As a former law clerk to Justice Clarence Thomas and an attorney who routinely argues appeals in federal courts, I understand that our next Attorney General will have to ensure that the Commonwealth of Virginia is effectively represented in many courts, including the U.S. Supreme Court. Over the past couple of weeks, I have compiled a conservative's guide to the final months of this Supreme Court term.
In this first installment, I have selected four important cases, touching on a range of issues from mandatory union dues to abortion clinic standards. The following cases have already been argued. Next week, I will update you on five other cases that are scheduled to be argued later in March and April.
With so much at stake in these Supreme Court cases it's important we get the word out to conservatives across Virginia. Please help by forwarding this email to 5 of your friends and having them sign up for my email list. An educated citizenry and a Senate that stands strong will help prevent President Obama from being able to radically change the make up of this critical body.
As you know, the Supreme Court plays a pivotal role in American society, handing down decisions that directly affect our day-to-day lives. With the tragic passing of Justice Antonin Scalia, the Court is effectively split and will likely remain so until after the 2016 elections—provided that Senate Republicans stand firm.
This will have a major impact on the cases below, but I will be sure to update you in the future as things develop and these cases are decided. I hope that you will find this Conservative Guide to the Supreme Court useful, and I look forward to hearing your thoughts.
Evenwel v. Abbott
Argued Dec. 8, 2015
This is the “one person, one vote” case from Texas. The question for the Court is how states should go about drawing legislative districts.
States are required to make districts that represent roughly equal voting power for people across all of the districts. By far the simplest way to do this is to use federal census information, which provides total population numbers. Every state draws its districts beginning with total population; some make various minor adjustments.
The issue is that using total population sometimes skews the weight of voters. For instance, consider two districts each containing exactly 100,000 people. If one district has a high immigrant population and a prison, there may be only 35,000 voters in that district, while another may have 70,000. This creates a lack of equality in some sense: a voter in the first district gets 1/35,000 say, while a voter in the second gets only 1/70,000. Arguably a voter in the first district gets twice as much individual power.
The Evenwel case challenges that system, which exists in Texas, Virginia, and many other states. The challengers argue that districts should be drawn such that the number of eligible voters is roughly equal. The states respond that total population is a reasonable way to provide the equal protection principle of “one person one vote” and is efficient because it avoids great logistical difficulty in determining who is an eligible voter in what areas.
Evenwel has also led to strange bedfellows. Deep red state Texas finds itself supported by the Obama Administration and by other states as diverse as Mississippi and Vermont. Virginia AG Herring joined with 20 other states in support of Texas.
At argument in December, most of the time was spent discussing the details of a string of “one person, one vote” cases dating to the Warren Court. Justice Scalia, unusually for him, asked no questions.
For the conservative wing of the Court, there is no clear answer here. After all, under the current legal framework, Texas, and every other state, has substantial leeway to draw districts using its choice of bases—total population, citizens, voting age, voters, and so on. To issue a national edict that it must be done a certain way would not serve the interest of states’ rights. Nor is there an obvious originalist view here. After all, the Constitution requires federal districts be drawn using total population. So it is awkward to say that states must do it a different way.
In my view, Justice Scalia’s passing is less likely to leave a 4-4 court in this case than many others. The Court is likely to uphold Texas’s system (and a 4-4 vote, if it occurs, would also leave Texas’s system in place).
Fisher v. University of Texas at Austin
Argued Dec. 9, 2015
Abigail Fisher is a white Texan. She applied to the University of Texas but was denied admission, she claims, because of her race. Ms. Fisher challenged the University’s discriminatory admissions policy in court, arguing that it violates the Equal Protection Clause of the Fourteenth Amendment. The district court disagreed, ruling in favor of the University. The Fifth Circuit Court of Appeals affirmed.
In 2013, the Supreme Court held that the Fifth Circuit was too deferential to the University of Texas. When a public institution uses race in its decision-making, the institution must show that it furthers a compelling state interest and does so by narrowly-tailored means. Because the Fifth Circuit did not apply this “strict scrutiny” standard, the Supreme Court sent Ms. Fisher’s case back to it.
