How much impact can one case have? In this month’s upcoming arguments, the Court has taken on ten cases which will, each in its own way, have far reaching implications.
On Monday, the Court will resolve circuit splits and ambiguity through Musacchio v. United States and Green v. Brennan. While Musacchio will yield from the Court instructions on how to deal with trial-level errors in jury instructions and waivers, Green will resolve a circuit split on federal employment discrimination law. The Court will also hear two cases concerning statutory interpretation. The first case, Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning, will evaluate plaintiffs’ abilities to bring securities cases in state courts despite the text of the Securities Exchange Act of 1934, while the second case of Gobeille v. Liberty Mutual Insurance Company will examine the Employee Retirement Income Security Act of 1974 and if it preempts Vermont’s statute requiring insurance companies to submit information to a database to help create healthcare efficiencies.
During this upcoming week, the Court will hear the first of two cases concerning Indian tribes, Menominee Indian Tribe of Wisconsin v. United States; next week it will hear Dollar General Corporation v. Mississippi Band of Choctaw Indians, which will assess if Indian Tribal Courts are able to adjudicate civil tort claims against nonmembers, even if the nonmember has entered into a consensual relationship with a member.
After hearing a state sovereignty challenge in this Court’s second address of Franchise Tax Board of California v. Hyatt, the Court will conclude this month’s hearings with three blockbuster cases. First, the court will decide two important redistricting cases: Harris v. Arizona Independent Redistricting Commission and Evenwel v. Abbott. Each case introduces its own twist on the concept of “one person, one vote.” Finally, the Court will take its second stab at Fisher v. University of Texas at Austin, an affirmative action case seeing the Supreme Court docket for the second time in two years.
Read on to find On the Docket’s preview of the Supreme Court’s December docket, and as always, don’t forget to check back for analysis and commentary from prominent legal scholars when opinions are announced!
November 30
Musacchio v. United States
No. 14-1095; 5th Cir.
The first argument of the December sitting of the Supreme Court (although it takes place on November 30) is Musacchio v. Untied States. The issues taken up by the Court on appeal are fairly narrow, both dealing with mistakes made by the parties at the trial level. The merits of the case find their basis in the Computer Fraud and Abuse Act, or the CFAA. (GWLR recently held a symposium on the CFAA; read the panel synopses here). The CFAA precludes someone from either gaining unauthorized access or exceeding any authorized access to a computer.
Michael Musacchio worked at a shipping logistics company, Exel. When he left to found a competing firm, he worked with the IT Director of Exel to gain access to their Exel’s computer system to gain an informational advantage. Exel discovered the breach in 2006, and after a civil settlement, Musacchio was indicted in 2010 for conspiracy to both exceed any authorized access granted to him as well as to gain unauthorized access to Exel’s computer system. In 2012, a superseding indictment was filed that left in place on the charge that Musacchio conspired to gain unauthorized access to Exel’s computer systems.
However, the first issue of the cases arises from the fact that at trial, the jury instructions required the jury to find that Musacchio conspired to both gain unauthorized access and exceed his authorized access. Even with this increased charge, the jury convicted Musacchio; he now challenges that there was not sufficient evidence to find that he had exceeded authorized access. Musacchio argues that once the jury was instructed as such, it became the law of the case and that a finding of insufficient evidence would require a new trial. The Fifth Circuit found against Musacchio, determining that the correct law was properly stated in the indictment and that the erroneous instruction was “patently erroneous.”
The second issue raised by Musacchio on appeal and again before the Supreme Court is that the statute of limitations, which is five years, had run out before the 2012 indictment. The government argues that the statute of limitations is an affirmative defense, and it was waived when Musacchio failed to raise the issue at trial. The Fifth Circuit also here agreed with the government and found that the issue of the statute of limitations had been waived.
The Court will hear this case as the first argument in the upcoming month’s docket, but it should be a fairly straightforward case, and won’t have wide-reaching implications. The Court will likely use this case as a way to set an example for circuit courts when dealing with trial-level errors in cases.
Green v. Brennan
No. 14-613; 10th Cir.
