• June 28, 2016

    by Jim Thompson

    Richard Wolf at USA Today reflects on the recently-completed Supreme Court term, quoting ACS President Caroline Fredrickson, who concludes, “the court has left uncertainty, [as well as] differing interpretations of the law in different parts of the country.” Additional commentary comes from Kenneth Jost at Jost on Justice.

    The Supreme Court on Monday struck down Texas’s restrictive anti-abortion measures. ACS Board member Linda Greenhouse examines the majority opinion in The New York Times.

    In Time, Geoffrey Stone, co-faculty advisor to the University of Chicago ACS Student Chapter, opines that Senate republicans will forever change the judicial confirmation process “if they don't cease the manipulative obstruction of Merrick Garland.”

  • June 28, 2016
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar, Director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park and author of Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases (NYU Press 2015)

    The 4-4 ruling in U.S. v. Texas on June 23 stunned the minds and hearts of the Administration, affected individuals and families and legal experts who held on to the belief that the Supreme Court would issue a decision that was reasoned and consistent with the rule of the law. Instead, the Supreme Court issued a nine word ruling: “The judgment is affirmed by an equally divided court.” The ruling did not include information about the individual position of the justices or a rationale behind this ruling. The impact of U.S. v. Texas on immigrants is immediate and prevents those who would have qualified to apply for two deferred action programs designed by the Administration and aimed at undocumented parents and young people who meet certain guidelines.

    In the wake of last week’s ruling in Texas, it is important for the immigrant communities, attorneys and advocates to be aware of the existing discretionary tools available beyond the 2014 deferred action programs. For as long as the immigration system has operated, prosecutorial discretion has enabled thousands of individuals and families to stay together.  Potentially, those would have qualified for the 2014 deferred action programs known as DAPA and DACA Plus are by virtue of their eligibility low enforcement priorities and eligible for some form of prosecutorial discretion. Unaffected by the litigation is a memorandum published by Department of Homeland Security Secretary Jeh Johnson. The Johnson Memo identifies several factors that DHS employees should consider when making prosecutorial discretion decisions, including but not limited to: length of time in the U.S.; military service; family or community ties in the U.S.; status as a victim, witness or plaintiff in civil or criminal proceedings; and humanitarian reasons like poor health, age, pregnancy, a young child, or a seriously ill relative.

    The Johnson Memo contains important language about how discretion should be exercised during the detention process and states discourages detention for noncitizens “who are known to be suffering from serious physical or mental illness, who are disabled, elderly, pregnant, or nursing, who demonstrate that they are primary caretakers of children or an infirm person, or whose detention is otherwise not in the public interest.” While many forms of prosecutorial discretion can be exercised at any stage of enforcement, the Johnson Memo emphasizes the importance of exercising this discretion early in the enforcement process.

  • June 27, 2016
    Guest Post

    by Dawn Johnsen, Walter W. Foskett Professor of Law,  Indiana University Maurer School of Law; member, ACS Board of Academic Advisors

    * This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.

    *This post originally appeared at Slate.

    First and foremost, HOORAY! The Supreme Court’s 5–3 decision striking down the Texas abortion restrictions is an unqualified, tremendous, and long overdue victory for abortion rights and the Constitution. It is a win for women—and also for families, men, children, and American society. It is also a win for our core constitutional values of liberty and equality and for the Supreme Court: The court could have done nothing but strike down the Texas law and still been consistent with its 1992 reaffirmation of the core of Roe v. Wade in Casey. As Walter noted, the court’s very integrity was on the line, and ultimately it did much more than the bare minimum that needed to be done.

    Whole Woman’s Health reaffirmed that this most important and personal of decisions is for women to make, not the state of Texas nor any governmental entity. Beyond that, the court applied the undue burden test in a way that should provide meaningful protection against many of the mounting state restrictions—especially those aptly called TRAP (targeted regulation of abortion providers) laws—that disguise their purposes and for years have been denying increasing numbers of women access to abortion services.

    Monday’s decision is not just a pro-women decision, respecting our autonomy and protecting our health. It also is pro-family: Most women who have abortions already have children and are making the decision that is right for them and their families. It also clarifies that it is an illegitimate role of government to impose impediments to women’s reproductive health care. The government instead should support women in preventing unintended pregnancies, and in having healthy pregnancies and children at times of their choosing.

    So it’s an important and long-awaited victory.

  • June 27, 2016

    by Joseph Fishkin, Professor, University of Texas at Austin School of Law and Co-Faculty Advisor to the ACS Student Chapter and Member of the ACS Board of Academic Advisors

    *This post is part of the ACSblog symposium: Members of the ACS Board of Academic Advisors reflect on the 2015-2016 Supreme Court Term.  

