By: Lawrence M. Friedman In his dissenting opinion in Fisher v. University of Texas, Justice Alito argues that the Court indulged the university’s “plea for deference” in the application of strict scrutiny to its race-based affirmative action program. And he’s probably right, too: the scrutiny the majority applied in Fisher seems less strict than the scrutiny the Court historically has given race-based classifications. But this isn’t to say that the result Alito would have reached—striking down the university’s plan—is also right. For he fails to appreciate that, just as equal protection doctrine protects only individuals who are similarly situated, strict scrutiny applies in the same way only in similarly situated cases. In other words, context matters—and context explains why higher education affirmative action programs may survive judicial review where the governmental use of race in other contexts would not.
Tag: SCOTUS
Faculty Blog: SCOTUS’s Use of Exclusionary Rule Becomes A Charade in Utah v. Strieff
By: Victor M. Hansen The Court’s opinion in Utah v. Strieff is the latest in a series of recent opinions in which the Court has significantly undermined Fourth Amendment protections by limiting the application of the exclusionary rule. As my colleague, Professor Friedman, noted in his recent post, the Court’s Fourth Amendment jurisprudence effectively allows the government to pursue policy goals in ways that conflict with individual privacy protections. The Court has been able to justify this by viewing the exclusionary rule as solely a tool to deter police misconduct. In situations where, in the Court’s view, the exclusionary rule would not deter police misconduct, the rule comes at too high a cost, and a number of exceptions have been judicially created to limit its application. Of course, the exclusionary rule is a judicially created rule to begin with, since nothing in the language of the Fourth Amendment suggests a remedy for violations. And it can certainly be argued that, since the rule is judicially created, the courts and specifically the U.S. Supreme Court should be able to modify it as it sees fit. However, on closer examination, the Court’s rationale for not applying the exclusionary rule in Strieff and other recent cases only makes sense if you adopt a rather narrow view of deterrence.
Faculty Blog: Supreme Court Effectively Upholds Fifth Circuit Judge’s Injunction of DAPA in U.S. v. Texas
By: Dina Francesca Haynes Last week, the Supreme Court issued its (non)-decision in Texas v. United States. At issue: whether one judge in Texas could enjoin a federal immigration program crafted by the Executive Branch, and whether the Executive Branch had exceeded its authority in so doing. I wrote about this case earlier this year, predicting a 4-4 split with the current court one justice down. Unfortunately, my prediction was borne out. The 5th Circuit—specifically one judge, Judge Hanen (who was recently accused of abuse of discretion when he imposed sanctions on federal government attorneys whose arguments he didn’t like)—had earlier decided that the State of Texas had established a substantial likelihood of success on the merits of their procedural and substantive claims required for an injunction. What is unusual in this case is that a district judge's preliminary injunction applies nationwide (and not, as would ordinarily be the case, in the judge's district only).
Faculty Blog: Utah v. Strieff: The Court Reminds Us That Constitutional Privacy is Essentially Meaningless
By: Lawrence M. Friedman The U.S. Constitution prohibits the government from pursuing its policy goals in ways that conflict with individual rights protections—except, as the Supreme Court reminds us in its decision in Utah v. Strieff, where the protection of privacy under the Fourth Amendment is concerned. The remedy for a Fourth Amendment violation is exclusion of the evidence obtained as a result of an illegal search or seizure. Deterrence of governmental misconduct has been the animating principle of the exclusionary rule for decades (though it was originally just one of several rationales), and the nature of the Court’s cost-benefit deterrence analysis has led it, time and again, to conclude that the costs of suppression outweigh any potentially beneficial deterrent effect. As Justice Clarence Thomas explains in the opening paragraph of his opinion for the majority in Strieff, “even when there is a Fourth Amendment violation, [the] exclusionary rule does not apply when the costs of exclusion outweigh its deterrent benefits.”
Faculty Blog: Williams v. Pennsylvania Raises Major Concerns About U.S. Justice System
By: Victor M. Hansen
Professor Eldred wrote that this latest decision is a missed opportunity by the Court that could undermine the long-term value of the decision, particularly when, as Professor Eldred notes, there was significant literature and research in this area available to the Court. Here, I want to address another issue raised by the facts of the case that should alarm anyone concerned about the fairness of our criminal justice system—namely, the role of the prosecutor. While I can’t say that this was another missed opportunity by the Court to address the question since it was not directly before the Court, the troubling story recounted by the facts of the case serves as an important backdrop and raises important questions about the quality of justice in death penalty and other cases.
In its recounting of the facts of the case, the Court noted that the prosecutor assigned to the murder case against Williams sent a two-page memorandum to the district attorney requesting approval to seek the death penalty. The then-district attorney, later Chief Justice of the Pennsylvania Supreme Court, approved the request by writing: “Approved to proceed on the death penalty.” The case before the Court was about whether the district attorney who penned that approval could some 30 years later sit as one of the justices on the court called upon to vacate William’s stay of execution. The Supreme Court also noted a number of Brady violations that the prosecuting attorney allegedly committed in the case, as well as the fact that none of this information—the prosecution memo and approval by the district attorney or the possible Brady violations—came to light until the Philadelphia Court of Common Pleas ordered the district attorney’s office to produce previously undisclosed files, many years after Williams’ trial. Faculty Blog: Zubik v. Burwell: The Supreme Court Punts on Religious Nonprofits’ Challenge to the Affordable Care Act Contraceptive Coverage Opt-Out
Last month, the U.S. Supreme Court declined to weigh in on the merits of religious nonprofit organizations’ challenge to the Patient Protection and Affordable Care Act’s contraceptive coverage religious opt-out regulations. The regulations allow religious nonprofits to avoid the legal responsibility of covering contraceptives in their health insurance plans by providing notice that they object to doing so on religious grounds. The petitioners in the cases consolidated in Zubik v. Burwell claimed that furnishing this notice imposed a substantial burden on their religious exercise. In a per curiam opinion, the Court noted that supplemental briefing that addressed whether contraceptive coverage could be provided to the petitioners’ employees without the required notice had revealed the feasibility of such an option. The Court remanded the cases for investigation of this option, without making a decision on the plaintiffs’ Religious Freedom Restoration Act (RFRA) claim.
