Tag Archives: Supreme Court of the United States

The next four years

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With the election safely behind us — and, fortunately, without any controversy or recount in the offing — we can now pivot towards prognostications for the future. And no, not 2016. (Please, not for another two and a half years at the least.)

To that end, The First Casualty contributors Sam Lim, Mark McAdam, and Victoria Kwan have each weighed in with their thoughts on what to watch for — especially given their areas of interest — in the coming months and years. Feel free to join in the conversation in the comments!

Sam Lim: Higher Education

In his first term, President Obama worked to make higher education more affordable, shifting over $60 billion from private student loan providers to boosting the federal Pell grant program. In his second term, I expect that President Obama will continue pushing for maintaining — and hopefully increasing — Pell grant funding for students with financial need.

I expect further simplification of the process for applying for federal student aid. Changes to the Free Application for Federal Student Aid (FAFSA) over the past few years have made it immensely easier for students, but then-candidate Obama proposed even simpler solutions in 2008 (such as streamlining the FAFSA application process with the filing of tax returns).

Combined with the continued development of financial tools such as college price comparison calculators for students and families offered by the Consumer Financial Protection Bureau, I expect to see an effort to make processes like applying for aid or choosing the best type of loans even more transparent and accessible.

Of greatest concern are the skyrocketing costs of college tuition and rising student debt. As he mentioned in his 2012 State of the Union address, President Obama will work to ensure that colleges and universities are not pricing higher education out of range for most middle- and low-income students.

I would expect to see either financial incentives or sanctions for public colleges and universities to bring tuition down and keep it in check. If not proposed, I would at least expect these options to be strongly considered. I would also expect to see further initiatives to help students and graduates manage their debt, potentially through expanded loan forgiveness programs tied to public service and other high-need areas.

The Obama Administration seems to favor addressing educational issues most by incentivizing local solutions (more so in K-12, but also in higher ed), so I would fully expect to see more incentive-based programs and initiatives to encourage local level education reform through programs similar to Race to the Top or Innovation (i3) Grants. With jobs and economic growth a key focus, I expect areas that might be further targeted include community colleges, career and technical education, and college-to-career pipelines.

Without a doubt, given the little support for higher education demonstrated by Governor Romney, students and supporters of higher education should be hopeful that President Obama has four more years to continue working to make higher education an accessible opportunity for all students.

Samson Lim is the Executive Director of Seattle-based Scholarship Junkies, a scholarship resource organization that works to help students make higher education more affordable. Sam spent a year conducting ethnographic research on access to higher education in Berlin, Germany, as a 2010-11 U.S. Student Fulbright Scholar. Currently, Sam can be found buried in reading for his Masters of Education program in Politics and Education at Teachers College, Columbia University, although he emerges every once in a while to highlight higher ed and financial aid issues in 140 characters or less at @samsonxlim.

Mark McAdam: The (Indispensable) Republican Reformation

“What a waste.”

It is more than likely that this was the sentiment Republican strategists awoke to on Wednesday morning, as they pondered the past 16 months on the campaign trail.  “What a waste because–a sluggish economic recovery provided–it should have been so easy to beat Barack Obama on Tuesday.”

As pundits have begun offering their own explanations as to why Republicans failed to win back the White House on Tuesday, the Republican Party will have to reexamine its own platform if it hopes to remain electorally competitive and actually win future national elections. Below is an outline of four issue areas Republicans must address:

1) Same-sex marriage: 2012 is not 2004. Whereas opposition to gay marriage in 2004 actually helped bring out the vote and secured a second term for George W. Bush, public opinion on gay marriage has changed significantly in the past eight years. With 69% of voters under 30 years of age supporting gay marriage (not to mention 37% of Republicans between ages 18 and 29!), it hardly seems feasible to build a party platform around discriminatory policies which young people–i.e. those voting for the next sixty years–largely reject.

2) Immigration: The Republican primary process was a disgrace and provides clear evidence that a “race to the bottom” is possible in selecting a party’s nominee. On no issue was this as apparent as on how to deal with undocumented immigrants. With demographic trends suggesting that the United States is becoming less and less Caucasian, it should have been surprising that each candidate attempted to outperform the next in terms of alienating voters with an immigration background. (Or, for that matter, voters who know immigrants.) Wanting to cause conditions which would lead to “self-deportation” and endorsing ideas like that of an electric fence on the border does not only seem eerily un-American, but xenophobia is also bad politics in a demographically changing electorate.

