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.

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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Kimberly West-Faulcon is the author of amicus briefs in Fisher I and Fisher II. She teaches constitutional law at Loyola Law School in Los Angeles, where she holds the endowed James P. Bradley Chair in Constitutional Law.

Yesterday’s decision in Fisher v. University of Texas at Austin marks the first time Justice Anthony Kennedy has ruled in favor of a racial affirmative action policy in the twenty-eight years he has served on the Supreme Court. Unwilling to sound the death knell on racial affirmative action in higher education, Kennedy ventured down a path he had never taken before. He upheld the race-conscious component of the University of Texas at Austin’s admissions policy as satisfying the stringent strict-scrutiny standard of review. Instead of siding with rejected white applicant Abigail Fisher or ruling that affirmative action is per se unconstitutional as Fisher’s lawyers contended, Kennedy upheld the policy Fisher challenged as unconstitutional despite an oft-articulated constitutional aversion to race consciousness.

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Ernest A. Young holds the Alston & Bird Chair at Duke Law School.

It’s safe to say that the Supreme Court’s one-line per curiam opinion today in United States v. Texas – “[t]he judgment is affirmed by an equally divided Court” – will not go down in history as one of the Court’s landmark opinions. Without even a separate concurrence or dissent to sink one’s teeth into, one can expect much of the commentary simply to repeat positions taken earlier. Although I participated in the case by drafting an amicus brief for public law scholars supporting Texas’s standing to sue, I will try not to rehash that brief’s arguments here. Instead, I want to make three more limited points.

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Jonathan H. Adler is the inaugural Johan Verheij Memorial Professor of Law and Director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law. His book, Business and the Roberts Court, is forthcoming this summer from Oxford University Press. He is a regular contributor to the popular legal blog The Volokh ConspiracyHe participated in brief amicus curiae of law professors supporting the claim that Texas had standing to challenge the Obama administration’s actions, but taking no position on the substantive merits of the case.

Many had hoped the Supreme Court would resolve the fight over the Obama administration’s controversial immigration reforms and, in the process, bring clarity to the broader debate over the scope of executive authority. It was not to be. Instead, on the penultimate day releasing opinions, the Court confessed its inability to resolve the case, affirming the U.S. Court of Appeals for the Fifth Circuit by an equally divided vote.

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Amanda Frost is a Professor of Law at American University, where she specializes in constitutional law, immigration law, civil procedure, and the federal court system and federal jurisdiction.

United States v. Texas raised major questions about the scope of the president’s power to exercise discretion when enforcing immigration law. But even more important was the threshold issue of whether the states had standing to sue. Although the one-sentence affirmance by an equally divided Court doesn’t tell us much, we now know that at least four Justices thought Texas had standing to bring this case. The result may be even more lawsuits by state attorneys general who decide they want to bring their disagreements with the federal government to the courts rather than the ballot box.

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Petition of the day

By on Jun 23, 2016 at 11:12 pm

The petition of the day is:


Issue: Whether, in a class action settlement providing injunctive relief not authorized by statute and releasing or impairing the money-damages claims of absent or objecting members, class certification under Federal Rule of Civil Procedure 23(b)(2) and the denial of the right to opt out as to the damages claims violate Rule 23 or the Due Process Clause of the Fifth Amendment.

Menu of today’s posts

By on Jun 23, 2016 at 9:23 pm

This morning the Court issued three opinions in argued cases:

  • Mathis v. United States, holding that the use of state convictions to impose enhanced federal sentences under the Armed Career Criminal Act depends on whether the elements of the state offense match a generic covered offense;
  • Birchfield v. North Dakota, holding that the Fourth Amendment permits the government to require breath tests (but not blood tests) without a warrant when making a DUI arrest; and
  • Fisher v. University of Texas at Austin, holding that the race-conscious admissions program in use when Abigail Fisher applied to the university is lawful under the Equal Protection Clause.

The Court also affirmed by an equally divided Court in two cases: United States v. Texas and Dollar General Corporation v. Mississippi Band of Choctaw IndiansMark Walsh provided a “view” from the Courtroom.

Lyle reported on the decisions in Fisher and United States v. Texas, and Amy on the decision in Birchfield.

Molly Runkle rounded up early coverage on the decision in Fisher and in Texas (and more).

Evan Lee will report on the decision in Mathis, and Ed Gehres on the decision in Dollar General.

We are also hosting two symposia, on the rulings in Fisher and United States v. Texas. The contributions to those symposia are available here and here, respectively.

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Richard D. Kahlenberg, a senior fellow at The Century Foundation, is author of The Remedy: Class, Race, and Affirmative Action, and the editor of The Future of Affirmative Action: New Paths to Higher Education Diversity after Fisher v. University of Texas.

Today’s decision in Fisher v. University of Texas at Austin supporting racial preferences at the University of Texas at Austin by a four-to-three margin was a shocker. As Justice Samuel Alito noted in dissent, “Something strange has happened since our prior decision in this case.”

In the Court’s first decision in the case, in 2013 Justice Anthony Kennedy tightened the screws on racial affirmative action policies, declaring that universities bear “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.” The Court supported the goal of racial diversity but appeared to push colleges to employ alternative means – such as providing a leg up to economically disadvantaged students of all races – before resorting to race per se. The Fisher I Court emphasized that universities would receive “no deference” on the question of whether the use of race is “necessary” to achieve the educational benefits of diversity.

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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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