United States v. Texas

Texas is the center of more than one Supreme Court case this semester. In our earlier post, you learned a little about what's been going on with the Fisher case. Another Supreme Court case that is currently pending is also based in the Lone Star state. This case deals with an immigration policy instituted by President Obama in late 2014 (DAPA) that developed on a 2012 policy (DACA) and it was argued yesterday before the eight justices.

Immigration and Customs Seal (wikipedia)

The 2012 policy allowed for deferred action for those who came to the U.S. illegally as children and for them to apply for citizenship. It also allowed for prosecutors to choose when to enforce immigration laws under DACA. Obama's 2014 policy expanded DACA to allow for the parents of lawful and permanent resident children to also be eligible for these exceptions.

Map depicting states for and against this policy (graphic
from of CIS.org)

Texas, with 25 other states, filed against this change in the policy (DAPA) saying that it violates the Administrative Procedure Act since it did not undergo the process of notification and commentary.

The case also argues against President Obama's power to issue this type of policy. The lower courts found in favor of Texas and the states that filed with it saying that it had standing and the effect of the notice-and-comment process would not have benefitted the U.S. government.

Now that the case has been argued, we're just waiting on an opinion, which will likely come at the end of this Supreme Court term in June. It will be interesting to see whether the court find in favor of one side outright or decides on how the case should be viewed and remands for additional proceedings. Whether the Court decides in favor of the U.S. or Texas, it will be necessary to watch what kind of language is used as this case could easily separate/maintain families already living in the U.S. (albeit without documentation) or enhance borders and tighten immigration law. But, whatever happens, let's hope that the Court finds a way to allow for positive immigration reform because we need it, and not in the form of a giant wall.

Current Supreme Court Justices

On the Supreme Court right now, there are eight justices currently serving. Nine is typical, but following the death of Justice Antonin Scalia and the Senate's failure to consider nominee Merrick Garland, there are only eight. This post will take a look at each of the eight justices:

Anthony Kennedy (photo courtesy of wikipedia)

Anthony Kennedy of California was nominated in 1988 to the Supreme Court by President Reagan. Justice Kennedy was born in Sacramento on July 23, 1936. He went on to attend Stanford, the London School of Economics and Harvard Law. In addition to practicing law, he taught and belonged to the California Army National Guard. He married and has three children. He was previously on the 9th Circuit of the Court of Appeals from 1975-1988. President Reagan appointed him to fill the seat of Justice Powell. Kennedy is the only justice currently serving on the court to be unanimously voted in by the Senate (97-0). He was 51 years old when appointed. Kennedy tends to be slightly conservative.

Clarence Thomas (photo courtesy of wikipedia)

Clarence Thomas of Georgia was appointed in 1991 by President George H.W. Bush. Justice Thomas was born near Savannah on June 23, 1948. He later attended Conception Seminary, Holy Cross and Yale Law. He practiced in Missouri and later served on the District of Columbia Circuit of the Court of Appeals from 1990-1991. He married twice and has a son. He was 43 years old when appointed to Thurgood Marshall's seat with a 52-48 Senate vote. Thomas is extremely conservative.

Ruth Ginsberg (photo courtesy of wikipedia)

Ruth Bader Ginsberg of New York was appointed in 1993 by President Clinton. Justice Ginsberg was born in Brooklyn on March 15, 1933. She later attended Cornell, Harvard Law and Columbia Law. She married in 1954 and has two children. In addition to teaching for 17 years, Ginsberg worked on women's rights advocacy with the ACLU. She was appointed to the District of Columbia Circuit of the Court of Appeals in 1980. Ginsberg was appointed to Byron White's seat at 60 years old with a 96-3 vote. She is fairly liberal.

Stephen Breyer (photo courtesy of wikipedia)

Stephen Breyer of Massachusetts was appointed in 1994 by President Clinton. Justice Breyer was born in San Francisco on August 15, 1938. He later attended Stanford, Magdalen, Oxford and Harvard Law. He later lectured at Harvard, the College of Law in Sydney, Australia, and at the University of Rome. From 1990-1994, he served as the chief judge on the First Circuit of the Court of Appeals. He was appointed to Harry Blackmun's seat at 55 years old with a 87-9 Senate vote. He tends to be slightly liberal.

