It was back to the Supreme Court for me this week. An unusually sleepy end of the October 2016 term, except for gossip of a potential retirement (Kennedy, not Ginsburg, this time), came to a dramatic end when the Chief Justice announced in the final minutes of the Court’s last day that they would hear the travel ban/pause cases next term.
There were two clear victories on Monday with this announcement that the Justices would hear the government’s cases defending President Trump’s two executive orders. One was for an imam named Dr. Ismail Elshikh, whose mother-in-law in Syria will now be able to travel to the United States. The other went to John Doe, an anonymous lawful resident who has been trying to get his wife home from Iran. Their victories came in the form of exceptions to the orders which allow their families to be reunited.
The rest of the Court’s 13-page order largely holds onto the spirit of the executive orders issued by the President, with some caveats.
Using the text of the decision, below is what the Supreme Court said in the grant, followed by the potential effects of those decisions, what all this means, and what happens next.
Cara L. Gallagher, weekend contributor, and James Coll, adjunct professor of Constitutional History at Hofstra University
The vacancy on the Supreme Court that materialized with the death of Associate Justice Antonin Scalia this past February, and endures into the current term that began last week, has Americans perplexed about the kind of Supreme Court we want to have. It also has us revisiting the kind of Supreme Court the U.S. Constitution requires us to have. These distinctly different contemplations, although both deserving of our attention, are all too often mistakenly confused as being the same concern.
Given the choice, I favor a nine-member Court. The downside of an even-numbered bench has been evident to most Americans as recently as the last term when important decisions about executive powers, immigration, and unions were left with 4-4 deadlocks for us to see the obvious benefit a ninth justice on the bench would have provided.
African-American voters in North Carolina were “targeted with almost surgical precision” by the North Carolina legislature, according to a three-judge panel for the Fourth Circuit Court of Appeals. Judge Diana Gribbon Motz wrote the opinion dismantling, point by point, all the provisions rushed through the Legislature in the days immediately following the landmark voting rights decision in Shelby County v. Holder on June 25, 2013.
In the Shelby decision, the Supreme Court released states that, after passage of the 1965 Voting Rights Act, were required to clear all changes to voting policies and practices with either a federal court or the Department of Justice. Former slave states, where Jim Crow laws abound that disenfranchised minority voters for decades, were released from the pre-clearance requirement and allowed to make whatever changes they wanted to voting policies. States like North Carolina and Texas moved immediately – within days – to initiate laws increasing restrictions on voter access. Continue reading “NC voter laws ruled intentionally discriminatory by 4th Circuit Court”→
In the first line of his 51-page dissent in Fisher v. The University of Texas at Austin, Justice Alito wrote that “something strange is going on at the Supreme Court.” Indeed, it was. I think it’s safe to say no one thought race-based admissions processes would survive after the first Fisher case in 2013. The four conservative Justices (Scalia included) have long been chomping at the bit to quash it, believing instead that the way to end race-based discrimination is to “stop discriminating on the basis of their race.” Universities have no less continued to try different ways to diversify campuses but have ostensibly been told by the SCOTUS: You’re doing it wrong.
Backsliding. Justice Ginsburg warned of this in her famous Shelby County v. Holder dissent in 2013. Eliminating Section 4 of the 1965 Voting Rights Act, the pre-clearance requirement for states that had a history of suppressing minority votes, would result in a return to racial discrimination and disenfranchisement, Ginsburg said. Prior to Shelby, states with such records had to get approval from either the Department of Justice or the D.C. Circuit Court of Appeals before changing any voting laws under Section 5 of the VRA.
This Supreme Court term, there is something for everyone in the remaining decisions the Justices will deliver in the next few days. I would argue this term there are more “big” and mid-level cases that will affect the widest and most diverse audience of stakeholders in years: women, immigrants, college applicants, (alleged) drunk drivers, police, and skeptical voters. The issues challenged in these cases spotlight timeless debates over states’ rights, political corruption, and the limits of executive action. These topics cut across scores of different constituencies, and the decisions – assuming the Court avoids splitting 4-4 – will significantly impact Americans on both national and state levels.
If you know about the first three big cases it’s likely because those are the ones that got the most media attention. And while immigration, affirmative action, and abortion undoubtedly impact millions of people, so do the last three. Ask anyone if they think low voter turnout has something to do with distrust of elected officials, if they’re afraid of police encounters, or if they know someone who’s been pulled over for suspicion of or received a DUI? Likely they’ll answer “yes” to one, two, or all three. These cases aren’t glamorous. They’re not the ones protesters come out for. But they highlight pedestrian cases that most people have or will experience at some point in their lives, or, if nothing else, care deeply about when watching Law & Order.
Oral arguments for the last case of the Supreme Court’s term were this week. The case, McDonnell v. U.S., was about ethics and potential corruption between a donor and the former governor of Virginia. The timeliness of this case is not lost on this citizen of Illinois, where we should probably consider putting links to contribute to our candidates’ legal defense funds on our ballots. That’d be funny if their chances of going to jail for ethics violations or corruption weren’t actually greater than fifty percent. Four out of the last seven governors have been imprisoned. But at least our criminal governors make it easy on the courts! Dear Children’s Memorial Hospital, I won’t release your $8 million of state funding until you give me a $50,000 campaign contribution. Sincerely, Gov. Rod Blagojevich.