Saturday, November 23, 2013

(Part 2) Supreme Court's New Term: Headliners & Possible Blockbusters

Let's now turn our attention to 3 other important appeals already on the Court's docket this new term.

We previously looked at 3 cases dealing with campaign finance, abortion clinics, and town prayer in the last post. That first set of cases all involved First Amendment issues. This next group raise diverse constitutional claims: equal protection, search & seizure, and presidential power.

Affirmative Action (Schuette v. Coalition to Defend Affirmative Action)
This case involves a state law that forbids racial preferences--but forbids no others--in college admissions.

Ever since its split decision in the 1978 Bakke case, the Court has struggled with racial preferences in higher education, as well as in other contexts. Justice Lewis Powell cast the swing vote in that case. Race was permissible as one plus factor, among others, in evaluating an application for college admissions.

Then, in its 2003 Grutter decision, Justice Sandra Day O'Connor--who had replaced Powell as the Court's swing vote--similarly cast the deciding vote. Racial preferences were acceptable to promote the "compelling" educational interest in diversity.

This past June, the Court issued its latest decision about affirmative action in higher education admissions. The vote in the Fisher case was 7-1. (Only 8 votes because Justice Kagan did not participate.) But that numerical division fails to reflect the deep differences among the Justices. It only represents near unanimity on a single point: any use of race in making decisions must first be justified by some compelling purpose that could not otherwise be achieved.

So, would racial preferences actually be permitted under those circumstances? If yes, would permissibility be based on the Justices' own view of compelling educational needs? Or those of the educational institution or of education experts? In this regard, it is notable that Justice Samuel Alito has replaced O'Connor, and he seems much less sympathetic to a need for affirmative action.

With that in mind, consider that the Court has chosen to review yet another affirmative action case this term. And it's a case in which supporters of affirmative action won in the federal appeals court below.

The Schuette case involves a Michigan provision--adopted directly by the voters--that bans any consideration of race in college admissions. The provision was adopted following the previously mentioned Grutter decision which had upheld the University of Michigan's race conscious program.

Preferences of all sorts in college admissions were left untouched by the provision. Legacies, athletics, geography, birthplace, family gifts, etc., etc., etc. They may still be used. Only race (and gender)--even if necessary to achieve a purpose deemed compelling--is forbidden.

May the voters of a state remove racial preferences as a factor in decision-making on college admissions? Even if those preferences are singled out (with gender only) for elimination?
[This discussion was edited for correction subsequent to the date of posting in order to note that gender preferences were outlawed as well those for race.]

Search & Seizure (Fernandez v. California)
The case involves the search of someone's home, without a warrant and without an emergency situation, even though he already said no. The wrinkle? He was not home when someone else who lives there said yes.

In its 1974 decision in U.S. v. Matlock, the Supreme Court ruled that a warrantless, emergency-less search of a home is nevertheless permissible if someone who lives there gives consent.

More recently, in Georgia v. Randolph, the Court held that the search of a home is not permissible if someone who lives there says no--even if someone else who lives there had previously said yes. The important--and perhaps critical--point in that 2006 decision was that the person who said no was there at the time the police sought to enter and search.

The Fernandez case is like Randolph, except for that one important--or critical--point. Indeed, the question in Fernandez is whether that point is critical.

Here's why. In Fernandez, although the defendant lived in the home and had told the police they could not search, he was not there when the police did so. The police had just arrested him and taken him to the station. The police then returned to his home, and they obtained consent to search from his girlfriend, who also lived there.

Justices Breyer and Kennedy were the swing votes in the Randolph case. Breyer wrote a separate concurring opinion making clear that his vote against the search was based on the particular facts. Those facts are different here--again., the defendant was not present to object when the police searched.

As for Justice Kennedy, he is often the swing vote, and it's not clear that he will oppose the search here. In the Randolph case, the co-occupant had given consent at an earlier time, but she was silent when the police arrived and the defendant said no. Here in Fernandez, the co-occupant gave consent at the very time the police came to search.

Chief Justice Roberts was adamant in his dissent in Randolph that the search was fine there. (He expressed great concern about the need to investigate domestic violence.) He will no doubt vote to uphold the search here.

Justices Scalia and Thomas will--virtually without doubt--also vote to uphold the search in Fernandez as they did in Randolph. Justice Alito, who did not participate in Randolph, is also a near-certain vote to approve the search here.

In short, it's likely that the decision in Randolph--i.e., search invalid where the occupant is present at the time and saying no--will be limited to those facts or even overruled.

Presidential Power (NLRB v. Canning)
May the President exercise his "Recess Appointment" power when the Senate is merely conducting a pro-forma session--i.e., it's not actually doing any business? And is that presidential power limited to filling vacancies that happen to arise during a recess? and only a recess that comes between enumerated--i.e., election--sessions?

Those questions might seem technical, legalistic, boring, and of little concern except to government geeks. Well, the implications are anything but that. They are, in fact, part of perennial partisan power struggles, as well as a very important and unresolved constitutional debate.

This case involves President Obama's 3 "recess appointments" to the National Labor Relations Board. He made those appointments because political gridlock in the Senate had prevented consideration of his nominees, and the NLRB needed a quorum to conduct business. The Senate was in pro forma session at the time.

Subsequently, the NLRB found Canning's company guilty of an unfair labor practice and he appealed that ruling. Specifically, he claims that the NLRB didn't have a quorum, because Obama's 3 "recess appointments" were invalid.

The law on this subject is unsettled. In fact, there is little law on it at all.

The Constitution simply provides that the President has the power to fill vacancies "that may happen during the Recess of the Senate."

As a matter of textual interpretation, does "may happen during" refer only to vacancies that happen to arise during a recess? Or any that happen to exist during one? And does "Recess" refer only to the time between enumerated sessions (i.e., between the 2 year congressional elections)? Or any time the Senate is not in fact in session conducting business?

Now....Democrats cry foul when a Republican President makes recess appointments. Republicans do so when a Democratic President does so. In short, it's no surprise that Republicans are supporting this challenge to Obama's appointments. A fortiori because these appointees are sympathetic to worker and union rights, as was the particular ruling of the NLRB which instigated this appeal.

Beyond that, the conservative Justices may well have been generally supportive of presidential power with a Republican in the White House. It would not be surprising if they were now less supportive with Obama as President. As for the liberal Justices: vice vera.

On the other hand, both wings of the Court are smart enough to understand that whatever their ruling, it will have ramifications when a President of the opposing party and political philosophy occupies the White House.

So, if the politics of the moment rules, it's a good guess how most of the Justices will vote. But if they view the issue of presidential power over the long run, the voting is much more difficult to predict.
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Here again are the links to related interviews. One on public radio on Susan Arbetter's Capitol Pressroom, and another on YNN TV on Capital Tonight with Liz Benjamin.

with host Susan Arbetter
Oct. 7, 2013: Prof. Bonventre
It’s the first Monday in October. Albany Law School Professor and author of the NY Court Watcher ( Blog Vin Bonventre joins us with a rundown of the big cases before the Supreme Court. 

Radio podcast: 

HOST: Liz Benjamin
Nov. 6, 2013: Albany Law’s Vin Bonventre on Case Regarding Religion in Government
The US Supreme Court heard a case today that began in the Monroe County town of Greece.
Two residents there challenged the tradition of saying a prayer before town board meetings, arguing it violates the constitutional separation of church and state. But officals say those prayers are not hurting anyone. Both sides made their case to the justices today.
Albany Law School professor and author of the New York Court Watcher blog Vin Bonventre joined us to discuss.
TV interview: