SCOTUS Watch – Thursday, June 23rd – UPDATE: Affirmative Action wins, DAPA still on hold

June is SCOTUS Decision month, when all eyes turn to the Supreme Court for rulings on the cases argued this term (before the court adjourns on June 30th for the summer). The calendar normally calls for orders and opinions to be released every Monday – 9:30am for orders and 10:00am for opinions. However, history has shown that additional “opinion days” are often added as the month unfolds.

As always, the Moose News Network will cover the SCOTUS events with the help of SCOTUSblog and Twitter.

All eyes turn to the court

The Supreme Court will be in session this morning for opinions starting at 10:00am Eastern. SCOTUSblog will liveblog at this link starting at 9:30am Eastern.

There are 8 cases pending. These are the major and/or newsworthy cases heard in the current term but not yet decided:
United States v. Texas – DECIDED, injunction will not be removed, DAPA implementation still on hold
Whether the Obama administration has the authority to issue its new deferred-action policy for undocumented immigrants, whether the states have standing to challenge the policy at all, whether DHS was required to notify the public about the proposed policy and provide opportunity for the public to weigh in on it, and whether the policy violates the Constitution’s “Take Care Clause,” which requires the president to “take care that the laws be faithfully executed.”
Whole Woman’s Health v. Hellerstedt
Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.
Fisher v. University of Texas at Austin DECIDED, UT wins
Does the use of racial preferences in undergraduate admissions by the University of Texas violate the Equal Protection Clause?
McDonnell v. U.S.
Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.

A full list of pending cases (with links) is below the fold.

USA Today analysis:

The court now faces three issues of huge social importance: Abortion, immigration and affirmative action.

Those are the highlights from among 19 cases left to be decided before the end of June. They include a second tier of closely watched cases, including one that could set a higher bar for public corruption, another that could help ease Puerto Rico’s crushing debt and a third that could affect drunk drivers who refuse breath or blood tests. […]

Affirmative action. A former white student’s challenge to the University of Texas’ use of racial preferences in admissions dates back the longest. The case was heard in early December, after being returned to the Supreme Court for a second go-round. In 2013, the justices demanded tougher judicial scrutiny of the school’s use of race, but an appeals court again sided with UT.

Unlike the other cases, this one will be decided by just seven justices, because Justice Elena Kagan has recused herself after working on it as U.S. solicitor general. Without the risk of a tie, advocates and opponents of affirmative action anticipate a ruling for or against the policy — perhaps with repercussions for other universities as well. The betting line tilts slightly against UT.

Abortion. Another case from Texas challenges a state law that imposed major restrictions on abortion clinics, ostensibly to protect women’s health. The law requires clinics to meet the same standards as ambulatory surgical centers and forces doctors to have admitting privileges at nearby hospitals — rules that threaten to leave only nine fully functioning abortion clinics in a state with 5.4 million women of reproductive age.

Two lower federal courts have upheld the law, but abortion rights proponents say it places too great a burden on women seeking abortions, without a justifiable health benefit. They may have a winning hand if Justice Anthony Kennedy joins the court’s four liberals against one or both restrictions. A substantive ruling could represent the most significant abortion decision by the court since 1992.

Immigration. Case number three from Texas is President Obama’s effort to overturn lower court rulings that have blocked him from offering more than 4 million undocumented immigrants a chance to remain in the country without fear of deportation. It represents his last chance to help the parents of those brought to the country as children who have already won such a reprieve.

Texas led a group of 26 states against the plan, complaining that it would have to pay for driver’s licenses if the parents dodge deportation proceedings. Obama’s best chance appears to be the hope that a majority of justices will decide the cost of licenses does not give Texas sufficient standing in court. Otherwise, a 4-4 tie would uphold the verdict of the lower courts, and the program would be dead.

Recap on Sunday, 6/19/2016, by Amy Howe on the remaining cases, In Plain English, before Monday’s session:

Between tomorrow morning, when the Justices will take the bench at ten o’clock, and the end of June, the Court is expected to issue thirteen rulings in cases involving everything from tribal-court jurisdiction to abortion, immigration, and the scope of federal laws prohibiting political corruption.

