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  • June 24, 2016

    by Jim Thompson

    The Surpeme Court on Thursday upheld the constitutionality of the University of Texas’s race-conscious admissions process. Robert Barnes provides commentary on the 4-3 decision in The Washington Post. Read ACS President Caroline Fredrickson’s statement on the ruling here.

    Also on Thursday, the Supreme Court handed President Obama a significant legal defeat, refusing to revive his stalled plan to shield millions of undocumented immigrants from deportation and give them the right to work legally in the United States, reports  Haeyoun Park and Alicia Parlapiano in The New York Times. Read ACS President Caroline Fredrickson’s statement on the ruling here.

    Judge Barry Williams found Baltimore Police Officer Caesar Goodson Jr. not guilty of second-degree murder in the death of Freddie Gray, says Breanna Edwards at The Root.

  • June 24, 2016
    Guest Post

    by Vinay Harpalani, J.D., Ph.D, Associate Professor of Law, Savannah Law School

    Thursday’s decision in Fisher v. Texas II came down exactly 13 years to the day after the U.S. Supreme Court’s 2003 ruling in Grutter v. Bollinger—which created the basic legal framework for affirmative action in university admissions.  And more than eight years after Abigail Fisher filed her lawsuit against the University of Texas at Austin (UT), alleging that its race-conscious admissions policy was unconstitutional, the case is finally over—she lost.  Fisher was truly a fishing expedition: a weak case that went to the Supreme Court once before, only to be remanded to the Fifth Circuit and then reargued before the Court.  The one issue that Justice Anthony Kennedy’s majority opinion and Justice Samuel Alito’s dissent agreed upon was that there was no need for another remand.  While both Justices brought up that possibility during oral arguments in December, everyone now thought that it was time to end this fishing expedition.

    Justice Kennedy’s majority opinion affirming UT’s use of race was surprising.  He had never before voted to allow a race-conscious policy, and he dissented in Grutter, which upheld the University of Michigan Law School’s holistic admissions plan.  I expected him to strike down UT’s plan on narrow grounds, and even in the event of an affirmance, I would have expected a ruling that further narrowed the scope of race-conscious university admissions.  But Justice Kennedy’s majority opinion did not do that.  It pretty much affirmed the current Grutter-Fisher I framework for race-conscious university admissions. 

    In fact, the ruling today really helps universities—it gives them a more detailed blueprint on how to justify their race-conscious admissions policies.  The Court’s Fisher I decision in 2013 made it clear that in order to meet strict scrutiny, a university must demonstrate that its use of race is necessary: that no “workable race-neutral alternatives” would achieve the same educational benefits of diversity.  However, Fisher I did not give further guidance on how universities should do this: it merely remanded the case for proper application of this standard.

  • June 23, 2016
    Guest Post

    by Danielle Lang, a 2012 Yale Law graduate and is currently a voting rights lawyer in Washington D.C.

    Before the Supreme Court Justices end the Term next week, they will decide the most important abortion case in over 25 years: Whole Woman’s Health v. Hellerstedt. The Texas law, HB 2, imposes sweeping restrictions on abortion providers that would shutter the vast majority of abortion facilities in Texas. As a practical matter, if the Court upholds this law it would render the constitutional right to choose a fiction for many women, particularly rural women, poor women, immigrant women and women of color. As the Court has recognized for decades, “the ability of women to participate equally in the economic and social life of the Nation” is predicated on their ability to control their reproductive lives. Thus, the Court has held that States are forbidden from passing laws that have the “purpose or effect of presenting a substantial obstacle to a woman seeking an abortion.”

    This alone provides a compelling basis for striking down HB 2. But laws like HB 2 not only present substantial practical obstacles to access to abortion. Laws like HB 2 across our country enforce an outdated vision of women’s autonomy and role in society. They do so with real consequences on women’s health, women’s identity and our society’s ability to truly reshape itself to deliver on the promise of women’s equality. For these reasons as well, HB 2 should be held unconstitutional.

