Today in Supreme Court History: June 24, 2013

6/24/2013: Fisher v. University of Texas at Austin I is decided.

Comments

[Dan Schiavetta]

“Fisher v. University of Texas at Austin I”, 570 U.S. 297 (decided June 24, 2013): all race based factors in college admissions are subject to “strict scrutiny”; remands the question of university’s admissions policy to be reconsidered by the Fifth Circuit (which had merely accepted race factors if made “in good faith”); Fifth Circuit approved the policy (in which race was “a factor of a factor of a factor” in multi-step evaluation) and the Court affirmed in “Fisher v. University of Texas at Austin II”, 2016

Cheney v. United States District Court, 542 U.S. 367 (decided June 24, 2004): Freedom of Information requests to Cheney’s Energy Task Force were overbroad and likely to conflict with official duties; remands to lower court to narrow requests (though Cheney argued that the requests should be denied in full) (suit was brought by Judicial Watch and the Sierra Club, an odd couple) (easy to see why oilman Cheney fought so hard against disclosure; leaks showed that even before 9/11 he was planning on toppling Saddam Hussein so as to open up the Iraqi oil market)

Iancu v. Brunetti, 588 U.S. 388 (decided June 24, 2019): a crude but probably unavoidable offspring of Matal v. Tam, 2017, which had struck down on First Amendment grounds the USPTO Office’s refusal on statutory “disparagement” grounds to trademark “The Slants”, the name of an Asian-American band which wanted to “take back” that racial slur; here, the Court vacates the refusal to trademark the clothing line “FUCT” despite the “scandalous” name

Jenkins v. Georgia, 418 U.S. 153 (decided June 24, 1974): rules that the film “Carnal Knowledge” was not obscene (I saw it as a teenager -- Ann-Margret was hot!! -- also, when I was back to having a free hand to hold the popcorn, I realized it was a good movie)

Becerra v. Empire Health Foundation, 597 U.S. 424 (decided June 24, 2022): approving HHS rule that percentage of Medicare-eligible patients (which goes into calculation of reimbursement rates for low-income-serving hospitals) includes those not actually receiving Medicare

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (decided June 24, 2022): the Constitution does not provide a right to abortion and it’s not a substantive right “deeply rooted” in tradition; overruling the pro-choice extent of the holdings in Roe v. Wade, 1973 and Planned Parenthood v. Casey, 1990 and upholding Mississippi statute outlawing abortions after 15 weeks “except in a medical emergency” (i.e., to save life of mother) or in the case of “severe fetal abnormality”

Hooper v. Bernadillo County Assessor, 472 U.S. 612 (decided June 24, 1985): Equal Protection violated by New Mexico statute limiting Vietnam War veteran property tax deduction to those who were New Mexico residents at the time

Pauley v. Bethenergy Mines, 501 U.S. 680 (decided June 24, 1991): permits two extra restrictions agency placed on applicants for federal Black Lung Disease benefits because they are obvious (benefits denied if no showing that condition arose out of working in mines, or if applicant does not in fact have pneumoconiosis)

Dutra Group v. Batterton, 588 U.S. 358 (decided June 24, 2019): applying admiralty common law, holds that punitive damages not recoverable on claim of unseaworthiness (sailor injured by hatch blowing open)

Skilling v. United States, 561 U.S. 358 (decided June 24, 2010): vacates conviction against Enron executive for “honest services fraud” because statutory language was vague and would include some legal activities; Skilling’s conviction on other counts is not at issue so the case is sent back for resentencing (he also argued, unsuccessfully, that the jury was biased due to pretrial publicity)

[SRG2]

In Cheney, Scalia, notoriously, refused to recuse himself after going duck-hunting with Cheney. ""I do not believe my impartiality can reasonably be questioned," he wrote.

Commentary on this: https://scholarlycommons.law.hofstra.edu/cgi/viewcontent.cgi?article=1041&context=faculty_scholarship

IMO Scalia's impartiality can indeed be - and was - reasonably questioned. Further, I believe that Scalia knew perfectly well that Cheney was lying about the make-up of the Cheney energy task force.

