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Category Archives: Civil Rights
In recent years, the Supreme Court has had its version of an “election rule.” The essence of this rule is that the Supreme Court does not like last second changes to the election process. Regardless of whether the change comes from state election authorities changing the state’s procedure or a court decision resolving a challenge to those procedures, the Supreme Court prefers to “freeze” the status quo far enough in advance of the election so that voters know the rules and can take steps to comply with those rules. Perhaps in response to this implied vague deadline (a little less implied in the case of Texas where the Supreme Court indicated that they would consider intervening in there was not a court decision by the end of July), the last several weeks of have seen court decisions in multiple cases involving multiple states seeking to impose a requirement that voters present photographic ID to vote in-person.
On Thursday, in a rather surprising turn of events, the Supreme Court upheld the admission policy of the University of Texas at Austin against a complaint that it unconstitutionally favored African-Americans. This decision is surprising both because of the outcome, but also because of who wrote the opinion.
The basics of admission at UT is that the first cut of admissions comes from the “top 10%” program. If you go to high school in Texas and finish in the top 10% of your school and want to go to UT, you are automatically accepted (actually due to the cap on the number of admissions under this program, it is now closer to a top 7% program). This part of the admissions process fills about 75% of the slots. If you are home schooled, or out-of-state, or finish outside the top ten percent (whether that is 4th out of a graduation class of 30 or 150th out of a graduating class of 160), you have to compete based on a combination of your academic index (your GPA plus SAT score) and your “personal achievement index” (a score based on the admission essay, extracurricular activities, demonstrated leadership, and other factors with race being one of the other factors). Because race can impact the personal achievement factor, a white student who did not qualify under the top 10% program challenged her failure to make it under this second admissions process, claiming that it violated the equal protection clause of the fourteenth amendment.
This morning on the radio, they were asking for people to tweet whether the problem related to Orlando was whether there were too many guns, or not enough oversight on the mentally ill. How very, VERY, wrong a question.
The tragedy at Pulse has so many root causes, and so much blame to go around. I am struck by all the lives affected: the dead, the injured, their families, friends and co-workers, plus everyone who is LGBTQI. And I have questions. Many questions.
First, I have LGBTQI friends. I don’t think of them as L or G or B or T or Q or I — they are my friends. The people I share a meal with, dance with, go shopping with….just plain friends. I used to have a lot more gay male friends, sadly lost to what was then called GRID, before it was AIDS. I’ve watched the struggles over the years: the hiding before Stonewall, the discrimination, the beatings for having been born. The evangelicals say that we are all created in G-d’s image: how do they integrate their supposed love of G-d with their obvious hatred of those created in her image? Rumor has it that the shooter was “incensed” by seeing two men kissing. I don’t get it.
In recent weeks, the issue of gender identity as it applies to bathrooms in public schools has been in the news. In particular, as the U.S. government has taken a position on this issue, certain (Republican-controlled) states have objected to the government’s position. This objection (at least in the media) has not been on the merits — should students who identify as a different gender than their biological gender use the bathroom of their preferred gender identity or their biological gender — but rather attacking the federal government even taking a position. This attack is both historically flawed and misrepresents what is taking place.
The history part of this discussion requires going back to 1865. The United States government had just won the Civil War. As part of the executive plan for reconstruction, the southern states had to abolish slavery, but otherwise were generally allowed to re-form their government with few restrictions. These newly re-formed governments promptly enacted new legislation to greatly restrict the freedom of the former slaves. In response, Congress passed a series of statutes and then proposed a new constitutional amendment (which became the Fourteenth Amendment) guaranteeing equal protection of the laws to all residents and authorizing Congress to pass legislation to enforce that guarantee.
Now that arguments have ended for the term, the next seven weeks (starting on May 16) will focus primarily on issuing opinions in the cases heard over the past seven months. (There is also the small matter of deciding what cases to hear in the fall. In the three months of argument since Justice Scalia died, the Supreme Court accepted a grand total of seven cases for the fall — the average over the past decade is 17-18. With only twelve cases currently on the docket for the fall, there are approximately fifteen to twenty available argument slots. Given the delicate balance on the court, the Justices may be stingy with grants over the next two months.) There are currently, thirty-three cases still awaiting opinions.
It is still too early in the term to guess at who will have the significant opinions that still remain. While there are decision in most of the cases from October-January, the death of Justice Scalia scrambles the number of cases that we would expect each Justice to have from these months. (Justice Scalia would have been assigned at least one opinion in both months, but died before any of his December or January opinions were issued. Those opinions would have been re-assigned. Additionally, his death caused one of the January cases — the union dues case — to be affirmed on a 4-4- vote. We do not know if Justice Scalia had that opinion or if Justice Alito had that opinion. If Justice Alito had that opinion, he might not have been in the majority on the last case remaining from January.) As I have discussed in the past, not every case that the Supreme Court hears is politically sensitive or a close call. There are several potentially significant cases that will be a close call, and the absence of Justice Scalia may influence the results in these cases.
The Supreme Court ended the argument portion of its term this week. After taking its last two week recess, the remainder of this term will be about attempting to issue opinions in the argued cases. The question remains how many of these cases will end up in 4-4 split or be rescheduled for reargument in 2017. Both this week’s one opinion and the last argument of the term had a strong First Amendment component.
This past week was the first week of the April argument session — the third since the death of Justice Scalia and the last of this term. Next week will be the last three argument days of the term (with the last argument concerning the conviction of Former Governor Bob McDonnell of Virginia — with the primary issue being which type of “favors” by a government official will support a conviction under the statutes involved). After Wednesday, the remainder of the term will be issuing opinions and accepting cases for next term. This week was bookended by two cases of interest to the issues covered by this site. On Monday, the Supreme Court heard arguments on President Obama’s decision to defer deportation of certain unauthorized immigrants. On Wednesday, the Supreme Court issued its opinion on the Arizona redistricting plan.
The issues in the case challenging the President’s immigration policy falls into three categories: 1) do the States have “standing” (the right to bring the case); 2) was the policy guidance the type of the decision that had to go through the formal notice and comment procedures of the Administrative Procedure Act (the rules governing the issuance of formal regulations); and 3) are some elements of the policy so contrary to immigration law as to constitute a violation of those laws rather than the operation of executive discretion in the enforcement of the law). As shown by the transcript of the argument, the majority of the argument focused on the issue of standing.
Standing is a key concept in the law tied to the constitutional requirement that courts only decide “cases and controversies.” The basic principle is that a person can only file a law suit if they are in some way “injured” by the action that they are challenging. Thus, while you might not like the microbrewery in your town selling out to a big conglomerate, you do not have standing to challenge that merger unless you own stock in one of the two or can somehow demonstrate how that sale effects a legally-recognized interest that you have. Traditionally, states have a right to sue on things that adversely impact their governmental interests, but do not have the right to sue because the voters of their state disagree with a decision. When multiple parties join together in a case, the case can continue as long as one of them has standing. In recent years, the conservative majority on the Supreme Court have taken a narrow view of standing — one of the many doctrines that conservatives have used to keep cases out of court.
Today, before taking the next to last recess of the term, the Supreme Court handed down its opinion in Evanwel vs. Abbott. This case involved an attempt by some Texas Republicans to challenge the use of total population in redistricting. Instead, the petitioners wanted the Supreme Court to hold that the Equal Protection Clause required states to use some measure of voting population (a measure that would presumably exclude children, non-citizens, and those ineligible to vote for some other reason).
All eight justices rejected this attempt to change the law, but the three opinions in this case were vastly different. Six justices — in an opinion written by Justice Ginsburg — held that total population was a permissible measure while suggesting that other measures were, at the very least, questionable. Justice Alito (joined in part by Justice Thomas) while acknowledging that a state could choose to use total population questioned any suggestion that total population was a legally preferred measurement. Finally, Justice Thomas (writing only for himself) questioned the last fifty years of case law holding that courts had any right to require states to draw districts in roughly equal size in the absence of evidence of discriminatory intent.
