Editor's Note :

Editor's Note :

The blog is hosting a symposium on the Court's opinion in Whole Woman's Health v. Hellerstedt.
The blog is also hosting a symposium on the Court's opinion in McDonnell v. United States.

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 »

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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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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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