July 29, 2016 – U.S. Supreme Court Justice Antonin Scalia's passing on Feb. 13, and the Senate's refusal to confirm the nomination of his replacement, led to multiple 4-4 decisions in the court's recently completed term.
The implications of Scalia's death and recent Supreme Court decisions involving immigration, college admissions, redistricting and reproductive rights were the focus of a "U.S. Supreme Court Update" on July 21 at the University of Houston Law Center.
The free Continuing Legal Education session was moderated by Dean Leonard M. Baynes.
"It's an opportunity for us to come together and discuss recent events and recent decisions to make us more informed," Baynes said in his opening remarks. "It's also an opportunity to collectively digest these issues and understand them better. That's what universities and law centers are best at doing – creating a forum for people to discuss important topics."
Professor Peter Linzer discussed Scalia's legacy, and criticized his use of originalism because of its ambiguity.
"He wrote several articles and books on his view of originalism, which as I understand, is what did people at the time interpret the words of the Constitution to be," Linzer said. "One of the problems with this whole notion that we're bound by what people 200 years ago thought, is that we don't know what they thought. Even what they said depends on a few dictionaries that we may or may not think of as accurate."
Associate Professor Josh Blackman, of the South Texas College of Law, remembered Scalia differently and praised his dedication to textualism and separation of law and policy.
"His fundamental commitment to the text, history, and law sets him apart from almost any other justice we've had in the 20th century," Blackman said.
UHLC Professor Ronald Turner began the program by speaking about the Supreme Court's 4-3 decision in Fisher v. University of Texas on June 23, 2016. The case centered on Abigail Fisher, who sued the University of Texas in 2013 over its affirmative action admissions policy. The court ruled that Fisher had not been discriminated against by the university in an opinion authored by Justice Anthony Kennedy.
"The court voted in favor of UT, and determined UT's admissions program did not violate the Equal Protection Clause of the 14th Amendment," Turner said. "Given Justice Kennedy's anti-affirmative-action votes in prior cases, I was surprised by his vote and opinion for the court."
Turner also discussed Foster v. Chatman which the court, by a 7-1 vote, held that the prosecution's peremptory strikes of two African-American prospective jurors violated the defendant's constitutional rights under its 1986 Batson v. Kentucky decision.
"The key to the outcome in this case was the discovery of the prosecutors' files obtained decades after the trial in which the defendant was convicted of capital murder and sentenced to death," Turner said. "Those files and other evidence examined by the court exposed the prosecutors' deliberate and concerted effort to keep black jurors off the jury."
Law Center Assistant Professor D. Theodore Rave discussed Evenwel v. Abbott, which reaffirmed that states may use total population as the basis for drawing legislative electoral districts.
Texas residents Sue Evenwel and Ed Pfenninger sued the state claiming that their votes didn't count as much as voters who lived in districts with the same total population, but higher proportions of children and noncitizens who are not eligible to vote. They argued that their votes were diluted in violation of the Equal Protection Clause and the one-person, one-vote principle, and wanted the Supreme Court to order all states to draw districts that would equalize the number of voters, instead of the total population.
The Supreme Court ruled in favor of the state in an 8-0 decision on April 4, with an opinion written by Justice Ruth Bader Ginsburg. The court held unanimously that the U.S. Constitution does not require states to equalize voter strength, and it permits Texas to draw districts to equalize total population. Rave noted that the decision did not say that states absolutely must draw districts to equalize total population.
The court left open the possibility that in the future, a state might decide to draw districts to equalize the number of voters in each district.
"If the conventional wisdom is right about the partisan implications of shifting from total population to number of voters, we might see several states with Republican-controlled legislatures decide to draw districts to equalize the number of voters in the next round of redistricting after the 2020 census, leading to new litigation," Rave said.
Assistant Professor James Nelson of UHLC discussed Friedrichs v. California Teachers Association, which resulted in a 4-4 decision on March 29.
The case was brought to the court by 10 public school teachers in California who objected to paying fees that support the teachers unions that represent them. Their argument was that the First Amendment prohibits the unions from charging fees for speech with which they disagree – including speech related to the unions' collective bargaining responsibilities. They also asked the Supreme Court to revisit and overrule its 1977 decision in Abood v. Detroit Board of Education – which had upheld such compelled payments under the First Amendment.
"It seemed to be a lock that the teachers were going to win," Nelson said. "After oral argument, virtually all commentators predicted that the Court would overrule Abood and strike down compulsory union fees in the public sector. But Scalia's death led to a 4-4 tie in Friedrichs, and that tie resulted in a one-sentence opinion affirming the judgment of the lower court, which had ruled in favor of the unions based on Abood."
Despite the decision, Nelson pointed to additional cases in lower courts that involve similar claims about union fee arrangements in Connecticut, Illinois, Kentucky and Massachusetts.
Nelson also noted that the unions' victory may only be "temporary," and that "most commentators think that the eventual resolution of this issue, like many others, will depend on the results of the election on Nov. 8th."
Professor Michael Olivas, interim president of the University of Houston Downtown, and the William B. Bates Distinguished Chair in Law and Director of the Law Center's Institute for Higher Education Law & Governance, discussed the United States v. Texas immigration case. The case argued the constitutionality of the Deferred Action for Parents of Americans program, enacted by President Barack Obama in 2014, and a 4-4 ruling was made on June 23.
Olivas said the court's deadlock, leaving the temporary injunction blocking the program in place, emphasizes the necessity for legislative action on immigration.
"I would emphasize that the recent 4-4 decision wasn't because Justice Scalia died, it was because the Senate had failed to act in its appropriate and required way to vote upon comprehensive immigration reform," Olivas said.
UHLC Assistant Professor Emily Berman gave an overview on Whole Woman's Health v. Hellerstedt, a 5-3 decision issued on June 27 striking down two provisions of Texas' abortion regulation statute. The Supreme Court held that the provisions, one of which required upgrades to abortion facilities while the other insisted that doctors performing abortions had privileges to admit patients to a nearby hospital, create an undue burden for women seeking abortion without providing the accompanying health benefits for which it was enacted.
The case's impact will not be limited to Texas―it calls into question the constitutionality of restrictions to abortion access across the U.S.
"Several states have enacted regulations similar to those in the Texas law. In the wake of this decision, those particular regulations are unlikely to survive constitutional challenge," Berman said. "Moreover, the decision will also make it more difficult for states to defend successfully other types of abortion restrictions justified by similar health-and-safety arguments."