Tag Archives: Affirmative Action

The Only Protected Class — White Evangelicals

For the past several decades, the U.S. Supreme Court has been on a crusade to end the “special status” of minority groups.  While it is abundantly clear that the purpose of the Civil War Amendments and the various Civil Rights Acts were to help, first African-Americans, and then women, achieve equality, the current majority of the U.S. Supreme Court want to act as if the law requires a “color-blind” (and implicitly a “gender-blind”) approach in which any effort by the government (or private institutions) in taking steps to assure that minority and women have a chance at success will be struck down.   Simply put, African-Americans, Hispanics, and women are no longer going to benefit from a “most-favored nation” status in civil rights laws.  On the other hand, the favored group of the Republican Party (White evangelicals) are entitled to such status.

This week saw the new legal order exemplified in three opinions.

First, and most obvious, was the decision in Students” for “Fair” Admissions, Inc, vs. President and Fellows of Harvard College.  While the outcome of the case is not surprising as an exercise in raw power by the six Republicans on the Supreme Court, the bottom line is the equal protection clause and Title VI ban any attempt to help African-Americans overcome centruries of discrimination by giving them a “plus” in consideration for spots at “selective” universities and professional schools.  The opinion does leave a limited exception in recognizing that these universities use essays as part of the admissions process and, of course, free speech would bar the government from implementing a ban on references to the racial background of the applicant in these essays.  The Supreme Court directs, however, that in considering these essays, admissions offices should solely consider how these essays reflect barriers that the applicant has overcome or other aspects of the applicant’s character.  Of course, nothing in the majority opinion bans giving a plus to “legacy” candidates even if legacy candidates will be primarily composed of wealthy whites.  The one positive aspect of these opinions is that, like with last year’s abortion decision, this decision costs Republicans their wedge issue.  For the past fifty years, affirmative action has placed minorities against those with lower levels of white privilege for the last spots in government program and kept both groups from focusing on the slots that were reserved for those with Privilege.  Whether, with affirmative action no longer around, the powers that be in the Republican Party can keep folks from taking a look at the preferences given to the children of alumni and wealth donors that take aways spots from both middle class whites and minorities who actually earned a slot at the top colleges will be a big question going forward. Continue Reading...

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Supreme Court — The Last Week

As we have discussed for the past several weeks, the Supreme Court is nearing the end of its term.  After two opinion days this past week, we are down to ten cases left on the docket (or eight if you treat the two Affirmative Action cases and two student loan cases as one case each).  At this point in time, we know that Tuesday will be an opinion release day.  It is almost certain that there will be opinions on Wednesday or Thursday (or maybe both days).

As noted in past posts, the Supreme Court tries to keep things balanced within each month (i.e. if there are fewer than nine cases to be decided from one of the “monthly” argument sessions, it is highly unlikely that any justice will be assigned multiple opinion) and across the term as a whole.  In the past weeks, we still had enough cases left undecided from March and April to leave things murky.  But things are now looking very clear (with the understanding that authorship can shift if the assigned justice loses the majority or a case gets dismissed).  But none of the cases issued so far look to have flipped and the one dismissed case was not pending long enough to get assigned.

That balance for the term is key for the projection for November and February.  We are likely looking at a total number of opinions for the term in the mid-fifties.  That means that no justice should have more than seven opinions for the term, and, if any justice has seven opinions, the rest should have six opinions. Continue Reading...

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Supreme Court — Two Weeks to Go

We are now down to two weeks left before the effective end of this year’s Supreme Court term.  (Officially, the term ends at the start of October when the next term begins.  But the Supreme Court usually issues all of its opinions before the Fourth of July and only handles emergency matters in July, August, and September.)  As was noted in the post two weeks ago, there are some unwritten rules regarding how the workload is distributed among the justices which makes it possible (not easy but possible) to speculate about who might have which cases.

One complicating factor in this year’s term (as discussed two weeks ago and last week) is that we do not know how many written opinions we are getting this term.  There are three ways that we could end up with fewer opinions:  1) in related cases, the Supreme Court could “consolidate” the cases and issue one opinion covering both cases (this normally happens before argument, but can happen when opinions are assigned); 2) in related cases, the Supreme Court could decide to issue a signed opinion in one case and an unsigned opinion in the other case; and 3) the Supreme Court can dismiss a case after argument.  We have already seen all three possibilities occur this term.  We could have up to eighteen opinions still to come this term.  At the present time, we know that we will have two opinion days this upcoming week.  In last week’s two opinion days, we only get five opinions, but we got six opinions on one day back in May.  My hunch says that we are likely looking at two or three opinion days the week of June 26, but the Supreme Court tends to keep that information closely held and it tends to not announce the last opinion day until the next-to-last opinion day.