John G. Roberts (photo courtesy of wikipedia)

John G. Roberts of Maryland was appointed in 2005 by George W. Bush as the Chief Justice. Chief Justice Roberts was born in Buffalo, New York on January 27, 1955. He later attended Harvard College and Harvard Law. He practiced law in D.C. He was appointed to the District of Columbia Circuit of the Court of Appeals in 2003 and served on it for 2 years. He married in 1996 and has two children. He was appointed to William Rehnquist's seat at 50 years old with a 78-22 Senate vote. He is fairly conservative.

Samuel Alito (photo courtesy of wikipedia)

Samuel Alito of New Jersey was appointed in 2009 by George W. Bush. Justice Alito was born in Trenton, NJ on April 1, 1950. He later worked as an Assistant U.S. Attorney, Assistant to the Solicitor General, Deputy Assistant Attorney General, U.S. Attorney for the District of New Jersey and as a professor at Seton Hall Law. In 1990 he was appointed to the 3rd Circuit of the Court of Appeals. At age 55 he was appointed to Sandra Day O'Connor's seat with a 58-42 Senate vote. He is fairly conservative.

Sonia Sotomayor (photo courtesy of wikipedia)

Sonia Sotomayor of New York was appointed in 2009 by President Obama. Justice Sotomayor was born in the Bronx on June 25, 1954. She later attended Princeton and Yale Law. She worked as an Assistant District Attorney in New York, then as a District Judge for the District Court of the Southern District of New York. She was appointed to the 2nd Circuit of the Court of Appeals in 1998 and served there until 2009. At age 55 she was appointed to David Souter's seat with a 68-31 Senate vote. She is fairly liberal.

Elena Kagan (photo courtesy of wikipedia)

Elena Kagan of Massachusetts was appointed in 2010 by President Obama. Justice Kagan was born in New York, New York on April 28, 1960. She later attended Princeton, Oxford and Harvard Law. She taught at University of Chicago Law, worked as the Deputy Director of the Domestic Policy Council, taught at Harvard Law and later served as Dean of Harvard Law. From 2009-2010, Kagan served as Solicitor General of the United States. She was appointed to John Paul Stevens's seat at age 50 with a 63-37 Senate vote. She is slightly liberal.

This graphic represents the ideological leanings of Supreme Court Justices over time. The current justices are listed toward the right side of the graph. (Graph courtesy of wikipedia)

Evenwel v. Abbott Decision

The Supreme Court building, located in Washington D.C. is
where the justices make these decisions. (photo courtesy of wikipedia)

On April 4, the eight Supreme Court justices decided the Evenwel v. Abbott case in favor of Abbott. The case dealt with a voter-redistricting in Texas that was implemented following a 2010 census. The Texas state legislature requires this analysis in the first senate legislative session after each census, since the population size may change in the districts. A three judge panel decided that the plan implemented after this census violated the Voting Rights Act and instituted an interim plan that plaintiffs (petitioners to the Supreme Court) Evenwel and Pfenniger claimed was unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Their claim was based on the fact that the redistricting was based on total population instead of registered voter populations. These new districts were approximately equal in total population, but greatly varied in terms of registered-voter population.

The justices of this term. Justice Antonin Scalia (front row, second
from left) died during the term. The other justices unanimously decided
Evenwel v. Abbott in favor of Abbott. (photo courtesy of wikipedia)

The question the court was asked to decide in this case was whether districting should consider the population of registered voters in place of total population. When the court decided in favor of Abbott, it concluded in its opinion that districting based upon total population in place of voter population is constitutionally acceptable.
One simple reason for this being acceptable is that you never know which unregistered voters will decide to register and when, so I think it's reasonable to conclude that this is permissible. But, look to the opinion for the court's reasoning on this issue.
Following the decision, some media backlash has centered around the idea that this decision will benefit Democrats since more highly populated districts (including those with high numbers of illegal immigrant residents) will receive more representation with the smaller number of Democratic voters. This argument doesn't hold up as well as dissenters would like and you can check out this article for more information on that debate.
Whatever the dissenters have to say, however, Evenwel is now precedent for the Supreme Court and will guide redistricting in the nation.
What do you think of this decision? Let us know in the comments.