3) Foreign Policy: The days in which neoconservative thought ruled Republican thinking on foreign policy seem over, yet instead of a competing paradigm emerging to replace it, Republicans face an intellectual void on foreign policy matters. (Admittedly, the same–i.e. an intellectual void–is also true for the Democratic Party.) Substantively meaningless, Republicans seem motivated to “be tougher than their opponents” on foreign policy, yet this reveals nothing about whether to intervene in Libya, how to respond to developments in Syria, or what the country’s relationship with Pakistan should look like. More importantly, there is no understanding–no vision–of what America’s role in the post-Cold War and post-9/11 world is or should be.

4) The Economy & The State: Likely the issue on which Republicans perform best, one is nevertheless forgiven to assume that the Republican answer to all economic matters is to deregulate and to cut taxes and government spending. Yet the assumption that the economic state of nature is one of harmony finds no credible support. Indeed, Republicans, who are only partially justified in purporting to be heirs of the free enterprise tradition, would do well to argue that the state can and must take on a positive role in a free enterprise framework: it must provide a legal framework, including oversight of markets; it must provide proper regulation; and it should push for legislation fostering competition. All of these ideas are entirely consistent with a free enterprise approach and, if put into place properly, do not lead to a path towards socialism.

Republicans mistakenly hoped that unemployment at 7.9% would suffice to win the White House. But without altering their rigid party platform and making it more amenable to the electorate as a whole, Republicans could lose many more national elections.

Mark McAdam is a football guru. When he’s not writing about the Bundesliga, he advocates on behalf of free societies. He has a Master’s degree in “Politics, Economics & Philosophy” and studied at the University of Hamburg’s Institute for Economic Systems, the History of Economic Thought and the History of Ideas.

Victoria Kwan: The Federal Judiciary

How much will Barack Obama’s re-election affect the composition of the Supreme Court? Looking at current circumstances, the answer is “not much.” Right now, there are three Supreme Court justices over the age of 75: Ruth Bader Ginsburg (79), her best friend Antonin Scalia (76), and Anthony Kennedy (76). Of the three, Justice Ginsburg is the most likely to retire in the coming four years.  The Brooklyn native is tough as nails–she has already weathered two bouts of cancer (while barely missing any work) and the death of her husband in her 19 years on the Court, and her mind remains as sharp as ever–but given her health history, her age and her liberal stance, it would not be surprising at all if she stepped down and gave a Democratic administration the chance to fill her place. President Obama would surely replace Ginsburg with a moderate to liberal justice who would preserve the current balance on the Court (four conservatives, four liberals and one swing vote).

Now, if either Justice Scalia or Justice Kennedy were to step down, Obama would have the opportunity to put together a five-liberal majority bloc. Barring a serious health issue, however, this isn’t likely to happen. Scalia accumulated quite a list of furious dissents before finally seeing a five-conservative majority coalesce under George W. Bush’s administration, and he relishes his position as the anchor of the Court’s conservative wing too much to voluntarily give up his seat. Meanwhile, despite all protestations to the contrary, Kennedy seems to greatly enjoy his current role as the swing vote.  Their job satisfaction and apparent good health mean that Citizens United–the ruling that the Democrats would most like to see SCOTUS overturn, and hence, the liberal equivalent of Roe v. Wade–will remain intact for at least the next four years.  On the other hand, Obama’s re-election also means that Roe continues to be safe for now.

Beyond the Supreme Court, there is the question of the re-election’s impact on the rest of the federal judiciary. George W. Bush made the appointment of young conservative judges a top priority in both terms, filling a total of 325 federal judgeships over eight years. So far, Obama has appointed 160 (which is behind the pace Bush and Clinton set in each of their first four years). The rate at which Obama has been able to fill judicial vacancies has been slow to say the least, creating judicial emergencies in some understaffed and overworked courts. Part of the reason for this is Republican obstructionism. As Slate reported in September, citing studies from the Congressional Research Service, even the uncontroversial Obama nominees have seen their confirmation times (the number of days between nomination and confirmation) jump up sharply compared to Bush’s nominees. None of Obama’s nominees to federal appeals courts have been confirmed in under 100 days, while 28.6% of Bush’s were.

But the blame does not rest solely on the Republican party: Obama himself has not made the appointment of judges a top priority in the same way Bush did. He has moved slowly to even name candidates–many of the current vacancies don’t even have nominees to vote on–and when he does nominate, Obama more often than not chooses moderates over outspoken liberals. And of course, in this past election cycle, the federal judiciary was barely discussed by the Obama campaign. One optimistic explanation (for liberals, that is) for Obama’s moderate first-term approach could be that he had re-election in mind, and can now nominate liberal judges at a much faster and more aggressive clip. But the likelier explanation is that, as Jeffrey Toobin writes, Obama simply does not see the courts as the most appropriate place to enact widespread social change, preferring to problem-solve through the legislative arena.

