Fisher v. UT: 'A significant departure from every racial affirmative action case Justice Kennedy has decided'

U.S. Supreme Court Associate Justice Anthony M. Kennedy cast the deciding vote and authored the opinion in the Fisher v. University of Texas at Austin case decided this morning.

“This is momentous. Justice Kennedy has finally found a racial affirmative action policy that he was willing to endorse,” said Professor Kimberly West-Faulcon, the James P. Bradley Chair in Constitutional Law at Loyola Law School, Los Angeles who filed an amicus brief with the Supreme Court in the Fisher v. University of Texas case (often called Fisher II because it is the second time plaintiff Abigail Fisher’s case has gone to the Supreme Court).

“This is a significant departure from every racial affirmative action case Justice Kennedy has decided to date. Kennedy has not only sided with the University of Texas, he has said ‘considerable deference’ is owed to the state university. This is a major ruling for universities because this is the first time a Kennedy opinion has used language about ‘equal treatment and dignity’ in the context of race. In the era of Black Lives Matter, Justice Kennedy is showing a willingness to protect racial rights in a manner he has previously reserved for LGBT rights.”

More: Read the amicus brief Professor West-Faulcon filed in support of the University of Texas in November 2015.

Race and the Courts

By Professor Eric Miller 

 

Access to justice through our court system is skewed on the basis of race. In the criminal justice system, the decisions of of criminal justice officials to target, arrest, charge, prosecute, convict, and punish our citizens fall more harshly on minorities, and especially African Americans and Latinos. The effect is to channel Black and Brown people into the criminal justice system in greater numbers, and for longer, than similarly situated white individuals. 

The problems of race and the courts are local and structural. These problems are magnified in a criminal justice system that also responds to local and structural factors. Prosecutors, who make the decisions about whether to charge a defendant and the severity of the charge, are overwhelmingly white. They are incredibly powerful, and often have more impact on the sentence than the courts. Courts themselves are often overworked, and spend little time questioning the evidence in low-level criminal cases. At significant stages of the process—when sassing bail, or appointing counsel—the court may make decisions that undermine the rights of poor defendants. And those defendants are now often required to pay for the privilege of having a court release and monitor them on bail, probation, or parole.

Matters are even worse on the civil side, where minority plaintiffs lack the resources to hire attorneys, and minority defendants who are unable to pay fines often find civil penalties converted into criminal charges. Without adequate representation to argue for fine reductions on the basis of indigency, these litigants cannot turn to the court system for relief, but are instead re-victimized by an overworked system that sometimes cares more about processing cases than doing justice.

Thoughts on Utah v. Strieff: A Blow to Democratic Accountability of Police

By Professor Eric Miller

On Monday, the Court announced its decision in Utah v. Strieff, a Fourth Amendment case in which a man was unlawfully stopped leaving a house the police suspected of being a drug den. Upon searching Strieff, the arresting officer discovered methamphetamine and drug paraphernalia. Normally, the fruits of an unlawful search would be inadmissible in evidence. But what made this stop and search permissible was the officer’s discovery, upon asking for and checking upon on Strieff’s I.D., that Srtieff had an outstanding warrant, entitling the officer to arrest Strieff. The existence of the warrant, the Court held, was an unforeseen intervening event breaking the chain of illegality and permitting the police to arrest and search the defendant in good faith, free of the sanction of exclusion.

The decision, over an impassioned dissent by Justice Sotomayor, is a real blow to the democratic accountability of the police. To see why, consider a fairly old case in which the Court discussed an encounter somewhat like this: Sibron v. New York, 392 U.S. 40, 44-45, 61-63 (1968). In that case, an officer standing outside a cafe suspected Sibron of drug dealing inside a cafe, could not confirm that suspicion from his position outside the cafe, and performed and unconstitutional stop resulting in the discovery of drugs. While the major difference is, of course, the attenuation issue, it is worth considering that Sibron had a right to walk away from the police officer—a right emphasized by Justice White and Justice Marshall’s concurring opinions in Sibron’s more famous companion case, Terry v. Ohio, and reiterated in the “free to leave” seizure context (Schneckloth v. Butamonte, INS v. Delgado, Florida v. Drayton, etc.).

Obama’s Fateful Warning

By Professor Eric Miller

Yesterday, President Obama gave an impassioned speech warning against singling out the American Muslim community, and indeed Muslims worldwide, as complicit in the violence that erupted so tragically in Orlando this weekend. In an angry response to Donald Trump’s insinuation that American Muslims as a group support and hide terrorists, President Obama asked “Where does this stop?”

While most news outlets focused on that soundbite, what the President said next was much more fateful. The President, a former professor of constitutional law, went on to invoke perhaps America’s most reprehensible act after slavery: the internment of Japanese Americans at the outbreak of World War II. He said, “We have gone through moments in our history before when we acted out of fear, and we came to regret it. We have seen our government mistreat our fellow citizens, and it has been a shameful part of our history.”

