A Supreme Surprise

In what ended up being an unusual year at the United States Supreme Court, liberals scored a surprising number of victories in 2016, agreed a recent panel of Columbia Law School faculty and legal experts at a discussion of the major public interest decisions of the recent term. As the new term begins this month, the scholars gathered at the Law School to review the biggest cases from the 2015-2016 term—on issues of immigration, abortion, and affirmative action—and look forward to next year and beyond.
“Really almost everything changed over Justice Scalia’s death,” said Steven R. Shapiro, legal director of the American Civil Liberties Union and a lecturer-in-law at Columbia, at the Oct. 13 event organized by the Law School’s Social Justice Initiatives (SJI). Ellen Chapnick, dean for SJI, introduced Shapiro.
The new vacancy—and the Republican-led Senate’s refusal to vote on President Obama’s nominee, Merrick Garland—left the court a vote short and shifted the balance in favor of the more liberal justices. “Whether the change is short-lived or long-term depends on who is appointed to fill Scalia’s spot,” Shapiro continued, and ultimately on who is elected president and is able to appoint future justices.
Shapiro was joined on the panel by David Brown, senior staff attorney at Center for Reproductive Rights (CRR); Anurima Bhargava '02, Leadership in Government Fellow at the Open Society Foundation and former chief of the Educational Opportunities Section of the Civil Rights Division at the U.S. Department of Justice; and Rose Villazor '06, visiting professor of law and Martin Luther King, Jr. Hall Research Scholar at the University of California at Davis School of Law.
From the beginning, Shapiro identified five high-profile cases on the high court’s docket—“Of those five, it was entirely plausible that liberals would lose all five.” Two surprising victories for liberals, he said, were Whole Woman’s Health v. Hellerstedt, the major abortion case, and Fisher v. University of Texas, the major affirmative action case.
Brown, who worked on Whole Woman’s Health for CRR, said the court’s 5-3 decision to strike down two major provisions of Texas’ sweeping anti-abortion law set a new precedent for evaluating what it means for a law to pose an “undue burden”—both in the abortion context and more generally. He predicted the ruling would lead to the crumbling of thousands of similar anti-abortion laws in other states, saying “abortion laws based on junk science are no longer constitutional.”
Courts are starting to apply the Whole Women’s Health framework to other issues as well, Brown said. “Beyond the field of abortion, the statement in Breyer’s opinion about looking critically at state rationales for legislation is starting to crop up in other areas,” he said. “We are now seeing a lot more intensive a look at what the evidence actually is; courts are asked to determine if burden imposed is the purpose of the law.”
The court’s 4-3 decision to uphold the University of Texas’ affirmative action policy was also a surprise for many legal experts, including Bhargava, who worked on the case at the Legal Defense Fund the first time it went to the Supreme Court in 2013. “The reason I thought it wouldn’t go well was, why is the court taking the case again?” she said. “It was unclear what [the justices] wanted to do with it, unless they wanted to take a swipe at the policy, or question the threshold for what is considered diverse.”  
Instead, the justices upheld the school’s policy, even with Justice Kagan recused. “Essentially complete deference was given to the university,” Bhargava said. The school can pursue diversity, and the court determined that race-neutral alternatives don’t suffice.
The court’s decision in United States v. Texas, the case challenging Obama’s immigration reform policy, was less clear—and less favorable for liberals. The 4-4 vote affirmed the lower court ruling issuing a preliminary injunction on Deferred Action for Parents of Americans, leaving the program stalled with an uncertain future.  
As is clear from the 2016 presidential campaign, the immigration law is contentious, Villazor said, so what happens next will largely depend on who wins in November. The case could be brought to trial to try to lift the preliminary injunction or limit its scope; “We ought to continue to pay attention to what’s going on in the election,” she continued.
To close out the panel discussion, Shapiro posed two questions for students to consider: is the Supreme Court, like the rest of the country, beginning to moderate its views on criminal justice, and to what extent is the court going to be willing to engage in conversation that explicitly acknowledges the role of race?



Posted on October 20, 2016