With eight decisions remaining as the day begins, there is speculation among reporters about whether the Court can complete the Term with two opinion days. Will the Court reconvene again tomorrow, or go beyond Monday? The answer will come soon enough.

The public gallery is full this morning, while the bar section has about twenty-five members present, including several from the American Civil Liberties Union. Deputy Solicitor General Ian H. Gershengorn is back in the first chair for the delegation from his office. In the VIP section, Justice Stephen G. Breyer’s wife, Joanna, is here today.

All eight Justices take the bench, and Chief Justice John G. Roberts announces that Justice Elena Kagan has the opinion in Mathis v. United States. This involves whether a conviction under Iowa’s burglary law can be a predicate for a sentence enhancement for a later violation of the federal Armed Career Criminal Act.

Kagan, speaking for an unusual majority line-up, says that because the elements of Iowa’s law are broader than those of generic burglary, the prior convictions of the petitioner in this case cannot give rise to the sentence enhancement.

Justice Samuel A. Alito is up next with the opinion in Birchfield v. North Dakota, which (with its companion cases from North Dakota and Minnesota) involves state laws that make it a crime to refuse to undergo a blood or breath test after being lawfully arrested for driving while impaired.

Alito pretty quickly gets to the bottom line, that the Fourth Amendment permits warrantless breath tests incident to an arrest for drunk driving but not warrantless blood tests.

Blood tests are “significantly more intrusive” than breath tests, and breath tests are not “painful or intrusive,” he says.

Alito, in his summary, addresses the argument raised by the states that requiring a warrant for breath tests would be especially burdensome in rural areas, agreeing that in sparsely populated areas, judicial officers might feel overwhelmed.

This calls to mind the comic highlight of the Term, both before and after the death of Justice Antonin Scalia. When a lawyer representing North Dakota suggested that it was “harder to get somebody on the phone” in rural areas than in that state’s more metropolitan areas, Justice Anthony M. Kennedy stopped him.

“Why is it harder to get somebody on the phone in rural [areas] than in a busy city?” Kennedy asked. And the courtroom erupted in laughter when he added that he thought “people in the rural areas were sitting waiting for the phone to ring.”

Alito announces that that the three cases before the Court are – depending on the precise circumstances – either, reversed, affirmed, or vacated. Thus, when he announces that Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, has filed an opinion concurring in part and dissenting in part; and that Justice Clarence Thomas has filed an opinion concurring in the judgment in part and dissenting in part, we don’t really know in the courtroom how they have come out on the blood and breath tests, though we can hazard a guess.

The Chief Justice announces that Justice Kennedy has the opinion in Fisher v. University of Texas at Austin. That Justice Kennedy is delivering the opinion in the big case on affirmative action in college admissions is not hugely surprising. But the fact that Kennedy already had an opinion from the December sitting and Roberts (along with Scalia) did not adds some intrigue.

Kennedy describes some of the particulars of the race-conscious UT-Austin plan, along with the state-imposed “Top Ten Percent Plan,” which fills as many as three-fourths of the freshman slots each year with Texas students who finish at the top of their high school classes.

When Kennedy explains that race is “but a factor of a factor of a factor” in the university’s holistic-review program, things seem to be looking up for the long-scrutinized policy.

And soon enough, Kennedy is explaining that Abigail Fisher, the white applicant denied a place in the entering class at UT-Austin for the fall of 2008 and who challenged the admissions program, “was not denied equal treatment.”

The university articulated “concrete and precise goals” when it first set forth its race-conscious policy. Its objectives “mirror the ‘compelling interest’ has approved in its prior cases,” Kennedy says.

Kennedy announces what is not, by now, a surprising line-up: He is joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Alito has written a dissent joined by Roberts and Thomas, and Thomas has filed his own dissent. Justice Elena Kagan did not participate, presumably because she had some role in the case when she was Solicitor General.

Now we are ready for our first dissent from the bench of the Term. Alito will go on for some fifteen minutes, and he seems pretty worked up over the case, although his tone is pretty much the same as usual.

“State universities are not angels whose actions are above scrutiny,” he says, in one of several comments not drawn specifically from his fifty-one-page dissent.

“I will elaborate on the glaring defects” of the university’s race-conscious plan, he says. And he does. He notes that on the day in 2003 when the Court reaffirmed the ability of universities to consider race in admissions, in Grutter v. Bollinger, the then-president of UT-Austin announced that the university would return to using race; only later did the university engage in the studies on which it would to justify restoring race to its plan.

The university has relied on a “shifting series of vague objectives” for its affirmative action plan, and has never defined its goal for boosting “underrepresented minorities.”

“We still have no idea what the university means by a critical mass,” Alito says.

He goes on to lament the role of Asian-American students in the university’s process, and he chides the university’s past discussion of seeking “diversity within diversity” – such as by seeking to enroll the children of “successful [African-American] professionals in Dallas” and “the black student with high grades from Andover,” quoting the university’s own words.

“This is a strange argument for affirmative action,” Alito says. “This is affirmative action gone berserk.”

“I hope this is a one-off attributable to unique circumstances,” he concludes.

While the courtroom is still absorbing this surprise conclusion to Fisher, Chief Justice Roberts has a couple more surprises. He announces the deadlocks in Dollar General Corporation v. Mississippi Band of Choctaw Indians and United States v. Texas, the challenge to President Barack Obama’s policy of deferred action on deportation for certain undocumented immigrants.

And while that news has heads spinning, Roberts announces that Monday will be the last day of the Term. With that, the Justices disappear behind their curtain for the penultimate time of the Term.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioners in Dollar General. However, the author of this post is not affiliated with the firm.]

Posted in Fisher v. University of Texas at Austin, Birchfield v. North Dakota, Bernard v. Minnesota, Beylund v. Levi, What's Happening Now

Recommended Citation: Mark Walsh, A “view” from the Courtroom: Alito dissents on affirmative action, a deadlock on immigration, and more, SCOTUSblog (Jun. 23, 2016, 5:31 PM), http://www.scotusblog.com/2016/06/a-view-from-the-courtroom-alito-dissents-on-affirmative-action-a-deadlock-on-immigration-and-more/