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©2013 Goodwin Procter LLP The Supreme Court, 2012-2013: The Term In Review William M. Jay Partner, Goodwin Procter LLP, Washington, D.C.

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Presentation on theme: "©2013 Goodwin Procter LLP The Supreme Court, 2012-2013: The Term In Review William M. Jay Partner, Goodwin Procter LLP, Washington, D.C."— Presentation transcript:

1 ©2013 Goodwin Procter LLP The Supreme Court, : The Term In Review William M. Jay Partner, Goodwin Procter LLP, Washington, D.C. August 1, 2013

2 Goodwin Procter LLP 2 Spikes at the extremes How many Justices agree?  Almost half of all cases (38) were unanimous (9-0 on the result)  Relatively few cases had a lopsided majority (1 or 2 dissenting votes)  About 30% of cases (23) were decided by a single vote  This Term some significant cases were unanimous or nearly unanimous › Fisher v. University of Texas (7-1)AID v. Alliance for Open Society (6-2)  Unanimous result may paper over significant disagreement on reasoning › Kiobel v. Royal Dutch Petroleum Co.

3 Goodwin Procter LLP 3 Justice Kennedy still at the center Who agrees?  In 23 cases decided by one vote:  10 cases decided by conservative Justices + Justice Kennedy  6 cases decided by liberal Justices + Justice Kennedy  3 cases “swap” Justice Breyer for Justice Scalia  4 other one-off alignments › Most unusual: Roberts, Scalia, Ginsburg, Breyer, Kagan (Hollingsworth v. Perry – California Prop. 8 case) Who wrote the most 5-4 decisions?  Justice Kennedy was in the majority for 20 of the 23 one-vote-margin cases  But Justice Alito wrote the most 5-4 decisions (6); Justice Kennedy had 4 › Each Justice wrote 8 majority opinions, except Justice Ginsburg, who wrote 9

4 Goodwin Procter LLP 4 Where to begin?  This Term’s most obscure questions: › “Whether suit may be brought against the United States for battery committed [upon] a civilian by military medical personnel acting within the scope of employment.” › “What degree of misconduct by a trustee constitutes ‘defalcation’ under §523(a)(4) of the Bankruptcy Code that disqualifies the errant trustee's resulting debt from a bankruptcy discharge -- and does it include actions that result in no loss of trust property?”

5 Goodwin Procter LLP 5 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Section 3 of DOMA: “In determining the meaning of any Act of Congress,... the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”

6 Goodwin Procter LLP 6 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Section 3 of DOMA: “In determining the meaning of any Act of Congress,... the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”  Congress has exempted bequests to a “surviving spouse” from federal estate tax.  Edith Windsor married Thea Spyer in Canada in 2007; New York considers their marriage to be a valid one.  Spyer died and left her estate to Windsor.  Windsor sued in Manhattan for a refund of $363,000 in estate taxes.

7 Goodwin Procter LLP 7 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Why Manhattan? › Equal protection precedent everywhere else  The President’s decision › “These new lawsuits... will require the Department to take an affirmative position on the level of scrutiny that should be applied to DOMA Section 3 in a circuit without binding precedent on the issue. As described more fully below, the President and I have concluded that classifications based on sexual orientation warrant heightened scrutiny and that, as applied to same-sex couples legally married under state law, Section 3 of DOMA is unconstitutional.” ▪ What if heightened scrutiny doesn’t apply? › “Notwithstanding this determination, the President has informed me that Section 3 will continue to be enforced by the Executive Branch.”

8 Goodwin Procter LLP 8 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  So why hasn’t Windsor won her case at that point?

9 Goodwin Procter LLP 9 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  So why hasn’t Windsor won her case at that point?  The government didn’t pay her the money, it just agreed that she was entitled to it  Enter BLAG.  Motions to dismiss.  The district court invalidates Section 3 and orders the United States to refund the estate tax.

10 Goodwin Procter LLP 10 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  So why hasn’t Windsor won her case at that point?