Green v. Brennan turns on the subtle difference between a statute of limitation and a statute of repose, and you’re excused if you sighed a little when you read that sentence. But Green is the type of case that vindicates the perennial claim of civil procedure buffs everywhere: abstruse, procedural legal questions have real world consequences for the rights and responsibilities of litigants. In this instance, the arcane terminology hides a controversy that’s every bit as racially charged as last month’s Foster or the upcoming Fisher argument, and the outcome could resolve an important question of workplace discrimination that has divided courts across the country.
In 2008, a black man named Marvin Green was serving as the postmaster of Englewood, Colorado. Mr. Green was a 35-year veteran of the U.S. Postal Service who had worked his way up from letter carrier, and when the position of postmaster became vacant in the larger and more prestigious market of nearby Boulder, he decided to take the next step in his career by applying for the job. When he was ultimately passed over for the promotion, Mr. Green filed a complaint with the Postal Service’s Equal Employment Opportunity counselor, claiming that the decision was racially motivated. Over the next year, Mr. Green repeatedly came into conflict with his supervisors, which he alleges was the product of unlawful retaliation for his complaint. This culminated in December of 2009, when he was called into an investigative interview over claims that he mishandled the formal grievances of subordinate employees, including by intentionally delaying the mail – a criminal charge. After several days of negotiations involving his union representative, Mr. Green signed an agreement stating that, in exchange for a promise not to pursue criminal charges, he would use his accumulated paid time off, then either resign or be transferred to a tiny town in Wyoming where he would work at a substantially reduced wage. Following an unsuccessful attempt to challenge the agreement through administrative routes, he tendered his resignation in February.
A month later Mr. Green filed a new complaint for retaliatory “constructive discharge,” meaning his supervisors had made his job so intolerable that it was equivalent to firing him. When this too failed to gain traction, he took his case to district court, where the judge dismissed it as being untimely. By regulation, a federal employee has only 45 days from the “matter alleged to be discriminatory” to initiate proceedings, and the judge found that this clock begins to run when the last discriminatory action takes place—in this case, the agreement signed in December. This runs counter to holdings in three other circuits that state that the time limit should be calculated from the date of resignation, before which a claim for constructive discharge could not have been brought. The 10th Circuit nevertheless affirmed the dismissal on appeal, expressly departing from its sister circuits.
As mentioned, the real issue here is whether the time limit is a classic statute of limitations or a lesser known statute of repose. The latter is used not to limit the time after an injury in which a plaintiff can bring a claim, but rather the time after a wrongful act in which a defendant can be held liable. Product liability laws, for example, often include a statute of repose that prevents companies from being sued for injuries caused by their products many years after they manufacture them. Unfortunately, lawmakers are notoriously bad at specifying in the text of a statute or regulation which sort of limit a particular deadline is meant to be.
To add complexity to a complicated case, the government actually agrees with Mr. Green that the time limit should be calculated from the date of resignation, and they have declined to defend the 10th Circuits reasoning. Instead, they argue that Mr. Green actually resigned when he signed the initial agreement, and any subsequent paperwork was merely effectuating that decision. It would seem, then, that the deck is stacked against the third party advocate appointed by the Court to defend the opinion below, with the weight of three circuits, the government, and amici curiae that include the NAACP and the National Employment Lawyers Association all levied against her. Nonetheless, many have predicted that this Term will be a rough one for long-standing racially-based policies, and the time limit in Green could be the latest to fall to this trend.
December 1
Menominee Indian Tribe of Wisconsin v. United States
No. 14-510; D.C. Cir.
Despite popular perceptions, the common thread of equity runs throughout the jurisprudence of the United States, indicating that fairness is an ideal to which the legal system at least aspires. For proof, look no further than the concept of equitable tolling at issue in Menominee Indian Tribe of Wisconsin v. United States. Since the early years of the anglo-justice system, courts could extend, or “toll” the time period following an injury during which a plaintiff could bring suit for a range of reasons, including that it would simply be unfair not to do so. When exactly that unfairness occurs, though, has never been particularly clear.
The Supreme Court announced the modern test for equitable tolling in a 2010 case called Holland v. Florida. Under the new standard, a plaintiff is entitled to the extension only if (1) he has been pursuing his rights diligently and (2) some extraordinary circumstance stood in the way of timely filing. But, as demonstrated in Menominee, even this seemingly straight-forward assessment proves murky when applied to real world facts.