    HB 2 purports to protect “women’s health” by requiring all abortions to be performed in ambulatory surgical centers and requiring all medical providers to have admitting privileges to a nearby hospital. But the record shows that this justification is a complete farce. As Nina Totenberg reported on NPR, “virtually the entire established medical profession, both in Texas and nationally, disagrees.” But by citing “women’s health,” HB 2 invokes an increasingly common paternalistic message about women’s ability to make their own decisions about abortion and childbirth. Nowhere is this paternalism most obvious than in the repeated trope of trotting out women who say that they regret their choice. While it is undoubtedly true that some women come to regret their choice, it also true that about 95 percent do not. Nevertheless, it is a bizarre conclusion to draw that because a minority of women personally regret a choice, all women should be prevented from making a choice that fundamentally directs the course of their life.

  • June 22, 2016
    Guest Post

    by: Harry Baumgarten, Inaugural Partner Legal Fellow at the Voting Rights Institute and Katy Shanahan, Legal Intern at the Campaign Legal Center

    On Friday, Ohio Governor John Kasich vetoed a modern-day poll tax that would have required voters to post a cash bond in order to keep polling places open late, even in the event of a flood, snowstorm, or other natural disaster. The law also included a myriad of other provisions aimed at making it practically impossible for Ohio voters to petition to keep polling places open late in case of emergencies: It would have raised the level of legal proof needed to obtain relief, barred media accounts from being entered into evidence unless sworn under oath, and automatically permitted the state to avoid the effects of an unfavorable ruling through an automatic stay of the decision and right of appeal to a special Election Day judicial body. The bill, in other words, betrayed a total lack of regard for the right to vote. While Governor Kasich vetoed this atrocious bill, he nonetheless stated that he agreed with most of its requirements and all but invited legislators to resubmit the bill with a new provision that would grant judges the discretion to waive the bond requirement.

    Although Ohioans may have been temporarily saved from the onerous requirements of this particular bill, the State of Ohio has undertaken a plethora of restrictive actions since 2012 that would have made it harder for voters to cast their ballots in a blatant effort to gain partisan advantage. The laundry list of voting impediments includes: the elimination of Golden Week, where voters could register to vote and cast ballots on the same day, the abolishment of early voting hours on weekends and after 5 p.m. on workdays, purging millions of “inactive” voters from the rolls, casting aside legitimate ballots through changes to how provisional ballots are counted, implementation of new restrictions on the length of time that voters have to fix unintentional mistakes on their ballots, limiting counties—no matter their size—to only one early voting location, and blocking eligible 17-year olds from the polls on Primary Day. While many of these laws are no longer in effect due to court orders or legal settlements, they nonetheless represent cynical attempts to manipulate public access to the polls for the sake of politics and are contrary to the ideals of our democratic system of governance.

    Proponents of these restrictions justify them as necessary measures to curb voter fraud, reduce the cost of election administration, and instill confidence in the electoral process. These interests are certainly valid in the abstract, but they do not excuse the lengths to which Ohio Secretary of State John Husted, Governor John Kasich, and the state legislature have gone to block eligible voters from casting their ballots freely and fairly. In his own investigation into instances of voter fraud in Ohio, Husted came up with nearly nothing. In 2013 there were a whopping four convictions for voter fraud, representing just .00005% of Ohio’s 7.7 million registered voter population. That’s less than one’s chance of getting struck by lightning.

  • June 22, 2016

    by Jim Thompson

    A new ACS report, The Gavel Gap, shows that state courts do not reflect the diversity and talent of the communities they serve.

    In The American Prospect, ACS President Caroline Fredrickson considers whether the Supreme Court will implicitly restrict abortion access to wealthy women.

    ACS Board Member Erwin Chemerinsky writes in Democracy Journal about the failure of Miranda rights.

    At Telgram.com, Thomas Tobin discusses the historically-high number of judicial vacancies and blasts dangerous Senate obstructionism.

    “The American Civil Liberties Union (ACLU) is accusing the state of Texas of hiding public information about abortion, and telling state employees to lie about it,” reports Emily Crockett at Vox