Editor's Note :

Editor's Note :

On Monday we expect the Court to issue orders from the June 23 Conference at 9:30 a.m. and opinions in one or more argued cases at 10 a.m. We will begin live-blogging at 9 a.m.
The blog is hosting a symposium on the Court's opinion in Fisher v. University of Texas at Austin.
The blog is also hosting a symposium on the Court's ruling in United States v. Texas.

Petition of the day

By on Jun 24, 2016 at 11:18 pm

The petition of the day is:


Issue: Whether state courts lack subject matter jurisdiction over covered class actions that allege only Securities Act of 1933 claims

John Paul Schnapper-Casteras is Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund in Washington, D.C. He participated in an amicus brief on behalf of the Black Student Alliance at the University of Texas at Austin, the Black Ex-students of Texas, Inc., and the NAACP Legal Defense & Educational Fund.

The Supreme Court’s decision yesterday in Fisher v. University of Texas at Austin marks a major victory for universities and students throughout the country, and reaffirms the commonsense proposition that diversity along various lines – including racial diversity – yields significant educational benefits on college campuses.

Justice Anthony Kennedy’s lucid and straightforward opinion embraces years of legal precedent underscoring that diversity on campus constitutes a compelling constitutional interest. Upon first glance, this may not seem earthshaking, but in reality, it is quite significant, since this case was geared to be part of a broader attack on the fundamental legal value of diversity. Instead, Kennedy makes clear that Grutter v. Bollinger and Fisher I stand strong as good law. This keeps in place a sensible legal framework on which universities across the country have relied, and by extension, many businesses that seek to groom and hire a diverse, dexterous workforce.

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Elise C. Boddie is Professor of Law at Rutgers Law.

The second installment of Fisher v. University of Texas at Austin is a sound win for diversity and Grutter v. Bollinger’s legacy. It also may have quietly pushed the frontiers of the Court’s race jurisprudence in two ways.

First, the majority opinion tacitly endorses racially inclusionary objectives that are achieved through facially race-neutral means. The constitutionality of such policies has not been explicitly addressed because the Court’s affirmative action cases have focused on the permissibility of racial classifications. The distinction between facial race consciousness (in which race is explicitly used to distribute benefits or burdens to individuals) and general race consciousness matters. Because percentage plans fall in the latter category, they should be presumptively constitutional.

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Symposium: The immigration punt

By on Jun 24, 2016 at 2:36 pm

Zachary Price is an Associate Professor at UC Hastings College of the Law.

The Supreme Court’s four-four affirmance in United States v. Texas may mean that the legal battle over immigration will go on. Because the appeal involved only a preliminary injunction, the Supreme Court might have the chance to revisit the issues in the case, perhaps with a full complement of Justices, following a final judgment.

In this brief post, I will therefore offer some thoughts on what I see as the central issue presented by the immigration program at issue – the scope of executive authority to decline enforcement of statutes, and relatedly the extent of judicial authority to address this question.

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Once more unto the Relist Watch

By on Jun 24, 2016 at 1:18 pm

For (almost) the last time this Term, John Elwood reviews Monday’s relisted cases.

As our dwindling readership can attest, our exclusive concern here at Relist Watch (you’d say our “lifeblood,” if we were at all lifelike) is rank speculation about what cases the Court will decide to decide. Sure, we’re as interested as the next law nerd when the Court makes headlines because it can’t decide a case, and more interested still when it decides by not deciding. But it really only affects our work when the Justices decide not to decide because they’re worried they won’t be able to decide. It either validates our existence or calls it in to question. We can’t decide.

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Elizabeth Slattery is a legal fellow at The Heritage Foundation’s Edwin Meese III Center for Legal and Judicial Studies.

Yesterday’s ruling in Fisher v. University of Texas at Austin was disappointing, to say the least. Justice Anthony Kennedy’s majority opinion, allowing UT to continue using a race-conscious admissions program without sufficiently articulating its “diversity goal” or providing proof that it was meeting that goal, betrays his previous equal protection jurisprudence and the belief that we have a colorblind Constitution.

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Friday round-up

By on Jun 24, 2016 at 12:05 pm

Yesterday was a big day at the Court, with opinions in three cases and equally divided affirmances in two more.

Molly Runkle rounded up early coverage and commentary for this blog of the Court’s decision in Fisher v. University of Texas at Austin, holding that the race-conscious admissions policy in use when Abigail Fisher applied (unsuccessfully) to the university does not violate the Constitution, for this blog.  Other coverage comes from Tony Mauro of Supreme Court Brief (subscription required), David Savage of Los Angeles Times, Daniel Fisher of Forbes, and Michael Bobelian, also at Forbes.  Commentary supportive of the decision comes from David Gans at Balkinization; critical commentary comes from Terrence Pell at USA Today and Joshua Thompson at Forbes, And at Slate, Dahlia Lithwick concludes that, although the decision is “a loss for Alito and Clarence Thomas and the chief justice on affirmative action,” there is also “mass confusion about what it all means in any concrete terms.”  Continue reading »

Posted in Everything Else

Immigration lawyers, reeling from yesterday’s defeat in United States v. Texas, may today be finding some solace in Mathis v. United States, handed down at the same time. Justice Elena Kagan’s majority opinion in Mathis resoundingly endorsed the “categorical approach” to determining which prior convictions count toward enhanced sentences for federal crimes (and therefore for removal as well). Immigration and criminal defense lawyers cherish the categorical approach because it generally prevents courts from taking into account many facts that would hurt their clients in removal and sentencing proceedings. But considering the concurring and dissenting opinions in Mathis, it is not clear how much solace is justified.

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Todd Henderson is Michael J. Marks Professor of Law & Mark Claster Mamolen Research Scholar at The University of Chicago Law School.

When I joined the legal academy more than a decade ago, the topic of affirmative action in higher education was very much in the news. The Supreme Court had just handed down its decision in Grutter v. Bollinger, which upheld the practice at the University of Michigan Law School based on the assumption that minority representation was necessary for delivering a quality education. When discussing Grutter with a colleague from another school, the question of these educational benefits came up, and there were no easy answers. We both could imagine circumstances in which the perspective of a particular minority student might change the substance of the discussion, but we second-guessed ourselves because this both assumed the views of the minority student – it was racist – and demeaned the ability of other students to think outside themselves without this prompting. The stereotyping and shortselling were sufficient to give us pause. But at the end of the day, one comment from that discussion stuck with me: “Can you imagine the University of Chicago Law School without black faces?”

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Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute. He filed briefs supporting the challenge to DAPA on behalf of Cato and others who generally support immigration reform. Like most immigrants, he does a job native-born Americans won’t: defending the Constitution.

The Supreme Court’s non-ruling that left in place the lower courts’ injunction against President Barack Obama’s executive actions on immigration should’ve come as no surprise to anyone who followed this case or read the oral argument transcript. The Department of Homeland Security claimed unprecedented discretion not just regarding enforcement priorities – the twenty-six-state plaintiffs didn’t challenge that – but, as U.S. District Judge Andrew Hanen wrote back in February 2015, also to pursue the “affirmative action” of granting benefits to a large class of illegal immigrants. The president himself had boasted that he “took an action to change the law,” contradicting his earlier protestations that he’s not a king and undermining the government’s argument that this was all mere policy guidance. That we came one vote from ratifying this royal lawmaking – not Merrick Garland’s; he wouldn’t have been confirmed in time to hear the case and it’s disingenuous for the president to claim otherwise – speaks volumes to how ends-justify-the-means the White House’s supporters are.

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