Supreme Court to Consider Thorny Constitutional Law Questions
Supreme Court to Consider Thorny Constitutional Law Questions
Observers of the high court anticipate the arguments made on affirmative action, compulsory union fees, and redistricting.

WASHINGTON—The U.S. Supreme Court begins hearing arguments for the October 2015 term on Monday, Oct. 5, with several cases of high public interest on its docket. Three high-profile cases involve resolving issues pertaining to constitutional law.

How the court this term decides on constitutional law questions is potentially far reaching. The outcomes could determine the future of affirmative action in college admissions, the power of unions in the public sector, and the relative strength in elections of the two major political parties. On the other hand, the court could decide each of these cases on narrow grounds that would limit their applicability and impact.

At a press briefing on Sep. 22 in the Georgetown University Law Center, five lawyers, each of whom has argued cases before the high court, discussed in detail what we can expect in this coming term.

Affirmative Action Challenged

Fisher v. University of Texas (Austin)

The University of Texas at Austin (UT) has made the case since 1992 that racial diversity is a worthy educational goal and “a compelling state interest” that benefits the learning environment of students. However, the Supreme Court has ruled in the past against anything that looks like the use of quotas. While the principle of race-based affirmative action has not been officially negated, affirmative action policies that seek to redress past discrimination have a very hard time passing the court’s rigorous scrutiny.

So UT came up with an admission policy that automatically admits students in the top 10 percent of their high school class. It’s a race-neutral policy that no one can challenge because race is not explicitly applied. It so happens that Texas high schools are highly segregated, which means some diversity is achieved from implementing this policy. By this top 10 percent rule, about 4 percent of the UT is African-American, and 15 percent Latino, said David Cole, constitutional law professor at Georgetown University Law Center.

David Cole (l), professor at Georgetown Law, and a regular contributor to the New York Review of Books; and Erin Murphy, attorney at Bancroft PLLC, speak on what to expect in the Supreme Court's coming October term 2015. The press briefing occurred on Sept. 22, at the Georgetown University Law Center. (Gary Feuerberg/ Epoch Times)
David Cole (l), professor at Georgetown Law, and a regular contributor to the New York Review of Books; and Erin Murphy, attorney at Bancroft PLLC, speak on what to expect in the Supreme Court’s coming October term 2015. The press briefing occurred on Sept. 22, at the Georgetown University Law Center. (Gary Feuerberg/ Epoch Times)

No sensible admissions officer would adopt this admissions policy but for the fact that it achieves some diversity, said Cole, who has litigated many constitutional cases before the Supreme Court.

The question before the court is the way the remaining slots are selected. UT evaluates each candidate holistically, using a variety of factors including race, but “race as a modest factor, not a predominant factor,” said Cole.

UT contends that the diversity achieved with the 10 percent policy was not qualitatively sufficient and that students with different talents and experiences are not captured in those top 10 percent. Without specifying a number, UT said the “critical mass” needed for enough diversity requires a policy where race is one factor among many.

Justice Anthony Kennedy will be the critical vote [in deciding Fisher v. University of Texas (Austin)].

The plaintiff, Abigail Fisher, who is white, was not in the top 10 percent of her class. She was denied admission after a holistic review in which race was a factor. The case was heard in 2013 when the court sent it back to the Fifth Circuit. The latter concluded that UT’s modest use of race was justified. Fisher went to a different school and is no longer pursuing admission at UT, but this case is still unresolved.

The court will have to assess the university’s claim that its 10 percent program does not produce enough diversity. Other universities may claim that their race-neutral alternatives also aren’t producing enough diversity.

The court could make it extraordinarily difficult for a university to establish its claim that its race-neutral admissions policies are not obtaining sufficient diversity. The court may reject the use of race when used in this “holistic, modest way,” said Cole. That result would effectively end affirmative action in college admissions.

Based on past rulings on affirmative action law, Justice Anthony Kennedy will likely be the critical vote on which way the court rules.

Public Employee Union Dues

Friedrichs v. California Teachers Association

In California, public school teachers must choose to either join a union or pay a fee that includes amounts related and unrelated to collective bargaining. Plaintiffs object to paying the latter as a violation of their First Amendment rights. The government argues the requirement to pay a fee brings labor peace and prevents free riders, considerations it said should override First Amendment concerns. Also, an employee can opt out of the fee by affirmatively objecting to it.

This is a case that really pits an individualistic, libertarian claim against collective responsibility.
— David Cole, professor, Georgetown University Law Center

The California state government relied on a prior Supreme Court decision, Abood v. Detroit Bd. Of Ed. in 1977, which found that the requirement did not violate the First Amendment.

