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Fisher Fails to Finish 'Firmative Action

    On the first day of what promises to be a steamy week in Washington, at least outside the Supreme Court building, the Court announced its opinion in a long awaited affirmative action case, Fisher v. University of Texas.
    When the case was argued back in October it appeared that the University's use of race as an admissions factor might be struck down.
Instead, in an opinion by Justice Kennedy, the Court said such programs must meet the test of "strict scrutiny" as well as being "narrowly tailored".
    Surprisingly, for a case argued at the beginning of the term, there was but one dissenter in the 7-1 decision (Justice Kagan took no part), Justice Ginsburg.

    "The Court rightly declines to cast off the equal protection framework ...", writes Ginsburg. "Yet it stops short of reaching the conclusion that (it) warrants." 

    Justice Alito took a sip from his coffee cup.

Motor Voter, Right to Silence and More

    For a day without a real blockbuster it turned out to be an unusually busy one for me.

    Among the Supreme Court decisions today was one that overturned an Arizona law requiring proof of citizenship in order to register to vote. In an opinion announced by Justice Scalia the Court found that the federal Motor Voter law preempts Arizona's law. 

    In another opinion, this one from Justice Alito, the Court said that if you want to  preserve your right to remain silent you've got to speak up. 

    I also finished a couple sketches I had started earlier, the Great Hall . . .
    . . . . and General Suter, the Clerk of the Court, calling up admissions to the bar.

 

 

 

Of Chocolate Cookies, Baseball Bats and the Amazon

In considering whether human genes may be patented the Justices of the Supreme Court searched near and far for analogies to help them grasp the complexities of bio-science. Here are a few sketches from the oral arguments along with a few choice quotes.

 Justice Sotomayor : "I can bake a chocolate chip cookie using natural ingredients - salt, flour, eggs, butter ... And if I combust those in some new way, I can get a patent on that. But I can't imagine getting a patent on the basic items ..."

 Justice Alito : "To get back to your baseball bat example, which at least I can understand better than perhaps some of this biochemistry. I suppose that in ... I don't know how many millions of years trees have been around, but in all of that time possibly someplace a branch has fallen off a tree .... into the ocean and it's been manipulated by the waves, and then something's been washed up on shore, and what do you know, it's a baseball bat."

 Justice Breyer : "... so when Captain Ferno goes to the Amazon and discovers fifty new types of plants, saps and medicines .... although that expedition was expensive, although nobody had found it before, he can't get a patent on the thing itself."

And here's a quick sketch of people lining up outside the Supreme Court in the rain Monday morning to get a seat for the arguments.

SCOTUSblog's Lyle Denniston has the argument recap here.

Supreme Court Revisits Affirmative Action

Nine years after deciding that race, though not quotas, could be considered in college admissions a new, somewhat more conservative Supreme Court is reconsidering affirmative action. The case against the University of Texas was brought by Abigail Fisher, a Texas high school student who says she was denied admission because of her race.

The first question for Fisher's attorney, Bert W. Rein, came from Justice Ginsburg, who along with Justices Breyer and Sotomayor, is expected to uphold the Court's earlier position on affirmative action in college admissions. Justice Kagan, whose empty chair can be seen on the right, is not taking part in the case.

The more conservative members of the Court, who had been mostly silent during Rein's argument, sprang into active questioning as Gregory Garre took the lectern to defend the university's program.

Justice Alito, a foe of affirmative action plans who replaced Justice O'Connor, the author of the Court's earlier opinon in Grutter v. Bollinger, asked Garre, "I thought that the whole purpose of affirmative action was to help students ...from underpriviledged backgrounds, ..." "But you say ...it doesn't admit enough African Americans and Hispanics ...from priviledged backgrounds."

Replied Garre, "Because, Your Honor, our point is that we want minorities from different backgrounds"

Justice Kennedy, as usual the swing vote on which the case hinges, said, "So what you're saying is that what counts is race above all."

The term "critical mass", refering to the proportion of minorities in the student body, was bandied back and forth with both Garre and Solicitor General Verrilli trying to avoid making it sound like a number.

Justice Scalia to General Verrilli, "So we should stop calling it mass."

Verrilli, "I agree."

Scalia, "Call it a cloud or something like that."

 

SCOTUSblog's Amy Howe has the Plain English summary here.

Confrontation Clause Arguments

In two recent cases the Supreme Court has expanded Sixth Amendment right to confront a witness to include the lab technician who actually did the test. 

In today's argument the petitioner is challenging his conviction because the lab tech who performed a DNA test was not called to testify, but his report was introduced through the testimony of another expert witness.

Justice Alito asked petitioner's lawyer, Brian Carroll, "Hasn't it long been accepted that experts may testify to the facts that form the basis for their opinions?"

When it was State's Attorney Anita Alvarez's turn at the lectern Justice Scalia said, "We don't know how good the individuals who did the test were. And that's why it's up to the state to bring forward testimony saying what the lab did. And the only testimony they brought forward was the testimony of this witness who was not there."

Nor did Justice Kennedy seemed convinced as Mike Sacks tell it here.

 

 

 

 

 

Does Standing Require Injury?

The 1974 Real Estate Settlement Procedures Act bars, among other things, kickbacks by title insurance companies. Under the law a plaintiff can sue without having to show actual injury. At least that was the argument made by the lawyer representing Denise Edwards, the homebuyer in this case who sued First American Financial Corp.

But it was an uphill battle. Justice Scalia questioned, "I'm not even sure it's proper to call it a kickback. It's a commission." And Justice Alito told Edwards' attorney, Jeffrey Lamken, "We are looking for whether there is injury in fact."

In his rebuttal Aaron M. Panner, the lawyer for First American, reaffirmed that "what is required is an injury-in-fact, a harm to the plaintiff who is seeking to obtain redress from the courts.

Mike Sacks brilliant analysis of the argument is here.