    **This post originally appeared at Balkinization

    Fisher v. Texas II, decided last week in a startling opinion by Justice Kennedy for a 4-3 majority of a short-handed Court, will not end the controversy—or the litigation—over affirmative action in American higher education, which has been an enduring battleground in American constitutional politics for four decades.  Throughout that time a succession of conservative near-majorities on the Supreme Court have attempted to end race-based affirmative action once and for all, and to make that rejection the centerpiece of a broader constitutional repudiation of a broad category of liberal race-based interventions.  They have perennially come up one vote short.  A succession of conservative swing Justices—Lewis Powell, Sandra Day O’Connor, and now as of this week, Anthony Kennedy—have made it their mission to make peace, on their own particular terms, between pro- and anti-affirmative-action constitutional arguments.  Each time, that peace has involved tightening the constraints under which universities implement affirmative action programs.  In past rounds, these conservative swing Justices have barred uses of race that were more mechanical and blunt, instead favoring a more holistic, individualized approach.  (This approach was a sort of handmade gift from the Justices to college admissions officers across America, many of whom owe their very jobs to its labor-intensiveness.)

    There were good reasons to expect this pattern to continue with Fisher v. Texas—to expect that Justice Kennedy, while once again stopping short of ending affirmative action, was poised to further tighten the constraints on universities.  This time the constraint would not be about holistic review.  Instead the plaintiffs in Fisher urged the Court to hold that no affirmative action program that considers the race of individual students is constitutional if there is a “workable” race-neutral alternative.  Doctrinally, the plaintiffs more or less got this holding from Justice Kennedy’s opinion in 2013, when Fisher v. Texas reached the Court the first time (Fisher I).  But this week Justice Kennedy wrote a different ending to the story.  Instead of yet again tightening the constraints on universities—and thereby making their affirmative action programs ever more precisely defined by the contours of legal doctrine, and therefore ever more uniform—he did something unexpected.  He loosened the constraints on universities instead, opening up new room for experimentation and for the use of a variety of admissions criteria.  He opened up a space for pluralism.

    Two different kinds of pluralism.  The first is about the approaches different institutions use in admitting their students.  The tighter the constitutional constraints imposed by a hostile Court, the more constitutional law tends to press every institution to proceed according to the same model.  Justice Kennedy recognized in Fisher II that this is a problem for a democracy that is continuing to contest and revise its approaches to a complex issue that implicates competing, deeply held constitutional values.  “In striking this sensitive balance,” he wrote, “public universities, like the States themselves, can serve as ‘laboratories for experimentation.’”  In other words, we need a diversity of approaches to diversity.

  • June 27, 2016
    Guest Post

    by Paul M. Smith, Partner at Jenner & Block and Member of the ACS Board of Directors

    As we celebrate the June 26 anniversary of the huge victory for marriage equality a year ago in Obergefell, it is good to recall that this date in June also saw two other key victories for LGBT equality – Lawrence v. Texas in 2003 and United States v. Windsor in 2013.  The June 26 I will always remember most vividly was the decision day of the Lawrence case in the Supreme Court.  I had had the great good fortune to have argued the case three months earlier and was present when Justice Kennedy announced the decision 13 years ago.

    To understand why Lawrence was so important, you need to understand two things – the problems it solved and the foundation it provided for future progress.  As to the former, what Lawrence did was overrule Bowers v. Hardwick, the 1986 Supreme Court case holding, by a vote of 5-4, that there was nothing unconstitutional about making same-sex sodomy a criminal offense. The sodomy laws were a very effective mechanism for keeping lesbians, gays and bisexuals in the closet and in a kind of second-class citizenship status. They meant that to be out and open about a same-sex relationship was to be admitting a crime. And while they were only rarely enforced directly against persons who engaged in private, adult, consensual sexual conduct, they were very often used to do things like deny people public employment or take away custody of their children.

    At the time of Bowers, about half the states still had such laws on the books, and Bowers of course left those laws in place. But it did more: it erected a barrier to progress toward LGBT equality because it made it nearly impossible to argue for any sort of federal constitutional protection from discrimination based on sexual orientation. 

    The story of how a small group of committed activists planned for and ultimately achieved the overruling of Bowers is a template for how to run a civil rights movement. The litigation side of the movement (Lambda Legal, ACLU, NCLR and GLAD) met regularly, forming what was known as the Ad Hoc Sodomy Law Task Force. They adopted a strategy of going state to state and seeking the repeal of sodomy laws or their invalidation under state constitutions by state courts (a strategy that was repeated when it came time to demand marriage equality). The theory was that when the right time came, the Supreme Court would be much more likely to change course on sodomy laws if they were perceived as relics that had been rejected by most of the states. This effort was remarkably effective. By 2003, there were only 13 states left with sodomy laws in effect.