It was then California Attorney General Earl Warren who took the decision to intern Japanese Americans, and it was a decision he was to regret for the rest of his life. His decision, upheld in the infamous case of Korematsu v. United States, condemned tens of thousands of Americans to confinement based only on the fear that, collectively, they posed a threat to national security. Yet, like the many Muslim Americans who serve with distinction in the American Military today, many of those Japanese Americans fought gallantly on our behalf in the Second World War. Eventually American acknowledged its wrong, and in 1988, under President George W. Bush, Congress passed the Civil Liberties Act to compensate the surviving members of the Internment, apologize, and “prevent the recurrence of any similar event.”

Earl Warren’s eventual response to his worst decision was to be his best: as Chief Justice of the Supreme Court, he extended the equal protection of the law to all Americans in Brown v. Board of Education, the decision that entrenched desegregation and equal citizenship for all as cornerstones of the American way of life. Brown was an important political decision in another war: the Cold War fight for the hearts and minds of peoples around the world who found American claims to moral leadership sullied by the evils of racial discrimination. Undoing the wrongs of the Internment, and of segregation, enabled America to champion freedom, justice, and democracy around the globe. President Obama told us yesterday that America once again faces its Korematsu moment. We must not go down that path again.

Learn more about professors' expertise on election topics in Loyola's Election 2016 Commentary Guide.

Dear Brits: Don't listen to the U.S. on 'Brexit'

By Professor Justin Hughes

This op-ed originally appeared in the June 15, 2016 edition of the Los Angeles Times.

Dear British friends, I’m writing to say I’m sorry my president has been meddling so much in the debate about “Brexit,” your June 23 vote on whether to remain part of the European Union. The speeches, the BBC interview, the op-ed in the Daily Telegraph — it’s all been a bit much.

Still, good friends cannot help but offer advice. I’ve watched the polls swing back and forth — a recent Guardian/ICM poll suggested leaving is up 53% to 47%, while poll aggregators see a dead heat with about 10% of you undecided. As an American who’s worked in international affairs, lived in the EU, and loves both Burgundy wines and Devon clotted cream, let me offer you this bit of advice: In this existential decision, don’t let experts and politicians — yours or ours — scare you. Take everything with a dose of salt.

Read the entire op-ed on LATimes.com.

Agency Class Actions In Action

The Administrative Conference of the United States voted to approve recommendations written by Professor Adam Zimmerman for almost all federal agencies. The recommendations, co-authored by Michigan State's Michael Sant'Ambrogio, recommend that federal agencies use class actions and other complex procedures in their own hearings.

Zimmerman says:

"Because agencies hear far more cases than federal and state courts, this is a big deal--for injured veterans, coal miners, consumers and others long denied the use of these kinds of procedures to commence and resolve their cases. Our recommendations will be published in the federal register and apply to all federal agencies that adjudicate claims."

• Read the full report here.
• Read the recommendations here.

Trump is “Yugely” Wrong in His Attack on Judges

By Professor Laurie L. Levenson

Donald Trump crossed the line when he attacked Judge Gonzalo Curiel as a “Mexican” who could not be fair in his case. Put aside that Judge Curiel was born in Indiana. Put aside that Judge Curiel is a well-respected jurist who has dedicated his career to public service. Put aside that Judge Curiel has done nothing to deserve Trump’s invective. Trump crossed the line by suggesting Judge Curiel has done anything other than completely comply with the ethical standard for judges.

First, there is nothing in the Code of Conduct for U.S. Judges that disqualifies a judge because some litigant has had the audacity to make offensive public comments about the judge’s ethnicity. That rule makes sense. Otherwise, litigants could shop for judges simply by making unfounded accusations against the judge assigned to their case. To the contrary, the rules support the independence of judges by not having them recuse themselves unless they have a “personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.” Canon 3(C)(1)(a). There is no indication that Judge Curiel has a personal bias requiring him to disqualify himself. Moreover, Trump has never even made a motion to recuse the judge.

Second, Judge Curiel has always acted appropriately in Trump’s case. Nothing shows that his “honesty, integrity, impartiality, temperament or fitness to serve as a judge [has been] impaired.” Canon 2(A). In fact, the judge went out of his way to allow Trump to focus on his campaign rather than defend his case before the election.

Finally, Trump is picking on a target who cannot readily defend himself. Under Canon 3(A)(6), Judge Curiel cannot make comments about a pending case. Trump took a sucker punch at a person he knows is ethically barred from responding to his outrageous claims.

Overall, Judge Curiel should be praised for the ethical and responsible manner in which he has handled this recent controversy. Trump, on the other hand, should read the Code of Ethics.