11 Goodwin Procter LLP 11 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  So why hasn’t Windsor won her case at that point?  Both the Justice Department and BLAG file notices of appeal.  The Second Circuit, too, holds that Section 3 is unconstitutional, and it affirms the district court’s judgment.

12 Goodwin Procter LLP 12 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  So why hasn’t Windsor won her case at that point?

13 Goodwin Procter LLP 13 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  So why hasn’t Windsor won her case at that point?  The United States (represented by the Justice Department), Windsor, and BLAG all file petitions for certiorari.  The Supreme Court grants the United States’ petition.  The Court appoints Professor Vicki Jackson to argue two jurisdictional questions: › That the Executive Branch's agreement with the court below that DOMA is unconstitutional deprives the Supreme Court of jurisdiction; › That BLAG lacks standing.  Separate briefing and argument on jurisdiction and merits.

14 Goodwin Procter LLP 14 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  The Supreme Court decides, 6-3, that it has jurisdiction. › Opinion by Justice Kennedy ▪ Joined by Justices Ginsburg, Breyer, Sotomayor, Kagan › Justice Alito also would sustain jurisdiction, on different grounds › Justice Scalia dissents on the jurisdictional issue ▪ Joined by the Chief Justice and Justice Breyer

15 Goodwin Procter LLP 15 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  This is an order to pay money. Whether the government welcomes it or not, it is “aggrieved” by it in the necessary legal sense. › “It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.”

16 Goodwin Procter LLP 16 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  This is an order to pay money. Whether the government welcomes it or not, it is “aggrieved” by it in the necessary legal sense. › “It would be a different case if the Executive had taken the further step of paying Windsor the refund to which she was entitled under the District Court’s ruling.”  There are prudential reasons not to let prevailing parties appeal, but the Court concludes that they do not apply in these “unusual and urgent circumstances” › BLAG takes care of adversary presentation › “Rights and privileges of hundreds of thousands of persons would be adversely affected” while waiting for a case › If the Executive’s decision to roll over could end the case, “the Supreme Court’s primary role in determining the constitutionality of a law... would become only secondary to the President’s.”

17 Goodwin Procter LLP 17 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Don’t try this too often, Mr. President › Usually the President should turn to Congress to get rid of laws he dislikes › It’s fine for the President to stop enforcing laws once the Supreme Court tells him to, but he shouldn’t made a regular practice of “fail[ing] to defend the constitutionality of an Act of Congress based on a constitutional theory not yet established in judicial decisions” › Don’t refer “difficult constitutional issues” to the Supreme Court “as a routine exercise. But this case is not routine.”

18 Goodwin Procter LLP 18 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Justice Alito follows different reasoning › He disagrees that the United States could bring the case to the Supreme Court › But a House of Congress is injured when a federal court strikes down a federal statute › BLAG speaks for the House of Representatives › Therefore BLAG has standing to seek review by the Supreme Court of the Second Circuit’s decision

19 Goodwin Procter LLP 19 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Justice Scalia dissents › “[T]he plaintiff and the Government agree entirely on what should happen in this lawsuit. They agree that the court below got it right; and they agreed in the court below that the court below that one got it right as well. What, then, are we doing here?” › Declaring the constitutionality of federal laws is not a free-standing job of the Supreme Court. “We perform that role incidentally... when that is necessary to resolve the dispute before us.” › Windsor’s injury was cured by the judgment in her favor. › The appellate proceedings “have been a contrivance, having no object in mind except to elevate a District Court judgment that has no precedential effect... to one that has... precedential effect throughout the United States.”

20 Goodwin Procter LLP 20 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Justice Scalia dissents › What about the need for judicial review? ▪ “If a President wants to insulate his judgment of unconstitutionality from our review, he can,” e.g., by declining to appeal. ▪ When the defendant agrees that a law is unconstitutional, the litigation should end in an order or a consent decree enjoining enforcement. ▪ Congress has other tools to make the President enforce the laws as written, up to and including impeachment. But intervening in litigation is not one of them. Any more than the President can sue Congress for passing stupid laws that infringe on his power.

