HLS faculty weigh in on recent Supreme Court decisions

A Reversal of Fortune

An op-ed by Tomiko Brown-Nagin. In a stunning win for the University of Texas, the U.S. Supreme Court last week rejected Abigail Fisher’s challenge to the university’s affirmative action program. The court’s decision is a striking reversal of fortune for affirmative action’s critics. Just a few years ago, affirmative action appeared doomed. The first time Fisher v. the University of Texas was heard (known as Fisher I), the court in a 7-2 vote vacated an appellate court’s decision upholding the very same admissions policy at issue in the matter decided last week (known as Fisher II). The justices ordered more exacting judicial scrutiny of Texas’ race-conscious system. Fisher I sent a strong signal to the University of Texas and universities with similar admission systems: Seriously consider “race-neutral” alternatives to affirmative action, or else federal courts would strike down unnecessary – and thus unconstitutional – race-sensitive programs. Entirely consistent with the Roberts court’s school desegregation and voting rights decisions, Fisher I signaled that race-conscious decision-making by government had run its course.Against that backdrop, Fisher II was an upset victory for the University of Texas. What accounts for the court’s about-face? More pointedly, what caused Justice Kennedy – the court’s swing vote and a vocal skeptic of race-conscious state action until now – to change course? The underlying facts and the law shaped the outcome, but race and legacy likely mattered as well.

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Strong statement on abortion access

The Supreme Court issued a historic decision Monday, weighing in again in the nation’s fractious abortion debate. In a 5-3 ruling, the court overturned a Texas law requiring that abortion clinics maintain hospital-like standards at their facilities as well as admitting privileges at local hospitals. Pro-life activists argued that the rules were aimed at protecting women’s health, but those in the pro-choice camp countered that the law left many abortion clinics with no choice but to shut down and infringed on women’s constitutional rights…Harvard Law School’s I. Glenn Cohen, a professor of law and faculty director at the School’s Petrie-Flom Center for Health Law Policy, Biotechnology & Bioethics, spoke with the Gazette about the ruling. Cohen filed an amicus brief in support of the court’s decision.

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A Cost-Benefit Test Defeats Texas Abortion Restrictions

An op-ed by Noah Feldman. Today the Supreme Court upheld the constitutional right to abortion — and laid down a new framework for how courts should evaluate future legislation limiting it. For the first time, the court expressly held that laws limiting access to abortion must be evaluated on a cost-benefit basis, to see if health benefits to women outweigh the costs in making abortion less available. The cost-benefit scheme gives greater precision to the undue-burden test established in the landmark 1992 case of Casey v. Planned Parenthood. But it also raises the difficult question of how, exactly, costs and benefits should be determined if and when other states pass laws that limit abortion access while purporting to protect women’s health.

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Breaking Down 4 Major Supreme Court Decisions (audio)

Four major Supreme Court decisions were released Thursday that amount to a win for supporters of affirmative action, a setback for President Obama’s immigration plan and significant implications for mandatory minimum sentencing. Guests: Nancy Gertner, former Massachusetts federal judge, senior lecturer on law at Harvard Law School and WBUR legal analyst. Charles Fried, professor of law at Harvard Law School and former U.S. solicitor general.

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On Affirmative Action, Supreme Court Rules for Humility

An op-ed by Cass Sunstein. In refusing to strike down a race-conscious admissions plan at the University of Texas at Austin on Thursday, the Supreme Court did more than uphold an affirmative action program. Just as important, it struck a much-needed blow for judicial modesty. The justices showed an awareness that others might know better than they do. We could use a lot more of that. The crucial part of Justice Anthony Kennedy’s majority opinion came toward the end. “Considerable deference is owed to a university,” he wrote, “in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission.”

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Invoking Racial Justice at the U.S. Supreme Court

An op-ed by Noah Feldman. The Supreme Court ruled Monday that if the police stop you illegally but then find out that there’s a traffic warrant out for you, they can search you and charge you with a crime if you’re carrying something illegal. The 5-to-3 decision can be read as an implicit vindication of controversial stop-and search policies. In a blistering dissent, Justice Sonia Sotomayor invoked Ferguson, Missouri, to argue that the court’s decision impugns the dignity of the individual. She said that the effects will be felt disproportionately by “black and brown parents” who for generations “have given their children ‘the talk’” out of “fear of how an officer with a gun will react to them.”