How many opinions we have left matters because the Supreme Court tends to try to keep the workload balanced.  If we have eighteen opinions left, there will be fifty-six total opinions for the term which would mean that every justice would have six opinions with two justices getting seven opinions.  But it is possible that some of the remaining cases could have no opinion.  While, due to Justice Jackson recusing in the Harvard case, it is unlikely that the two Affirmative Action cases will be consolidated, it is easy to see a signed opinion in the North Carolina case and an unsigned opinion in the Harvard case.  We could see a consolidated opinion in the student loan forgiveness cases.  And everyone is expecting a dismissal in the North Carolina redistricting case. Continue Reading...

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Supreme Court — October 2022 Term — First Look at the Remaining Cases

It’s the first full week of June.  And that means that the clock is rapidly ticking to the end of this year’s Supreme Court term.  By custom, the Supreme Court tries to issue all of the opinions from the term before the Fourth of July holiday.  (It then spends the last three months of the term handling emergency motions and preparing for the next term.)

As we look ahead, some basics about how the Supreme Court operates.  During the argument portion of the term, the Supreme Court holds seven “monthly” — October through April — argument sessions (not quite as sessions often occur partly in two months but that is the convention used to describe the sessions).  In each session, the court hears arguments on Monday, Tuesday, and Wednesday (with some days skipped for federal and religious holidays).  Then on Friday, they discuss that week’s cases (along with applications for review) and take a tentative vote on each case.  After the vote, the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice in the majority if the Chief Justice is the minority) chooses which justice gets to write the first draft of the opinion.  Typically, the justices assigning the opinions try to assure a balanced assignment of cases within the session (i.e., if there were nine cases, each justice would get one opinion to write) and across the term as a whole.   When we reach this point of the term, we have enough opinions from individual argument sessions to try to guess who will have the opinion.

Starting with October, we are down to one outstanding case — the Alabama voting rights case.    The bad news is that there are only two justices without an opinion from October — the Chief Justice and Justice Thomas.  It is slightly more likely that the Chief Justice has the case   He tends to like writing election cases.  While both are very likely to write an opinion that would undermine the Voting Rights Act, Justice Thomas is more likely to want to write an opinion that reverses the decision entirely (with no further proceedings) and the Chief Justice is more likely to send it back to the trial court for further consideration (in light of a standard which allows Alabama to dilute minority votes) so there is a slim chance that the Chief Justice ended up on the wrong side of a 5-4 split.  But my hunch is a 6-3 opinion that ignores the plain language of the Voting Rights Act. Continue Reading...

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Supreme Court Mid-Term Update

As a New Year starts, the Supreme Court returns on Monday for the first of four argument sessions.  This term is already shaping up as a weird term.  By the fourth argument session of the term, you typically have at least one opinion from an argued case and a handful of opinions granting summary reversals in cases in which the lower courts clearly erred.  While the bigger “political” cases normally take longer, the Supreme Court also takes “routine” cases that simply involve conflicting interpretations of statutes and regulations by different circuits.  It is not unusual for these cases to be resolved by unanimous opinions.  Maybe it’s just that none of the October cases (with the exception of the Andy Warhol case) fits that criteria, but the lack of an opinion is unusual.

At this point, the first half of the term saw some rather significant cases that will undoubtedly get attention when they are decided — the Voting Rights Act dispute regarding Alabama’s new district lines and the failure to create a second majority minority district (which will also impact the lines in Florida, Georgia, and Lousiana); the challenges to the Affirmative Action programs at Harvard and the University of North Carolina; the challenge to the Indian Child Welfare Act; challenges to the ability of Immigration and Customs Enforcement to set priorities related to deportation; whether state courts can use state constitutions to regulate congressional redistricting; and whether there is a free speech exception to civil rights laws (specifically those barring discrimination based on sexual orientation).

The January session should be relatively quiet.  There are two labor cases on the docket — one involving the weird hybrid status of certain national guard employees and whether that hybrid statute makes them subject to certain protections for federal workers and the other whether an employer can maintain a state tort against a labor union for timing the start of the strike to damage the property of the employer. Continue Reading...

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Supreme Court — October Term 2022 Preview (Part 1)

It’s that time of year again.  After upending the Constitution at the end of the 2021-22 term in June, the Supreme Court begins its 2022-23 term in just over a week.

A quick refresher.  From October through late April/Early May., the Supreme Court will have seven two-week argument sessions.  With the exception of extended breaks after the “December” and January argument sessions, the typical schedule is two weeks of arguments followed by a two-week recess.  In most of the weeks, the Supreme Court will have arguments on Monday, Tuesday, and Wednesday (except when one of those days is holiday — either legal or religious).  On argument days, the Supreme Court will usually hear two cases in the morning.  (That “usual” is very flexible.  With the declining number of cases granted in recent years, we have been seeing more single argument days.  Additionally, if there is a very complex case, they might give that case extended time and limit themselves to one case.  Rarer is having enough cases that they also schedule an afternoon argument.)  They will then meet in a “conference” on Friday to discuss the cases heard that week and to consider petitions for review (officially called petitions for certiorari).  They also meet in a conference on the Friday before the argument session to consider petitions for review.  Orders on the petitions for review are released on the Monday after the conference.  In discussing the cases heard, the Supreme Court will take a tentative vote and the “senior justice in the majority” (either the Chief Justice or the longest serving Associate Justice) will assign one of the justices to write an opinion. Opinions can be released at any time after the argument.

The October argument session (and the term) officially begins on the first Monday in October (October 3, this year).  They will meet in the “long conference” to kick off the term on September 28.  (It is called the long conference because petitions for review have been piling up since the last conference of the 2021-22 back in late June.) Continue Reading...

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Affirmative Action Survives — Barely

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.

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Supreme Court — 2015-16 Term — Two Weeks to Go (Updated 6-20)

While the Supreme Court does not have a hard and fast rule on when it recesses for the summer, traditionally the Supreme Court tries to issue opinions in all the outstanding cases before July 4.  As a result, the last part of June typically sees the media remembering that we have a Supreme Court as major decisions pour out of the court in a flood during this time of year.  It’s not that the Justices intentionally save the major cases until the end, but rather that these cases are the ones that are most likely to go back and forth with drafts and counter-drafts until the deadline for resolving the cases hits.

This year, there are thirteen cases left to be decided.  The Supreme Court has actually been making decent progress over the past month — having gone to two opinion days per week two weeks ago and issuing eleven opinions over the past two weeks.  While the Supreme Court will not announce additional opinion days for this week until after issuing opinions on Monday, it is likely that there will be at least one more opinion day (and maybe two more opinion days) later this week.  Of the remaining thirteen cases, three or four of them have major political implications.

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Supreme Court Midterm Report

When people think about key dates in the Supreme Court calendar, the day that most comes to mind is the First Monday in October (the official start of the annual term) — probably because it is the only date that is set in stone.  The first argument day of each term is always the first Monday in October.  There are other key points in the term, but they float a bit.  One of those floating dates is the Monday after the last January argument.  That date (which was earlier this week) is key because of the effective time table created by the Supreme Court’s rules.   Under those rules, barring emergencies required rushed briefing and argument (United States vs. Nixon, Bush vs. Gore), the soonest that a case can be argued is approximately three months after the Supreme Court decides to grant full argument on a case.  Because the last argument session is always in late April/Early May, any case accepted for argument after January will not be heard before the next term begins in October.  That makes this point of the year the first time that it is possible to say with absolute certainty what cases will be heard and decided by June.  With this being an election year, the politically explosive cases on the Supreme Court’s argument calendars are even more explosive.

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Discrimination and Affirmative Action: SCOTUS Takes Another Case

The Supremes have agreed to rehear Fisher v Texas in the upcoming term. The  version you’ll hear is that Abigail Fisher sued the University of Texas, Austin on the grounds that she was refused entry because she was white, thus a reverse-discrimination claim. The larger issue is race-based admissions, or affirmative action.

Actually, that’s not what this case is about, not even close. Abigail Fisher is a cute, young white woman chosen to be the face of a suit paid for by Edward Blum, who’d been looking for someone like Fisher for a number of years.

Abigail Fisher didn’t get into UT-Austin NOT because of the colour of her skin, but because her grades weren’t good enough. She ended up at the University of Louisiana, graduated, is gainfully employed and all she really wants is the hundred dollars she spent on application fees. Full story after the jump.
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