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.

Cecillia Wang is Director of the ACLU Immigrants’ Rights Project.

Today the Supreme Court announced that it was deadlocked four to four on United States v. Texas. The one-line non-decision leaves unanswered the central question about the president’s authority to set policy guidelines for the exercise of prosecutorial discretion in the deportation system. But it is a non-decision with a profound impact. Millions of American families whose lives and dreams hinged on the Supreme Court’s decision will keep waiting and fighting.

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Laws in twelve states that impose criminal penalties on suspected drunk drivers who refuse to take a breath test to measure the alcohol in their bodies got a nod from the Supreme Court today. On a day that saw the Court deadlock in two cases, six of the Court’s eight Justices agreed that such laws do not violate the Fourth Amendment’s ban on unreasonable searches. But today was not a complete victory for the states: seven Justices also agreed that laws which impose criminal penalties for failing to take a blood test violate the Constitution.

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With Justice Anthony M. Kennedy making a major effort to confine Supreme Court approval of affirmative action on college campuses to one case and one plan, and to limit even that approval to a narrow span of time, the Justices on Thursday barely salvaged the University of Texas’s use of race as a factor in choosing its entering classes.  The vote in Fisher v. University of Texas was four to three to allow the Austin campus to continue using an admissions formula it has followed for a dozen years.

Finally rejecting the constitutional challenge that a rejected white applicant had been pursuing for some eight years, the Court in its second review of her case sent few dependable signals to the larger academic community about where race stands as a valid factor in admissions programs.  The first tests of how lower courts could react to the ruling could come in lawsuits against Harvard University and the University of North Carolina.  Those cases were arranged by the same advocacy organization that had been backing Abigail Noel Fisher of Sugar Land, Texas, in her case against the state’s flagship university.

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Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law- University Park. Her book, Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases published by NYU Press in 2015 is the first book on the topic and reflects a culmination of Wadhia’s scholarly work, advocacy, and litigation. Her most recent article Demystifying Employment Authorization and Prosecutorial Discretion in Immigration Cases, examines more than 230,000 related employment authorization applications received through the Freedom of Information Act and processed by the government.

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.

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[Disclosure: As of June 1, I’m a member of the faculty at the University of Texas School of Law, the parent university of which was the respondent in Fisher II. Needless to say, what follows is my personal opinion, and in no way reflects the views of my employer.]

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. Then there was the subsequent grant of certiorari by an eight-Justice Court in Fisher II (with the recusal of Justice Elena Kagan), a move that would’ve been odd if, with Justice Antonin Scalia, the remaining eight Justices were evenly divided. And finally, there was the oral argument last December, in which Kennedy repeatedly expressed frustration “that the litigants, and frankly this Court, have been denied the advantage and the perspective that would be gained if there would be additional fact-finding under the instructions that Fisher [I] sought to give. And that just – we’re just arguing the same case. . . . It’s as if nothing has happened.”

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We live-blogged this morning as the Court issues opinions. The transcript is available here.

Posted in Live

Thursday round-up

By on Jun 23, 2016 at 6:10 am

At Fortune, Jeff John Roberts reports on Justice Elena Kagan’s use of a link shortener in her dissent in the Fourth Amendment case Utah v. Strieff; he observes that, “in the bigger picture, any controversy over the Google link is just a tiny part of a larger record-keeping problem for the Supreme Court and other important institutions.” Commentary on the decision comes from David Fontana, who focuses on Justice Sonia Sotomayor’s dissent at PrawfsBlawg.  Janell Ross of The Washington Post suggests that, although Sotomayor’s “view wasn’t embraced by the court,” “it is something that broad swaths of Americans, and especially black and Hispanic Americans, agree with.”

Criticism of Sotomayor’s dissent comes from the editorial board of The Wall Street Journal, Theodore Kupfer at National Review, and John McGinnis at Library of Law and Liberty.  At The Weekly Standard, Ethan Epstein observed that Sotomayor’s opinion “was greeted with the rapture usually reserved for John Oliver videos,” while in a post at National Review’s Bench Memos, Howard Slugh criticizes an article on the dissent, arguing that it “distorts the majority opinion beyond recognition.”  Continue reading »

Posted in Round-up

Petition of the day

By on Jun 22, 2016 at 11:10 pm

The petition of the day is:


Issue: (1) Whether Wayne State University (WSU), a unique, autonomous institution, free from all relevant state control, who receives a minority share of its funding from the State, and who is responsible for its own debts, is a “person” under the False Claims Act (FCA); and (2) whether WSU’s Board of Governors, a creation of the State and a properly formed corporation in every respect, is a “person” under the FCA.

This post — which is an updated version of posts that we have published in earlier Terms — addresses some of the questions about orders and opinion announcements that we have commonly received during our live blogs.  If you have a question that you don’t see answered here, please feel free to ask it during tomorrow’s live blog.


Question:  What do you mean by “orders”?

Answer:  When we talk about “orders” or the “order list,” we are usually referring to the actions that the Court took at its most recent Conference, which are reflected in a document (“the order list”) that the Court releases to the public.  The most common orders are those granting or denying review on the merits in a particular case (known as granting or denying “cert.,” short for “certiorari”), but the Court may also issue other orders in cases seeking review or in pending cases — for example, an order granting or rejecting a request to participate in an oral argument on the merits. We do not expect orders tomorrow, only opinions.

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On Monday morning, the Justices issued five decisions in argued cases. This leaves the Court with eight cases to decide between now and the end of June. The Justices will take the bench tomorrow at ten o’clock to rule on one or more of these eight cases, which are summarized below the jump.

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