UVA Law Faculty Comment on Key Supreme Court Decisions

June 27, 2016

University of Virginia School of Law professors are available to talk to the media about Supreme Court decisions, and have provided comments to recent rulings below. See the Media Tip Sheet for a full list of available faculty.

Fisher v. University of Texas

Kim Forde-Mazrui

Mortimer M. Caplin Professor of Law; Director, Center for the Study of Race and Law
kimfm@virginia.edu; (434) 924-3299
Kim Forde-Mazrui's scholarship focuses on equal protection, especially involving race and sexual orientation.

ON FISHER:

"I have mixed reactions to Fisher v. University of Texas (2016) (Fisher II). On one hand, because I believe affirmative action is valid under the best interpretation of the Constitution, the court’s upholding affirmative action is welcome news. Indeed, the decision is more significant than the public may realize. That the court left the law largely as is has likely obscured the significance of the case. Justice Kennedy has consistently voted against affirmative action in prior cases and many court watchers reasonably assumed he would do so again.

"On the other hand, Fisher II continues the disappointing approach of justifying affirmative action in the name of diversity rather than justice. Justice Alito’s dissent is partially right in citing compensating for disadvantage as the originating purpose of affirmative action. More precisely, affirmative action was originally intended to compensate for disadvantage caused by racial discrimination. That is why such policies consider race rather than economic disadvantage alone. But the court decided in University of California v. Bakke (1978), Grutter v. Bollinger (2003) and now in Fisher II that diversity is the most viable basis for affirmative action. 

"Diversity is problematic for several reasons. First, diversity is a less morally compelling rationale for affirmative action than that of rectifying racial injustice. This might explain the dry, technical nature of the court’s analysis in Fisher II, without the moving appeals to decency and fairness that Kennedy invoked in Obergefell v. Hodges (2015) (recognizing a right to same-sex marriage). Second, diversity could support according preferences to groups regardless of whether they have experienced race-based disadvantage or disadvantage of any kind. According greater weight to race than many factors that would arguably serve diversity equally well thus makes affirmative action’s scope appear too narrow. Third, a focus on diversity in educational settings makes it difficult to justify affirmative action in contexts in which minorities are underrepresented but where diverse perspectives is less obviously relevant, such as in the STEM fields, service occupations and blue-collar trades. Fourth, the pursuit of diversity is often perceived as in tension with racial equality rather than as serving it. The majority in Fisher II reflected this purported tension: '[I]t remains an enduring challenge to our Nation’s education system to reconcile the pursuit of diversity with the constitutional promise of equal treatment and dignity.'

"The court’s continued reliance on diversity to justify race-based affirmative action likely undermines the legitimacy of affirmative action in the long run. Our nation understandably questions race-based decision-making, especially by the state.  When the justification for affirmative action lacks moral weight, fails to fit the policy’s focus and appears to come at the expense of equality, its legitimacy is ultimately jeopardized.

"The more persuasive basis for affirmative action is that law and custom, North and South, comprehensively suppressed the economic and educational opportunities of African Americans and other people of color for hundreds of years and numerous generations. The effect of that discrimination is reflected in the stark racial disparities that persist across virtually every indicator of economic and social well-being. Affirmative action is best justified as a means to fulfill our nation’s moral duty to rectify that injustice. What our nation needs is to return to an understanding that affirmative action, sensibly designed, is justified by — indeed required by — equality, fairness and justice."

Douglas Laycock

Robert E. Scott Distinguished Professor of Law; Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low; Professor of Religious Studies 
dlaycock@virginia.edu; (434) 243-8546

Douglas Laycock is one of the nation's leading authorities on the law of remedies and also on the law of religious liberty. He has argued five cases at the Supreme Court. He filed amicus briefs in support of the consumer in Spokeo, Inc. v. Robins; in support of the government in Zubik v. Burwell; and is on the brief for the university in Fisher v. University of Texas.

ON FISHER:

"The opinion is cautious and imposes a continuing obligation on universities to study and evaluate their use of race in admissions. Texas had done that study, and the court largely accepts its findings. The inadequacies of race-neutral admissions at Texas will be largely paralleled at all schools with selective admissions. Despite the cautions — and schools should take those cautions seriously — this is a huge win for educational diversity and for university admissions policies.