Bottom Line: when it comes to the courts, we should expect to see more of the same.

Victoria holds a J.D. from Columbia Law School in New York and has recently completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and posts primarily on legal issues, especially those involving the Supreme Court.

Highlights from the Fisher v. University of Texas Oral Argument

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“Wow, that went really well for the University of Texas!” – No one

Last Wednesday, the Supreme Court held a one-hour oral argument in Fisher v. University of Texas, in which our eight justices (Justice Elena Kagan recused herself) engaged in lively debate over the future of racial affirmative action in state universities. (For more on the case, see my post from last week.) Five highlights from that argument:

  • Predictably, the Justices on the left–Ginsburg, Sotomayor and Breyer–came flying out of the gate with questions for Bert Rein, Abigail Fisher’s attorney. Ginsburg and Sotomayor immediately questioned whether Fisher has suffered the requisite injury she needs to be able to sue, if (as UT claims) she would have been rejected even under a completely race-neutral plan. As is the case with SCOTUS oral arguments in general, a Justice from the other end (Scalia) jumped in not to ask Rein a follow-up question but to provide the answer on his behalf, countering that Fisher’s injury was not the loss of admission but the loss of an opportunity to be considered fairly by UT. Ginsburg, Sotomayor and Breyer seem convinced that the UT admissions scheme satisfies the Grutter test, and Rein certainly received quite a bit of help from Justice Scalia as the liberal justices continued to press him. On the other hand, Justices Alito, Roberts and Scalia hammered Gregory Garre, the attorney for UT, with Sotomayor occasionally stepping in to offer a helping hand.
  • Both lawyers were repeatedly asked what a “critical mass” of underrepresented minority students at UT might be, at which UT would have adequate student body diversity. When asked by Sotomayor when enough was enough, Rein punted and stated that the definition of “critical mass” (a phrase that comes from Grutter) is something that UT and not Fisher needs to prove, declining to say out loud that the critical mass is whatever number of minorities that the top-10% plan captures in any given year. On the other hand, the conservative justices pressed UT hard on its own fuzzy definition of “critical mass,” appearing at points to try and bait the school into admitting that it has a certain number or percentage of minority admits in mind. This, of course, would be an unconstitutional quota forbidden under Grutter, which is exactly what the conservative wing thinks UT is actually using. UT, for the record, thinks of critical mass as the point where minority students do not feel like the spokespeople for their race, which is a nebulous answer most unsatisfactory for Scalia, Alito and Roberts.
  • Justice Roberts asked UT’s lawyer, Gregory Garre, about self-identification of race on UT applications and whether the school had any way of knowing when applicants were lying about their minority status. Roberts also wanted to know whether someone who is 1/4 or 1/8 Latino (or 1/32 Latino, as Scalia added on later) could self-identify as being Latino, or whether that would be violating some kind of honor code. Undoubtedly, Roberts’ point was to question the effectiveness and sincerity of UT’s plan to increase classroom diversity, if it has no way of even figuring out which applicants actually are underrepresented minorities. But the flip side of this question seems to undercut Fisher’s argument: if Roberts is right and applicants are fraudulently self-identifying as minorities, that means UT’s student body has an even lower number of minority students than it currently thinks it does.
  • Justice Alito questioned twice whether it’s fair that affirmative action is being used to help the wrong group of people. Specifically, he wants to know why wealthy African American and Latino students are getting a preference instead of students from underprivileged or even just plain middle-class families. Alito also wants to know how all Asian Americans can be grouped into one category when some ethnic subgroups are more underprivileged and underrepresented than others. UT’s answer is that applicants can state their countries of origin as well, which the school will take into account–but again, Alito doesn’t seem convinced.
  • The big question in all this is what Justice Kennedy thinks, since he is likely to be the deciding vote. Donald Verrilli, arguing for the United States in support of UT, appealed to the swing justice by bringing up his 2007 concurrence in Parents Involved in Community Schools v. Seattle School District No. 1, in which Kennedy spoke of the country’s strength as arising from the fraternizing of different creeds, races and cultures. However, Kennedy seems skeptical of the UT plan, characterizing it at one point as prioritizing “race above all.” At another point, Kennedy calls race a “tie-breaker “ in UT’s admissions scheme, the same term that was used in Parents Involved to describe Seattle’s usage of race in its ultimately-doomed affirmative action plan.

