Final Update - Part I

Earlier this year, I sent out my Conservative's Guide to the Supreme Court, which included nine cases dealing with a wide range of issues, from immigration to abortion clinic regulations to Fourth Amendment rights. Now that all of the cases have been heard and decisions have been handed down, I wanted to update you on the three cases that were decided last week. The final two were decided earlier today, and I will have an update available for you shortly.  In the meantime, feel free to check out my analysis on the McDonnell case here. 

Birchfield v. North Dakota
Decided: June 23, 2016

These cases asked whether the Fourth Amendment to the U.S. Constitution permits a state to criminalize a driver’s refusal to submit to chemical testing to measure the blood alcohol level in his body without the police having first obtained a search warrant. The Fourth Amendment generally requires law-enforcement authorities to obtain a warrant before searching someone for evidence of a crime.

The Court split both with regard to the Justices’ votes and with regard to different kinds of alcohol tests (as I suggested it might).  Justice Alito wrote the majority opinion, which held that the “search-incident-to-arrest” exception to the warrant requirement categorically allows breath tests but not blood tests, which the Court reasoned are more invasive.  Chief Justice Roberts and Justices Kennedy, Breyer, and Kagan joined that opinion.  Concurring as to blood tests and dissenting as to breath tests, Justice Sotomayor (joined by Justice Ginsburg) argued that the categorical search-incident-to-arrest exception is the wrong legal framework for multiple reasons, including that the need for a warrantless alcohol test can be assessed on a case-by-case basis.  Justice Thomas also concurred in part and dissented in part but would have reached an opposite outcome.  He argued that both breath and blood tests are constitutional under the “exigency”—i.e., emergency—exception to the warrant requirement.
 
Virginia, you may remember, is one of the states that criminally punishes drivers for refusing to submit to alcohol tests (at least in certain situations).  The Virginia statute, Code § 18.2-268.3, includes both breath and blood tests.  This decision would presumably make application of that statute to blood tests unconstitutional.
 
All three opinions in this case contain valuable lessons about the importance of combatting the scourge of drunk driving in America today while simultaneously protecting our most precious constitutional rights.  They also show the considerable division and disarray hovering over this area of the law since the death of Justice Scalia, who was a strong defender of Fourth Amendment rights.

United States vs. Texas
Decided: June 23, 2016

The U.S. Supreme Court issued an anti-climactic 4-4 tie today in United States v. Texas.  As is normal practice for the Court, given the tie vote, there was no opinion.  The judgment below was affirmed by an equally divided court.

In sum, the Justices split 4-4 on the key issues in the case, namely, whether Texas and other states had standing to challenge President Obama’s immigration plan, and whether the President’s immigration plan was consistent with the governing immigration statutes.  This is basically what commentators, including me, expected after argument.  
 
Importantly, the Court’s decision is not a final ruling on the merits.  This case was at a preliminary stage, and still must return to the trial court for further proceedings. 
 
Therefore, the November election will determine how much impact the case has going forward.  If the Republicans win the White House, the new President will likely rescind President Obama’s immigration order, mooting this case.  But if the Democrats win, then the new President is likely to keep the order in place.  If the Federal Government then loses the trial and the case again reaches the U.S. Supreme Court, a new liberal-leaning Justice could supply the fifth vote needed to uphold the President’s immigration plan.  Given these circumstances, the ultimate future of this immigration case almost certainly lies with the American people on November 8.  

Fisher v. University of Texas at Austin 
Decided: June 23, 2016

As has so often been the case during the last decade, Justice Kennedy issued the deciding vote in this case.  But, to the surprise of many, his vote embraced the race-based admissions policy of the University of Texas.  Under Fisher II, affirmative action in higher education is here to stay.
 
The question in Fisher II was whether the University of Texas had shown that its admissions policy was narrowly tailored to achieve “the educational benefits that flow from diversity.”  The Court held that it had.  It first found that the University’s goal of providing “a ‘robust exchange of ideas, exposure to different cultures, preparation for the challenges of an increasingly diverse workforce, and acquisition of competencies required of future leaders’” was neither elusory nor amorphous.  Rather, it was “sufficiently measurable to permit judicial scrutiny.”  Next, the Court found that the University had no race-neutral, workable alternative to achieve this goal.  In short, the Court wrote that relying on class rank alone would not bring about the desired educational diversity.  And for these reasons, the Court held that the University’s race-based admissions policy does not violate the Equal Protection Clause.
 
Justices Alito, Roberts, and Thomas dissented.  The dissent argued the majority wrongly deferred to the University’s “inherently suspect” use of race, and its malleable and shifting arguments for why it needs racial preferences. 
 
The Fisher II result is a surprise for a number of reasons.  First, Justice Kennedy has never before voted to uphold a race-based affirmative action policy.  Second, Justice Kennedy dissented from Grutter v. Bollinger in 2003 because the Court did not faithfully scrutinize the affirmative action plan before it.  Finally, Justice O’Connor predicted in Grutter that the use of racial preferences in higher education would be unnecessary by 2028.  In Fisher II, Justice Kennedy abandoned that hope.  He now favors “preferment by race,” which Justice Kennedy himself previously called “the most divisive of all policies,” which contain “the potential to destroy confidence in the Constitution and in the idea of equality.” 
 
Justice Kennedy’s waffling only further drives home the need to replace Justice Scalia with a principled conservative.  Chief Justice Roberts had it right in 2007, when he wrote:  "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race."