Major cases of the Supreme Court October 2015 term

Background: Kansas v. Carr, Jonathan (14-449), Kansas v. Carr, Reginald (14-450) were consolidated by the court. In addition, the court allocated one hour of argument for Kansas v. Carr and Kansas v. Gleason (14-450). The court reviewed the same question in Kansas v. Carr and Kansas v. Gleason, and one additional question was reviewed in Kansas v. Carr. During the sentencing phase of all three respondents' cases, jurors were not told that the defendants did not have to prove mitigating circumstances beyond a reasonable doubt, which Carr, Carr, and Gleason argued was a violation of their Eighth Amendment rights.

Kansas v. Gleason
Sidney Gleason murdered Darren Wornkey and Miki Martinez in February 2004. Gleason was convicted of capital murder and first-degree murder for the double-murder of these two individuals and sentenced to death. In July 2014, the Kansas Supreme Court reversed his death sentence.

According to the brief for Gleason, "Mr. Gleason relies upon this Court’s precedents holding that jurors must be able to give meaningful effect to a defendant’s mitigation evidence. Thus, jury instructions that prevent them from doing so—expressly or through misleading ambiguity—are unacceptable. And where a particular set of jury instructions is flawed to a degree that arbitrariness or capriciousness may result, even from the jury’s careful attention to its instructions, resentencing is necessary to ensure that a sentence of death is founded upon unassailable grounds."^[8]

The State of Kansas argued that the Kansas Supreme Court erred in their ruling. In their brief, they explained, "Nothing in this Court’s precedents holds that the Eighth Amendment mandates an instruction affirmatively informing a capital sentencing jury that mitigating circumstances are not subject to any particular burden of proof. The Constitution only requires that capital sentencing juries be allowed to consider and give effect to all relevant mitigating evidence."^[9]

Kansas v. Carr
Brothers Jonathan and Reginald Carr raped and murdered multiple victims in December 2000 in Wichita, Kansas. Jonathan and Reginald were then tried and sentenced together. They argued that their combined trial and sentencing was a violation of their Eighth Amendment right.

According to the brief for the State of Kansas in Kansas v. Carr, the Kansas Supreme Court erred in their ruling. The brief read, "Nothing in this Court’s precedents mandates severance in capital cases as an Eighth Amendment requirement to insure defendants receive individualized sentencing. ... Forcing the States to utilize multiple, separate, and largely repetitive sentencing hearings before the same jury or even different juries would have several undesirable consequences. Such an approach could permit one or more capital defendants to preview the State’s penalty phase evidence and arguments, increasing the possibility of inconsistent and inequitable verdicts. Such an approach also would greatly increase the time commitments of jurors and the resources required to try these proceedings. Lastly, mandating separate, repetitive proceedings also could work to the detriment of victims who might have to testify in multiple proceedings." The brief also stated that "Further, there is no Eighth Amendment right to have a capital sentencing jury consider mercy."^[10]

According to the brief for Jonathan Carr, "The Kansas Supreme Court properly held that there was a substantial risk that the jurors could not reasonably make an individualized determination between life and death in the 'maelstrom' of evidence about the brothers’ culpability, history, and characteristics, especially where the prosecution seized every opportunity to paint the brothers with the same brush." During the trial an expert testified that Reginald was a "dangerous, incurable sociopath as a result of his genetics and upbringing." Because the brothers share the same DNA and had the same home life, the brief argued that the jurors may have concluded that Jonathan was also a dangerous sociopath, resulting in their decision to sentence him to death.^[11]

The brief for Reginald Carr argued that Reginald received an unfair trial because his brother Jonathan Carr served as "a second prosecutor" against him. According to the brief, "Jonathan presented evidence that Reginald had a corrupting influence on him while growing up," which would not have been introduced if they had separate trials. The brief stated that this evidence unfairly influenced the jury to choose a sentence of death for Reginald. The brief also argued that the Kansas Supreme Court ruling should be upheld because of an Eighth Amendment violation. The brief stated, "No State anywhere applies a reasonable doubt standard to mitigating circumstances—not even Kansas," and that was not made clear in this case.^[12]

Oral argument: The court heard oral argument in Kansas v. Gleason & Kansas v. Carr on October 7, 2015.

• Transcript of oral argument: United States Supreme Court, Kansas v. Gleason & Kansas v. Carr

• Transcript of oral argument: United States Supreme Court, Kansas v. Carr

• Audio of oral argument: United States Supreme Court, Kansas v. Gleason & Kansas v. Carr

• Audio of oral argument: United States Supreme Court, Kansas v. Carr

Decision: In an 8-1 decision, the court reversed the ruling of the Kansas Supreme Court and remanded the cases. The court held that "The Eighth Amendment does not require capital-sentencing courts to instruct a jury that mitigating circumstances need not be proved beyond a reasonable doubt."^[16]

Rejecting the Kansas Supreme Court’s decision, Scalia wrote, “no juror would reasonably have speculated that mitigating circumstances must be proved by any particular standard, let alone beyond a reasonable doubt. The reality is that jurors do not ‘pars[e] instructions for subtle shades of meaning in the same way that lawyers might.’” Scalia added that the instructions given to the jurors were clear and would not have resulted in preventing “their consideration of constitutionally relevant evidence.”^[17]