21 Goodwin Procter LLP 21 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  OK, finally, we’ll get to the merits!

22 Goodwin Procter LLP 22 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Throughout our history, the federal government has deferred to state-law policy decisions with respect to domestic relations.  And the incidents and benefits of marriage have always been uniform for all married couples within each State, even if they might vary from State to State.

23 Goodwin Procter LLP 23 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Throughout our history, the federal government has deferred to state-law policy decisions with respect to domestic relations.  And the incidents and benefits of marriage have always been uniform for all married couples within each State, even if they might vary from State to State.  BUT: “Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.”

24 Goodwin Procter LLP 24 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Throughout our history, the federal government has deferred to state-law policy decisions with respect to domestic relations.  And the incidents and benefits of marriage have always been uniform for all married couples within each State, even if they might vary from State to State.  BUT: “Despite these considerations, it is unnecessary to decide whether this federal intrusion on state power is a violation of the Constitution because it disrupts the federal balance.” › (A proposition no litigant advanced.)

25 Goodwin Procter LLP 25 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  By recognizing same-sex marriages, New York sought to give “protection and dignity” to the bond between those couples  “DOMA seeks to injure the very class New York seeks to protect.”  “A bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.”  Just such a desire was the “essence” of DOMA. › Evidence: its “unusual deviation” from the usual federal/state role › House Report expressing “moral disapproval of homosexuality”

26 Goodwin Procter LLP 26 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  By recognizing same-sex marriages, New York sought to give “protection and dignity” to the bond between those couples  “DOMA seeks to injure the very class New York seeks to protect.”  “A bare congressional desire to harm a politically unpopular group cannot justify disparate treatment of that group.”  Just such a desire was the “essence” of DOMA. › Evidence: its “unusual deviation” from the usual federal/state role › House Report expressing “moral disapproval of homosexuality”  Court doesn’t credit or refute BLAG’s other asserted grounds › Caution › Federal fisc › Uniformity › Childrearing

27 Goodwin Procter LLP 27 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  What’s the legal rule?

28 Goodwin Procter LLP 28 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  What’s the legal rule?  Right to marry? › Court refers to “the liberty of the person” that is “protected by the Due Process Clause of the Fifth Amendment” › That liberty “contains within it” an equal protection component – is that component the relevant one?  Rational basis review? › “No legitimate purpose”  Heightened scrutiny? › “Politically unpopular group” / Department of Agriculture v. Moreno

29 Goodwin Procter LLP 29 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  What’s the legal rule?  Right to marry? › Court refers to “the liberty of the person” that is “protected by the Due Process Clause of the Fifth Amendment” › That liberty “contains within it” an equal protection component – is that component the relevant one?  Rational basis review? › “No legitimate purpose”  Heightened scrutiny? › “Politically unpopular group” / Department of Agriculture v. Moreno  “This opinion and its holding” confined to marriages “made lawful by the State” › Chief Justice: “It is undeniable that its judgment is based on federalism”

30 Goodwin Procter LLP 30 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Justice Scalia dissents › The Court’s opinion does not even mention the standard of scrutiny, a central question in the litigation › DOMA is properly reviewed for rationality › DOMA was not motivated by irrational animus ▪ Congress and the President should get the benefit of the doubt ▪ Avoids difficult choice-of-law issues, unpredictable consequences ▪ To “defen[d]” traditional marriage is not to condemn whose who would prefer other arrangements. › The Court’s opinion “indicate[s] beyond mistaking” that it will strike down state laws precluding same-sex marriage when they come up › “legalistic argle-bargle” › “We might have let the People decide.”

