether a legislator could rationally believe the law would advance a legitimate state interest. So in the case of the Texas abortion regulations, could a legislator believe that requiring doctors providing abortions to have admitting privileges at a nearby hospital or requiring that abortion facilities meet the standards of surgical centers would serve to protect women’s health? Under rational basis review, the legislator is given the benefit of the doubt when there are factual disputes on the effects of the law. So in the Texas case, even if the weight of scientific evidence showed that abortions were a generally safe procedure, that complications were rare, and that the new requirements likely would have the effect of increasing health risks, the law could still get through step one if in the face of this evidence there was enough uncertainty that a legislator could rationally believe the regulation advanced a health interest. Only in the rarest of cases will courts determine that a policy is so irrational to fail this deferential test. In Whole Woman’s Health, the Fifth Circuit Court of Appeals held that the Texas regulations met this low threshold.

Only when the Court got to the next step, when it considered the effect of the regulation on a woman’s access to abortion, did the Court give the kind of close, skeptical analysis that typically characterizes the review of policies that limit constitutional rights. This was when the “undue burden” test kicked in. Under the two-step analysis, courts looked just at the extent of the “obstacle” the regulation created. Was the obstacle “substantial”? If yes, then the law was struck down; if no, then it was upheld. It was on this critical question that courts across the country went in different directions. For some judges, increased travel times and costs for having an abortion—the result of abortion regulations like the ones in Texas—was a significant obstacle; for others it was not. When judges tried to apply this vague “substantial obstacle” standard in this abstract way, it is no surprise that conservative and liberal justices usually came to different conclusions. In Whole Woman’s Health, the Fifth Circuit held that the obstacles the Texas regulations created were not substantial.

And this was how many lower federal courts used Casey before Monday.

But in Whole Woman’s Health, Breyer rejected the Casey two-step and clarified (according to his supporters) or redefined (according to his critics) Casey into a one-step, in which the reasons for the regulation would be part of the analysis of the significance of the burden on access to abortion. Going forward, the undue burden analysis will require a balancing test, a weighing of the benefits of a regulation against the costs it imposes on a woman’s right to abortion. As Breyer wrote about the Texas regulations, neither of the challenged regulations “offers medical benefits sufficient to justify the burdens upon access that each imposes.”

Although it is unlikely that this new doctrinal approach will diffuse any of the controversy surrounding the Court’s place in our nation’s struggle over abortion, it does serve to better align the Court’s doctrine with the way most Americans think about abortion. The Casey two-step was the kind of formalistic analysis that leaves non-lawyers scratching their heads. Everyone knew that the real reason Texas passed these laws was to protect fetal life. But since they were framed as health regulations, and since they arguably may have some health benefits, the courts were going to treat them as legitimate health regulations. And then the courts ventured into an unsatisfying, irresolvable debate over what is “substantial.” But Breyer’s approach has the virtue of insisting that this all needs to be considered together. So rather than some abstract assessment of substantiality, the question is whether the costs outweigh the benefits. In the Texas case, this approach leads to a clear conclusion: even giving the Texas legislators the benefit of the doubt, the benefits are relatively minimal, and the burdens are significant.

Reactions to this decision have predictably fallen along ideological lines. Those who think the Constitution doesn’t protect a right to abortion see nothing good in this decision. But I think there is reason for people on all sides of this issue to appreciate Breyer’s reworking of the undue burden standard as a move toward a more productive, honest abortion doctrine. The doctrine now better assesses the decision making process that most Americans actually go through in considering this difficult balancing of a woman’s right to choose and a state’s interest in protecting a mother’s health as well as fetal life. If we are to have a constitutional right to abortion, and if we are to permit states to regulate abortion to some extent, then judges should employ a doctrine that actually places the relevant factors into the same judicial analysis. Breyer’s decision in Whole Woman’s Health does just that.

Weekly Roundup—June 24, 2016

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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

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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?”)