The case centers on an economically disadvantaged Indian tribe’s claim for reimbursement of medical expenses from the federal government. Under the Indian Self Determination Act (ISDA), recognized Indian tribes are able to administer their own versions of federal benefit programs for the benefit of their members, as well as be compensated by the Federal government with the funds that would have otherwise gone to federal agencies had they administered the benefits directly. In the event of a dispute over reimbursement, the statute authorizes Indian tribes to sue the government under the Contract Disputes Act (CDA), the law that governs most conflicts arising from government contracts that includes a 6 year statute of limitations.
The Department of Health and Human Services maintained throughout the 1990’s and into the early 21st century that it was not required to offer full repayment through the reimbursement program, basing its interpretation on a provision of the ISDA that states funding is “subject to the availability of appropriations.” This position gave rise to a host of litigation from Indian Tribes, including a putative class action of which the Menominee Tribe was a part. Two years after Menominee’s case was filed, though, a federal judge decertified the class, removing Menominee from among the plaintiffs. Believing that the CDA’s statute of limitations would be tolled for the two years in which they were a party to the case, the tribe decided to wait to see how other litigation on the topic panned out before expending their scarce resources on a suit of their own.
The Supreme Court eventually struck down the government’s interpretation in the 2004 case Thompson v. Cherokee Nation of Oklahoma, and the Menominee Tribe proceeded to file a claim for unpaid costs for the years 1995 through 2004. The years prior to 1998, though, were denied as untimely, and courts up to the D.C. Circuit affirmed the denial on appeal. This puts the D.C. Circuit in direct conflict with the Federal Circuit, who has held that tolling is appropriate in nearly identical circumstances.
For the government, it’s a fairly simple case; the Holland test requires both that rights be diligently pursued and that some extraordinary circumstance block a party from filing. If taken literally, neither of these requirements were met by Menominee, who simply wanted to save money by first seeing how other litigation turned out. The Tribe, however, argues that “circumstance” should not be conflated with “obstacle,” and instead points to language in Holland that states the test is holistic and should be judged on a case-by-case basis. They also have policy on their side to some extent. The purpose of statutes of limitation is to prevent a defendant from being disadvantaged by an unjustified delay, and even the government acknowledges that there is no such prejudice here, seeing as the many other lawsuits on the subject provided ample notice of the controversy. Further, the Tribe contends that at its heart, this is a dispute arising from government-to-government transactions, and the interest of preserving amiable relations at such a high level weighs in favor of settling the matter on its merits rather than dismissing it on procedural technicality.
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning
No. 14-1132; 3d Cir.
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Manning is a securities case that, remarkably, is not really about securities on this appeal. Rather, this case is one that is being watched by investors across the country who think that they are more likely to succeed on claims against the banks in state court as opposed to federal court.
Greg Manning and fellow respondents are alleging that Merrill Lynch, UBS Securities, and other petitioners are guilty of illegal naked short-selling, something that is prohibited under New Jersey state law. Manning sued Merrill Lynch and others in New Jersey state court. While none of Manning’s causes of action rest on the Securities and Exchange Act, he does allege that the banks violated regulations set forth in the Act; Merrill Lynch used this fact to remove the case to federal court. Section 27 of the SEC provides for exclusive federal jurisdiction of cases that seek to enforce liability or duty created by the Act. However, because none of the stated causes of action seek to enforce a liability or duty created by the act and Manning’s case can stand without regardless of whether or not Merrill Lynch is found to have violated the SEC, the Third Circuit remanded the case to state court.
While Merrill Lynch contends that Manning’s case is simply artfully pled to get around the exclusive federal jurisdiction of the SEC, there are two clear problems that cast doubt on Merrill Lynch’s allegations. First, Manning’s allegations don’t depend on any determination of federal law. Part of Congress’ intent when including the exclusive jurisdiction clause was to ensure that there was uniform interpretation of federal securities laws, but that is not an issue here. Second, the fact that the Solicitor General failed to show support for Merrill Lynch’s proposition is telling in that the government, which has previously shown a high level of interest in securities cases, is not taking a clear side on this issue.