The bottom line is that the justices are likely to rule 5-3 in favor of Fisher and strike down UT’s admissions scheme, which is going to put universities across the country back at square one. (A 4-4 tie would leave the status quo in place, thus allowing UT’s admissions process to continue as is.) The question is how far the Court will go not just in striking down the specifics of the UT plan but in limiting racial affirmative action across the board. Despite the fact that he invited the Court to do so in his brief, Rein maintains that he’s not asking the justices to overrule Grutter. But as Justice Sotomayor stated toward the end of oral argument, “You don’t want to overrule it, but you just want to gut it.” It looks like a gutting of Grutter is exactly what we’re headed toward. Of course, this is far too early for Justices Breyer, Ginsburg and Sotomayor (whose dismay at Fisher’s arguments was palpable)–but for the rest of the Roberts Court, this moment couldn’t come any sooner and is certainly nine years too late.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.

Can We Ever Have Too Much Diversity in Our Classrooms?: Grutter, Parents Involved, Fisher and the Fight Over Race-Based Affirmative Action

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If at first you don’t succeed, sue.

If you haven’t been living under a rock for the past few months, you’ve probably heard that affirmative action is back on the docket of the Supreme Court this term. Even if you have been living under a rock, you’ve probably still heard about it. You may be sick of hearing about it already. (If so, stop reading.) While there is a whole hell of a lot that can (and will) be said about race-based affirmative action in the context of higher education–whether it’s about its consequences for certain minority groups, its main beneficiaries, its effectiveness or its future direction–I’m going to limit myself to an overview of SCOTUS’ recent affirmative action cases and try to point out some of the inconsistencies that the Court must resolve with Fisher v. University of Texas (to be argued this Wednesday), and then close out with a couple of thoughts on affirmative action in general.

Fisher arises directly from a pair of 2003 cases involving the University of Michigan, Gratz v. Bollinger and Grutter v. Bollinger. Jennifer Gratz, a white applicant to the undergraduate school, argued that UM’s practice of granting underrepresented racial minorities automatic “points” in an admissions equation violated the Fourteenth Amendment’s Equal Protection Clause. Barbara Grutter, a white applicant to the law school, argued that UM Law’s practice of taking race into account in its admissions decisions, period, was also unconstitutional.

Now for a little bit of constitutional law: in Equal Protection challenges, a government policy that affords differential treatment between the races is examined under a standard known as “strict scrutiny.” Strict scrutiny means that the policy can only be upheld if the government can show two things: (1) a “compelling state interest,” and (2) “narrowly tailored” means to achieve this goal. Applying this standard, the Supreme Court ruled for Gratz–striking down the undergraduate school’s “bonus” points for underrepresented minorities–but against Grutter. It distinguished the two admissions schemes based on the fact that the law school merely considered race as one of many potential “pluses” and not as an automatic “booster”. Significantly, the Court accepted UM Law’s rationale that student body diversity itself is a compelling state interest “essential” to UM’s educational mission, because we learn to reject racial stereotypes and see members of different groups as individuals (rather than spokespeople for their entire race) when we encounter them frequently in our classrooms.* It then found that the law school had narrowly tailored its use of race in the admissions process. While quotas and automatic points unfairly insulated candidates from comparison with other applicants, taking race into account as part of a holistic process did not. Thus, UM Law’s policy was constitutional. The majority opinion, authored by Sandra Day O’Connor, represented a compromise between the reality of the obstacles still encountered by underrepresented minority students and the American ideal of a pure, colorblind meritocracy. But Justice O’Connor also wrote that she expected race-conscious admissions policies to be “limited in time” and Grutter to be obsolete in twenty-five years.

Who doesn’t want to be a part of this?

The Court is sixteen years ahead of schedule, but it looks ready to limit or even overturn Grutter now. In Fisher v. University of Texas, Abigail Noel Fisher argues that her rejection from UT violates the Equal Protection Clause. Under existing Texas law, the top 10% of students in every high school in the state receives automatic admission to state-funded universities. Race is not taken into account for this group of students, which is how UT gets 70-80% of its incoming class. For the rest of the applicants who do not make the 10% cutoff (now competing to be part of the remaining 20-30% of UT’s incoming class), race is taken into account as one factor among many, per the Grutter rule. Fisher, who is white, didn’t make the top 10% of her high school, and didn’t make the cut when her application was passed down to the pool where race was taken into consideration. She contends that the UT plan is unconstitutional because Texas doesn’t need to give underrepresented minorities a boost in the non-top-10% pile. UT’s race-neutral top-10% plan already results in a significant number of Latino and African American enrollees and makes UT’s classrooms plenty diverse enough without having to disadvantage Asian American and white applicants, Fisher claims. Any further consideration of race is just a smokescreen used by UT to admit a target number of Latinos and African Americans per year–in other words, a racial quota, which is expressly banned by SCOTUS. Texas, on the other hand, doesn’t see a problem with making its classes more racially diverse than the top 10% plan would allow and thus considers race as merely one part (“a factor of a factor of a factor of a factor”) of its holistic look at the non-top-10% applicants.