Speculation is that Chief Justice Roberts will be writing both Fisher and US v Texas (he has only written 5 opinions this term) and that Breyer or Kagan will be writing Whole Woman’s Health (they have each only written 6).

From SCOTUSblog: October 2015 Term cases pending (oldest cases first)

Dollar General Corporation v. Mississippi Band of Choctaw Indians, No. 13-1496 [Arg: 12.7.2015]

Issue(s): Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members

Fisher v. University of Texas at Austin, No. 14-981 [Arg: 12.9.2015, Transcript]
Issue(s): Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin.

Stryker Corp. v. Zimmer, No. 14-1520 [Arg: 2.23.2016]

Issue(s): (1) Whether the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys’ fee awards in exceptional cases.

Voisine v. U.S., No. 14-10154 [Arg: 2.29.2016]

Issue(s): (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Whole Woman’s Health v. Hellerstedt, No. 15-274 [Arg: 3.2.2016, Transcript]

Issue(s): (1) Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health; and (2) whether the Fifth Circuit erred in concluding that this standard permits Texas to enforce, in nearly all circumstances, laws that would cause a significant reduction in the availability of abortion services while failing to advance the State’s interest in promoting health – or any other valid interest.

U.S. v. Texas, No. 15-674 [Arg: 4.18.2016, Transcript]

Issue(s): (1) Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action; (2) whether the guidance is arbitrary and capricious or otherwise not in accordance with law; (3) whether the guidance was subject to the APA’s notice-and-comment procedures; and (4) whether the guidance violates the Take Care Clause of the Constitution, Article II, section 3.

Bernard v. Minnesota, No. 14-1470 [Arg: 4.20.2016] (Includes Beylund v. Levi, No. 14-1507 and Birchfield v. North Dakota, No. 14-146)

Issue(s): Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.

Mathis v. U.S., No. 15-6092 [Arg: 4.26.2016]

Issue(s): Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.

McDonnell v. U.S., No. 15-474 [Arg: 4.27.2016, Transcript]

Issue(s): Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.


  1. #waitingforLyle

    Updated “What’s left in Plain English” from Amy Howe at SCOTUSblog

    For the cases we are closely watching:
    Whole Woman’s Health – The Fifth Circuit upheld the new requirements so we want the Fifth Circuit overturned
    US v Texas – The immigrant bashing judge in Brownsville put DAPA/DACA on hold. We want his injunction removed so that the plan can be implemented.
    Fisher – The Fifth Circuit said that the University of Texas affirmative action rules were legal. We want that affirmed.

    • 5553 people watching. Rain in Washington D.C. putting a damper(!) on the protesters – pro-choice and pro-birth-but-meh-on-life.

  2. First case:

    Mathis v US by Kagan

    The Eighth Circuit is reversed.

    There is a concurring opinion by Kennedy and by Thomas. Dissent by Ginsberg, Breyer and Alito.

    Holding: Because the elements of Iowa’s burglary law are broader than those of generic burglary, Mathis’s prior convictions cannot give rise to the Armed Career Criminal Act’s sentence enhancement.

    • Mathis v. United States (argued April 26, 2016). After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions. The Eighth Circuit affirmed his conviction. The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.

  3. Second case:

    Birchfield v. ND. (drunk driving cases)

    Justice Alito has the opinion. Sotomayor concurs and dissents in part, joined by RBG. Thomas concurs in judgment and dissents in part.

    Holding: The Fourth Amendment permits warrantless breath tests incident to arrest for drunk driving but not warrantless blood tests.

    • Birchfield v. North Dakota (argued April 20, 2016). Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall. The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.

  4. Third case:

    Fisher. Kennedy has the opinion.

    The decision of the Fifth Circuit is affirmed.

    Thomas dissents, as does Alito — Thomas and Roberts joined Alito’s dissent. Kagan did not participate.

    From majority opinion: “The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admission policies.”

    This is a win for the good guys!!!