On the question of joint sentencing, Scalia wrote that severing the sentencing phase would not have mattered or resulted in a different outcome. He wrote, “What these defendants did—acts of almost inconceivable cruelty and depravity—was described in excruciating detail by Holly, who relived with the jury, for two days, the Wichita Massacre. The joint sentencing proceedings did not render the sentencing proceedings fundamentally unfair.”^[17]

In her dissent, Justice Sonia Sotomayor argued that the cases should not have been reviewed by the court because “Kansas has not violated any federal constitutional right.” She wrote, “By placing a thumb on the scale against a State adopting—even as a matter of state law—procedural protections the Constitution does not require, the Court risks turning the Federal Constitution into a ceiling, rather than a floor, for the protection of individual liberties.”^[17]

Some expected the court to specifically address the constitutionality of the death penalty, but SCOTUSblog's Amy Howe provided a possible reason for why the justices chose not to do so. Howe wrote, "[A]lthough this round of the larger debate within the Court over the death penalty lacked the fireworks that we have come to expect, the relative calm probably stems from the fact that the Justices were considering procedural issues that don’t go to the heart of the death penalty, in a set of cases that involve unusually brutal crimes and come from a state supreme court that at least some Justices regard as overly solicitous to inmates. Many future cases are sure not to be so harmonious."^[18]

Majority opinion: Justice Antonin Scalia delivered the opinion of the court, in which Chief Justice John G. Roberts and Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Steven Breyer, Samuel Alito, and Elena Kagan joined.

Dissenting justice: Justice Sonia Sotomayor authored a dissenting opinion.

Background: In November 1963, Henry Montgomery, who was 17 years old at the time, murdered sheriff deputy Charles Hurt in East Baton Rouge, Louisiana. Montgomery was convicted and sentenced to death. The Louisiana Supreme Court later reversed his sentence, and Montgomery was then retried and sentenced to life in prison without parole. The brief for Montgomery argued that his mandatory life sentence should be vacated because of the court's ruling in Miller v. Alabama. On June 25, 2015, Justice Elena Kagan delivered the opinion of the court in Miller v. Alabama. She wrote, "We therefore hold that mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on 'cruel and unusual punishments.'"^[19][20][21]

Oral argument: The court heard oral argument in Montgomery v. Louisiana on October 13, 2015.

• Transcript of oral argument: United States Supreme Court, Montgomery v. Louisiana

• Audio of oral argument: United States Supreme Court, Montgomery v. Louisiana

Decision: In a 6-3 decision, the court reversed the decision of the Louisiana Supreme Court and ruled in favor of Montgomery. The court explained that individuals like Montgomery, who were sentenced to life in prison as juveniles, must be allowed to seek parole. Justice Anthony Kennedy, who authored the opinion of the court, wrote, "In light of what this Court has said in Roper, Graham, and Miller about how children are constitutionally different from adults in their level of culpability, however, prisoners like Montgomery must be given the opportunity to show their crime did not reflect irreparable corruption; and, if it did not, their hope for some years of life outside prison walls must be restored."^[23]

The justices noted that a court could still sentence a juvenile to life in prison for the worst crimes. Kennedy explained, "The Court recognized that a sentencer might encounter the rare juvenile offender who exhibits such irretrievable depravity that rehabilitation is impossible and life without parole is justified."^[23]

In his dissent, Justice Antonin Scalia wrote, "This whole exercise, this whole distortion of Miller, is just a devious way of eliminating life without parole for juvenile offenders. The Court might have done that expressly (as we know, the Court can decree anything), but that would have been something of an embarrassment."^[23]

According to The Washington Post, juvenile advocates estimate that the ruling will allow 1,200 to 1,500 individuals who were given life sentences to seek parole or resentencing."^[24]

Majority opinion: Justice Anthony Kennedy delivered the opinion of the court, in which Chief Justice John G. Roberts and Justices Ruth Bader Ginsburg, Steven Breyer, Elena Kagan, and Sonia Sotomayor joined.

Dissenting justices: Justice Antonin Scalia authored the dissenting opinion, in which Justices Clarence Thomas and Samuel Alito joined. Thomas also filed a solo dissenting opinion.

Background: Timothy Lee Hurst was found guilty of murdering his co-worker Cynthia Harrison by stabbing her more than 60 times while he was robbing Popeye’s Fried Chicken—the fast-food restaurant where they worked—in Pensacola, Florida. He was sentenced to death by a Florida judge for the crime.^[25]

In Florida, a jury serves in an advisory role in death penalty cases, and a judge makes the final decision about whether an individual is sentenced to death. Citing the court's decision in Ring v. Arizona, the brief for Hurst argued that this method of sentencing violates the Sixth Amendment, as well as the Eighth Amendment.^[26]

In Ring v. Arizona, the court held in a 7-2 opinion that Arizona's sentencing procedure, which allowed a judge instead of a jury to find aggravating factors in capital sentencing cases, violated the right to a trial by jury under the Sixth Amendment. Justice Ruth Bader Ginsburg wrote, "The right to trial by jury guaranteed by the Sixth Amendment would be senselessly diminished if it encompassed the factfinding necessary to increase a defendant's sentence by two years, but not the factfinding necessary to put him to death."^[27]

Hofstra University law professor Eric Freedman said that having a judge, rather than a jury, determine aggravating factors in death penalty sentencing, "has long been a conspicuous flaw in the Florida system, and the decision of the Supreme Court to take it certainly raises a strong suggestion that they would be willing to find it unconstitutional."^[28]

Oral argument: The court heard oral argument in Hurst v. Florida on October 13, 2015.

• Transcript of oral argument: United States Supreme Court, Hurst v. Florida

• Audio of oral argument: United States Supreme Court, Hurst v. Florida

Decision: In an 8-1 decision, the court held that "Florida’s capital sentencing scheme violates the Sixth Amendment in light of Ring."^[30]

Justice Sonia Sotomayor, who authored the opinion of the court, wrote, "The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death. A jury’s mere recommendation is not enough."^[30]

Although Justice Steven Breyer agreed with the majority that Florida's judges, not their juries, sentence capital defendants to death and that the state's sentencing scheme is unconstitutional, he did so for a different reason. He wrote, that as he explained in Ring v. Arizona, "I concur in the judgment here based on my view that 'the Eighth Amendment requires that a jury, not a judge, make the decision to sentence a defendant to death.'"^[30]

In his dissenting opinion, Justice Samuel Alito argued that the Sixth Amendment does not require a jury to sentence an individual to death. He criticized the majority's opinion, writing, "The Court now reverses course, striking down Florida’s capital sentencing system, overruling our decisions in Hildwin and Spaziano, and holding that the Sixth Amendment does require that the specific findings authorizing a sentence of death be made by a jury. I disagree."^[30]

According to New York Times Supreme Court correspondent Adam Liptak, "Florida has about 400 inmates on death row, the second most in the nation after California. It was not clear how many prisoners will be entitled to new sentencing hearings. A 2004 Supreme Court decision indicated that, at least in federal court, rulings like the one issued Tuesday would not apply retroactively to inmates whose convictions are final."^[31]

Majority opinion: Justice Sonia Sotomayor delivered the opinion of the court, in which Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, and Elena Kagan joined. Justice Steven Breyer filed an opinion concurring in the judgment.

Dissenting justice: Justice Samuel Alito authored a dissenting opinion.

Background: The court reviewed whether the Georgia Supreme Court failed to recognize racial discrimination in the jury selection for Timothy Tyrone Foster's death penalty case in Foster v. Chatman. In 1986, Foster, a black man who was 18 years old at the time, strangled Queen Madge White, an elderly white woman, to death after sexually molesting her. Foster was convicted of murder and robbery, and he was sentenced to death by an all-white jury.

Foster argued that the prosecution deliberately chose not to pick black jurors during his trial, a practice deemed unlawful under Batson v. Kentucky. In Batson, the Supreme Court ruled that a prosecutor could not use peremptory challenge to exclude jurors because of their race. Justice Lewis Powell wrote, "By requiring trial courts to be sensitive to the racially discriminatory use of peremptory challenges, our decision enforces the mandate of equal protection and furthers the ends of justice. In view of the heterogeneous population of our Nation, public respect for our criminal justice system and the rule of law will be strengthened if we ensure that no citizen is disqualified from jury service because of his race."^[32]

The brief for Foster presented information from the prosecution's notes that detailed how they selected jurors. According to the brief, "The notes reveal that the prosecution (1) marked the names of the black prospective jurors with a 'B' and highlighted them in green on four copies of the venire list; (2) circled the word 'BLACK' next to the 'Race' question on five juror questionnaires; (3) identified three black prospective jurors as 'B#1,' 'B#2,' and 'B#3'; (4) ranked the black prospective jurors against each other in case 'it comes down to having to pick one of the black jurors'; and (5) gave explanations for its strikes that were contradicted by its notes."^[33]

The brief for Chatman argued that the notes obtained by Foster were "the result of the State’s efforts to rebut contentions of discrimination. When presented with pre-trial challenges to the alleged disparity of black prospective jurors on the array and a pretrial request that the State be required to show that any strike of a black prospective juror was not racially motivated, the State had to identify the black prospective jurors and ensure they noted the advantages and disadvantages of placing them as potential jurors."^[34]

Oral argument: The court heard oral argument in Foster v. Chatman on November 2, 2015.

• Transcript of oral argument: United States Supreme Court, Foster v. Chatman

• Audio of oral argument: United States Supreme Court, Foster v. Chatman

Decision: In an 7-1 ruling delivered on May 23, 2016, the court reversed the order of the Georgia Supreme Court and remanded the case, holding that 1. "This Court has jurisdiction to review the judgment of the Georgia Supreme Court denying Foster a Certificate of Probable Cause on his Batson claim;" and 2. "The decision that Foster failed to show purposeful discrimination was clearly erroneous."^[36]

Chief Justice John G. Roberts, who authored the opinion of the court, wrote, "[T]he focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury. ... The State’s new argument today does not dissuade us from the conclusion that its prosecutors were motivated in substantial part by race when they struck Garrett and Hood from the jury 30 years ago. Two peremptory strikes on the basis of race are two more than the Constitution allows."^[36]

