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The Supremes

By Donna Mallard | Oct. 2, 2015

Law Office Management

Oct. 2, 2015

The Supremes

by Erwin Chemerinsky

Few U.S. Supreme Court terms can match last year for important decisions. After all, the justices narrowly voted to declare unconstitutional state laws prohibiting same-sex marriage (Obergefell v. Hodges, 135 S. Ct. 2584 (2015)), and went on to ensure the viability of the Affordable Care Act (King v. Burwell, 135 S. Ct. 2480 (2015)).

It wasn't just the importance of the cases or the closeness of the justices' votes: Never in recent memory has more lively, and at times vitriolic, rhetoric consumed so many pages of U.S. Reports. But that was last year. Looking ahead, with only about half the docket set, one can only ask: What portends for the October 2015 term?

Affirmative Action

The Court has heard several noteworthy affirmative action cases over the years, but none has resurfaced on the docket more often than Fisher v. University of Texas, Austin (758 F.3d 633 (5th Cir. 2014), cert. granted, 135 S. Ct. 2888 (2015)). At issue is the use of race in the college admissions process.

The Court has already ruled (in another of those split decisions) that colleges and universities have a compelling interest in having a diverse student body and that they may use race as one factor among many in their admissions decisions. Grutter v. Bollinger (539 U.S. 306 (2003)) put the regents of the University of Texas on notice that they had work to do to achieve more diversified entering classes. They adopted a new admissions plan, under which approximately 25 percent of the incoming class was selected according to a score- calculated for each candidate-that reflected, among many factors, whether the student would enhance racial diversity at the school.

In 2008 a white woman named Abigail Fisher applied for admission to UT and was rejected. Fisher sued, and both a federal trial court and the Fifth Circuit ruled in favor of the university, declaring it had followed Grutter and permissibly used race as one factor in its admissions decisions. But in a 71 decision (Justice Elena Kagan recused herself because of prior work on the case), the U.S. Supreme Court reversed. (Fisher v. University of Texas, 133 S. Ct. 2411 (2013).) The Court said it was not reconsidering the core holding of Grutter-that colleges and universities have a compelling interest in maintaining a diverse student body. But it also made clear that's not enough: A school also must show that the use of race is necessary to achieve diversity. "The reviewing Court must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity. If a nonracial approach ... could promote the substantial interest about as well and at tolerable administrative expense, then the university may not consider race." (Fisher, 133 S. Ct. at 2420.)

The case was remanded to the Fifth Circuit, which held 21 that the university had met this burden. The Supreme Court again has granted review (with Kagan again recused). Although the specific issue is whether UT adequately demonstrated there was no other way to achieve diversity in its entering class, the Court may well end up reconsidering its holding in the Grutter case.

Criminal Procedure

Sentencing juvenile offenders. Three years ago, the Court held that it is cruel and unusual punishment for a state to impose a mandatory sentence of life in prison without parole for a homicide committed by a juvenile. (See Miller v. Alabama, 132 S. Ct. 2455 (2012).) But lower courts have split over whether Miller applies retroactively to those whose sentences became final before the ruling. That is the issue in Montgomery v. Louisiana (141 So. 3d 264 (La., 2014), cert. granted, 135 S. Ct. 1546 (2015)). Although the Court rarely applies its criminal law rulings retroactively, this case may well present a departure: The justices will confront the reality that unless Miller applies retroactively, many people will be spending the rest of their lives in prison under sentences that are unconstitutional.

Nonunanimous death sentences. Hurst v. Florida (147 So. 2d 435 (Fla. 2015), cert. granted, 135 S. Ct. 1531 (2015)), concerns whether it violates the Constitution to allow a nonunanimous jury to recommend a death sentence without also providing specific findings. The Court has already clarified that it is for the jury, not the judge, to decide whether the death penalty is appropriate. (See Ring v. Arizona, 536 U.S. 584 (2002).) The states have adopted varying approaches, and the underlying question in Hurst is how much latitude they have in imposing the ultimate penalty.

Seizing assets. In Luis v. United States (564 Fed. Appx. 493 (11th Cir. 2014), cert. granted, 135 S. Ct. 2798 (2015)), the Court will revisit the issue of seizing assets: Does the pretrial seizure of a criminal defendant's assets violate the Sixth Amendment right to counsel when it prevents the defendant from being able to afford a defense lawyer? The new wrinkle in Luis is that it involves assets that are untainted by the alleged crime.