The court details some of the problems with percentage plans. It recognizes that varied and strenuous efforts to pursue diversity by race-neutral means had made only limited progress at Texas. And it reaffirms that schools do not have to sacrifice their pursuit of academic excellence in order to pursue diversity without considering race."

George Rutherglen

John Barbee Minor Distinguished Professor of Law; Barron F. Black Research Professor of Law
gar@virginia.edu; (434) 924-7015

George Rutherglen has written widely on employment discrimination, civil rights and admiralty. His research interests also include conflict of laws, federal courts, legal philosophy, affirmative action, sexual harassment and sexual discrimination.

ON FISHER:

"First, while the narrowness of the decision, by a vote of 4 to 3, was expected, the result was not. The court’s decision to grant certiorari in this case revealed that at least four justices at the time (including Justice Scalia) had doubts about the Fifth Circuit’s opinion conformity to the initial ruling by the Supreme Court in this case. Today’s decision reveals that four justices no longer think this.

"Second, the court held that it was the plaintiff, Fisher, not the defendant, the University of Texas, that would have failed to carry the burden of proving a violation of the Equal Protection Clause by a preponderance of the evidence. Although the court emphasized the university’s efforts to accumulate evidence in support of its affirmative action plan, and its ongoing obligation to reevaluate the plan, the emphasis on the plaintiff’s burden of proof makes the university’s defense of the plan somewhat easier.

"Third, following the lead of Justice Ginsburg’s dissent from the initial decision in this case, the Court finds no obligation on the part of the university to simply use the '10 percent' plan to fill all the places in the entering class with students in the top 10 percent of their graduating class from high school. In fact, the court is critical at several points of the 10 percent plan and emphasizes that it was not challenged in this case as motivated by racial considerations.

"Fourth, the precedent established by this decision might be quite narrow because, as the Court says, '[t]he University’s program is sui generis.'  Still, the very fact that the court ruled in favor of the university indicates that the principles articles in its first decision in this case do leave room for some forms of affirmative action.

"Fifth, only Justice Thomas filed a dissenting opinion objecting to any use of race at all in admissions decision. Justice Alito wrote the main dissent, joined by Justice Thomas and the chief justice, emphasizing the Fifth Circuit’s departure from the principles laid down by the court in its earlier decision in this case."

Foster v. Chatman

Brandon Garrett

Justice Thurgood Marshall Distinguished Professor of Law
bgarrett@virginia.edu; (434) 924-4153

Brandon Garrett is the author of "Convicting the Innocent: Where Criminal Prosecutions Go Wrong" and "Too Big to Jail: How Prosecutors Compromise with Corporations." His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law.

ON FOSTER:

"The Supreme Court's ruling today emphasizes that its Batson doctrine continues to have vitality where prosecutors systemically exclude black jurors from criminal trials, but it also shows how seemingly neutral justifications offered by prosecutors for striking jurors may not reflect reality. In the Foster case, a death penalty case, prosecutors adamantly denied that they used race when selecting jurors. Yet a state open records request later uncovered the prosecutor's notes showing how they had highlighted each of the black jurors as those to be struck. If those notes had not surfaced, or if prosecutors had not written down their discriminatory strategy in their own file, Foster might have been executed, having been sentenced to death in violation of the Equal Protection Clause of the 14th Amendment."

McDonnell v. United States

Brandon Garrett

Justice Thurgood Marshall Distinguished Professor of Law
bgarrett@virginia.edu; (434) 924-4153

Brandon Garrett is the author of "Convicting the Innocent: Where Criminal Prosecutions Go Wrong" and "Too Big to Jail: How Prosecutors Compromise with Corporations." His research and teaching interests include criminal procedure, wrongful convictions, habeas corpus, corporate crime, scientific evidence, civil rights, civil procedure and constitutional law.

ON MCDONNELL:

"A unanimous Supreme Court interpreted the mail fraud statute in light of statutory language defining bribes paid in exchange for an 'official act.' Troublingly, the court had for years refused to say whether the broad, generic language of the honest services fraud statute should be limited by more specific language in other federal corruption statutes. This unanimous decision adopts the approach of using the language in one statute to limit language in another. This is an unusual remedy for what the justices identified as potentially unconstitutional vagueness, but at least the court has provided more clarity and guidance that would have been useful to have had in place when McDonnell was tried." 