This case’s seemingly simple statutory interpretation will have far reaching implications for securities litigation throughout the country, and the Supreme Court’s circuit split reconciliation will be important for the financial services industry and investors alike.
December 2
Gobeille v. Liberty Mutual Insurance Company
No. 14-181; 2d Cir.
How does federal law impact what information insurance companies must provide to state-run databases? This is the question at issue in Gobeille v. Liberty Mutual Insurance Company, a case arising out of the second circuit based on a Vermont state statue. The Vermont statute at issue requires all insurers operating within the state of Vermont to provide certain information to a database, such as claims and member eligibility, in order to help improve the cost and effectiveness of healthcare expenditures. Liberty Mutual does not want to provide this information, and has asserted that the Employee Retirement Income Security Act of 1973 (“ERISA”) prevents them from having to follow the Vermont statute. ERISA plans comprise some of the Liberty Mutual’s healthcare plans in Vermont. Liberty Mutual proffers that ERISA provides for its own reporting requirements and complying with the Vermont statue on top of what is already required will pose an undue burden on insurance companies. Because of this fact, Liberty Mutual asserts that ERISA’s broad preemption clause, which preempts any state law that “relates to” an ERISA plan, should preempt the Vermont statute.
Gobeille, the official from Vermont, argues that since the Court has previously upheld state laws that only create incidental burdens on ERISA plans, the Court should uphold Vermont’s statute as well. He claims that the burdens are trivial because Liberty Mutual already has to provide the requisite information for non-ERISA plans. He further argues on the policy side that a database designed to defray healthcare costs would be incomplete and ineffective if certain plan information was excluded from the database.
Although on the face of it this case could seem like a straightforward issue of preemption analysis, the federal government has made it clear that there are much broader implications on the healthcare system as a whole. Siding with Vermont, the U.S. Solicitor General filed a brief that described the issue as one of national consequence, asserting that if states are unable to procure information from ERISA plans, their databases will be significantly less useful in helping to develop healthcare policy at both state and national levels. New York, Maryland, Massachusetts, New Hampshire, Oregon, and Utah are among eleven other states that also have such databases, and have filed briefs in support of Vermont.
December 7
Dollar General Corporation v. Mississippi Band of Choctaw Indians
No. 13-1496; 5th Cir.
Disputes over the reach of Indian tribal courts have been a part of the debate over Tribal Sovereignty ever since Indian-run tribunals began to supplant federal Courts of Indian Offenses in the 1930s. On the one hand, many believe that the authority to punish an individual who violates tribal laws on tribal land is a fundamental piece of the tribes’ right to self-determination. On the other, an outsider may find himself at a distinct disadvantage in a tribal court system, and because the trials operate primarily according to tribal law, there’s little guarantee that a U.S. person will receive all the rights afforded under the Constitution. Over the years, courts and lawmakers have struck a careful balance delineating the boundaries of Indian justice systems. Dollar General Corporation v. Mississippi Band of Choctaw Indians will put that balance to the test in a case that could have serious repercussions for Indian autonomy.
The controversy centers on an alleged series of incidents that took place at a Dollar General store that operates out of a retail space leased from the Mississippi Band of Choctaw Indians and located on the Tribe’s reservation. During the summer of 2003, a thirteen-year-old Tribe member was placed in an internship at the store as part of a Tribe-administered job-training initiative. The youth claims that the non-Indian store manager made repeated offensive sexual remarks towards him and sexually assaulted him twice during his placement. Once informed of the allegations, the Choctaw expelled the manager from the reservation. A year later, the young man and his parents filed a suit in tribal court against both the manager and the Dollar General Corporation for assault and battery.
Under the 1978 Supreme Court case Oliphant v. Suquamish Indian Tribe, Indian tribal courts are prohibited from exercising criminal jurisdiction over non-Indian defendants without explicit authorization from Congress on the grounds that such adjudication would conflict with the “sovereign interests” of the United States. Things are much less clear cut in the civil context, though. In 1981’s Montana v. United States, the Supreme Court held that Indian tribes hold authority to regulate conduct by non-Indians on their land only when the conduct “threatens or has some direct effect on the….health or welfare of the tribe” or the individual otherwise consents to tribal authority, explicitly or through his actions. Subsequent cases clarified that when a non-Indian enters tribal land and engages in consensual interactions with a tribe or its members, there is implicit consent to the jurisdiction of tribal courts over claims related to that relationship.