Fisher never directly argues that Grutter was wrong to accept diversity in higher education as a compelling interest, only that UT has already achieved adequate diversity through race-blind means and should stop there. (In other words, there is a “tipping point” of racial diversity after which you become less diverse by admitting too many students of color, despite the irony that white students are currently admitted at a higher rate under Texas’ non-top-10% holistic consideration than under the top-10% rule, thus… increasing racial diversity at UT.) But Fisher also wants the Court to consider clarifying or overturning Grutter altogether because courts have been too deferential to schools’ admission schemes–not truly questioning whether there is both a compelling state interest and narrowly tailored means–thus turning Grutter into a meaningless and unworkable standard.

On this argument, Fisher may very well find a majority of sympathetic Justices. It’s helpful to her that the perspective of the Court has changed dramatically in the past nine years, now that Sandra Day O’Connor has retired and Samuel Alito and John Roberts have moved in. Justices Alito and Roberts have made no secret of their disapproval of race-based affirmative action. Importantly, Roberts ruled in 2007’s Parents Involved in Community Schools v. Seattle School District No. 1 that Seattle could not use race as a “tiebreaker” when assigning elementary students to schools. Justice Roberts refused to acknowledge that diversity was a compelling state interest at the grade school level, dismissing Seattle’s goals of reducing racial isolation and racially-entrenched housing patterns. Unlike Justice O’Connor, Roberts believes that society is already colorblind enough, and that all this talk about racism is what’s really perpetuating racism: “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

No diversity for you!

Where things get sticky is when we try to make sense of Grutter and Parents Involved together. Parents Involved did not overturn Grutter; both are good law. Justice Roberts made sure to dispose of Grutter early on in his opinion, noting that it was limited to the realm of higher education and therefore did not apply to Parents Involved, which took place in the context of grade schooling. But this seemingly pat division raises inconsistencies when you look at what the Court is saying about diversity in each case: how can student diversity suddenly become compelling at the age of 18 and above when it hasn’t been for the last 12 years? Does it actually make any sense to say that elementary and high school students don’t need to be exposed to peers of different cultures and backgrounds, but then say that this exposure becomes of paramount importance when you leave for college, where you can then learn to reject racial stereotypes? Wouldn’t it be too late by then, and wouldn’t it make more sense to start teaching these lessons at an early age? Roberts wriggled his way out of this in Parents Involved by appealing to nebulous “considerations unique to institutions of higher education,” though he doesn’t bother to elaborate on how exactly this is different for grade school education. But either you believe that the state has a right to cobble together diverse classrooms in order to teach its young people acceptance and respect, or you don’t. It looks as though the Court’s conservative wing–Scalia, Thomas, Roberts and Alito–is eager to take the latter approach.

I am confused but powerful.

As ever, it may come down to Justice Anthony Kennedy, the current swing vote who will surely play as crucial of a role now as Justice O’Connor did in 2003. (Justice Elena Kagan has recused herself, so a 4-4 tie would mean that the Fifth Circuit’s decision upholding the UT plan stands, but if Kennedy votes with the four conservatives, UT loses 5-3.) And on the topic of affirmative action, Justice Kennedy seems to be a bit confused. Kennedy dissented in Grutter. He agreed with Justice O’Connor that diversity was in fact a compelling state interest, but found UM Law’s admissions scheme unconstitutional because he did not think it was narrowly tailored. In Parents Involved, Justice Kennedy again found that the challenged plan met the compelling interest test but not the narrowly tailored requirement. His concurrence broke with Justice Roberts on the question of whether diversity is a compelling educational goal at the grade school level (Kennedy believes it is), but then slammed the Seattle plan for categorizing students as “white” and “non-white” and not being narrowly tailored. Ultimately, his vote alongside the Court’s conservatives decided the case in favor of Parents Involved and the Seattle plan was struck down. What’s unclear, however, is exactly what kind of a plan Justice Kennedy would find narrowly tailored enough, and whether the University of Texas scheme will meet this unknown Kennedy standard. While diversity may survive as a compelling state interest as long as Kennedy hasn’t changed his mind, the UT plan might not–and if it doesn’t, schools across the country will be sent scrambling once again to devise a plan that does pass muster.** Diversity is nice, the Court seems to be saying, but we still haven’t figured out what the best way to achieve that is, or where we cross over the line into too much diversity.

As a final note, it’s worth remembering that colleges and grad schools use affirmative action in their admissions decisions in a multitude of ways that extend well beyond race. Justice O’Connor noted in Grutter that the University of Michigan’s admissions policy included “many possible bases for diversity admissions,” including languages spoken, community service performed and hardships overcome. Studies consistently show that female students get better grades in school and outperform men in universities, but colleges use gender affirmative action to try to admit a male-female student ratio as close to 50-50 as possible (since a student body that skews too much toward one gender will hurt campus social life and be “unappealing”). Schools use geographic affirmative action–if there’s 50 applicants from California and 50 applicants from New York with perfect GPA’s and perfect SAT scores and one applicant from North Dakota with an almost-perfect GPA and almost-perfect SAT scores, there’s a good chance that the North Dakotan is going to be admitted ahead of at least some of the perfect California and NY applicants despite the lower numbers. Athletes get preferences. Legacies get preferences (sometimes getting a boost in admissions chances by as much as a whopping 45%). And the list goes on and on. If a school has 50 applications from clarinet players and one from a piccolo player and it just so happens that the university orchestra’s one piccolo has just graduated, the piccoloist might get a bit of a boost. Amidst a pile of 50 applications from students who speak French as a second language and one from a student who is fluent in Croatian, the Croatian speaker might get some special consideration.

Despite all this, very few people ever kick up a big fuss about the injustices in the admissions process that discriminate against non-athletes, non-legacies, non-piccolo players, non-Croatian speakers and women, choosing instead to cry foul about race-based preferences. After all, Abigail Fisher isn’t mad about the male students or the children of UT alumni who might have cost her a shot at being a Longhorn. She’s mad about the African American and Latino students who got in before her, because it’s somehow easier to swallow the idea that students of color are the ones “stealing” spots they don’t deserve, and that they bring less to the college or grad school experience than other “preferred” students do. Of course, the existing system of affirmative action is not perfect, and there are a lot of ideas out there about what we can do to improve it.*** But the Supreme Court would do well to consider the realities of the holistic admissions process–which already have built-in considerations that benefit white/upper-class/male applicants and that have largely been left unchallenged in the courts–before it tries to convince us that we’ve reached our colorblind ideal, sixteen years ahead of schedule.

—

*The idea that racial diversity in the context of education can be a compelling state interest is not a new one; SCOTUS had accepted this argument earlier in the 1978 case Regents of the University of California v. Bakke.

**Or they could switch to a completely race-blind admissions process in which top-scoring students constitute all of the incoming class. In the absolute worst-case scenario for supporters of affirmative action, Kennedy may agree with Fisher’s argument that it’s time to stop considering race in higher education, period, and overturn Grutter.

***Richard Kahlenberg, who I’ve linked to multiple times in this post, has done extensive research into both race-based and legacy affirmative action and advocates a switch to income-based affirmative action, an approach which, he argues, would benefit many underrepresented minority students as well as students from lower-income white and Asian American families.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.

It’s That Time of the Year Again: Supreme Court Preview 2012 – 2013

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The width of the smile seems to be inversely proportional to the amount of time the Justice has been on the court.

After a busy summer spent lecturing abroad, appearing at book promotions, publicly sparring with other federal judges, attending Yankees games and having their homes robbed, the Supreme Court is set to start its 2012-2013 session next Monday, October 1st. Though it may not quite match last term’s level of drama with its Affordable Care Act and immigration rulings, this term promises to bring a few blockbusters as the Court prepares to tackle cases on hot-button issues such as affirmative action, gay marriage, government wiretapping and capital punishment for the mentally incompetent. The Supreme Court’s calendar for the term is not entirely set in stone–an opening conference held on September 24th  placed six new cases on the docket, and more cases are yet to be added–but here are some highlights we can expect to see in this coming year:

