Chemerinsky: New term's most important cases--so far
Erwin Chemerinsky.
At 10 a.m. Monday, the U.S. Supreme Court began its October term for 2015, and many of the cases before it present issues that court has dealt with in recent years. The court granted certiorari in 34 cases for the term before it went on its summer recess and granted review in another 13 cases Thursday, Oct. 1. Last year, the court decided 66 cases after briefing and oral argument, so likely just under two-thirds of the docket is already set.
At this point, there are some curious omissions from the docket. There are no bankruptcy cases, no intellectual property cases and no Fourth Amendment cases. Of course, this could change as the court will continue to take cases between now and mid-January to be heard and decided this term.
Here are some of the most important cases thus far on the docket for October term 2015:
Affirmative action
In Fisher v. University of Texas at Austin, the court will return to the question of the constitutionality of affirmative action for higher education. In June 2003, in Grutter v. Bollinger, the Supreme Court held, 5-4, 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.
In 2004, the regents of the University of Texas realized that they had a less diverse student body than existed in 1996. A new admissions plan was adopted that uses race as one factor among many in admissions decisions.
Abigail Fisher, a white woman, was rejected by the University of Texas and brought a lawsuit arguing that the use of race in admissions decisions violated equal protection. The federal district court and the New Orleans-based 5th U.S. Circuit Court of Appeals ruled in favor of the University of Texas, saying that it had followed Grutter and had permissibly used race as one factor among many in its admissions decisions.
The Supreme Court granted review and in a 7-1 decision, reversed the lower courts. Fisher v. University of Texas (2013). Justice Kagan was recused, as she is in the case this year. The court said that it was not reconsidering Grutter v. Bollinger and its holding that colleges and universities have a compelling interest in having a diverse student body. The court said that it is not enough to have a compelling interest in achieving diversity; a college or university also must show that the use of race is necessary to achieve it.
The case was remanded to the 5th Circuit, which held in a 2-1 decision that the University of Texas met this burden and demonstrated that no race-neutral alternative could yield diversity. The Supreme Court again has granted review. The specific issue is whether Texas adequately demonstrated that there was no other way to achieve diversity, but the court may well reach the underlying question of whether to reconsider Grutter v. Bollinger.
Criminal procedure
In Miller v. Alabama (2012), the Supreme Court held that it is cruel and unusual punishment in violation of the Eighth Amendment for a state to impose a mandatory sentence of life in prison without parole for a homicide committed by a juvenile. A crucial question that has split the lower courts is whether this decision applies retroactively to those whose sentences became final before the ruling. That is the issue in Montgomery v. Louisiana. The Supreme Court rarely has found its criminal law rulings to apply retroactively, yet here the court confronts the reality that otherwise many people will be spending their lives in prison under sentences that are unconstitutional.
Hurst v. Florida concerns whether Florida violates the Constitution in allowing a nonunanimous jury to recommend a death sentence and to do so without specific findings. In Ring v. Arizona (2002), the Supreme Court held that it is for the jury, not the judge, to decide whether the death penalty is appropriate. States have adopted varying approaches, and the underlying question is how much latitude they have in doing this.
In Luis v. United States, the court will return to an issue that it has dealt with before: When does the pretrial seizure of a criminal defendant’s assets violate the Sixth Amendment right to counsel when it prevents hiring a criminal defense lawyer? What makes Luis different from the other cases is that it involves whether the government can restrain assets that are untainted by the alleged crime.
First Amendment
In Abood v. Detroit Board of Education (1977), the Supreme Court reaffirmed that no one can be forced to join a public employees union, but that nonunion members can be compelled to pay the share of the dues that support the collective bargaining activities of the union. Nonunion members benefit from the collective bargaining in their wages, hours, working conditions, and representation received; the court reasoned that they should not be able to be “free riders.” But the court held that nonunion members cannot be forced to contribute to pay for the political activities of the union.
In Knox v. SEIU (2012), and in Harris v. Quinn (2014), five justices sharply criticized Abood.
Friedrichs v. California Teachers Association was brought to ask the Supreme Court to expressly overrule Abood. The claim is that requiring individuals pay the proportion of the union dues that go to support collective bargaining is compelled speech in violation of the First Amendment. The importance of this case to unions and their ability to function effectively cannot be overstated.
Standing
Spokeo Inc. v. Thomas Robins is a case with potentially enormous implications for consumer litigation. Spokeo published an online directory and mistakenly listed Robins as employed. Robins sued under the federal Fair Credit Reporting Act, which allows an award of between $100 and $1,000 for a violation. The district court dismissed saying that Robins failed to show an injury which is required for standing. But the San Francisco based 9th U.S. Circuit Court of Appeals reversed and said that Congress, by statute, had created a right and authorized suits to enforce it.
Spokeo argues that Congress may not confer Article III standing upon a plaintiff who suffers no concrete harm—and who therefore could not otherwise invoke the jurisdiction of a federal court—by authorizing a private right of action based on a bare violation of a federal statute. Robins, by contrast, contends that he was injured by the publication of false information and that Congress may create a right, the infringement of which is sufficient for standing. The case could have great effects on the ability of plaintiffs to sue in federal court under many federal statutes.
Voting
Evenwel v. Abbott has the potential to dramatically change political representation in many areas of the country. Prior to the 1960s, many state legislatures were badly malapportioned with districts of vastly different populations. The Supreme Court then held that such malapportionment denies equal protection of the law and announced the principle “one person, one vote.” This means that for any legislative body, all districts must be about the same in population size.
In Evenwel v. Abbott, challengers in Texas are arguing that districting should be based on the number of eligible voters, not population. Their approach would mean that those not eligible to vote, including children and noncitizens, whether documented or undocumented, would not be counted in drawing election districts.
Courts have consistently rejected the challengers’ argument that districting should be based on eligible voters rather than on population. If the court were to say that the Constitution requires districting based on voters and not population, there would be significant change in districting in many areas, diminishing the influence of cities and especially of minority communities. The case raises important questions of political theory: Is the goal to be sure that everyone is represented equally, or is it to be sure that voters have equal influence?
These, of course, are only some of the cases already on the docket for the October term. And there are many other high-profile issues that still may make it on the docket. Is it an undue burden on the right to abortion for a state to require that doctors performing them have admitting privileges at local hospitals, especially where it will close all facilities in a state where abortions are performed? Does it violate the Fourth Amendment for police, without a warrant, to use cellular technology to determine a person’s location?
The one safe prediction is that once more, the Supreme Court’s decisions will affect all of us, often in the most important aspects of our lives.
Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