The Choctaw feel that this case is a straightforward application of Montana. The claims for assault and battery implicate the Tribe’s sovereign interest in protecting its members on its own land, and by choosing to participate in the Tribe’s job training program, the manager consented on behalf of Dollar General to allow tribal courts to resolve disputes that came as a direct result of the placement. In response, Dollar General contends that general tort law was not the sort of regulation the Court had in mind in Montana, arguing that these claims cover such a large breadth of human conduct that they would swallow the general rule that tribal courts don’t have jurisdiction over non-Indians. The corporation further devotes a substantial portion of their brief to pointing out perceived shortcomings of tribal courts, which they contend subject non-Indians to unknowable standards based on unwritten tradition.
Four successive courts have sided with the Tribe on this matter, from the Tribe’s civil and supreme courts to a federal district court and the 5th Circuit. As common knowledge holds, though, the Supreme Court rarely grants certiorari to congratulate lower courts for getting the law right. If an outcome adverse to the Choctaw is handed down, a sweeping ruling could limit the ability of Indian tribal courts to hear not only tort claims, but civil suits against non-Indians in general.
Franchise Tax Board of California v. Hyatt
No. 14-1175; Nev.
This is not the first trip to the Supreme Court for Gilbert Hyatt and the Franchise Tax Board of California. In a legal battle that has persisted for over two decades, the Supreme Court is this time assessing two legal issues of state sovereignty: if a state may refuse to extend to sister states’ agencies the same immunities its agencies receive in its courts and if Nevada v. Hall, which allows for a state to be haled into court of a sister state without its consent, should be overruled.
In 1990, Hyatt, a then resident of California, was issued a computer chip patent that proved to be extremely lucrative. In October 1991, he claimed he moved to Nevada and therefore filed his tax return for that year as a part-time California resident. Believing that Hyatt didn’t actually move until April 1992, the California Franchise Tax Board (“FTB”), the sovereign taxing authority of the State of California, pursued an aggressive audit including sending over 100 letters of demand to third parties, many of which contained Hyatt’s personal information such as his social security number and home address. Even though Hyatt demonstrated with substantial evidence to FTB that he had in fact moved to Nevada before his asserted residency change, FTB continued the audit by interviewing and collecting signed statements from tenuously-related third parties, and ignoring statements of those closest to him.
Hyatt grew frustrated with the way FTB treated him, and filed suit in 1998 asserting that FTB had committed various torts during the course of their residency audit, such as intentional infliction of emotional distress, fraud, invasion of privacy, and negligent misrepresentation. Two years later, FTB petitioned the Nevada Supreme Court for full immunity, arguing that because it would be granted full immunity under California law, Nevada should extend to FTB the same privileges. The court found that under the principles of comity, FTB would be granted the same immunity that a Nevada government agency would receive in the case. Because Nevada law does not provide its agencies with full immunity in the case of bad faith and intentional torts, the court determined that all of Hyatt’s claims would stand except for the negligence claims. During Hyatt and FTB’s first trip to the Supreme Court, the Court upheld the Nevada courts ruling, holding that the Full Faith and Credit Clause of the Constitution does not afford FTB the benefit of full immunity, citing Nevada v. Hall, which concludes the Constitution does not confer sovereign immunity on states in courts of sister states, which is at issue in the current case.
As the case continued, a jury found in favor of Hyatt on all intentional tort causes of action. The damages totaled nearly $500 million, half of which was punitive damages. In 2014, the Nevada Supreme Court upheld most of the damages, stating that although Nevada laws impose a cap on tort damages against Nevada government agencies, to extend this same cap to FTB would be contrary to Nevada’s interest in providing redress to its citizens. However, the court continued, because Nevada government agencies enjoy immunity from punitive damages, that privilege would be extended to FTB.