In his dissenting opinion, Justice Clarence Thomas argued that the court did not have jurisdiction to review the judgment of the Georgia Supreme Court and that the court was undercutting the power of the state courts with its ruling. Thomas wrote, "The notion that this 'newly discovered evidence' could warrant relitigation of a Batson claim is flabbergasting. In Batson cases, the 'decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed.' And because '[t]here will seldom be much evidence bearing on that issue,' 'the best evidence often will be the demeanor of the attorney who exercises the challenge.' Time and again, we have said that the credibility of the attorney is best judged by the trial court and can be overturned only if it is clearly erroneous. But the Court today invites state prisoners to go searching for new 'evidence' by demanding the files of the prosecutors who long ago convicted them. If those prisoners succeed, then apparently this Court’s doors are open to conduct the credibility determination anew. Alas, 'every end is instead a new beginning' for a majority of this Court. I cannot go along with that 'sort of sandbagging of state courts.' New evidence should not justify the relitigation of Batson claims."^[36]

The ruling did not vacate Foster's conviction for the murder of Queen Madge White, but it allowed Foster to argue for a new trial.

Majority opinion: Chief Justice John G. Roberts delivered the opinion of the court, in which Justices Anthony Kennedy, Ruth Bader Ginsburg, Steven Breyer, Elena Kagan, and Sonia Sotomayor joined. Justice Samuel Alito filed an opinion concurring in the judgment.

Dissenting justice: Justice Clarence Thomas authored a dissenting opinion.

See also: Evenwel v. Abbott

Background: Evenwel v. Abbott addressed the constitutionality of state legislative districts in Texas. In Reynolds v. Sims, voters from Alabama challenged the manner in which legislative districts were drawn by the Alabama State Legislature. At the time, voters in rural districts had greater representation than voters in urban districts because representation was not based on population but on rules stated in the 1901 constitution. Although the population grew in urban areas, the legislature refused to redraw the districts. The court held that "The Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside," and Alabama, as well as most other states, redrew their legislative districts. The court, however, did not decide whether legislative districts should have the same number of people, the same number of registered voters or some other metric to meet the "one person, one vote" requirement.^[37]

In Evenwel v. Abbott, Texas citizens and petitioners Sue Evenwel and Edward Pfenninger challenged the state Senate map drawn by the 2013 Texas State Legislature. They argued that the map, "while roughly equal in terms of total population, grossly malapportioned voters."^[38] They also argued that district populations should take into account only the number of registered or eligible voters residing within those districts. Total population counts are used for redistricting purposes in Texas. The court addressed "whether the 'one-person, one-vote' principle of the Fourteenth Amendment creates a judicially enforceable right ensuring that the districting process does not deny voters an equal vote."^[39]

Oral argument: The court heard oral argument in Evenwel v. Abbott on December 8, 2015.

• Transcript of oral argument: United States Supreme Court, Evenwel v. Abbott

• Audio of oral argument: United States Supreme Court, Evenwel v. Abbott

Decision: In an 8-0 decision delivered on April 4, 2016, the court held that “As constitutional history, precedent, and practice demonstrate, a State or locality may draw its legislative districts based on total population.”^[40]

Justice Ruth Bader Ginsburg wrote in the court’s majority opinion, “What constitutional history and our prior decisions strongly suggest, settled practice confirms. Adopting voter-eligible apportionment as constitutional command would upset a well-functioning approach to districting that all 50 states and countless local jurisdictions have followed for decades, even centuries. Appellants have shown no reason for the court to disturb this longstanding use of total population. ... As the Framers of the Constitution and the Fourteenth Amendment comprehended, representatives serve all residents, not just those eligible or registered to vote. ... By ensuring that each representative is subject to requests and suggestions from the same number of constituents, total population apportionment promotes equitable and effective representation.”^[40]

Nina Perales, vice president of the Mexican American Legal Defense and Educational Fund, praised the ruling, saying, “The court’s decision takes special care to note the representative concerns of people who cannot yet vote, whether they are children or non-citizens who haven’t yet naturalized or others."^[41]

Edward Blum, director of Project on Fair Representation, said, “We are disappointed that the justices were unwilling to re-establish the original principle of one person, one vote for the citizens of Texas and elsewhere."^[41]

Majority opinion: Justice Ruth Bader Ginsburg delivered the opinion of the court, in which Chief Justice John G. Roberts and Justices Anthony Kennedy, Steven Breyer, Sonia Sotomayor, and Elena Kagan joined. Justices Clarence Thomas and Samuel Alito filed concurring opinions.

Dissenting justices: There were no dissenting justices.

See also: Harris v. Arizona Independent Redistricting Commission and Arizona State Legislature v. Arizona Independent Redistricting Commission

Background: Harris v. Arizona Independent Redistricting Commission addressed the constitutionality of the legislative districts created by the Arizona Independent Redistricting Commission (AIRC). In 2012, the AIRC created legislative districts that overpopulated 16 Republican districts and underpopulated 11 Democratic districts. A group of Republican voters from Arizona claimed that their votes were diluted by the AIRC in order to give the Democratic Party an advantage, which they argued was a violation of the Equal Protection Clause of the Fourteenth Amendment. The AIRC "argued that the population deviations were the result of attempts to comply with the Voting Rights Act" and get approval from the U.S. Department of Justice, according to Oyez.org. The petitioners argued that this rationale for unequally populating legislative districts was wrong because neither the Voting Rights Act nor the Justice Department required or had the authority to allow the commission to violate the "one person, one vote" principle.^[42][43]

Oral argument: The court heard oral argument in Harris v. Arizona Independent Redistricting Commission on December 8, 2015.