[Dan Schiavetta]

I wish I could find it online, but on his "Air America" radio show Al Franken did a hilarious rendition of Cheney and Scalia's duck hunt, complete with their we're-just-ordinary-guys comments on the brioche and caviar they were eating, and distant quacking followed by the blast of machine guns.

[SMP0328]

“Fisher v. University of Texas at Austin I”, 570 U.S. 297 (decided June 24, 2013): all race based factors in college admissions are subject to “strict scrutiny”; remands the question of university’s admissions policy to be reconsidered by the Fifth Circuit (which had merely accepted race factors if made “in good faith”); Fifth Circuit approved the policy (in which race was “a factor of a factor of a factor” in multi-step evaluation) and the Court affirmed in “Fisher v. University of Texas at Austin II”, 2016

I think it is safe to say that Fisher II was overruled sub silentio by SFFA v. Harvard.

Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (decided June 24, 2022): the Constitution does not provide a right to abortion and it’s not a substantive right “deeply rooted” in tradition; overruling the pro-choice extent of the holdings in Roe v. Wade, 1973 and Planned Parenthood v. Casey, 1990 and upholding Mississippi statute outlawing abortions after 15 weeks “except in a medical emergency” (i.e., to save life of mother) or in the case of “severe fetal abnormality”

First, Casey was in 1992. Second, it seems few, if any, States have stuck to the Casey/undue-burden standard. The consensus seems to be either to ban abortion, literally or practically, or to "restore Roe" to provide a right to abortion-on-demand. Apparently, most of the pro-abortion-rights States agree with Casey being overruled; just not for the reasons given by the Dobbs majority.

[Dan Schiavetta]

All true, thanks.

It's notable that eight of the Justices on the Casey Court had been appointed by Republican Presidents. The only exception was Byron White, who had dissented in Roe. It shows how much the Republican Party has changed.

[Brett Bellmore]

It shows you why you got Trump: Republicans, in the sense of Republican voters, didn't change. What changed is that they figured out the office holders were running a bait and switch operation on them, running on issues they never intended to deliver on. So the voters went looking for candidates who would actually do what they were running on doing. And the longer it went on, the more desperate Republican voters were to find candidates who'd actually try to deliver what they ran on doing.

Eventually it reached the point where running for the Presidential nomination with an establishment career behind you was electoral poison.

The only reason Dobbs was so long in coming was that multiple Republican Presidents and Senators ran on overturning Roe while having absolutely no intention of actually doing it. Starting with Reagan himself.

[David Nieporent]

It shows you why you got Trump: Republicans, in the sense of Republican voters, didn’t change. What changed is that they figured out the office holders were running a bait and switch operation on them, running on issues they never intended to deliver on. So the voters went looking for candidates who would actually do what they were running on doing. And the longer it went on, the more desperate Republican voters were to find candidates who’d actually try to deliver what they ran on doing.

I pointed out that this nutty theory was factually incorrect the last time you posted it (and the time before that and the time before that and the time before that). They did intend to deliver on it and in fact did so, continuing to appoint anti-Roe justices. The last time they appointed a pro-Roe one was in 1990, a quarter century before Trump. Between him and Trump every appointee was anti-Roe.

They only appointed three pro-Roe justices — O'Connor, Kennedy, and Souter. And Kennedy was Reagan's third choice after Bork — who would have voted against Roe — imploded.

[Dan Schiavetta]

Once free of political pressure, not caring about impressing anyone for future favors, judges tend to actually look at facts and their sense of right and wrong. Which is why SCOTUS judges tend to lean left as the years pass. I see this happening already with Barrett, though of course as a good Catholic wife she has to check with her husband first.

[JoeFromtheBronx]

“right to abortion-on-demand”

Roe v. Wade allowed a range of regulations, including requiring a physician to perform an abortion, following regular medical regulations, more regulations in the second trimester [including where they occur], and more ability to ban in the third trimester. Minors also have special burdens.

