• December 18, 2015
    Guest Post

    by David G. Hinojosa, National Director of Policy- Intercultural Development Research Association, and counsel for various amici in Fisher v. University of Texas at Austin since 2008

    Last week during oral argument in Fisher v. University of Texas at Austin (UT), the Supreme Court found itself at ground zero between the pursuit of racial diversity and opportunity in higher education for all students and the desire of the “old guard” to maintain systemic privileges that tend to favor white students. Justices Sonia Sotomayor and Stephen Breyer touted the benefits of diversity and how UT’s dual admissions program (holistic and Top Ten Percent) satisfied the Supreme Court’s tenets of lawful affirmative action programs. Meanwhile, Chief Justice John Roberts asked how a student’s race could matter in an astrophysics class, and Justice Antonin Scalia suggested that selective universities like UT perhaps do a disservice to Black students by admitting them. Plaintiff Abigail Fisher did not raise these issues during oral argument or in her briefs, and they were not part of the evidentiary record, leaving many observers to speculate where these justices may be headed.

    This is especially concerning because for nearly 40 years, the Court has grounded its affirmative action admission rulings by recognizing the important educational benefits that flow from diversity, including racial diversity, in higher education (and K-12 schooling in Seattle v. PICS, J. Kennedy concurring) and by deferring to the educational expertise of universities in determining their educational mission and how racial diversity fits in the mission. The record in Fisher shows how UT’s diversity plan does not run afoul of the Constitution by pursuing diversity solely for the sake of racial balancing. Instead, UT’s plan reflects “a reasoned, principled explanation for the academic decision” that adds race as one of several factors considered for non-Top Ten Percent applicants. And both UT’s brief, as well as several amicus briefs including those submitted by social scientists, psychologists and educational researchers, reflect substantial research showing the benefits of diversity and the link between diversity and greater opportunities for all students.

    So what exactly are these “benefits” and who benefits? The research cited in the aforementioned briefs demonstrates that the benefits of diversity extend to learning opportunities for all students, not just those minority students admitted. For example, research examining the impact of diverse learning environments show that both majority and minority students’ cognitive skills improve. This should not be surprising as exposure to different opinions on a subject by students of different backgrounds could logically impact critical thinking and improve problem solving. A Michigan study of 500 students found the diverse classroom learning environment resulted in livelier and more engaging discussions. Diversity in higher education also promotes civic engagement, builds leadership, and prepares students for life after college. Several briefs filed by the business sector, including Fortune 100 companies, explained how racial diversity in university settings is “a business and economic imperative” in the growing, diverse global market.

  • December 18, 2015

    by Jim Thompson

    Fordham University's Saul Cornell explains the radically misguided visions of Supreme Court Justices Antonin Scalia and Clarence Thomas on gun regulation in American in a piece for The Atlantic. For more on common sense, and constitutionally sound gun regulation, see a letter to the White House by leading legal scholars, organized by ACS. 

    In The New York Times, Jim Rutenburg discusses tactics used to suppress minority voting in states where Hispanic voters are reshaping the electorate and how these right-wing strategies could influence future elections.

    On Thursday, Martin Shkreli, the notorious CEO of Turning Pharmaceuticals who vaulted into the public eye after raising the price on life-saving treatments for unborn babies and individuals with HIV or cancer, was arrested in his home on charges related to securities fraud, reports Scott Eric Kaufman  at Salon.

    Ericka Blout Denois at The Root details frustrated reactions to the mistrial in the Freddie Gray case, noting that “protesters’ shouts nearly drowned out the whirring of helicopters overhead and the commands from sheriff’s deputies lined up in formation across from them.”  

    At SCOTUSblog, Leslie Griffin criticizes the blatant dismissal of Catholic women in the Supreme Court’s contraceptive mandate cases.

    Rachel M. Cohen at The American Prospect profiles Planned Parenthood CEO and President Cecile Richards, whose vision has “impelled her to push Planned Parenthood beyond where it’s been, to lead more forcefully in the broader cultural and economic battles for women’s autonomy and equality.”

  • December 17, 2015
    Guest Post

    by Michael Coblenz, an attorney in private practice in Lexington, Kentucky. See more here from Mr. Coblenz about the political battle over the First Bank.

    In 1800 the Bank of the United States, which was created and funded by the government, was the largest commercial enterprise in the nation. It managed the nation’s finances, but was also a major commercial lender.

    Conservatives like to say that the “Founders” and the “Framers” wanted to create a nation with “limited government,” but the Bank of the United States seems to indicate otherwise.

    The Bank was part of Treasury Secretary Alexander Hamilton’s ambitious plan to make the new nation a mercantile power like England. Hamilton was one of the most important Founding Fathers. He, along with James Madison and George Washington, were largely responsible for the convention in Philadelphia that was called to deal with the failings of the government under the Articles of Confederation. Hamilton was an important participant in drafting the Constitution, and along with Madison (and John Jay) was one of the main advocates for ratification.

    Hamilton presented his Bank plan not long after Congress approved his plan for the national government to assume the state’s war debt. The Senate considered the Bank bill first. There were ten framers in the twenty-six member Senate, and no one, framer or otherwise, questioned whether the Constitution allowed Congress to charter a Bank. The Bill passed easily, with eight framers in support, and two opposed.

    The bill then went to the House. There were eight framers in the House, including James Madison. Initially there was little debate on the bill. It went through a first reading, was sent to committee, and then came back to the full House. At that point James Madison objected.

    Madison is often called the “Father of the Constitution,” because of his role in calling the Constitutional Convention and ensuring ratification, and also because it was Madison’s “Virginia Plan” that provided the framework for the final document. 

  • December 16, 2015
    Guest Post

    by Scott L. Nelson, Public Citizen Litigation Group

    It sometimes seems as if the Supreme Court is willing to take on even the most trivial issues if they relate to arbitration. A case in point: Monday’s decision in DirecTV, Inc. v. Imburgia. There, the Supreme Court saw fit to second-guess an intermediate California state court’s interpretation of highly idiosyncratic language in an arbitration clause, all in the service of ensuring that one case would be sent to arbitration rather than proceeding as a class action in court.

    A little background is necessary to understand how this case came up. In a controversial 5-4 decision in 2011, AT&T Mobility LLC v. Concepcion, the Court held that states can’t hold that arbitration agreements that waive consumers’ rights to bring class actions are “unconscionable” and thus unenforceable as a matter of state contract law. The reason? The Federal Arbitration Act (FAA) provides that arbitration agreements are enforceable, and the majority of the Court held that class proceedings are incompatible with arbitration. Thus, a state law prohibition on waivers of the right to participate in class actions is “anti-arbitration” and is preempted by the FAA.

    The result of Concepcion is that if a company includes an arbitration clause with a class action ban in the contracts that it foists on consumers, it can block them from pursuing class actions against it and force them to pursue any claims they have against it in arbitration, where the procedural rules work to the disadvantage of consumers. Because many consumer claims involve the kinds of frauds and ripoffs that cost each consumer a relatively small amount but make a lot of money for the company in the aggregate, the only practical way to pursue those claims is in a class action, where plaintiffs join together and, in effect, share the costs of litigation. Banning class actions allows defendants to get off scot-free in cases where individual litigation is not cost-effective.

  • December 16, 2015

    by Jim Thompson

    A Tennessee woman was indicted for attempted murder after allegedly trying an at-home abortion using a coat hanger, reports Colleen Curry in The New York Times. Jill Adams, executive director of the Center for Reproductive Rights, states that “there are many different reasons why people need or want to self-administer abortion care, but one of the most prominent is a lack of access related to legal restrictions like those in Tennessee, as well as practical barriers, including financial obstacles.”

    An annual survey by the Death Penalty Information Center found that executions in the United States in 2015 fell to their lowest number in 25 years, says Timothy Williams at The New York Times.

    In oral argument on Dec. 7, the Dollar General Corporation argued that the Supreme Court should find that Indian Tribal Courts are unfit to adjudicate any ordinary tort dispute, effectively rendering these courts powerless in cases where non-Indians are involved, writes Garrett Epps in The Atlantic.

     The U.S. Court of Appeals for the D.C. Circuit ruled Tuesday that Judge Frederick J. Scullin, Jr. overstepped his authority when he halted the enforcement of the District’s common sense gun regulation, reports Jessica Gresko at the Associated Press