    • Fisher v. University of Texas at Austin (argued December 9, 2015). This case, a challenge to the university’s consideration of race in its undergraduate admissions process, is on its second trip to the Court. In 2013, the Court sent the case back to the lower courts for a more critical look at whether the university really needed to consider race to achieve a diverse student body. After the Fifth Circuit once again upheld the policy, the Court agreed to weigh in. Unlike some of the Court’s other high-profile cases this Term, no one expects the Court to deadlock: Justice Elena Kagan is not participating, which in the wake of Justice Antonin Scalia’s death leaves the Court with just seven Justices to decide the case.

  5. The Chief Justice announces the ties and what will happen to them:

    Immigration — 4-4 tie. Dollar General 4-4 tie.

    This means that the enforcement of the Obama administration’s 2014 deferred-action policy remains blocked by a nationwide injunction.

    It is now up to Judge Hanen in Brownsville, Texas, whether and how to go forward with the trial on the merits.

    The Court’s order in US v. Texas says is that the judgment is affirmed by an equally divided Court. Nothing more.

    Dollar General was affirmed by an equally divided court, which means that the lower-court ruling in favor of the tribe stands.

    • United States v. Texas (argued April 18, 2016). This case is a challenge to an Obama administration policy, announced in November 2014, that would allow some undocumented immigrants to apply to stay in the country and work legally for three years. Before the policy could go into effect, Texas and a large group of other states went to court to block its implementation, arguing that the administration has no authority, under federal laws or the Constitution, to issue a policy like this; a federal trial court issued an order to keep the policy from going into effect, and the Fifth Circuit affirmed that ruling. But before the Supreme Court can weigh in on that question, it will also have to agree that the states have the legal right, known as “standing,” to challenge the policy at all; the lower courts ruled that they did, because at least Texas would incur additional costs from the undocumented immigrants who would become eligible for driver’s licenses if the policy goes into effect.

      The injunction stays in place, no other rulings.

      Dollar General Stores v. Mississippi Band of Choctaw Indians (argued December 7, 2015). This case stems from accusations by a thirteen-year-old member of the tribe that a manager at a Dollar General store within the tribe’s reservation had sexually molested him while the boy was interning at the store. The child and his parents filed a lawsuit against the manager and the store in tribal court, arguing that the store was liable for the manager’s conduct. The issue before the Court is whether the tribal court has jurisdiction over tort claims against defendants, like Dollar General, who are not members of the tribe; the Fifth Circuit ruled that there is jurisdiction.

      That ruling is NOT overturned and is therefore affirmed.

  6. That takes care of all but three cases. The Chief Justice announced that they will all be announced on Monday, June 27th, no opinions next Thursday:

    Voisine v. US, Whole Woman’s Health v. Hellerstedt, and McDonnell v. US

  7. Reactions: Affirmative Action:
    A Victory For Affirmative Action, And For Many Colleges A Sigh Of Relief

    The nation’s colleges and universities have been on pins and needles waiting for the U.S. Supreme Court to decide whether race can be a factor in their admissions policies.

    And so today’s 4-3 ruling upholding the affirmative-action program at the University of Texas at Austin brought a sigh of relief to much of the higher education world.

    “The Supreme court has, for the fourth time in the last 40 years, said that if they do it carefully, institutions can consider race as part of admissions without discriminating against someone else,” said Terry Hartle, senior vice president of the American Council on Education, which represents more than 1,700 college presidents.

    Hillary Clinton: Statement on Fisher v. University of Texas

    “The Supreme Court’s decision today in Fisher v. University of Texas is a win for all Americans. It means that universities can continue to make diversity and inclusion central goals of their admissions processes, and means our college campuses will continue to be places where young adults of all backgrounds can learn from each other.

    Having a student body with diverse experiences and perspectives breaks down barriers, enriches academia, and prepares our young people to be leaders and citizens in our increasingly diverse country. We need to guarantee that the doors to higher education are open not just to some, but to all—and that we are giving students equal opportunities to succeed and thrive. Today’s Supreme Court decision affirms a basic truth about our country: we are stronger together.”

    Commentary and Analysis from SCOTUSblog So what happened between Fisher I and Fisher II?