• Transcript of oral argument: United States Supreme Court, Harris v. Arizona Independent Redistricting Commission

• Audio of oral argument: United States Supreme Court, Harris v. Arizona Independent Redistricting Commission

Decision: In an 8-0 decision delivered on April 20, 2016, the court held that “The District Court did not err in upholding Arizona’s redistricting plan.” The judgment of the United States District Court for the District of Arizona was affirmed.^[45]

In his majority opinion, Justice Stephen Breyer explained that the legislative districts drawn by the AIRC in 2012 did not violate the "one person, one vote" principle because the districts were created "to achieve compliance with the federal Voting Rights Act, not to secure political advantage for one party. Appellants failed to show to the contrary."^[45]

The redistricting map drawn by the AIRC created districts that vary in population by as much as 8.8 percent. Breyer explained that because the deviation was under 10 percent, those challenging the map had to "show that it is more probable than not that a deviation of less than 10% reflects the predominance of illegitimate reapportionment factors rather than the 'legitimate considerations' to which we have referred in Reynolds and later cases. Given the inherent difficulty of measuring and comparing factors that may legitimately account for small deviations from strict mathematical equality, we believe that attacks on deviations under 10% will succeed only rarely, in unusual cases. And we are not surprised that the appellants have failed to meet their burden here."^[45]

Election law scholar Rick Hasen wrote that the ruling was significant for three reasons. Hasen explained, "First, it mostly restores the 10 percent safe harbor, which gives those drawing districts greater flexibility in drawing district lines (and, though the Court doesn’t say it, more opportunity to play partisan games with under- and over-population). Only in unusual, egregious cases will this amount of deviation give rise to a successful constitutional lawsuit. Second, the Court almost holds that compliance with the Voting Rights Act’s section provides a good reason to deviate from perfect equality. Third, by writing a minimal opinion that decided only what was necessary, the Court was able to avoid a 4-4 split even though there are some great disagreements on larger issues among the Justices."^[46]

Majority opinion: Justice Stephen Breyer delivered the opinion of the court, in which Chief Justice John G. Roberts and Justices Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Samuel Alito, Sonia Sotomayor, and Elena Kagan joined.

Dissenting justices: There were no dissenting justices.

See also: Fisher v. University of Texas at Austin

Background: In Fisher v. University of Texas at Austin, the court considered the use of race in college admissions. In 2008, Abigail Fisher, a white woman, was denied admission to the University of Texas at Austin (UT-Austin). She then sued the university, arguing that because UT-Austin considered race when choosing applicants, her Fourteenth Amendment right to equal protection was violated. In 2013, the court heard her case, and Justice Anthony Kennedy explained in his opinion that a university must demonstrate that its consideration of race in admissions is narrowly tailored and necessary to obtain diversity. Kennedy wrote, "Strict scrutiny must not be strict in theory but feeble in fact. In order for judicial review to be meaningful, a university must make a showing that its plan is narrowly tailored to achieve the only interest that this Court has approved in this context: the benefits of a student body diversity that 'encompasses a . . . broa[d] array of qualifications and characteristics of which racial or ethnic origin is but a single though important element.' Bakke, 438 U. S., at 315 (opinion of Powell, J.)."^[47] In July 2014, after the United States Court of Appeals for the 5th Circuit upheld UT-Austin's admissions plan, Fisher petitioned the Supreme Court to review her case once again.

According to Lisa Soronen of the National Conference of State Legislatures, "Per Texas’s Top Ten Percent Plan, the top 10 percent of Texas high school graduates are automatically admitted to UT Austin, which fills about 80 percent of the class. Unless an applicant has an 'exceptionally high academic Index,' he or she will be evaluated through a holistic review where race is one of a number of factors."^[48] Fisher argued that the appeals court did not apply "strict scrutiny" when evaluating UT-Austin's admissions policy. The brief for Fisher stated, "UT ultimately chose to dilute the demographic interest presented in its Proposal to a vague and undefined concept: that it seeks only to reduce, not eliminate, 'the degree of disparity' between its minority enrollment and state demographics. App. 197a. Such an undefined goal cannot be subjected to strict scrutiny. There is simply no way for a court to know what specific 'demographic' interest UT was pursuing, why a race-neutral alternative could not achieve that interest, and when that 'demographic' goal would be satisfied. UT’s equivocation undermines any claim that an asserted interest in demographic parity is 'both constitutionally permissible and substantial.'"^[49]

Oral argument: The court heard oral argument in Fisher v. University of Texas at Austin on December 9, 2015.

• Transcript of oral argument: United States Supreme Court, Fisher v. University of Texas at Austin

• Audio of oral argument: United States Supreme Court, Fisher v. University of Texas at Austin

Decision: In a 4-3 decision delivered on June 23, 2016, the court held that "[t]he race-conscious admissions program in use at the time of petitioner’s application is lawful under the Equal Protection Clause." In his opinion for the majority, Justice Anthony Kennedy stipulated that "a college must continually reassess its need for race-conscious review. ... The Court’s affirmance of the University’s admissions policy today does not necessarily mean the University may rely on that same policy without refinement. It is the University’s ongoing obligation to engage in constant deliberation and continued reflection regarding its admissions policies."^[51] Justice Elena Kagan recused herself, so seven justices decided the case, which prevented a 4-4 split decision.