Faculty Blog: The Psychology of Conflicts of Interest in Williams v. Pennsylvania
By: Tigran W. Eldred
The U.S. Supreme Court’s recent decision in Williams v. Pennsylvania, handed down during the turmoil in the presidential campaign over the heated rhetoric on judicial impartiality, adds to the Supreme Court’s growing jurisprudence on the due process requirements for judicial disqualification. The issue in the case—whether a justice on the Pennsylvania Supreme Court could properly adjudicate a death penalty case when he had previously been the prosecutor who authorized capital charges against the defendant—set the stage for a ruling that could have provided broad guidance on the due process parameters for judicial disqualification, especially in criminal cases. Yet the Court’s holding may end up having only limited impact. As others have already started to note, the test announced by the Court—“that under the Due Process Clause there is an impermissible risk of actual bias when a judge earlier had significant, personal involvement as a prosecutor in a crucial decision regarding the defendant’s case”—will be hard to prove and adds little additional guidance to what is already available under existing ethical standards for judicial recusal in most states. In addition, my guess is that there are few cases in which a prosecutor-turned-judge will be asked to rule on a case in which he or she was previously involved, so this test is likely to directly apply to only a narrow band of future situations.
Faculty Blog: Spokeo v. Robins: Two Challenges to Identity
By: Jordan M. Singer
Even in the age of social media and internet searches, in which our public and private lives are increasingly (and often voluntarily) blurred, there is still something jarring about learning that your identity has been misrepresented or misconstrued. For Thomas Robins, that moment came when Spokeo, Inc., a “people search engine,” assembled an online profile of him that contained an array of incorrect information, including inaccurate statements of his age, family status, wealth, and education. Robins responded by filing a class action complaint against Spokeo in federal district court, alleging that Spokeo’s willful failure to check the accuracy of his personal information entitled him to statutory damages under the Fair Credit Reporting Act of 1970 (FCRA).
The district court originally dismissed the case for lack of standing, finding that while the FCRA conferred a private right of action against reporting agencies like Spokeo that failed to comply with the Act’s statutory requirements, Robins himself had not suffered an “injury in fact.” In particular, Robins could not point to any concrete harm he had suffered as a result of the incorrect reporting. The Ninth Circuit reversed, concluding that the FCRA had conferred a right upon Robins to be free from false reporting, and that Robins had sufficiently alleged that Spokeo had violated his individual statutory rights by misreporting information. But on May 16, the Supreme Court vacated the Ninth Circuit’s opinion by a 6-2 vote, and remanded the case for further proceedings.
Faculty Blog: United States v. Texas
On April 18, the Supreme Court heard oral arguments in the case of United States v. Texas. The case involves the arguments put forward by twenty-six states, challenging the President’s November of 2014 Executive Action, which could have made around 5 million parents of citizens and lawful permanent residents (known as DAPA) eligible to apply to have their deportation deferred. It would also have slightly expanded the class of pre-existing eligibility for deferred action for childhood arrivals (DACA), already in effect since 2012. The mechanism through which executive action would take place is the President’s request that his subordinates within the prosecutorial arms of DHS to exercise their prosecutorial discretion in determining where and how to use and focus limited deportation resources. Congress enacted the Immigration and Nationality Act, tasking the agencies with enforcing immigration, but provides insufficient funds for the agencies to carry out their mandates. The Executive must then make decisions about how to prioritize those mandates. Neither DAPA nor the expanded DACA class confers anything other than the eligibility for certain persons to apply for time limited deferral from removal. With deferred action, under a different set of pre-existing regulations, passed under earlier Congresses and presidents, comes eligibility for work authorization.
Faculty Blog: The Ninth Justice
At this writing, Senate Republicans continue to refuse even to hold a hearing on President Obama's nominee to succeed the late Associate Justice, Antonin Scalia, on the U.S. Supreme Court. The fullest explanation of their collective decision to ignore the Senate's constitutional role in the judicial appointment process has come from Utah Senator Orrin Hatch who, in a recent New York Times op-ed, spelled out their arguments. In that piece, Senator Hatch attacked President Obama’s judicial appointments for embracing “the sort of judicial activism Justice Scalia spent his career seeking to curtail.” Worse, in Senator Hatch’s view, when Democrats controlled the Senate they were complicit in this effort. Thus, he concludes, voters should decide what kind of Supreme Court they want through the 2016 Presidential election—which can happen only if the Senate delays confirmation proceedings on the President’s nominee, Judge Merrick Garland. He argues that considering a nominee today would be “irresponsible” and, he concludes, not “in the best interests of the Senate, the judiciary and the country.”