    It’s hard to view today’s ruling in the second Fisher v. University of Texas at Austin, in which the Court upheld the University of Texas’s race-conscious admissions program by a four-three vote, as anything other than a stunning surprise. For starters, in his twenty-eight years on the Supreme Court, Justice Anthony Kennedy had never previously voted to uphold a race-based affirmative action program against a constitutional challenge. Add to that the bottom line of the Supreme Court’s 2012 ruling in Fisher I – which seemed to be a not-so-thinly-veiled hint to the court of appeals that a majority of the Justices had serious qualms with the constitutionality of the UT approach, one which the Fifth Circuit politely ignored on remand in reaffirming its earlier decision.

  8. Reactions: Immigration

    WaMo, Smartypants: What the Supreme Court Did (and Didn’t Do) Today on Immigration

    The Supreme Court issued a one sentence response today to President Obama’s Deferred Action for Parents of Americans (DAPA): “The judgment is affirmed by an equally divided Court.” That means that, because of a 4-4 tie, the injunction blocking the plan from taking effect stands. As the President pointed out today, it affirms the status quo.

    It is important to keep in mind that Obama’s previous action – Deferred Action for Childhood Arrivals, or DACA – was not contested and therefore continues to be in effect. Also still in place are the priorities this administration outlined for immigration enforcement.

    The above statement from the Court does not indicate a ruling about the Constitutionality of DAPA – that is still an open question to be addressed at a later date.

    From SCOTUSblog, Shoba Sivaprasad Wadhia: A meditation on history, law, and loss

    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.

    Hillary Clinton: Statement on US v Texas

    “Today’s deadlocked decision from the Supreme Court is unacceptable, and show us all just how high the stakes are in this election. As I have consistently said, I believe that President Obama acted well within his constitutional and legal authority in issuing the DAPA and DACA executive actions. These are our friends and family members; neighbors and classmates; DREAMers and parents of Americans and lawful permanent residents. They enrich our communities and contribute to our economy every day. We should be doing everything possible under the law to provide them relief from the specter of deportation.

    Today’s decision by the Supreme Court is purely procedural and casts no doubt on the fact that DAPA and DACA are entirely within the President’s legal authority. But in addition to throwing millions of families across our country into a state of uncertainty, this decision reminds us how much damage Senate Republicans are doing by refusing to consider President Obama’s nominee to fill the vacancy on the Supreme Court. Our families and our country need and deserve a full bench, and Senate Republicans need to stop playing political games with our democracy and give Judge Merrick Garland a fair hearing and vote.

    This decision is also a stark reminder of the harm Donald Trump would do to our families, our communities, and our country. Trump has pledged to repeal President Obama’s executive actions on his first day in office. He has called Mexican immigrants ‘rapists’ and ‘murderers.’ He has called for creating a deportation force” to tear 11 million people away from their families and their homes.

    I believe we are stronger together. When we embrace immigrants, not denigrate them. When we build bridges, not walls. That is why, as president, I will continue to defend DAPA and DACA, and do everything possible under the law to go further to protect families. It is also why I will introduce comprehensive immigration reform with a path to citizenship within my first 100 days. Because when families are strong—America is strong.”

    Also En español (at the link)

  9. President Obama on Thursday’s SCOTUS opinions:

    Transcript: Remarks by the President on the Supreme Court Decision on U.S. Versus Texas

    James S. Brady Press Briefing Room, 11:53 A.M. EDT

    THE PRESIDENT: Good morning, everybody. I wanted to say a few words on two of the cases the Supreme Court spoke on today.

    First, in the affirmative action case, I’m pleased that the Supreme Court upheld the basic notion that diversity is an important value in our society, and that this country should provide a high-quality education to all our young people, regardless of their background. We are not a country that guarantees equal outcomes, but we do strive to provide an equal shot to everybody. And that’s what was upheld today.

    Second, one of the reasons why America is such a diverse and inclusive nation is because we’re a nation of immigrants. Our Founders conceived of this country as a refuge for the world. And for more than two centuries, welcoming wave after wave of immigrants has kept us youthful and dynamic and entrepreneurial. It has shaped our character, and it has made us stronger.

    But for more than two decades now, our immigration system, everybody acknowledges, has been broken. And the fact that the Supreme Court wasn’t able to issue a decision today doesn’t just set the system back even further, it takes us further from the country that we aspire to be.