31 Goodwin Procter LLP 31 United States v. Windsor Is Section 3 of the Defense of Marriage Act unconstitutional?  Justice Alito dissents › The Constitution does not speak to the choice between “conjugal” marriage (intrinsically opposite-sex) and “consent-based” marriage (not) › That choice must be made by the people and their representatives

32 Goodwin Procter LLP 32 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  Procedural history › California Supreme Court holds that the California Constitution requires that same-sex couples be given the right to marry › California voters adopt Proposition 8, amending the California Constitution to reverse that holding › Four individuals sue the California governor, attorney general, and two county recorders to enjoin Proposition 8 › Defendants refuse to defend Proposition 8 › Official proponents of Proposition 8 intervene to defend it › US District Court in San Francisco holds that the federal Constitution requires that marriage be extended to same-sex couples ▪ Proponents appeal ▪ Defendants do not, and vigorously challenge proponents’ standing

33 Goodwin Procter LLP 33 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  Procedural history › Ninth Circuit upholds proponents’ standing ▪ Following certification to California Supreme Court › Ninth Circuit affirms the judgment for plaintiffs, on much narrower grounds specific to California

34 Goodwin Procter LLP 34 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  Procedural history › Ninth Circuit upholds proponents’ standing ▪ Following certification to California Supreme Court › Ninth Circuit affirms the judgment for plaintiffs, on much narrower grounds specific to California  The menu › 50-state holding (like the district court) › 8-state holding (urged by the United States) › 1-state holding (like the Ninth Circuit) › Reversal › Punt

35 Goodwin Procter LLP 35 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  In a 5-4 opinion, the Supreme Court declines to decide the merits  Opinion by Chief Justice Roberts › Joined by Justices Scalia, Ginsburg, Breyer, Kagan  Justice Kennedy dissents › Joined by Justices Thomas, Alito, Sotomayor

36 Goodwin Procter LLP 36 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  In a 5-4 opinion, the Supreme Court declines to decide the merits  Opinion by Chief Justice Roberts › Joined by Justices Scalia, Ginsburg, Breyer, Kagan  Justice Kennedy dissents › Joined by Justices Thomas, Alito, Sotomayor  (Safe to say these Justices would likely resolve the merits differently)

37 Goodwin Procter LLP 37 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  In a 5-4 opinion, the Supreme Court declines to decide the merits  Opinion by Chief Justice Roberts › Joined by Justices Scalia, Ginsburg, Breyer, Kagan  Justice Kennedy dissents › Joined by Justices Thomas, Alito, Sotomayor  (Safe to say these Justices would likely resolve the merits differently)  Wipes out Ninth Circuit opinion, but not the judgment in favor of the plaintiffs

38 Goodwin Procter LLP 38 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  The proponents lacked standing to appeal the district court’s ruling › Private citizens don’t have standing › The State is injured, but it didn’t appeal › They aren’t agents of the State ▪ The California Supreme Court didn’t say they were; it just said state law authorized them to defend Proposition 8 ▪ Unlike a state officeholder, they can’t participate in an official capacity ▪ No agency relationship; the proponents answer to no one ▪ Ultimately, they’re still just private citizens with a generalized grievance ▪ States can’t give standing to such people

39 Goodwin Procter LLP 39 Hollingsworth v. Perry Is California’s Proposition 8, ending same-sex-marriage, unconstitutional?  Justice Kennedy dissents › The state supreme court’s decision establishes that the proponents have the authority to appear in court and defend the initiative they sponsored › The legislative power of California resides in the people, and the official proponents are the right individuals to defend their initiative › Why require a formal agency relationship? › The governor and attorney general want to lose the case, so why insist that only they can represent the State? › Implications for the other initiative States

40 Goodwin Procter LLP 40 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws? The Fifteenth Amendment  Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.  Section 2. The Congress shall have power to enforce this article by appropriate legislation.

41 Goodwin Procter LLP 41 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws? The Fifteenth Amendment  Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.  Section 2. The Congress shall have power to enforce this article by appropriate legislation.