Majority opinion: Justice Anthony Kennedy delivered the opinion of the court, in which Ruth Bader Ginsburg, Steven Breyer, and Sonia Sotomayor joined.

Dissenting justices: Justice Samuel Alito filed a dissenting opinion, in which Chief Justice John G. Roberts and Justice Clarence Thomas joined. Thomas also filed a dissenting opinion.

See also: Friedrichs v. California Teachers Association

Background: Friedrichs v. California Teachers Association addressed the constitutionality of requiring public employees to pay agency shop fees to public-sector unions. Unions are required to represent all public employees, whether an employee is a member of the union or not. In Abood v. Detroit Education Association, the Supreme Court ruled that it was not a violation of an employee's First Amendment rights to be required to pay an agency shop fee. These fees compensate the union for any collective bargaining, contract administration or grievance adjustment purposes performed on behalf of the employees; the fees are equal to the cost of union dues. Unions are not allowed to charge employees for any work performed that is considered political in nature. A group of 10 California teachers and the Christian Educators Association International, "a nonprofit religious organization that is the only professional association specifically serving Christians working in public schools," petitioned the court to review their case against the California Teachers Association. The teachers argued that they should not have to pay agency fees because it is a violation of their First Amendment right. According to SCOTUSblog's Lyle Denniston, "The lawyers who developed that case contend that everything a public-employee union does is an attempt to influence public policy, so non-union members should not have to pay any fees to support the union, if they have a personal objection. Thus, the case seeks the overruling of the 1977 precedent, to establish a new ban on the 'agency shop' throughout the public sector."^[52]

The second question that the court considered was whether it violates the First Amendment rights of the teachers to have to opt out of paying the union for the political activities that they engage in annually, rather than opting in.^[53]

Oral argument: The court heard oral argument in Friedrichs v. California Teachers Association on January 11, 2016.

• Transcript of oral argument: United States Supreme Court, Friedrichs v. California Teachers Association

• Audio of oral argument: United States Supreme Court, Friedrichs v. California Teachers Association

Decision: On March 29, 2016, the justices delivered a 4-4 per curiam decision, and the ruling of the United States Court of Appeals for the 9th Circuit was upheld. The California law requiring teachers to pay union dues will remain in place, but it did not set a nationwide precedent. Because the court delivered a per curiam decision, it is unclear how the justices sided on the case.^[54]

Mary Kay Henry, president of the Service Employees International Union, said that she was pleased with the ruling, adding, “We know the wealthy extremists who pushed this case want to limit the ability for workers to have a voice, curb voting rights and restrict opportunities for women and immigrants."^[55]

Terence J. Pell, president of the Center for Individual Rights, the group that brought the suit, expressed his displeasure with the 4-4 split, saying, “With the death of Justice Scalia, this outcome was not unexpected. We believe this case is too significant to let a split decision stand. Either compulsory dues are an acceptable exception to the First Amendment or they are not. A full court needs to decide this question, and we expect this case will be reheard when a new justice is confirmed.”^[55]

On April 8, 2016, the teachers challenging the agency shop fees petitioned the court to rehear the case after a ninth justice is confirmed. The petition states, "The Questions Presented in this case are too important to leave unsettled with an affirmance by an equally divided Court, and they are guaranteed to recur in the absence of a definitive ruling from this Court. Petitioners thus respectfully request that the Court rehear this case after it obtains a full complement of Justices capable of reaching resolution by a five-Justice majority."^[56]

See also: Whole Woman’s Health v. Hellerstedt

Background: In Whole Woman’s Health v. Hellerstedt the court addressed what constitutes an "undue burden" on a woman's right to have an abortion. The petitioners in Whole Woman’s Health v. Hellerstedt argued that two provisions of Texas House Bill 2 constituted "undue interference from the State" in a woman's right to obtain an abortion.^[57][58][59] The first provision required doctors who perform abortions to have hospital-admitting privileges at a facility within 30 miles of where an abortion is performed, and the second required abortion facilities to meet the same requirements as outpatient surgery centers.^[60]

In their writ of certiorari, the petitioners—a group of women's healthcare facilities and abortion doctors—argued that some of the provisions of HB 2 "would delay or prevent thousands of women from obtaining abortions and lead some to resort to unsafe or illegal methods of ending an unwanted pregnancy. ...Further, every woman in Texas would have to live under a legal regime that fails to respect her equal citizenship status and would force her to grapple with unnecessary and substantial obstacles as a condition of exercising her protected liberty."^[61]

Before HB 2 was enacted in 2013, 40 facilities in Texas provided abortions, and the number dropped to 18 when the writ of certiorari was submitted. The petitioners argued that only 10 abortion facilities would remain open if all of the provisions of HB 2 were ruled constitutional.^[61]