On this trip to the Supreme Court, FTB challenges Nevada’s refusal to extend the statutory damage cap on tort damages to FTB. In addition, they challenge the ruling of Nevada v. Hall, seeking to have the decision that allows for states to be haled into courts of another state without its consent overruled.
December 8
Harris v. Arizona Independent Redistricting Commission
No. 14-232; D. Ariz.
Harris v. Arizona Independent Redistricting Commission might be thought of as a sequel of sorts. In last Term’s Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court held that the people of Arizona didn’t violate the Constitution when they voted to strip their state legislature of the power to draw congressional districts and instead place the authority in the hands of an independent commission. Twenty-four hours after endorsing the Commission over the protests of state legislators, the Court agreed to hear a challenge to the map it had drawn for the purpose of electing those very same legislators. At issue is the practice of creating districts that vary in population for the purpose of (1) favoring a political party and (2) satisfying federally imposed redistricting standards.
Following the 2010 national census, the Redistricting Commission set about redrawing the state’s legislative districts based on the new data, and in 2012 they released an updated map. The Commission’s boundaries packed many non-minority voters into large, solidly Republican districts in order to allow minorities more influence by placing them in many small, primarily Democratic districts. A group of voters sued, claiming that advantaging one political party over another was not valid grounds for violating the “one person, one vote” rule.
The rule was established by a series of cases that culminated in 1964’s Reynolds v. Sims, which held that, under the Equal Protection clause of the Fourteenth Amendment, no person’s vote may be weighed more heavily than another’s, and thus congressional and state legislative districts must be defined so as to contain as close to equal population as practicable. Later cases clarified that mathematical exactitude isn’t required as long as any small deviations advance a valid state interest.
At trial, a three judge district court found that, though the Commission did attempt to favor particular political parties in drawing its lines, this was only a secondary consideration that came as a result of the Commission’s goal of compliance with the federal Voting Rights Act. At the time, the Voting Rights Act required Arizona and a number of other states with histories of voter suppression to obtain approval of their redistricting maps from the Department of Justice before putting them into effect. Though The Supreme Court has since struck down this preclearance in 2013’s Shelby County v. Holder, the district court found that the good faith effort at compliance was a valid state interest that justified the deviation. In granting certiorari, the Court has agreed to review both motivations separately to determine if either ground qualifies.
It’s worth noting that the petitioners aren’t challenging partisan gerrymandering itself, but rather the act of creating districts that vary significantly in population in furtherance of partisan gerrymandering. Although this could have once posed a threat to the practice at large, disproportionate populations are by no means a necessary outcome of gerrymandering in this age of complex computer algorithms, which can easily create equally populated districts that are nonetheless politically safe for a given party. The Supreme Court has consistently declined to weigh in on the more general question of when gerrymandering itself violates one person one vote, in part because it would likely require the creation of standards the Court feels ill-equipped to define. Consequently, this case is unlikely to be the silver bullet electoral reform advocates have been seeking for the problem of legislators choosing their districts instead of the other way around.
Evenwel v. Abbott
No. 14-940; W.D. Tex.
What does it mean to have equal protection in the eyes of the Constitution? A 1964 case, Reynolds v. Sims, put forth the idea of one person, one vote. The basic theory of one person, one vote is that no individual’s vote may count more than any other persons. The Court determined that, in order to achieve this equality, seats in both houses of a state legislature should be apportioned on a population basis, a standard that had previously been left to states’ discretion. The state of Texas uses total population to draw its voter districts for the state legislature, taking the total population of Texas and dividing it by the 31 districts in order to draw the lines of each district. The petitioners in this case, two Texas voters by the names of Sue Evenwel and Edward Pfenninger, claim that Texas has diluted the power of their votes by using this method as opposed to basing the district’s geographic lines on the voter-eligible population.
The petitioners base their claim in part on the Court’s ruling of Burns v. Richardson. In that case, the Court approved of a temporary districting plan in Hawaii that was based on the number of eligible voters instead of total population based on the large number of transient military members. In their decision, the Court reasoned that this redistricting plan was okay because the distribution of legislators was not substantially different than if they had used a “permissible population basis.”