John Jeffries

David and Mary Harrison Distinguished Professor of Law
jjeffries@virginia.edu; (434) 924-3436

John Jeffries' primary research and teaching interests are civil rights, federal courts, criminal law and constitutional law. Jeffries has co-authored casebooks in civil rights, federal courts and criminal law and has published a variety of articles in those fields. He also wrote a biography of Justice Lewis F. Powell, Jr.

ON MCDONNELL:

(From The Virginian-Pilot) "The court has done the country a good turn by constraining federal bribery law within reasonable limits," said Jeffries, who is among those who believed federal bribery laws were too broad and gave too much power to prosecutors. ...

Jeffries said the high court was worried the Department of Justice was giving itself the final say on what constitutes bribery. This ruling, he said, "laid down a legal rule to define what is and what is not bribery."

Spokeo, Inc. v. Robins

Jason Johnston

Henry L. and Grace Doherty Charitable Foundation Professor of Law
jjohnston@virginia.edu (434) 243-8552

Law and economics expert Jason Scott Johnston's scholarship has examined subjects ranging from natural resources law to torts and contracts. He is currently working on a book that critically analyzes the foundations of global warming law and policy, a series of articles on the economics of regulatory science, and another series of articles on various aspects of the law and economics of consumer protection.

ON SPOKEO, INC. V. ROBINS:

(From Legal NewsLine) Jason Johnston, a law professor at the University of Virginia who teaches courses on contracts, economic regulation and torts, among others, said the high court’s ruling is “clever” and, overall, has the potential to be a good decision.

“I think what the Supreme Court did here might improve matters,” he explained. “It might keep out of courts those bad cases where there’s really no harm alleged.”

Still, Johnston said he expects “quite a bit” of litigation to be brought over the issue.

“I think it’ll be really interesting to see how this shakes out in the federal courts,” he said. “It’s really going to depend on how the federal (district) courts and the 11 federal courts of appeal interpret this.”

Johnston said it was very unlikely that a majority of justices would issue a ruling that plaintiffs like Robins only have to allege a violation of a right created by a statute, without any need to show a concrete harm from the violation.

Such no-harm cases “do no social good” and serve only to enrich class counsel, he argues.

United States v. Texas

David Martin

Warner-Booker Distinguished Professor of International Law Emeritus
dam3r@virginia.edu; (434) 924-3144

David Martin is a leading scholar in immigration, constitutional law and international law. He has helped shape immigration and refugee policy while serving in several key U.S. government posts, including as principal deputy general counsel of the Department of Homeland Security and general counsel to the Immigration and Naturalization Service.

ON U.S. V. TEXAS:

Zubik v. Burwell

Douglas Laycock

Robert E. Scott Distinguished Professor of Law; Class of 1963 Research Professor in Honor of Graham C. Lilly and Peter W. Low; Professor of Religious Studies 
dlaycock@virginia.edu; (434) 243-8546

Douglas Laycock is one of the nation's leading authorities on the law of remedies and also on the law of religious liberty. He has argued five cases at the Supreme Court. He filed amicus briefs in support of the consumer in Spokeo, Inc. v. Robins; in support of the government in Zubik v. Burwell; and is on the brief for the university in Fisher v. University of Texas.

ON ZUBIK:

"It's a win for the religious groups in the sense that they live to fight another day. But they didn't win anything on the merits, and there were very serious disagreements between the two sides in the supplemental briefing. I think the lower courts will find those disagreements unbridgeable — certainly with respect to self-insured plans, where there was not pretense of agreement, and probably with respect to insured plans as well.

The court bought time and probably hopes to be returned to full strength before these cases come back. It is likely to be disappointed. There probably won't be a new Justice seated until October 2017." 

Richard Schragger

Perre Bowen Professor of Law 
schragger@virginia.edu; (434) 924-3641

Rich Schragger's scholarship focuses on the intersection of constitutional law and local government law, federalism, urban policy and the constitutional and economic status of cities. He also writes about law and religion.

ON ZUBIK:

Micah Schwartzman

Edward F. Howrey Professor of Law
schwartzman@virginia.edu
(434) 924-7848

Micah Schwartzman is an expert on constitutional law and the First Amendment. His areas of interest include law and religion, jurisprudence and political philosophy. Schwartzman co-edited "The Rise of Corporate Religious Liberty," a book of essays that examine the evolution and rise of the idea that corporations have a right to religious freedom.

ON ZUBIK:

For faculty experts listed by Supreme Court cases or additional information, see the Media Tip Sheet.

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