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Three Lessons From Obama’s Immigration Defeat

An op-ed by Noah Feldman. There’s no question that President Barack Obama suffered a significant loss today when a deadlocked Supreme Court left in place a lower court freeze on his signature immigration reform. It’s also true that the Republican Senate played a major role in this defeat by refusing to confirm — or even vote on — Obama’s nominee, Judge Merrick Garland, who surely would have voted to lift the stay. But it’s also worth remembering that Obama would have been defeated anyway if Justice Antonin Scalia had lived to vote against the reform, assuming the eight other justices split 4-4. And that would’ve been worse for the Democratic Party, because it almost certainly would have resulted in an opinion blocking such unilateral executive action in the future. Now, if Hillary Clinton is elected president, the issue can be revisited without a binding judicial precedent to preclude her from doing something similar.

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Limitations on the undocumented

A deadlocked Supreme Court dealt a major blow to President Obama’s executive actions to grant relief from deportation to nearly 5 million undocumented immigrants living in the United States. The 4-4 tie in U.S. v. Texas, a challenge by that state and 25 others against Obama’s executive actions, leaves in place an injunction by a lower court that blocked the government from implementing two programs that would protect both children and their parents from deportation. “I’m disappointed,” said Deborah Anker, clinical professor of law and director of the Harvard Immigration and Refugee Clinical Program at Harvard Law School. “What this means is that it puts hundreds of thousands of people at risk of deportation, including parents of U.S. citizens or legal residents.”…Phil Torrey, lecturer on law with the Harvard Immigration and Refugee Clinical Program and the supervising attorney for the Harvard Immigration Project, hopes the ruling will help galvanize the movement for immigration reform. “Hopefully it will continue to energize the movement to push for comprehensive reform, especially with elections coming forward,” he said.

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Affirmative Action Is Here to Stay

An op-ed by Noah Feldman. In a major victory for affirmative action on Thursday, the Supreme Court has upheld the use of race by the University of Texas as part of its admissions policy aimed at educational diversity. The relatively compact decision by Justice Anthony Kennedy makes no mention of the eventual disappearance of affirmative action, as Justice Sandra Day O’Connor did in 2003, the last time the court issued an important decision on the topic. So long as universities carefully articulate why they must consider race to achieve a diverse student body, it would seem that affirmative action in higher education is here to stay. And Kennedy’s opinion will now replace O’Connor’s as the go-to precedent on the subject.

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Harvard’s Stake in the Fisher v. Texas Affirmative Action Case

Relieving fears at Harvard and elsewhere that it might strike down the use of race in admissions, the U.S. Supreme Court today upheld the University of Texas (UT) at Austin’s affirmative action program in the case Fisher v. University of Texas at Austin…Paul professor of constitutional law Tomiko Brown-Nagin called the decision “a stunning win for the University and a reversal of fortune for affirmative action’s detractors.” Laurence Tribe, Loeb University Professor and professor of constitutional law, commented that, “Today’s decision in Fisher v. Texas means that race-conscious affirmative action programs in higher education will be upheld as long as they follow the Court’s guidelines for avoiding crude racial quotas and for fine-tuning those programs over time on the basis of intelligently articulated educational philosophies targeting the many dimensions of diversity, as Harvard’s programs of affirmative action have taken great care to do.

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Split happens: deadlocks rarely occur in the supreme court. But why?

It’s as if they never heard the case at all. The supreme court’s 4-4 split Thursday in United States v Texas leaves in place a lower court’s ruling that blocked Barack Obama’s immigration plan. When the court is equally divided, no precedent is set and the lower court’s opinion stands…To avoid wasting time on something that might end up evenly split, Johnson said that he thinks the court “will avoid really important cases”…Laurence H Tribe, a professor of constitutional law at Harvard, concurred in a recent public lecture. Tribe said, “Nobody wants to grant [a writ of certiorari] in the case where the court will just waste its precious time, where in the end it will be deadlocked.” If the court vacancy continues into next year, Tribe cautioned that it may appear that the justices are in agreement, but that may just be a result of accepting less controversial cases, and it will be hard to tell how many could have split 4-4. He said: “No one will be able to count how many there are, because it will be the dog that didn’t bark.”

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