42 Goodwin Procter LLP 42 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws? The Voting Rights Act of 1965  Section 4. Certain states and localities are covered. › Coverage is based on conditions in 1964, › Jurisdictions can “bail out” of coverage.  Section 5. Covered jurisdictions must submit any change to their voting laws for “preclearance.”  Enacted 1965; reauthorized 1970, 1975, 1982, 2006 (for 25 years)  Upheld by the Supreme Court  9 States are covered, 6 States are partially covered (e.g., 2 counties in South Dakota)  Various counties and cities have bailed out

43 Goodwin Procter LLP 43 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  The first challenge to the 2006 reauthorization of Section 5  Northwest Austin Municipal Utility District Number One

44 Goodwin Procter LLP 44 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  The first challenge to the 2006 reauthorization of Section 5  Northwest Austin Municipal Utility District Number One (NAMUDNO)

45 Goodwin Procter LLP 45 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  The first challenge to the 2006 reauthorization of Section 5  Northwest Austin Municipal Utility District Number One (NAMUDNO)  In 2009, the Supreme Court ducks the question, 8-1 › Allows NAMUDNO to bail out instead  Justice Thomas would invalidate Section 5  A shot across Congress’s bow  Congress does nothing

46 Goodwin Procter LLP 46 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  Shelby County, Alabama, sues to invalidate Section 5 › Preclearance itself is too intrusive › The formula is outdated › The standard for preclearance is constitutionally flawed

47 Goodwin Procter LLP 47 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  In a 5-4 opinion, the Supreme Court strikes down Section 4 only  Opinion by Chief Justice Roberts › Joined by Justices Scalia, Kennedy, Thomas, Alito  Dissent by Justice Ginsburg › Joined by Justices Breyer, Sotomayor, Kagan

48 Goodwin Procter LLP 48 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  We warned you in Northwest Austin  There is a fundamental principle of equal sovereignty among the States  It was OK to depart from that principle in At the time, the coverage formula made sense.  A lot has changed in 50 years, yet Congress reauthorized the coverage formula with no change at all.  The formula must be “sufficiently related to the problem that it targets” (Northwest Austin). It cannot rely simply on the past.  “[N]o holding on Section 5 itself, only on the coverage formula” › Justice Thomas would invalidate both  Accuses the dissent of ignoring Northwest Austin, which two of the dissenters joined

49 Goodwin Procter LLP 49 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  Justice Ginsburg dissents › Congress is entitled to substantial deference – any enforcement legislation with a rational basis should be upheld ▪ The Court doesn’t even identify a standard of review › Equal sovereignty principle doesn’t exist after admission › Discrimination in voting still exists › Congress did extensive homework and decided that the coverage formula was still the best way to protect against voting discrimination › Preclearance is still protecting against discriminatory voting changes ▪ The covered jurisdictions are where most successful race- discrimination suits are found

50 Goodwin Procter LLP 50 Shelby County v. Holder Did Congress exceed its powers by renewing “preclearance” of voting laws?  Justice Ginsburg dissents › This is a facial challenge brought by an extremely bad actor ▪ Shelby County has intentionally discriminated ▪ Alabama has a “sorry history” of VRA violations › Are you asking Congress to prove not just that conditions in the covered jurisdictions are bad, but that conditions in the rest of the country are better?

51 Goodwin Procter LLP 51 Fisher v. University of Texas Did UT’s affirmative action plan violate equal protection?  Background › Affirmative action programs are race-conscious › Subject to strict scrutiny ▪ Compelling interest ▪ Narrow tailoring › Diversity as a compelling interest ▪ Critical mass ▪ Deference › Consideration of race-neutral alternatives › Grutter litigation

52 Goodwin Procter LLP 52 Fisher v. University of Texas Did UT’s affirmative action plan violate equal protection?  UT Austin’s admissions program › Top Ten Percent › Academic Index/Personal Achievement Index ▪ Starting in 2004, after Grutter, PAI includes race ▪ Admission determined by combination of AI and PAI  Abigail Fisher applies and is rejected › She alleges that she was harmed by consideration of race  Lower courts uphold UT plan

53 Goodwin Procter LLP 53 Fisher v. University of Texas Did UT’s affirmative action plan violate equal protection?  After lengthy delay, in a surprisingly short opinion, Supreme Court votes 7-1 to reverse on narrow grounds  Opinion by Justice Kennedy  Justice Ginsburg dissents alone › Justice Kagan was recused