The respondent—Texas Department of State Health Services Commissioner Dr. John Hellerstedt, who represented the state of Texas—argued that the provisions of HB 2 were not enacted to make it more difficult for a woman to have an abortion but "to raise standards of care and ensure the health and safety of all abortion patients." The brief stated that the following measures were included in the bill to ensure that a women who wanted an abortion could safely access the procedure: "Women who must travel more than 100 miles to an abortion facility are also exempted from the preexisting 24 hour waiting period after informed consent, as only a 2-hour waiting period would apply. ...Further, Texas law prohibits hospitals and health care facilities from discriminating against physicians who perform abortions." In addition, "HB2 left in place existing laws allowing abortions to be performed at general ASCs and hospitals, both of which are licensed by the State."^[60]

The petitioners asked the court to strike down some provisions of HB 2 by reaffirming and clarifying the rulings in Planned Parenthood of Southeastern Pennsylvania v. Casey and Roe v. Wade. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the court reaffirmed a woman's right to have an abortion "without undue interference from the State," a right recognized in Roe v. Wade.^[57][58][62]

The petitioners also asked "the Court to order lower courts to judge whether new restrictions on abortions actually would work to protect women’s health — a test that the U.S. Court of Appeals for the Fifth Circuit refused to undertake in the Texas case now before the Court. The Fifth Circuit ruled that a court must accept the views of the legislature that a new law would serve that interest," according to SCOTUSblog's Lyle Denniston.^[63]

Oral argument: The court heard oral argument in Whole Woman’s Health v. Hellerstedt on March 2, 2016.

• Transcript of oral argument: United States Supreme Court, Whole Woman’s Health v. Hellerstedt

• Audio of oral argument: United States Supreme Court, Whole Woman’s Health v. Hellerstedt

Decision: In a 5-3 decision delivered on June 27, 2016, the court reversed and remanded the ruling of the United States Court of Appeals for the 5th Circuit, striking down Texas' HB 2. Justice Stephen Breyer, who delivered the opinion of the court, wrote, "We agree with the District Court that the surgical center requirement, like the admitting-privileges requirement, provides few, if any, health benefits for women, poses a substantial obstacle to women seeking abortions, and constitutes an 'undue burden' on their constitutional right to do so."^[65]

Majority opinion: Justice Stephen Breyer delivered the opinion of the court, in which Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined. Ginsburg filed a concurring opinion.

Dissenting justices: Samuel Alito filed a dissenting opinion, in which Chief Justice John G. Roberts and Justice Clarence Thomas joined. Thomas filed a dissenting opinion.

See also: Zubik v. Burwell and Burwell v. Hobby Lobby Stores

Background: The following cases objecting to the Patient Protection and Affordable Care Act’s (ACA) birth-control mandate were consolidated by the court:^[66]

• Zubik v. Burwell^[67]
• Priests for Life v. Burwell^[68]
• Roman Catholic Archbishop of Washington v. Burwell^[69]
• East Texas Baptist University v. Burwell^[70]
• Little Sisters of the Poor Home for the Aged v. Burwell^[71]
• Southern Nazarene University v. Burwell^[72]
• Geneva College v. Burwell^[73]

At issue in Zubik v. Burwell was whether the exemption process created for religious nonprofits, including charities, schools, colleges, and hospitals, to opt out of the requirement that employers provide their employees with access to free birth-control under the Patient Protection and Affordable Care Act violated the Religious Freedom Restoration Act of 1993. Churches, temples, mosques, and other places of worship are automatically exempt from the birth-control mandate, but religious nonprofit organizations must "notify the government that they are opting out of providing birth-control insurance coverage on religious grounds" to receive an exemption. The government then makes "arrangements with insurance companies to then offer the coverage independently, at no cost, to employees and students who do not subscribe to the same beliefs on birth control," according to NPR.^[74]

The petitioners, the religious nonprofits, argued that submitting the opt out document violated their right to religious freedom and required them to maintain an "objectionable contractual relationship." The petitioner's writ of certiorari argued that "It is undisputed that Petitioners sincerely believe that taking these actions would make them complicit in sin. And it is equally undisputed that if Petitioners refuse to take these actions, they will incur ruinous penalties."^[75]

The respondents, the federal government, argued that the choice to opt out of providing birth-control to employees respects the religious freedom of employers and a woman's access to healthcare. They argued, "In our pluralistic society, that sort of substitution of obligations is an appropriate means of accommodating religious objectors while also protecting important interests of third parties, such as women’s interest in full and equal health coverage."^[76]

Oral argument: The court heard oral argument in Zubik v. Burwell on March 23, 2016.

• Transcript of oral argument: Supreme Court of the United States, Zubik v. Burwell

• Audio of oral argument: Supreme Court of the United States, Zubik v. Burwell

Additional order: On March 29, the Supreme Court issued an order directing the petitioneers and respondents to file additional briefs by April 20, 2016. In the briefs, the parties were to discuss additional ways in which employees of the religious organizations could obtain contraceptive coverage without the involvement of the organizations themselves.^[77]

• Supplemental brief for petitioners

• Supplemental reply brief for petitioners

• Supplemental brief for respondents

• Supplemental reply brief for respondents

Decision: In a per curiam decision issued on May 15, 2016, the court vacated the judgments of the lower courts and remanded the case back down for further consideration.^[78] From the supplemental briefs submitted by both parties, the justices determined that a solution could be reached that would provide employees with contraception coverage without action on the part of their religious employers.^[78]