The positive side from this opinion is that the attempt of Texas Republicans to exclude large segments of the minority community from counting in the drawing of district lines failed. The negative side is that there were not five justices to say that the alternative measures proposed by Republicans were not constitutionally permissible. It is almost certain that some Republicans around the country will attempt to amend state laws to allow them to use these alternative measures. Hopefully, by that time, we will have a majority on the Supreme Court willing to enforce all of the provisions of the Voting Rights Act and to look behind this facially race-neutral proposal to see the actual discriminatory intent.
In the Spring of 1990, when Justice Scalia had only been on the Supreme Court for four years, he wrote an opinion that offended both sides of the political spectrum — Employment Division vs. Smith. For fifty years prior to Smith — in cases dealing with unemployment benefits for Jews and Seventh Day Adventists who would not work on Saturday for religious reasons, with Jehovah Witnesses who objected to their children having to say the pledge of allegiance, with Amish who declined to send their children to school, and with conscientious objections — the Supreme Court had applied a version of compelling interest test to claims that a law infringed on practices of individual religions. In Justice Scalia’s view of the free exercise clause, the constitution only protected the right to believe in a religion, not to actually follow the dictates of a religion in one’s daily life. (Of the other four justices in the majority, only Justice Anthony Kennedy is still on the Supreme Court.) In response, Congress practically unanimously passed the Religious Freedom Restoration Act (RFRA) which, as a matter of statutory law, enacted an exemption from federal law based on religious belief containing an enhanced version of the compelling interest test.
On Wednesday, for the second time since the passage of the Affordable Care Act, employers will be seeking an RFRA exemption from the regulations implementing the Affordable Care Act, specifically the regulations which include coverage for contraceptives as part of the mandatory coverage that large employers must offer to their employees or pay a fine. Unlike the employers in the first case, which were for-profit private employers, the employers in this case are religiously affiliated non-profits (including universities and charities). This case also revolves around the steps that employers must take to claim the exemption recognized in the first case, with the employers claiming that even these steps implicate them in aiding their employees sinful desires.
Elections matter. In 2012, President Obama won the right to nominate judges and justices to fill vacancies on the bench — both in the lower federal courts and on the Supreme Court. In 2010 and 2014, the Republicans won the right to vote down any unacceptable nominees.
Earlier this morning, Justice Antonin Scalia passed away. In 1986, President Reagan nominated Justice Scalia to fill the Associate Justice spot that had belonged to Justice Rehnquist when President Reagan nominated Justice Rehnquist to be the new Chief Justice. For most of his career, Justice Scalia was the intellectual leader of the ultra-conservative wing of the Supreme Court. This vacancy — if filled during this Administration — would be the first time since 1970 that a majority of the Justices on the Supreme Court will be Democratic appointees. This vacancy will have both short term and long term impacts on politics.
The immediate short term is that — except for a handful of issues — Justice Scalia is generally a solid vote for the “conservative” side of legal issues. Those cases that would have been a 5-4 split in favor of the conservative side will now be a 4-4 split. On a 4-4 split, there is no decision and the lower court opinion stands (unless the Supreme Court opts to reschedule the case for the following term). Additionally, as it takes a favorable vote from four justices before the Supreme Court grants full briefing and argument on a case, the tradition when there is a vacancy is to hold cases that have three votes for full review. In particular, the continued extension of “free speech” rights to make it easier for conservatives to raise money and harder for liberals to raise moneys is temporarily on hold. The current opt-out provisions for the contraceptive mandate will probably also survive. Any decision on the immigration policy will either favor the White House or leave it back to the lower courts to decide on the merits (the current issue before the Supreme Court only concerns a temporary injunction pending a full trial).