Why that 'Stay Mad Abby' Hashtag Shouldn't Have Been So Cut-and-dry

You may have seen the tweets of friends or family, or you may have stumbled upon it during its media coverage, but #staymadabby trended in early December 2015. The hashtag followed statements made by the now deceased Justice Antonin Scalia (whose seat may be filled by Merrick Garland) during the Dec. 9 oral argument. This was the second time the case has been argued at the Supreme Court, which is unusual, due to some procedural issues based on the level of scrutiny used on UT Austin's admissions policy.
While these tweets were technically in response to Justice Scalia's statements that black students may fair better at institutions that go at a slower pace, as they couldn't graduate from institutions of that higher caliber. This was obviously, incorrect as proved by the seemingly endless flood of 'Stay Mad Abby' hashtags that followed the oral argument.
However, in consideration of the hashtag and the situation, it seems as though we're faulting Abigail Fisher (the petitioner) instead of Justice Scalia who actually said these things. The case, challenges the use of race in the UT Austin admissions policy and its sustainability under the Fourteenth Amendment's Equal Protection Clause.
Fisher's case, while it does seem to partly challenge affirmative action, does not entirely dismiss the use of race as a whole. It does however, refer back to Justice Powell's decision in Bakke and its emphasis on narrow tailoring. The case also does not rule out that the implications of a diverse student body are a compelling interest. Rather, it says that even after having sent the case back to the Circuit court for a strict scrutiny analysis, this wasn't done because:

1. Traditional strict scrutiny application would show that their diversity interest at UT isn't clearly defined
2. If the interest isn't clearly defined, there is no way to narrowly tailor it to that interest
3. Other, equally successful, race-neutral alternatives could be implemented
4. There is no clear justification for the need (this was more or less dismissed by the court)
5. Too much deference is given in regards to the program's implementation

Part of the UT Austin campus. Fisher applied in 2008 and was
considered under the holistic review program which includes race
 as a factor of many. (photo courtesy of wikipedia)

The court has also clearly decided (by hearing this case not once, but twice) both that the Fisher case has standing and is a good enough vehicle to hear this case - whatever they decide. Whether the court decides in favor of Fisher and essentially knocks down some precedent, or in favor of UT and affirms its precedent, this case should clearly define terms (quota, critical mass, diversity interest) and set more clear guidelines for the future. So, don't blame Fisher for bringing a case against UT for what she saw as race-based discrimination. It's her right to do so, and the court will decide based upon its extensive legal knowledge. This hashtag that went so viral late last year really should have been directed at Antonin Scalia and therefore phrased as such. 

--- What aspect of Fisher's case do you find most/least compelling? What hashtag would you have made up for Scalia in place of #staymadabby ? Let us know in the comments. ---

Controversy Over Supreme Court Nominee

Merrick Garland is Obama's latest SCOTUS
nominee, what would be his third appointment
 during his presidency. The last president to
appoint three justices was President Reagan,
who, ironically enough, was the one to appoint
Justice Scalia whose vacancy is causing this
issue to arise in the first place (photo courtesy
of wikimedia).

You may have seen a few articles recently that your boring cousin or your liberal aunt shared on Facebook about President Obama's Supreme Court nomination of Merrick Garland. Why does it matter so much that the U.S. Senate "do its job" in considering Garland's nomination?
First off, it's imperative that the nomination be considered since a significant portion of our judicial system is based on case law, the legal guidelines than arise from legal cases that make it into the courts, especially higher courts such as the Supreme Court. These cases become known as precedent and become a jumping off point for future legal decision making. If the nomination is not considered until the next president takes office, that will result in not only the rest of this Supreme Court term taking place with one justice short, but half of the next term falling under the same disadvantage. When Supreme Court cases are heard with fewer than nine justices, as intended, then results can change dramatically. If the Supreme Court makes a decision that results in a 4-4 tie, then the lower court decision stands, and that may complicate future issues involving the precedent these cases set forth. It may essentially result in precedent that will only need to be overruled later when the proper vehicle arises again.
Republican senators seem to also be freaking out over the fact that this would be Obama's third Supreme Court appointment, but he is far from the first president to reach this milestone. Nixon, Eisenhower, Truman, FDR, Hoover, Harding, Wilson, Taft, Teddy Roosevelt, Harrison, Grant, Lincoln, Jackson, Jefferson, J. Adams and Washington all appointed at least three justices during their presidencies and the world didn't fall apart. While Washington was certainly an anomaly (being the first president and essentially having to start the Supreme Court from nothing) with eleven appointments, others have appointed far more than Obama in more recent history. For example, FDR appointed eight and Eisenhower appointed five. It might influence the Supreme Court now, but it the court's make-up will inevitably change again in the future. For now, it's important to stick to the procedure set by our founding fathers, as originalist Scalia would undoubtedly want and allow the sitting president's nomination to be justly considered by the Senate, regardless of political parties and views.
What do you think about the Senate's refusal to acknowledge Obama's newest nominee? Share your reasons why or why not this issue needs to be resolved quickly.