Unions and the First Amendment

Almost 40 years ago, the Court reaffirmed that while no one can be forced to join a public employees union, nonunion employees whose jobs are within the represented bargaining unit can be compelled to pay the portion of union dues that support collective bargaining activities. (See Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).) The theory is that nonunion employees in the unit clearly benefit from a union's collective bargaining work with respect to their wages, hours, working conditions, and job-related representation. The Court reasoned in Abood that nonmembers should not be "free riders." But it also held that nonunion members cannot be forced to contribute to the union's political activities.

Thirty-five years after Abood, the Court indicated that it is not sufficient to allow nonunion members to "opt out" of supporting the union's political activities. To avoid "compelled speech," said the Court, nonmembers should have to actively opt in. (See Knox v. SEIU, 132 S. Ct. 2277 (2012).) Two years later, five justices sharply criticized Abood and refused to extend it to home health care workers. (Harris v. Quinn, 134 S. Ct. 2618 (2014).) In fact, Justice Samuel Alito, writing for the 54 majority in Harris, at one point noted Abood's "questionable foundations." (Harris, 134 S. Ct. at 2638.) Justice Alito's opinion sent a clear signal that, given the right case, the Court was poised to reexamine the precedent established in Abood.

The right case may well be Friedrichs v. California Teachers Association (No. 13-57095 (9th Cir.), cert. granted, 135 S. Ct. 2933 (2015).) Indeed, Friedrichs was brought with the specific intention of asking the Supreme Court to expressly overrule Abood. The claim in Friedrichs is that by requiring nonmembers to pay the portion of union dues that support collective bargaining, public-sector unions compel speech in violation of the First Amendment. (See "Bye, Bye, Compulsory Dues?" page 12.)

The lower courts were obliged to follow Abood-which is why they ruled summarily in favor of the teachers' union-but the Supreme Court has no such restriction. Needless to say, the importance of this case to organized labor cannot be overstated.

Voting Districts

No case on the 2015 docket will get more media attention than Evenwel v. Abbott (2014 WL 5780507 (W.D. Tex.), cert. granted, 135 S. Ct. 2349 (2015)). It is the latest in a stream of cases that examines the contours of legislative districting and its obvious influence on political power.

Prior to the 1960s, many state legislatures were severely malapportioned. In part, this was because as cities and suburbs grew, election districts were not redrawn to reflect changing populations. As a result, great demographic inequalities arose in the different districts represented in a given legislative body.

But in Baker v. Carr (369 U.S. 186 (1962)), the Court held that equal protection challenges to malapportionment were not "political questions" exempt from judicial review; they were legal issues that could be decided by the federal courts. Baker and its progeny, including Gray v. Sanders (372 U.S. 268, 381 (1963)), articulated a basic constitutional principle that has been followed ever since: One person, one vote. This means that for any legislative body, all districts must be effectively, if not exactly, equal in population.

Chief Justice Earl Warren said that of all the decisions during his years on the Court, the cases ensuring proper apportionment and equal voting rights were the most important because, in this area, the political process would never correct itself. Legislators who benefited from malapportionment would not voluntarily redraw election districts to jeopardize their incumbency.

In Evenwel, which involves the apportionment scheme for the Texas Legislature, challengers argue that voting districts should be based on the number of voters, not the number of people. It is not clear exactly what they are proposing. Would the legislative districts be based on the number of eligible voters, the number of registered voters, or the number of voters who actually cast ballots in recent elections? But the petitioners' approach would mean that those who are not eligible to vote-including children and noncitizens, whether documented or undocumented-would not be counted for the purposes of drawing election districts.

Courts have consistently rejected the argument that districting should be based on eligible voters rather than on the overall population. If the Court were to decide that the Constitution requires voter-based districting, political power would shift dramatically, since the influence of cities, and especially of minority communities, would greatly diminish. The case raises an important question of political theory: Is the goal to be sure that everyone is represented equally, or that each voter has equal influence?

More to Come

The Court will continue granting review through mid-January, when we will know the full extent of the issues to be considered during the upcoming term. One safe prediction is that by next June, we will again be anxiously awaiting key decisions from our nation's highest judicial tribunal.

Erwin Chemerinsky is dean and a professor at the UC Irvine School of Law. Jordan Liebman and Laura Lively provided excellent research assistance.


Donna Mallard

Daily Journal Staff Writer

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