The Supreme Court is about to make 3 important rulings

Next week, the US Supreme Court is expected to rule on three major cases.

The first, Fisher v University of Texas, regards the question of affirmative action. Specifically, the extent to which the University of Texas-Austin may lawfully consider an applicant’s race as part of their admissions process. The plaintiff is Abigail Fisher, a student who claims that her application to UT was unlawfully rejected due to that institution’s affirmative action policy. In legal terms, Fisher submits that UT is in breach of the Equal Protection Clause of the 14^th Amendment for making a functionally prejudicial judgment on the color of her skin.

Fisher challenges the law in the context of two cases that were heard in 2003- Grutter v Bollinger and Gratz v Bollinger. In Grutter, the Court held that if racial considerations were judged as a ‘plus factor’ rather than as a ‘defining’ factor of a student’s application, and that assuming other factors (extracurricular activities etc.) were also granted substantial consideration, affirmative action policies could be legitimate. In contrast, with Gratz, the Court held that where racial background was empowered under an automatic point system; such consideration represented an excessively dominant and thus unlawful procedure. Ultimately, from Grutter and Gratz, the law established that affirmative action requires racial accounting to be ‘narrowly tailored’ to the ‘compelling state interest’ of advancing minority participation in higher education.
 

Why is Fischer important?

Well, if the Court decides that Fisher suffered unlawful discrimination, the consequential impact for US society could be considerable. Supporters of affirmative action claim that without a cognizant facility to address under-representation of minorities in higher education, American society will lack a broadly representative foundation. Without this foundation, they suggest, businesses and institutions cannot represent the communities that they serve. Conversely, Fisher’s supporters argue that affirmative action propagates the very concern that it aims to redress–racism. By asserting one race in preference to the other, they argue that affirmative action devalues the ethic of hard work as the primary mechanism of American social mobility.

What will the Court decide?

Recognizing that Grutter carried a close 5-4 margin and with the liberally aligned Elena Kagan sitting this one out, the Court seems likely to rule in Fisher’s favor. This being said, it’s important to note that although the Court’s conservative aligned Justices were passionate in their questioning, even if the Court does rule for Fisher, this doesn’t necessarily mean the Justices will overturn Grutter. We’ll just have to wait and see.

Next, let’s consider the other two cases where a decision beckons.

The first is Hollingsworth v Perry. Here, the Court must first decide if the 9^th Federal Circuit Appeals Court was correct in ruling that California’s state-constitutional ban on gay marriage (as codified by Proposition 8) breaches the equal protection and due process clauses of the 14^th Amendment. The Court must also decide whether the plantiffs (seeking to overturn the 9^th Circuit decision) have Constitutional Article 3 ‘standing’ to bring their appeal (if they've suffered ‘injury’ by the 9^th Circuit’s decision). As Lyle Denniston notes, the Court must also decide whether Proposition 8 is specifically unlawful in California, or whether bans on gay marriage are unlawful across the United States.

The second gay marriage case is that of United States v Windsor. Here, the case turns on whether the Defense of Marriage Act (DOMA) unlawfully restricts Windsor’s rights under the equal protection clause of the 5^th amendment. On the death of her spouse (a marriage that was lawfully recognized in New York) Windsor was forced to pay Federal inheritance taxes that would not have been due had she been in a heterosexual marriage. Though the Court will also decide on Article 3 considerations in a similar vein to Hollingsworth v Perry, there are two key questions at stake with Windsor. First, the determination as to whether homosexual marriages are unlawfully prejudiced by DOMA’s sex based denial of an array of Federal benefits. Second, whether the Federal Government can challenge Windsor, even if (as is the case here) the Justice Department had previously sided with her.

It’s important to note that through Windsor, we’re witnessing another example of the discord between the Obama Administration and House Republicans (who provide the central element of the Government’s DOMA defense). Regardless of ruling, uproar will follow.

Taken together, these three cases offer major legal clarification on issues of profound public interest. Whatever the Supreme Court decides next week, their rulings are likely to induce noticeable social effects. Albeit adorned by cloaks of formality, the raw power of the American Judiciary remains undeniable. If interested, check out my opinion on free speech.

Facebook 'Like' = Free Speech?

The decision by a US District Judge to reject constitutional protection for a man who clicked 'like' on a political candidate's Facebook page, was in my view a serious error. The US Appeals Court should overturn this ruling. The individual was affirming his support for a political ideal and was engaged in a public domain speaking on an issue of public concern. To suggest that a Facebook 'like' falls below the standard for constitutional protection, is similar to suggesting that the government should be able to restrict a speaker from setting up a yard sign on his front lawn. In both cases the speaker is attempting to present his private political agenda to a public audience. From my perspective, a Facebook 'like' is an affirmation of agreement and thus a clear statement of opinion.

Citizens United continuing news

Last night Justice Scalia gave an interview to CNN's Piers Morgan. During the interview he noted that while Citizens United was in his view absolutely properly decided (I agree), there is a clear case for strong public disclosure regulations in terms of letting the public know who is funding speech. This is a noteworthy and important point that most of the media seems to have missed. Groups like that affiliated with Karl Rove have come under fire for using effective loopholes in the law to protect their donors from publicity. I agree with Justice Scalia - there is nothing inherently unconstitutional about preventing advocacy groups from hiding their  donor lists. From a political point of view, I believe it is essential that the public are able to understand the agenda that fuels a particular radio, tv or web advert campaign. If you spend money to enter the public domain, you should not be protected from the scrutiny that the effective political system requires. On a side note, Matt Bai's excellent piece in the NYTimes Magazine illustrates how the Democratic scare tactics over the Citizens United case have been shown to be totally overblown and devoid of factual truth. The President should be ashamed of himself for games like this. And this. And this. And this. And this.

On the first Obama link - Notice Schumer leaning over the Supreme Court justices clapping like an ass hole.

Obamacare

I am currently working at Wimbledon so won't be posting for the next few days. However, I wanted to draw a note on the Obamacare decision. I agree with the court's judgement. As John Roberts noted, "It is not our job to protect the people from the consequences of their political choices." I believe that Obamacare is a bad law that will fail to address the key problems facing Americans and our health care. Resolving this failure is a matter for the Congress. 

I have always been a big fan of John Roberts. I believe that he is an exceptionally strong jurist. Fair minded, logical and independent of political persuasion. He was a great appointment by President Bush.

Obamacare Constitutional?

The Supreme Court is considering the constitutionality of Obama's new health care law. In my opinion, the President's health care law is a bad law. I do not believe that it will reduce America's absurd annual inflation in health care costs and it imposes new financial concerns onto already struggling businesses. HOWEVER, I do believe that the law is constitutional. Health Care in America accounts for around 18% of the US economy. With increased personal mobility in the 21st century, individuals increasingly seek health care in different states and rely upon health care services/companies that are based in different states. Case law suggests that the Constitution grants Congress the power to regulate interstate commerce if there is a rational basis for that regulation. If an individual does not buy health insurance, he risks imposing costs on society at a later date (in the case of requiring expensive medical services in the future and being unable to afford those services). Nearly everyone will require health care services at some point in their lives.

Interpretation of the law requires analysis of the Constitution/case law applied to facts. Personal political ideology should be irrelevant. As such, in my opinion, requiring Americans to buy insurance falls under the orbit of Congressional authority to regulate the health care industry. 

At a political level, I believe that Obamacare should be repealed and replaced with reforms to cut health care cost inflation while improving coverage.