In late June, the Court ordered a lower court to take a tougher look at the University of Texas’s consideration of race as a factor in its admissions process, but it allowed the program to survive, at least for now. Today the issue before the Court was different, and the measure being challenged was in a sense the opposite: the Court heard oral argument on whether an amendment to the Michigan constitution that bans (rather than encourages) the use of affirmative action at public universities violates the Constitution. Going into the oral argument, it seemed very likely that at least the five most conservative Justices on the Court would uphold the ban. That may ultimately be the result, but the case may also be less of a cakewalk for the state than it might have expected. Continue reading »
Plain English / Cases Made Simple
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As I noted earlier this week, the new Term has been described as a “season of sequels.” The “sequel” theme may be at its zenith on Tuesday afternoon, when – in a rare afternoon argument – the Court will return to a controversial issue that was on its docket quite recently: the use of affirmative action by public universities. In late June, the Court issued its decision in Fisher v. University of Texas at Austin, a challenge to that university’s consideration of race in its undergraduate admissions process. The Court sent the case back to the lower court with instructions to take a closer (and tougher) look at the policy – including whether there are any alternatives that could achieve a diverse student body without using race. Next week, in Schuette v. Coalition to Defend Affirmative Action, the Court will confront what this blog’s Stephen Wermiel has called the “mirror image” of the Fisher case. In Fisher, the Court was considering whether the Constitution allows a university to (voluntarily) consider race as a factor in admissions; in Schuette (pronounced shoot-ee), the issue is whether the Constitution allows a state to do the opposite: prohibit universities from using race as a factor. Let’s talk about the new case in Plain English. Continue reading »
This morning the Justices heard oral argument in McCutcheon v. Federal Election Commission, a challenge to the constitutionality of the two caps – also known as the “aggregate limits” – that federal law imposes on the combined campaign contributions that you can make to (1) candidates for federal office and (2) political parties. (I previewed the oral argument in Plain English last night.) When the argument ended, there was no clear sign of consensus on the Court: although it seems likely that at least five of the nine Justices will strike down one of the aggregate limits, there was a chance that another would survive. Let’s talk about the oral argument in Plain English. Continue reading »
This morning, for the first time since June, the Justices returned to the bench. Some Court watchers have described this new Term as a “season of sequels,” because in several cases the Justices have been invited to revisit and potentially overrule prior rulings on a number of controversial issues.
The first of those “sequels” comes tomorrow, when the Justices hear oral arguments in McCutcheon v. Federal Election Commission, in which the Court will return to the question of what restrictions the Constitution allows the government to put on the role of money in elections. In 2010, in the controversial Citizens United decision, the Justices ruled by a vote of five to four that corporations and labor have a free speech right to spend money in elections. Tomorrow’s case involves a different kind of restriction – one on contributions to candidates and political parties, rather than direct spending in elections – but it too may end with the Court limiting Congress’s ability to regulate money in politics.
On Monday, July 15, the blog will begin publishing a symposium on National Labor Relations Board v. Noel Canning (docket 12-1281), one of the most important constitutional cases to go before the Supreme Court in the new Term starting in October. It provides a test of presidential authority to appoint individuals to government positions when the Senate is not available to consider them. This post explains, in non-legal terms, how that case arose, and discusses its implications.
From time to time in its history, the Supreme Court is drawn into a controversy that goes to the heart of the division of powers among the branches of the national government. With its power to interpret the meaning of the Constitution, exercised since 1803, the Court is in a position to overrule the actions of the other two branches of government. Overruling Congress happens far more often than overruling the President, but that, too, can happen. The Court will soon be considering whether to do that again in a case of deep significance for President Obama, and for his successors in the White House.
The Supreme Court’s Term recently ended with major rulings on affirmative action, voting rights, and gay rights. Those cases received lots of media coverage. But beyond the splashy headlines, there are some important things the average observer doesn’t know about these landmark decisions.
The affirmative action ruling addressed whether and when the Constitution permits public universities to use race as a factor in making admissions. Some more quick legal background: the Constitution’s Fourteenth Amendment says that the states (including state universities) must provide individuals equal protection of the laws; the same standards governing affirmative action probably apply to private, non-governmental universities too because of federal civil rights laws.
Most people expected the case – which involved the University of Texas – to strictly limit affirmative action in a five-to-four ruling with the conservatives outvoting the more liberal Justices. That made sense, because in the ten years since the Court last ruled that universities could account for race in admissions, it has moved significantly to the right. Justice Sandra Day O’Connor, who had been regarded as the “swing vote” on the Court, retired and was replaced by the more conservative Samuel Alito. On other ideological questions, the new conservative majority has been pretty aggressive about limiting or overruling important precedent with which it disagreed.
For nearly forty years, the state of Texas has had to ask official permission in Washington before it could put into effect any change in the way its citizens vote. A week ago, state officials — relying on the Supreme Court’s new ruling on federal voting rights law — said they would no longer have to do that. Now, however, efforts have begun in two federal courts, 1600 miles apart, to keep that obligation intact.
Those efforts — in Washington, D.C., and San Antonio — are quick sequels to the Court’s decision last week in Shelby County v. Holder (docket 12-96), striking down one key section of the Voting Rights Act of 1965, but leaving other parts of the law on the books and presumably functioning. One of those other parts, the 1965 law’s Section 3, could provide a method for keeping in force Washington’s legal supervision of Texas voting laws and procedures under another, still standing provision, Section 5.
In some ways, it was déjà vu all over again. Just like last year, when it upheld the individual mandate of the Affordable Care Act, the Court saved the biggest cases of the Term – this time, challenges to California’s ban on same-sex marriage and the federal Defense of Marriage Act – for last. Just like last year, there were long lines for seats in the courtroom; this time, they formed more than eighteen hours before the Justices would take the bench. And just like last year, there was pandemonium outside (although, unlike last year, there were no belly dancers to be found).
The federal Defense of Marriage Act defines “marriage,” for purposes of over a thousand federal laws and programs, as a union between a man and a woman only. Today the Court ruled, by a vote of five to four, in an opinion by Justice Kennedy, that the law is unconstitutional. The Court explained that the states have long had the responsibility of regulating and defining marriage, and some states have opted to allow same-sex couples to marry to give them the protection and dignity associated with marriage. By denying recognition to same-sex couples who are legally married, federal law discriminates against them to express disapproval of state-sanctioned same-sex marriage. This decision means that same-sex couples who are legally married must now be treated the same under federal law as married opposite-sex couples.
Four years ago, in a case called Northwest Austin Municipal Utility District No. 1 (NAMUDNO) v. Holder, the Supreme Court reviewed a challenge to the constitutionality of the preclearance provisions of the Voting Rights Act. As I explained in an earlier post, that portion of the Act was designed to prevent discrimination in voting by requiring a list of state and local governments identified by Congress in the 1960s as having a history of voting discrimination to get approval from the federal government before making any changes to their voting laws or procedures – both major changes and even for something as seemingly innocuous as moving a polling place across the street. In that case, the Court ultimately dodged the constitutional question, handing the utility district a victory on another ground. But at the same time, the Court fired off a cautionary shot to Congress, admonishing it that “[t]hings have changed in the South,” where most of the state and local governments that have to comply with the preclearance requirements are located, and that the burdens imposed by the preclearance requirements “must be justified by current needs.”