Also, conscience regulations are allowed to exist, which allow doctors to refuse to perform abortions.

“Abortion on demand” is a misleading label.

The split is somewhat in thirds. You have states like New York and California that have broad rights to have an abortion. A third will just ban it functionally (perhaps with a six-week ban). The rest will have something like a 12 (NC) or 15-week (Arizona) ban.

And, again, teens and a few others will have special rules. Medicaid funding bans also -- except in a limited number of states -- are a major barrier to the economically disadvantaged.

[Brett Bellmore]

Remember, there were two abortion decisions the day Roe was issued: Roe v Wade, and Doe v Bolton. While Roe permitted regulation, Doe snatched that permission away, by prohibiting any mechanism for preventing doctors from pretextually declaring medical necessity.

So, in theory, regulated after the first trimester. In reality, you just had to find an abortionist who'd say the elective abortion was really medically necessary, maybe because being upset over not getting your abortion was a mental health issue, and you could bypass the regulations.

If you'd just had Roe, and not Doe, I think the politics would have been more manageable.

[SMP0328]

Roe v. Wade allowed a range of regulations, including requiring a physician to perform an abortion, following regular medical regulations, more regulations in the second trimester [including where they occur], and more ability to ban in the third trimester. Minors also have special burdens.

Perhaps Roe was intended to work that way (e.g., read Chief Justice Burger's concurrence in Roe), but in practice it was abortion-on-demand (e.g., Thornburgh v. American College of Obstetricians and Gynecologists (1986)). Many people liked that result, while others condemned it. Also, keep in mind that Roe technically allowed restrictions after viability but had a health exception so broad that no such restriction could survive.

[Brett Bellmore]

No, the restrictions could have survived if not for Doe; You could have had whether a particular case actually merited a health exception, were it not for that same day decision.

[SMP0328]

To-MAY-to, To-MAH-to. My point is that between Roe and Casey (1973-1992), abortion restrictions were technically allowed but were subject to a health exception (Doe) so broad as to nullify any such restrictions.

[Brett Bellmore]

Yeah, I'm just saying that problem derived from Doe, not Roe. Otherwise I agree.

[JoeFromtheBronx]

Roe v. Wade set forth the right to choose an abortion before viability & set forth the trimester scheme setting forth appropriate regulations. Doe v. Bolton didn't change much.

U.S. v. Vuitch already defined "health" broadly.

[Brett Bellmore]

Doe changed one thing: You couldn't have a mechanism for preventing pretextual declarations of medical necessity. You just had to take the doctor's word for it.

[JoeFromtheBronx]

I read Thornburgh v. American College of Obstetricians and Gynecologists.

Where does it say that if a woman wanted to have an abortion by a nurse and the state said “no,” the woman can demand the abortion? The Supreme Court more than once specifically upheld physician-only requirements.

Where does that opinion overrule parental notification/consent laws as long as you have an often burdensome bypass system?

Banning biased consent scripts, waiting periods, and so on does not handwave all of the other regulations in place.

(Burger is not exactly who I would go to for clarification)

[SMP0328]

Thornburgh did not allow any abortion-specific restrictions regarding adult women. Requiring it be done by a licensed medical doctor is not an abortion-specific restriction because it is a generally applicable rule for all doctors, not just those performing abortions.

[JoeFromtheBronx]

"when I was back to having a free hand to hold the popcorn"

Doing blue!

The film does not seem what you would expect when thinking "obscenity" but it wasn't an outrageous application of Miller v. California to think so.

Another film that reached the Supreme Court, but on procedural grounds, was "I Am Curious (Yellow)." Being legally minded, I checked it out (the New York Public Library used to have a copy).

It's long & talky. Lots of social value! More explicit.

[Dan Schiavetta]

Seeing Ann-Margret’s bare boobs was enough. I was 18 and pretty close to being a virgin.

As for “I Am Curious”, when I finally saw it it was . . . limp. Which is why I didn’t do a review of it last summer.

[JoeFromtheBronx]

tmi

[Dan Schiavetta]

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