The court declined to address any of the questions at issue in the case. The justices wrote, "The Court expresses no view on the merits of the cases. In particular, the Court does not decide whether petitioners’ religious exercise has been substantially burdened, whether the Government has a compelling interest, or whether the current regulations are the least restrictive means of serving that interest.”^[78] The opinion did not set a precedent and the issue may reach the Supreme Court for a second time in the future.^[79]

The ruling of the court was praised by those on both sides of the case. David Cortman, “a lawyer with Alliance Defending Freedom, which represents some of the groups challenging the accommodation,” said, “The Supreme Court was right to protect the Christian colleges and other groups from having to pay fines or fill out forms authorizing the objectionable coverage. The government has many other ways to ensure women are able to obtain these drugs without forcing people of faith to participate in acts that violate their deepest convictions.”^[80]

White House Press Secretary Josh Earnest said the ruling “will allow millions of women across the country to continue to get the health coverage that they need.” Earnest added that the Obama administration “was ‘gratified’ because the decision proved it was possible to prioritize health care access while maintaining religious liberty for everyone.”^[80]

See also: President Obama's Immigration Accountability Executive Actions

Background: On November 20, 2014, President Barack Obama announced his Immigration Accountability Executive Actions that offered individuals residing in the country illegally the opportunity to avoid deportation, if they met certain criteria. He said, "Now here’s the thing: we expect people who live in this country to play by the rules. We expect that those who cut the line will not be unfairly rewarded. So we’re going to offer the following deal: If you’ve been in America for more than five years; if you have children who are American citizens or legal residents; if you register, pass a criminal background check, and you’re willing to pay your fair share of taxes – you’ll be able to apply to stay in this country temporarily, without fear of deportation. You can come out of the shadows and get right with the law."^[81]

His actions proposed improving legal immigration processes, strengthening border security, deporting felons, expanding the Deferred Action for Childhood Arrivals (DACA) program, and creating the Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA) program. DACA was not expanded and DAPA was not implemented because Texas and 25 other states challenged the legality of the executive actions. On February 16, 2015, U.S. District Judge Andrew Hanen issued a preliminary injunction to block DAPA and the expansion of DACA.^[82] After multiple appeals by the Obama administration, the United States Court of Appeals for the 5th Circuit in New Orleans said on November 9, 2015, that President Obama could not implement his immigration executive actions in a 2-1 ruling.^[83] The administration then asked the U.S. Supreme Court to hear the case, and the court granted cert on January 19, 2016.^[84]

Four questions were addressed during oral argument in U.S. v. Texas. The court first had to decide if the states had standing to sue the Obama administration. After deciding that the states had standing, the justices then considered whether the actions were lawful and whether the Obama administration violated the Administrative Procedures Act by adopting new immigration policies without allowing the public to review and comment on them.

In addition, the justices directed each party to argue whether the actions violated the Take Care Clause of the U.S. Constitution, which requires that the president "take Care that the Laws be faithfully executed." Stephen Yale-Loehr, a law professor at Cornell, said that "[t]he court’s decision could redefine the balance of power between Congress and the president."^[85]

Calling the United States Court of Appeals for the 5th Circuit's decision to block the implementation of DAPA "unprecedented" and "in violation of established limits on the judicial power," the petitioners—the Obama administration—argued that "The court erroneously permitted any State to create Article III standing to challenge a federal policy, based on the State’s voluntary decision to provide a state subsidy to the aliens that policy would benefit." In addition, they argued that the court erred by stating that the immigration executive actions were "subject to the APA’s [Administrative Procedures Act] notice-and-comment requirements."^[86]

The respondents—Texas and 25 other states—argued that the Obama administration ignored Congress' process for allowing immigrants to enter the country legally and noted that the proposed immigration programs were "a crucial change in the Nation’s immigration law and policy." In addition, they argued that the administration did not use "conventional notice-and-comment procedures" before asserting the power to go forward with DAPA. They wrote, "The President himself described DAPA as 'an action to change the law.' ... There is no statutory or constitutional authority for such a change; and at a minimum, it had to be promulgated with notice-and-comment procedure." They also argued that the implementation of DAPA would "directly impose substantial costs associated with issuing additional driver’s licenses" and would "require additional healthcare, law enforcement, and education expenditures."^[87]

Oral argument: The court heard oral argument in U.S. v. Texas on April 18, 2016.

• Transcript of oral argument: Supreme Court of the United States, United States v. Texas

• Audio of oral argument: Supreme Court of the United States, United States v. Texas

Decision: On June 23, 2016, the justices delivered a 4-4 per curiam decision, which upheld the lower court's ruling blocking the executive actions. The full opinion read: "The judgment is affirmed by an equally divided Court." Because the court delivered a per curiam decision, it is unclear how the justices sided on the case. The ruling did not change the existing DACA policy, which was announced in June 2012; however, it did uphold a preliminary injunction preventing the expansion of DACA and the implementation of DAPA.^[89][90]

The case will return to the lower court, but it is unlikely that the new and expanded policies will be allowed to go forward. SCOTUSblog's Lyle Denniston explained, "Technically, the policy might have another test before the Supreme Court either before or after the Texas judge [Andrew Hanen] has finished, but the end of the Obama term in the White House in January and the uncertainty about who will succeed him in the presidency may leave the plan abandoned."^[91][92]