Supreme Court

Sizing Up the Supreme Court

In the wake of one of the most unusual U.S. Supreme Court terms in recent memory, professors spoke out through the media, as decisions were released, and at the annual fall roundup on Sept. 26.
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Doug Laycockhe big story this year was the death of Justice Scalia, which left the court split 4-4 in some important cases. [A 4-4 decision] affirms without opinion and without creating a precedent in the Supreme Court. So President Obama’s immigration plan was struck down 4-4 without precedential effect, most likely  instead of being struck down 5-4  with a potentially sweeping opinion. Public employee unions survived 4-4 instead of having much of their funding cut off. 

“Sometimes [Scalia’s] absence led not to a 4-4 affirmance, but to narrow opinions that duck the issue—most famously in Zubik v. Burwell, involving the contraceptive mandate under the Affordable Care Act. A claim of religious nonprofits for an even broader religious exemption than the one the administration had created ended in a unanimous remand that looks like a desperate request to ‘please, please settle this case.’ Ain’t gonna happen; those cases will be coming back.

“But what they did not do in any of these cases is set the case for re-argument next term. Why not? Because it wouldn’t have done any good. The court returns on Monday, still has only eight justices, and will likely have only eight justices for all or most of this year. Some Republicans are openly talking about never confirming a Democratic nominee, but even if someone is nominated after Jan. 20 and confirmed in due course (which seems more likely), that person won’t be there in time to vote on many cases and maybe not any cases. Oral arguments end in April and a three- month confirmation process would not be surprising or astonishing.”

—Professor Douglas Laycock on the state of the court at the roundup\

Michael GilbertEvenwel v. Abbott
Voter Redistricting

“We care, in a democracy, about equal voting power, but we also care about equality in representation. One of the really interesting things about Evenwel is that it demonstrates clearly that we probably can’t get both.”

—Professor Michael Gilbert at the roundup

George RutherglenFisher v. University of Texas
Affirmative Action in Undergraduate Admissions

“First, while the narrowness of the decision, by a vote of 4-3, was expected, the result was not. The court’s decision to grant certiorari in this case revealed that at least four justices at the time (including Justice Scalia) had doubts about the Fifth Circuit’s opinion conformity to the initial ruling by the Supreme Court in this case. Today’s decision reveals that four justices no longer think this.”

—Professor George Rutherglen in a statement

Kim Forde-Mazrui“Despite the cautions—and schools should take those cautions seriously— this is a huge win for educational diversity and for university admissions policies.” —Professor Douglas Laycock in a statement

“The court’s continued reliance on diversity to justify race-based affirmative action likely undermines the legitimacy of affirmative action in the long run. Our nation understandably questions race-based decision- making, especially by the state. When the justification for affirmative action lacks moral weight, fails to fit the policy’s focus and appears to come at the expense of equality, its legitimacy is ultimately jeopardized.

“The more persuasive basis for affirmative action is that law and custom, North and South, comprehensively suppressed the economic and educational opportunities of African-Americans and other people of color for hundreds of years and numerous generations. The effect of that discrimination is reflected in the stark racial disparities that persist across virtually every indicator of economic and social well-being. 

“Affirmative action is best justified as a means to fulfill our nation’s moral duty to rectify that injustice. What our nation needs is to return to an understanding that affirmative action, sensibly designed, is justified by—indeed required by—equality, fairness and justice.”

—Professor Kim Forde-Mazrui in a statement

Harris v. Arizona Independent Redistricting Committee 
Voter Redistricting

“This is part of the deal. State legislators have been gerrymandering since the beginning of our country. We expect this. It’s part of political competition and they’re permitted to do it as long as they stay within certain limits. … Remember that mention of partisan gerrymandering? They both do it, by the way, so liberals: Don’t feel bad.”

—Professor Michael Gilbert at the roundup

Brandon GarrettMcdonnell v. United States Virginia
Gov. Bob McDonnell’s Appeal of His Fraud Conviction

“This unanimous decision adopts the approach of using the language in one statute to limit language in another. This is an unusual remedy for what the justices identified as potentially unconstitutional vagueness, but at least the court has provided more clarity and guidance that would have been useful to have had in place when McDonnell was tried.”

—Professor Brandon Garrett in a statement

“The court has done the country a good turn by constraining federal bribery law within reasonable limits. What Bob McDonnell did was undeniably sleazy, but the interpretations by the lower courts would have criminalized many acts of ordinary politics.”

—Professor John C. Jeffries Jr. ’73 in The Virginian-Pilot

Jason JohnstonSpokeo, Inc. v. Robins 
Article III Standing to Seek Statutory Minimum Damages

“I think what the Supreme Court did here might improve matters. It might keep out of courts those bad cases where there’s really no harm alleged.” 

—Professor Jason Johnston in Legal NewsLine

David MartinUnited States v. Texas 
Immigration and Presidential Power

The Supreme Court’s 4-4 split on President Obama’s deferred action programs puts the broader issue of how to resolve the fate of about 10 million long-term unauthorized immigrants squarely back into the political arena. As dismaying as our current political dialogue is, this is right where the issue should be.”  

—Professor David Martin in a Miller Center op-ed

Deborah HellmanWhole  Woman’s Health v. Hellerstedt 
Abortion Rights

“We’re likely to see courts assess the factual underpinnings for laws for which the justification by state legislatures is that the regulations protect a woman’s health. I think we’re likely to see increased scrutiny of the factual underpinnings of those claims to see whether they in fact serve women’s health and then we’re also likely to see the court balance the degree to which they promote women’s health against the burden that they impose on a woman’s ability to choose an abortion.” 

— Professor Deborah Hellman at the roundup

Zubik v. Burwell 
Religion and the Contraception-Coverage Mandate

“It’s a win for the religious groups in the sense that they live to fight another day. But they didn’t win anything on the merits, and there were very serious disagreements between the two sides in the supplemental briefing.”

… “I think the lower courts will find those disagreements unbridgeable.” 

— Professor Douglas Laycock in a press statement and in the Deseret News

Rick SchraggerMicah Schwartzman '05“We should also not lose sight of the fact that employees have been harmed in the process of this litigation. … It is unfortunate that the constitutional interests of those women are not directly represented in  this litigation. As we have argued previously, employees who have been  denied statutory  benefits as a result  of religious accommodations deserve protection under the Establishment Clause. They should not be deprived of their rights while the court attempts to settle this dispute.”

—Professors Richard Schragger and Micah Schwartzman ’05 in a Slate op-ed, with Nelson Tebbe 

Quotes gathered by Alec Sieber and Eric Williamson

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