Editor's Note :

Editor's Note :

The blog is hosting a symposium on the Court's opinion in Whole Woman's Health v. Hellerstedt.
The blog is also hosting a symposium on the Court's opinion in McDonnell v. United States.

Breaking News :

Breaking News :

This morning the Court issued a per curiam opinion in United States v. Texas, affirming by an equally divided Court the Fifth Circuit’s decision blocking the implementation of the Obama administration’s deferred-action policy for some undocumented immigrants.  Lyle Denniston covered the ruling for this blog. Other early coverage comes from Eyder Peralta of NPR, Mark Walsh of Education Week, Pete Williams of NBC News, Lydia Wheeler and Jordan Fabian of The Hill, Ariane de Vogue and Tal Kopan of CNN, Adam Liptak and Michael Shear of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin of The Wall Street Journal, Robert Barnes and William Branigin of The Washington Post, David G. Savage of the Los Angeles Times, Mark Sherman of the Associated Press, Chris Geidner of BuzzFeed, Josh Gerstein of Politico, Greg Stohr of Bloomberg, Cristian Farias of The Huffington Post, Debra Cassens Weiss of ABA Journal, and Bill Mears of Fox News.

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Symposium: From here, where to?

By on Jun 23, 2016 at 6:25 pm

Gabriel J. Chin is Martin Luther King Jr. Professor of Law at UC Davis School of Law.

As is customary, the Court’s per curiam affirmance of the Fifth Circuit by an equally divided court was a one-line opinion. Although the ruling means that the injunction against DAPA remains in place, the case is some distance from being over.

What was at issue was the propriety of a preliminary injunction.   As the Court held in University of Texas v. Camenisch, “where a federal district court has granted a preliminary injunction, the parties generally will have had the benefit neither of a full opportunity to present their cases nor of a final judicial decision based on the actual merits of the controversy.”

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This morning the Court issued its opinion in Fisher v. University of Texas at Austin, holding by a vote of four to three that the race-conscious admissions program in use when Abigail Fisher applied to the university is lawful under the Equal Protection Clause.  Lyle Denniston covered the opinion for this blog. Other early coverage of the opinion comes from Eyder Peralta of NPR, Pete Williams of NBC News, Lydia Wheeler of The Hill, Ariane de Vogue of CNN (who focuses on Justice Kennedy’s views on affirmative action in a second post), Adam Liptak of The New York Times, Lawrence Hurley of Reuters, Richard Wolf of USA Today, Jess Bravin and Brent Kendall of The Wall Street Journal, Jacob Gershman of The Wall Street Journal, Robert Barnes of The Washington Post, David G. Savage and Molly Hennessy-Fiske of the Los Angeles Times, Mark Sherman of the Associated Press, Chris Geidner of Buzzfeed, Josh Gerstein and Kimberly Hefling of Politico, Greg Stohr of Bloomberg, Cristian Farias of Huffington Post, Debra Cassens Weiss of ABA Journal, Bill Mears of Fox News, Mark Walsh of Education Week, and Daniel Fisher of Forbes.

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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.

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Stuart Taylor, Jr. is a Washington writer and coauthor, with Richard Sander, of Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It.

Thirteen years to the day after the Supreme Court said “[w]e expect that 25 years from now, the use of racial preferences [in university admissions] will no longer be necessary,” the Court on Thursday paved the way for perpetuating such preferences for many decades, perhaps centuries.

Unless the next two Supreme Court appointees are strong opponents of racial preferences — a most unlikely prospect — the Court’s role since the 1978 Regents of the University of California v. Bakke decision as a modest restraint on use of such preferences is at an end.

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Analysis

President Barack Obama’s ambitious plan to overhaul U.S. immigration policy for millions of foreign nationals living in the U.S. came close to crashing down Thursday in a Supreme Court decision so brief that it was barely mentioned by Chief Justice John G. Roberts, Jr.  If the policy is not yet entirely doomed, it could be after it is formally returned to a federal judge in Brownsville, Texas, who is sure to be guided by an appeals court ruling that already has said, in essence, that the government probably will lose.

Technically, the policy might have another test before the Supreme Court either before or after the Texas judge has finished, but the end of the Obama term in the White House in January and the uncertainty about who will succeed him in the presidency may leave the plan abandoned.  Given partisan gridlock in Congress, there is little or no chance of a legislative plan to deal with more than eleven million undocumented immigrants now living in the U.S. and facing potential deportation.

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Cecillia Wang is Director of the ACLU Immigrants’ Rights Project.

Today the Supreme Court announced that it was deadlocked four to four on United States v. Texas. The one-line non-decision leaves unanswered the central question about the president’s authority to set policy guidelines for the exercise of prosecutorial discretion in the deportation system. But it is a non-decision with a profound impact. Millions of American families whose lives and dreams hinged on the Supreme Court’s decision will keep waiting and fighting.

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Laws in twelve states that impose criminal penalties on suspected drunk drivers who refuse to take a breath test to measure the alcohol in their bodies got a nod from the Supreme Court today. On a day that saw the Court deadlock in two cases, six of the Court’s eight Justices agreed that such laws do not violate the Fourth Amendment’s ban on unreasonable searches. But today was not a complete victory for the states: seven Justices also agreed that laws which impose criminal penalties for failing to take a blood test violate the Constitution.

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Analysis

With Justice Anthony M. Kennedy making a major effort to confine Supreme Court approval of affirmative action on college campuses to one case and one plan, and to limit even that approval to a narrow span of time, the Justices on Thursday barely salvaged the University of Texas’s use of race as a factor in choosing its entering classes.  The vote in Fisher v. University of Texas was four to three to allow the Austin campus to continue using an admissions formula it has followed for a dozen years.

Finally rejecting the constitutional challenge that a rejected white applicant had been pursuing for some eight years, the Court in its second review of her case sent few dependable signals to the larger academic community about where race stands as a valid factor in admissions programs.  The first tests of how lower courts could react to the ruling could come in lawsuits against Harvard University and the University of North Carolina.  Those cases were arranged by the same advocacy organization that had been backing Abigail Noel Fisher of Sugar Land, Texas, in her case against the state’s flagship university.

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Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law- University Park. Her book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases published by NYU Press in 2015 is the first book on the topic and reflects a culmination of Wadhia’s scholarly work, advocacy, and litigation. Her most recent article Demystifying Employment Authorization and Prosecutorial Discretion in Immigration Cases, examines more than 230,000 related employment authorization applications received through the Freedom of Information Act and processed by the government.

The U.S. Supreme Court gridlocked in a four-four decision in United States v. Texas blocking two programs announced by President Barack Obama on November 20, 2014: “DAPA” (or Deferred action for Parents of Americans) and “DACA Plus” (or Deferred Action for Childhood Arrivals 2012 with a twist). These programs would have enabled qualifying parents whose children are Americans or green card holders and those brought to the United States as children to seek protection from removal (deportation) through a tool known as “deferred action.” A deadlock by the Court suggests hesitation by the Court about the administration’s legal authority to use deferred action and deepens the heartbreak for millions of individuals and families hoping for a different outcome. From the onset of United States v. Texas the courtroom was used as a fora for politics, and law and history were placed on the side of the road. This piece recovers the history and law that could have led to a different outcome.

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