    Just to lay out some basic facts that sometimes get lost in what can be an emotional debate. Since I took office, we’ve deployed more border agents and technology to our southern border than ever before. That has helped cut illegal border crossings to their lowest levels since the 1970s. It should have paved the way for comprehensive immigration reform. And, in fact, as many of you know, it almost did. Nearly 70 Democrats and Republicans in the Senate came together to pass a smart, common-sense bill that would have doubled the border patrol, and offered undocumented immigrants a pathway to earn citizenship if they paid a fine, paid their taxes, and played by the rules.

    Unfortunately, Republicans in the House of Representatives refused to allow a simple yes or no vote on that bill. So I was left with little choice but to take steps within my existing authority to make our immigration system smarter, fairer, and more just.

    Four years ago, we announced that those who are our lowest priorities for enforcement — diligent, patriotic young DREAMers who grew up pledging allegiance to our flag — should be able to apply to work here and study here and pay their taxes here. More than 730,000 lives have been changed as a result. These are students, they’re teachers, they’re doctors, they’re lawyers. They’re Americans in every way but on paper. And fortunately, today’s decision does not affect this policy. It does not affect the existing DREAMers.

    Two years ago, we announced a similar, expanded approach for others who are also low priorities for enforcement. We said that if you’ve been in America for more than five years, with children who are American citizens or legal residents, then you, too, can come forward, get right with the law, and work in this country temporarily, without fear of deportation.

    Both were the kinds of actions taken by Republican and Democratic Presidents over the past half-century. Neither granted anybody a free pass. All they did was focus our enforcement resources — which are necessarily limited — on the highest priorities: convicted criminals, recent border crossers, and threats to our national security.

    Now, as disappointing as it was to be challenged for taking the kind of actions that other administrations have taken, the country was looking to the Supreme Court to resolve the important legal questions raised in this case. Today, the Supreme Court was unable to reach a decision. This is part of the consequence of the Republican failure so far to give a fair hearing to Mr. Merrick Garland, my nominee to the Supreme Court. It means that the expanded set of common-sense deferred action policies — the ones that I announced two years ago — can’t go forward at this stage, until there is a ninth justice on the Court to break the tie.

    I know a lot of people are going to be disappointed today, but it is important to understand what today means. The deferred action policy that has been in place for the last four years is not affected by this ruling. Enforcement priorities developed by my administration are not affected by this ruling. This means that the people who might have benefitted from the expanded deferred action policies — long-term residents raising children who are Americans or legal residents — they will remain low priorities for enforcement. As long as you have not committed a crime, our limited immigration enforcement resources are not focused on you.

    But today’s decision is frustrating to those who seek to grow our economy and bring a rationality to our immigration system, and to allow people to come out of the shadows and lift this perpetual cloud on them. I think it is heartbreaking for the millions of immigrants who’ve made their lives here, who’ve raised families here, who hoped for the opportunity to work, pay taxes, serve in our military, and more fully contribute to this country we all love in an open way. […]

    So here’s the bottom line. We’ve got a very real choice that America faces right now. We will continue to implement the existing programs that are already in place. We’re not going to be able to move forward with the expanded programs that we wanted to move forward on because the Supreme Court was not able to issue a ruling at this stage. And now we’ve got a choice about who we’re going to be as a country, what we want to teach our kids, and how we want to be represented in Congress and in the White House. […]

    I promise you this, though — sooner or later, immigration reform will get done. Congress is not going to be able to ignore America forever. It’s not a matter of if, it’s a matter of when. And I can say that with confidence because we’ve seen our history. We get these spasms of politics around immigration and fear-mongering, and then our traditions and our history and our better impulses kick in. That’s how we all ended up here. Because I guarantee you, at some point, every one of us has somebody in our background who people didn’t want coming here, and yet here we are.

    And that’s what’s going to happen this time. The question is, do we do it in a smart, rational, sensible way — or we just keep on kicking the can down the road. I believe that this country deserves an immigration policy that reflects the goodness of the American people. And I think we’re going to get that. Hopefully, we’re going to get that in November.

    More at the link as well as two questions from the press.

    Bolding added.

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