On remand, the University of Texas argued that it aims to enroll minority students with “uniquely desirable individual traits.” The University further argued that a race-neutral admissions policy would not capture this population. The Fifth Circuit again affirmed, causing Ms. Fisher to take her case to the Supreme Court a second time.
Justice Kagan recused herself from the case, so deadlock is not a risk. While Justices Breyer and Sotomayor joined the conservatives in 2013, they are unlikely to do so again if the Court reaches the merits of the University’s discriminatory admissions policy. Thus, Justice Kennedy will likely cast the deciding vote. Justice Kennedy is historically skeptical of race-based education policies and remained so during oral argument. But he also floated the idea of another procedural remand, which would leave the constitutionality of affirmative action in higher education to be decided another day.
Attorney General Mark Herring is not so circumspect. On behalf of Virginia, he joined a friend-of-the-Court brief that advocates using race as a factor for admitting students to public colleges and universities.
Friedrichs v. California Teachers Association
Argued Jan. 11, 2016
In more than 20 states, millions of government employees who may not want to join a union are nonetheless forced to pay an “agency fee” to the union. These agency fees can be hundreds of dollars per person per year. That means that in California and other large states, huge unions forcibly collect millions of dollars from the paychecks of people who don’t want to join the union.
Recently, the conservative wing of the Supreme Court has observed that forced agency fees in the public sector may violate the First Amendment. Forcing teachers to give money to their union, even if they disagree with it, violates the teachers’ freedom of speech and association. Mark Herring disagrees. He asked the Court to uphold the agency fees, even though the practice does not exist here in Virginia. Evidently Herring would prefer to keep open the possibility of forcing every Virginia teacher to contribute money to unions.
This case arose expressly to give the Court a chance to strike down agency fees for public unions. Such a ruling would seriously damage public unions that have been forcibly collecting agency fees.
More so than many other cases, recent holdings of the Supreme Court in union cases hint at the justices’ likely votes. Before Justice Scalia’s death, pundits predicted a 5-4 ruling striking down the fees. The outcome is now likely to be 4-4.
If the Court splits evenly, it will uphold the agency fees. That would perpetuate a First Amendment violation. The conservative justices would be unable to vindicate our teachers and other public employees’ First Amendment rights across the United States.
Whole Women’s Health v. Cole
Argued March 2, 2016
This is the most consequential abortion case in nearly 25 years. The case looks at a 2013 Texas law that places specific requirements on abortion clinics and has arguably caused many clinics to shut down across the state. The Court will decide whether the state’s law unduly restricts a woman’s right to end a pregnancy. The ruling could affect numerous states with similar abortion laws, including Virginia.
Known as HB2, the Texas law imposes basic health requirements to safeguard women against substandard conditions at abortion facilities. It requires doctors to have admitting privileges at a hospital no more than 30 miles away from the abortion clinic. It also sets clinic standards similar to those of surgical centers, including specifics on staffing and the use of anesthesia. Those in favor of the law say it is crucial to protecting women’s health, as it brings abortion clinics more in line with other medical facilities. Opponents complain the law is intended solely to limit abortions. The outcome of the case will likely turn on whether the Court believes the Texas law places an “undue burden” on the right to have an abortion.
Like Texas, Virginia has implemented surgical-center standards on clinics providing first trimester abortions. Virginia law also requires abortion providers to have contractual agreements with local hospitals to transfer patients who experience complications. Our Attorney General, Mark Herring, has refused to defend Virginia’s abortion laws. In fact, he recently asked the Court to conclude that such regulations unduly restrict a woman’s right to abortion.
The outcome of this case is somewhat predictable based on the Court’s ruling in earlier litigation about the Texas abortion law. In 2014, the Court refused to step in after a preliminary decision allowed the law to go into effect. All four liberal justices objected. Given Justice Scalia’s death, the outcome is now likely to be 4-4.
If the Court splits evenly, the Texas law would remain in effect. This would bring the standards for Texas abortion clinics more in line with those of other medical facilities. However, the split vote would prevent the Court from setting a nationwide precedent regarding just how far states may go in regulating abortion clinics.