  • Revisiting Affirmative Action in Higher Education: Abigail Fisher, a Caucasian student, applied but did not gain admission to the University of Texas. She claims that UT unfairly denied her a spot on the basis of her race: under a 1997 Texas law, automatic admission to state-funded universities, including UT, is granted to the top 10% of students in every Texas high school regardless of race. At UT, race is then used as one factor among many to determine admission for the rest of the remaining spots. Fisher did not make the top 10% cutoff at her high school and her application was passed down to the pool that took the applicant’s race into consideration. In 2003, SCOTUS ruled in Grutter v. Bollinger that the University of Michigan could constitutionally take race into account as one factor in its admissions decisions since racial diversity in higher education was a “compelling state interest.” Sandra Day O’Connor famously wrote in her opinion then that she expected the Court to review this ruling again in 25 years, when racial disparities had (hopefully) faded to the point where affirmative action for ethnic minority students was no longer necessary. It has only been nine years since Grutter, but the Court has seen some personnel changes and a marked shift to the right since then–and some believe that Justice John Roberts (who has in a previous case indicated that racial diversity at the elementary school level is not a compelling state interest) & Co. are ready and willing to either overturn or restrict the Court’s previous ruling. Fisher will be argued on October 10th.
  • Gay Marriage (Finally) Makes Its Way Up to SCOTUS… We Think: Last year saw a boom of gay marriage cases being fought in various federal appellate courts across the country, and a number of these decisions have now been petitioned to the Supreme Court. Of the various cases seeking review, most involve challenges to the constitutionality of the Defense Of Marriage Act (which currently denies federal benefits to same-sex couples even if their marriages are legally recognized by their home states), while one involves an appeal from the Ninth Circuit’s February 2012 decision finding unconstitutional California’s Proposition 8 (which changed the state’s constitution to bar same-sex marriage). This last case, Hollingsworth v. Perry, is the most marquee of the bunch, though Emily Bazelon of Slate argues in this essay that proponents of gay marriage should want SCOTUS to take a step-by-step approach and hear one of the less-glitzy DOMA cases instead of Hollingsworth–which may demand too much of SCOTUS by seeking a sweeping decision that marriage is (or is not) a basic right guaranteed to all. SCOTUS has not decided exactly which case to grant cert to yet, if any–none of the six new cases that it agreed to review on Monday involved gay marriage–but Ruth Bader Ginsburg did mention at a University of Colorado conference this summer that the high court is likely to hear a DOMA case this term.
  • Can Suspected Drunk Drivers be Forced to Undergo Warrantless Blood Tests?: In a case concerning the privacy rights of motorists stopped by police for drunk driving, the Supreme Court will consider Missouri’s appeal of a state supreme court ruling that its police wrongly administered a warrantless, non-consensual blood test on Tyler McNeely. Under current Fourth Amendment jurisprudence, there are certain defined exceptions that would justify a police officer’s warrantless search and seizure of a person, but McNeely claims that none of these exceptions applied to his blood test, which was forcibly taken at a hospital less than a half-hour after he was first pulled over and refused to take a breathalyzer test. McNeely argues that over half the fifty states have laws prohibiting law enforcement from administering non-consensual blood tests without a warrant. On the other hand, Missouri argues that the 1966 precedent of Schmerber v. California allows for warrantless blood tests where the “special facts” exception exists, including the fact that the body begins eliminating alcohol from its blood shortly after drinking.
  • While We’re On the Subject of Warrants, Drug-Sniffing Dogs Come Under Scrutiny As Well:
    Franky the drug-sniffing dog. We’re not sure what the white stuff around his muzzle is.

    On October 31st, the Court will hear a pair of Florida cases involving drug-sniffing dogs and warrantless searches. In Florida v. Jardines, the defendant argues that the police violated his Fourth Amendment Rights against illegal search and seizure when they brought a drug-sniffing dog named Franky to sniff at his door without a warrant. Jardines contends that there was no probable cause for the sniff, which constituted a search in and of itself. Meanwhile, in Florida v. Harris, the Supreme Court will decide whether an “alert” from drug-sniffing dog Aldo can be assumed credible (thereby establishing probable cause for a warrantless search) merely on the basis that Aldo attended sniffing school, or whether prosecutors must provide more detailed information to show that the dog is indeed reliable. The Florida Supreme Court ruled last year in favor of the latter approach, ordering that the State provide evidence of the dog’s training and certification, field performance records, and evidence of the handling officer’s own experience and training.