54 Goodwin Procter LLP 54 Fisher v. University of Texas Did UT’s affirmative action plan violate equal protection?  Grutter is uncontested › Justice Scalia and Justice Thomas both write separately to underscore this point › Grutter establishes that diversity is a compelling interest and that the courts must defer to UT’s judgment that it needs to adopt a race- conscious admissions program to ensure greater diversity  But are race-conscious means “necessary”? › The lower court erred by deferring to UT’s judgment on this point and declining to “second-guess” the university › The lower court erred by placing the burden on Fisher › The lower court erred by holding that UT wins if it acted in “good faith”

55 Goodwin Procter LLP 55 Fisher v. University of Texas Did UT’s affirmative action plan violate equal protection?  The university’s burden is considerably higher › The reviewing court must ultimately be satisfied that no workable race- neutral alternatives would produce the educational benefits of diversity. › If a nonracial approach would work “about as well and at tolerable administrative expense,” then the university may not consider race. › The university bears the ultimate burden of demonstrating that available, workable race-neutral alternatives do not suffice.  Similarity to Northwest Austin? › Justice Breyer: “Whew!”

56 Goodwin Procter LLP 56 Fisher v. University of Texas Did UT’s affirmative action plan violate equal protection?  Justice Thomas concurs › He would overrule Grutter ▪ Diversity is not an end, but a means, and the educational benefits of diversity aren’t a compelling state interest ▪ This is Brown ▪ “The worst forms of race discrimination... have always been accompanied by straight-faced representations that discrimination helped minorities” ▪ Affirmative action has insidious consequences, not just for white and Asian applicants, but for minorities (achievement gap / badge of inferiority)

57 Goodwin Procter LLP 57 Fisher v. University of Texas Did UT’s affirmative action plan violate equal protection?  Justice Ginsburg dissents › The race-neutral alternatives are no alternative at all ▪ Top Ten Percent is race-conscious ▪ “Holistic” consideration, excluding race, just turns into “camouflage” ▪ “Among constitutionally permissible options... those that candidly disclose their consideration of race [are] preferable to those that conceal it.” From Gratz dissent › Race is only one factor, and the university periodically reviews its necessity. No more is required. › No need to use this case to rethink strict scrutiny

58 Goodwin Procter LLP 58 Maryland v. King May a State collect DNA from people arrested for violent crimes?  Maryland’s DNA collection law › DNA taken from those arrested for certain violent crimes ▪ DNA also taken from those convicted of anything › DNA can’t be used until after probable cause hearing › DNA is destroyed in the event of an acquittal  Other jurisdictions differ › All felonies › Federal model

59 Goodwin Procter LLP 59 Maryland v. King May a State collect DNA from people arrested for violent crimes?  Alonzo King arrested for first-degree assault › First-degree assault is a qualifying crime › He later pleads guilty to second-degree assault, which is not › Because he was not acquitted, his sample was retained  DNA sample links him to an unsolved rape  He conditionally pleads guilty to rape  Maryland high court reverses rape conviction › Fourth Amendment bars suspicionless collection of DNA

60 Goodwin Procter LLP 60 Maryland v. King May a State collect DNA from people arrested for violent crimes?  In a 5-4 opinion, Supreme Court reinstates the rape conviction  Opinion by Justice Kennedy › Joined by Chief Justice Roberts, Justices Thomas, Breyer, and Alito  Dissent by Justice Scalia › Joined by Justices Ginsburg, Sotomayor, Kagan

61 Goodwin Procter LLP 61 Maryland v. King May a State collect DNA from people arrested for violent crimes?  Balancing  “Negligible” intrusion › Much less intrusive than a blood draw or surgical invasion › Less of an invasion than a search of the home › CODIS loci (non-coding alleles) reveal nothing private  Reduced expectation of privacy › Already in custody with probable cause to believe he committed a serious crime › Already subject to search incident to arrest, booking (even strip search)  No officer discretion › Not susceptible to abuse › Similar to other “standardized” programs (drug tests for train engineers)