Erin Murphy, attorney at Bancroft PLLC, said that the high court is being asked to overrule Abood.

The plaintiffs want the court to invalidate Abood and overrule this union fee arrangement. At the very least, they want the court to invalidate that the employee must “opt out” to avoid the fee, and just allow the employee to “opt in.”

“When you look in the context at the lead up to the court granting this case, it’s hard to believe Abood surviving in full,” said Murphy, who clerked for Chief Justice John Roberts.

Cole said that he tended to agree with Murphy, but held out “the possibility that one or two justices will get cold feet,” and not completely overrule Abood. Instead, the court could approve changing over to an “opt in” system.

“This is a case that really pits an individualistic, libertarian claim against collective responsibility, not unlike you can’t require one to buy health insurance to support my fellow Americans,” said Cole. He noted, “Historically, individualistic, libertarian arguments win over collective responsibility arguments.”

One-Person/ One-Vote Principle Invoked

Evenwel v. Abbott                                                                                                                      

Harris v. Arizona Independent Redistricting Commission

Hashim Mooppan (l), attorney at Jones Day, and former clerk to Justice Antonin Scalia; and Martin Lederman, professor at Georgetown Law and formerly deputy assistant attorney general, Office of Legal Counsel, Department of Justice, speak on what to expect in the Supreme Court's coming October term 2015. The press briefing occurred on Sept. 22, at the Georgetown University Law Center. (Gary Feuerberg/ Epoch Times)
Hashim Mooppan (L), attorney at Jones Day and former clerk to Justice Antonin Scalia; and Martin Lederman, professor at Georgetown Law and former deputy assistant attorney general, Office of Legal Counsel, Department of Justice, speak on what to expect in the Supreme Court’s coming October term 2015. The press briefing occurred on Sept. 22, at the Georgetown University Law Center. (Gary Feuerberg/ Epoch Times)

The doctrine of “one person, one vote,” derived from the Equal Protection Clause of the Fourteenth Amendment, was established a half century ago. The drawing of election districts for Congress and state legislatures must be equal in population, although perfect equality is not required. A rule has evolved that the difference in population size of a state’s largest and smallest district should not exceed 10 percent.

The court has never considered how this principle of equal population is to be implemented—a remarkable fact, wrote Lyle Denniston, legal journalist who has been reporting on the Supreme Court for over 50 years. What measure of population should be equalized? Should the total population be used, or only the number of citizens, or the number of people over 18, or the number of eligible voters, or the number of registered voters?

The court has never considered how the principle of equal population [in legislative redistricting] is to be implemented.

In 2013, Texas adopted a redistricting plan for its state Senate that used total population, which is nearly universally used in the 50 states. Two registered voters in Texas filed suit in federal court, claiming that the state’s redistricting plan violates the “one-person, one-vote” principle because using district populations creates substantial differences between the districts in the number of voters in each. The appellants say their vote is worth less compared to other districts because there are more voter-age persons in their districts.

One could argue that nonvoters—minors, aliens, and prisoners—are deserving of being represented just like voters. Further, Texas counters that it “should be given discretion as to which population base should be equalized,” said Hashin Mooppan, attorney at Jones Day, and former clerk to Justice Antonin Scalia.

“These disparities in Texas and other states are just a function of the fact that certain districts have larger percentages of undocumented aliens and documented aliens who are minors,” said Martin Lederman, professor of constitutional law at Georgetown University Law Center.

The Constitution specifies the districts be the same in population size, but there is no court finding as yet that wouldn’t allow equalizing, say, registered voters, if the result is that the district sizes are roughly equal. This would leave open the possibility of Democrats or Republicans selecting one population metric that is advantageous to them. Indeed, in the Texas case, the rule the plaintiffs are seeking to equalize the number of voters would benefit Republicans, who with conservative public interest groups, back this interpretation of the doctrine, said Cole.

“The stakes are potentially great,” states a summary guide provided by the Georgetown University Law Center. If the voting population were used in lieu of the total population, “it could dramatically change the political landscape.” For example, if noncitizens were concentrated in urban areas that vote for the Democratic Party, the equalization of voting population could mean fewer urban districts and Democratic Party representatives.

In the Arizona case, an independent commission with the power to create legislative districts, was sued by some voters because their plan “packed more non-minority voters into Republican-dominated districts, making them larger, and put minority voters into smaller, normally Democratic districts, with the result of voter dilution in the GOP districts and a violation of ‘one person, one vote,'” wrote Denniston in SCOTUSblog.  The commission defended itself arguing that it was trying to satisfy the federal Voting Rights Act and that any partisan advantage was minimal.

“Both cases … have the potential to directly change election outcomes and the election fortunes of the two major political parties,” Denniston states.

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