  • Capital Punishment, Habeas Relief and the Mentally Incompetent: In the U.S., inmates who have been tried and sentenced to death have a right to challenge their convictions and sentences in a habeas corpus hearing. The Supreme Court has also held that the Eighth Amendment bars capital punishment for the insane and the mentally disabled. But what happens when an inmate is convicted of a capital crime, sentenced to death, and then argues at the habeas corpus petition stage that he is mentally incompetent and therefore cannot assist his lawyers in preparing the petition? Is he entitled to a competency hearing? Two Circuits have found that inmates do have a “right to competence” at the habeas stage and have granted mentally incompetent inmates indefinite stays until they become competent–meaning that if they never do become competent, their death sentence is effectively turned into life imprisonment. Supporters say that it is unjust to force the mentally incompetent into habeas proceedings if they cannot help their own counsel assemble their case, and point out that capital punishment for the insane and mentally disabled is unconstitutional anyway. Opponents argue, however, that these indefinite stays run contrary to the state’s interest in the finality of convictions. The Supreme Court will hear arguments for Ryan v. Gonzales and Tibbals v. Carter on October 9th.
  • Corporations Behaving Badly and Causing Human Rights Atrocities Abroad: The Alien Tort Statute was penned in 1789 to provide for foreign citizens redress for violations of international law, in United States courts. Modern applications of this law have focused on bringing to justice former government officials accused of atrocities abroad, but Kiobel v. Royal Dutch Petroleum adds a Citizens United-esque twist: can corporations be sued under the ATS for genocide, torture and other violations of international law committed abroad? And what is the exact scope of the ATS in cases where the alleged violations were committed outside of the U.S., anyway? The Second Circuit said no to the first question in 2010, dismissing the case based on its holding that corporate liability is not a universally recognized norm of customary international law. Upon Kiobel’s appeal, the Supreme Court held oral argument on the case in February 2012, but took the unusual step of ordering further argument for the new term beginning in October. This will be the first argument of the 2012-2013 year: look for the justices to focus not so much on the corporate liability issue but on the question of whether Kiobel can even bring her case in an American court for human rights abuses committed on foreign territory.
  • Government Wiretapping: The Supreme Court referees on October 29th the latest chapter in the fight between national security and civil liberties. In Clapper v. Amnesty International USA, a group of strange bedfellows (including Amnesty Int’l, the New York State Bar Association and the Gun Owners Foundation) have banded together to sue the government over the constitutionality of a provision in the Foreign Intelligence Surveillance Act that permits the “targeting” of “persons reasonably believed to be located outside the United States” for the purposes of “gathering foreign intelligence information.” Amongst other things, the law authorizes the government to wiretap such persons’ communications. The trouble for Amnesty and friends, however, is that in order to even sue in federal court, they must have standing, which requires them to show that they have suffered or will imminently suffer the injury they are complaining of. Unfortunately, they have no definitive proof that the government is in fact wiretapping their communications. Despite this obstacle, the Second Circuit permitted the case to proceed; SCOTUS will now decide whether the group does in fact have standing to sue.
  • Davids v. Goliaths–Immunity for Government Officials in Military and Prison Contexts: On Monday, the Supreme Court added to its docket not one but two cases from lawyerless petitioners, each involving the rights of individuals to sue the federal government. Millbrook v. United States arises from the claims of Kim Lee Millbrook, an inmate at a federal prison in Lewisburg, Pennsylvania who accused three prison guards of sexually assaulting him. Though his suit was dismissed by the lower courts, Millbrook handwrote an appeal in pencil to the Supreme Court, which then decided to use Millbrook’s case to resolve the question of government liability for claims made against federal prison guards, according to the Associated Press.  Meanwhile, Levin v. United States addresses government liability for tortious acts committed by military medical personnel. The case arises from a battery claim against the U.S. government, made by a Guam resident whose eye was allegedly damaged in a botched cataract operation carried out by a U.S. Navy surgeon. Levin appealed to the Supreme Court after the Ninth Circuit ruled against him and held that the federal government has sovereign immunity from battery claims.
  • Does the Government “Take” Your Land If It Repeatedly Floods Those Lands? Finally, the Supreme Court will settle this term the age-old question of whether the government must compensate parties under the Fifth Amendment’s takings clause if it repeatedly causes those parties’ properties to flood, thus “taking” the private property for “public use.” Arkansas contends that over a six-year period, the United States Army Corps of Engineers did just that to one of its forests, the 23,000-acre Dave Donaldson Black River Wildlife Management Area, causing degradation of the forest’s timber and destroying wildlife habitats. The government’s response is that the lands were not rendered completely unusable because the flooding was only “temporary” and the waters always receded. It maintains that its behavior may constitute a tort but does not rise to the level of a “taking.” While this case may sound a little bit like a no-brainer–why shouldn’t the government pay back the state for this recurring damage?–SCOTUS has in the last half-century chipped away slowly at the Takings Clause, going so far as to allow a Connecticut city to take over private property, without compensation, for the purpose of selling it to a private developer (in 2005’s Kelo v. City of New London). Oral argument for Arkansas Game & Fish Commission v. United States will be held on October 3rd.

Victoria Kwan holds a J.D. from Columbia Law School in New York and has just completed a clerkship with a judge in Anchorage, Alaska. She tweets as @nerdmeetsboy and will continue to post periodically here on legal issues. Rumor has it she and Jay Pinho are dating.