62 Goodwin Procter LLP 62 Maryland v. King May a State collect DNA from people arrested for violent crimes?  Balanced against legitimate government interest › “To process and identify” ▪ Identity is not just your name ▪ Includes criminal history ▪ Just like fingerprinting › Know the type of person you are detaining ▪ Risk to jail staff ▪ Flight risk ▪ Bail (or revocation of bail, if already issued) › Exonerating innocent people

63 Goodwin Procter LLP 63 Maryland v. King May a State collect DNA from people arrested for violent crimes?  Questions left open › What if the arrest is not for a serious, violent felony? › Advances in DNA technology

64 Goodwin Procter LLP 64 Maryland v. King May a State collect DNA from people arrested for violent crimes?  Justice Scalia dissents › The Court is wrong to credit Maryland’s supposed reason ▪ Maybe someday it can be used for identification, but it sure wasn’t used that way here ▪ Timing; CODIS › This is a tool for the investigation of crime. › It’s a search of the “person” without probable cause or a warrant, for law enforcement purposes ▪ What would Justice Scalia do about fingerprinting? › Identification rationale isn’t limited to violent crimes: “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

65 Goodwin Procter LLP 65 Koontz v. St. John’s River Water Mgmt. District Can a permit be conditioned on the payment of money for some other purpose?  Is that a stupid question?

66 Goodwin Procter LLP 66 Koontz v. St. John’s River Water Mgmt. District Can a permit be conditioned on the payment of money for some other purpose?  Is that a stupid question?  What other purposes?  In the beginning were Nollan and Dolan › “Here’s your permit, now you have to give us an easement” › That’s a taking of an interest in real property, and requires just compensation › Nexus or rough proportionality  In this case, Koontz’s permit was denied, because he wouldn’t agree to fund wetlands mitigation somewhere else  The District only asked for money

67 Goodwin Procter LLP 67 Koontz v. St. John’s River Water Mgmt. District Can a permit be conditioned on the payment of money for some other purpose?  Florida Supreme Court distinguishes Nollan and Dolan on two grounds › The permit was never issued, so nothing was actually taken › The Takings Clause doesn’t regulate an assessment of money  So no “nexus or rough proportionality” scrutiny at all

68 Goodwin Procter LLP 68 Koontz v. St. John’s River Water Mgmt. District Can a permit be conditioned on the payment of money for some other purpose?  The Supreme Court reverses › 9-0 on the “permit never issued” ground › 5-4 on the “taking of money” ground › Opinion by Justice Alito › Joined by Chief Justice Roberts, Justices Scalia, Kennedy, and Thomas › Dissent by Justice Kagan › Joined by Justices Ginsburg, Breyer, Sotomayor

69 Goodwin Procter LLP 69 Koontz v. St. John’s River Water Mgmt. District Can a permit be conditioned on the payment of money for some other purpose?  Unconstitutional conditions doctrine, not really a taking › You can’t punish someone for exercising his rights by denying a permit › Even if the denial is within your discretion › Court is unanimous on this point › Although the question of compensation or other remedy is still open  So the question is whether the person is exercising his “rights” at all › There is a right not to have property taken without just compensation › Is this a taking? › Eastern Enterprises v. Apfel › “When the government commands the relinquishment of funds [directly] linked to a specific, identifiable property interest such as a bank account or parcel of real property”

70 Goodwin Procter LLP 70 Koontz v. St. John’s River Water Mgmt. District Can a permit be conditioned on the payment of money for some other purpose?  Justice Kagan dissents › Taxes and user fees are not takings › What is the difference between an order to pay money and... an order to pay money? ▪ Court responds that this difference “is more difficult in theory than in practice” ▪ Order to pay interest; taking of a lien › But here the government just wants the cash and doesn’t care where it comes from

71 Goodwin Procter LLP 71 What else did the Court do last year? Civil  First Amendment and prostitution  Indian adoption  Arbitration  Preemption of voter ID  Is a human gene patentable?  Human rights lawsuits  NSA wiretapping  Title VII Criminal  Sentencing › Mandatory minimums › Ex post facto  Detention incident to search  Dog sniffs  Drunk driving  Retroactivity of Padilla  Double jeopardy  Miranda

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