By using total population as opposed to the population of voting-eligible individuals, petitioners argue, the state has weakened their vote because they live in an area where there are more proportionally individuals who can vote relative to other voting districts. The petitioners both live in rural areas, where the population is comprised of more adults eligible to vote than urban areas. In cities, the population often includes non-citizens and children, who will be represented by the elected official but not able to vote for him. By drawing district lines around total population, each eligible-voter’s vote counts for more because there are fewer voters, despite the same population size as another area.
A three-judge district court found against the petitioners, holding that the decision of what to have as a population is one for the state legislature to make. If the Court finds in favor of the petitioners, the decision has the potential to move voting power from cities to rural areas, which will favor the Republican Party. In a highly politically charged case, it will be interesting to see how the Supreme Court decides to define a population for the purposes of one person, one vote.
December 9
Fisher v. University of Texas at Austin (Fisher II)
No. 14-981; 5th Cir.
Like some revenant returned from the grave, Fisher v. University of Texas at Austin is an affirmative action case that refuses to stay dead. It has withstood multiple dismissals and what some have characterized as extreme issues of standing to appear on the Supreme Court’s docket for the second time in two years. And with little more than the briefs submitted by the petitioner as a guide, it’s unclear where the Court is looking to again act in this well-travelled controversy.
For those just joining the story, Fisher involves the University of Texas at Austin’s 2008 decision not to accept Abigail Fisher, who is white, for admission. About eighty percent of the University’s incoming class was admitted through a predetermined process that offered admission to any Texas students who graduated in the top ten percent of their high school class. The remaining seats were filled using a “holistic” process that the University admits includes race as one of many factors considered. Ms. Fisher missed the cutoff for automatic admission, graduating in the twelfth percentile of her class. Believing that she was not chosen for one of the remaining available seats because of her race, she sued the University, arguing that its process violated the Equal Protection Clause of the Fourteenth Amendment. A district court dismissed her claim, finding that the University’s program was narrowly tailored to achieve the compelling government goal of diversity in the classroom. On appeal, the Fifth Circuit affirmed the ruling.
When universities use race as a factor in admissions, they must walk a narrow path established by a line of Supreme Court cases dating back to the late 1970s. In a 1978 case called Regents of the University of California v. Bakke, the Court held in a plurality opinion that because race is considered an “inherently suspect class,” affirmative action plans that are based on it will be subject to strict scrutiny under the Fourteenth Amendment. A policy will only be found to be valid if it is narrowly tailored to further a compelling government interest that could not be achieved by other means. In Bakke, the Court held that achieving a racially diverse student body was such a compelling interest, but found quota-based set-asides to be too broad a policy when simply using race as one of many decision making factors would equally advance that goal. A more recent Court affirmed Bakke’s holding in 2003’s Grutter v. Bollinger.
In first reviewing Fisher in 2013, the Supreme Court reversed the Fifth Circuit’s decision, holding that the lower court had improperly put the burden of proving that the University acted with insidious motive on Fisher. The case was remanded back to the lower court with instructions to apply the strict scrutiny demanded by Bakke and Bollinger, which requires that the burden of demonstrating that its policies are sufficiently narrow be placed on the University. Armed with these new instructions, the Fifth Circuit in 2014 once again ruled in favor of the University, holding that its multifactor consideration and periodic review of policies satisfied the called for test.
The Supreme Court’s decision to again review the Fifth Circuit’s holding came as a surprise to many. Abigail Fisher has long since obtained a degree from neighboring Louisiana State University, raising the question of whether she still has a personal stake in the outcome of the case as required by the Constitution. Moreover, the University of Texas has maintained since the litigation began that Ms. Fisher was not denied because of her race and would not have been admitted had she been a minority, throwing further doubt on the question of injury. These shortcomings, combined with the drawn out nature of the proceedings, have led many commentators to speculate that this is a poor case to address the underlying legal questions at issue. Justice Kagan has also recused herself, having submitted an amicus brief as solicitor general during the initial Fifth Circuit argument, creating the possibility of a tie vote that would allow the Fifth Circuit’s ruling to stand. With this in mind, it’s anyone’s guess as to whether and how this dispute will finally be resolved.
Post authored by On the Docket Fellows, Spencer McCandless and Talya Bobick.
