Erwin Chemerinsky Supreme Court Preview

Dean Chemerinsky and Jonathan Glater in recording studio

Dean Erwin Chemerinsky analyzes significant cases in the upcoming 2015-16 Supreme Court term, including cases deciding affirmative action, election law and union dues.

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  • Jonathan Glater (Host)

    Assistant Professor of Law
    Expertise: Higher education law, criminal law, corporate law, white collar crime and securities fraud
  • Erwin Chemerinsky

    Dean, Distinguished Professor of Law, Raymond Pryke Professor of First Amendment Law
    Expertise: Constitutional law, federal practice, civil rights and civil liberties, appellate litigation

Podcast Transcript

[Narrator] Welcome to UCI Law Talks, presenting bold perspectives on law from the University of California, Irvine School of Law. Join the conversation on Twitter @UCILaw, #UCILawTalks.

[Jonathan Glater] Welcome to UCI Law Talks this is Jonathan Glater. Today we’re talking about significant cases that the Supreme Court will hear in the coming term. Our resident expert is Erwin Chemerinsky, dean of the law school, distinguished professor of law, and Raymond Pryke professor of First Amendment law here at UCI. He's also author of The Case Against the Supreme Court, that’s only the most recent book, and too many law reviews really to count. Erwin thank you for joining us.

[Erwin Chemerinsky] It's a pleasure to get to talk with you.

[JG] So, when I asked you about the upcoming term you suggested that we discussed three particular cases. The three were: Evanwell v. Perry, Friedrichs v. California Teachers Association and Fisher v. Texas. Can you tell me why you picked those three?

[EC] The Supreme Court sets about half of its docket before it goes on its summer recess. The remainder of the docket is set between the end of September and the middle of January. As I look at the cases for which review has now been granted, there are three that jump out as having, potentially, the largest implications for the law in people's lives.

[JG] Got it. Let's start with Friedrichs then. This is local to us; the plaintiffs I discovered is a schoolteacher in Buena Park, California. What's this case about?

[EC] It is a complicated issue. In 1977, a case called Abood v. Detroit Board of Education, the Supreme Court reaffirmed that no one can be forced to join a public employees union, but that nonunion members can be required to pay the share of the union dues that go to support the collective bargaining activities. The Supreme Court’s reasoning was that nonunion members benefit from collective bargaining in their wages, their hours, their working conditions, the representation they received. They should be required to pay for the benefit they receive, but nonunion members should not be required and can opt out of paying for the political activities of the union and this has been the law ever since 1977. Well, Friedrichs poses the question of whether it violates the First Amendment to require that nonunion members pay the share of the dues, the so-called fair share that goes to support the collective bargaining activities of the union.

[JG] What's the argument? And, I guess, does it relate to the difficulty of distinguishing what's lobbying versus what's negotiating.

[EC] The challengers are arguing that requiring people to pay even the share of the dues that goes to collective bargaining is impermissible compelled speech. They're either compelled speech violates the First Amendment. They also make the argument that you just articulated, that it’s not possible to distinguish what’s collective bargaining versus what's political activities of the union. And in recent years, five justices of the court have questioned the rationale of Abood in a case called Knox v. SCIU in 2012 and Harris v. Quinn in 2014. Five justices referred to Abood as “an anomaly.” Well this case is enormously important for unions but has implications beyond that obviously if unions can't require employees to pay for the share of dues that go for collective bargaining, many fewer are likely to do so. The Supreme Court expressed concern in Abood in subsequent cases about a so-called free rider problem. If nonunion members get all of the benefits of the union without having to pay the share of dues that go to support collective bargaining, many will choose not to do so; they'll be free riders. Not only has justice Scalia has expressed concern about this free rider problem, but as I said, it's beyond just what it will mean for unions. Take for example bar dues in a case following Abood, Keller v. California State Bar. The Supreme Court said that the same principle should apply to bar dues as applied to union dues. Everyone should have to pay the percentage of bar dues that go to support the regulatory activities of the state bar regular activities of lawyers, but no one can be forced to pay for the political activities of the state bar – same framework as Abood. If Abood gets overruled, can Keller really survive? Or what about student activity fees? In a case called Southworth v. University Wisconsin, students objected to paying a student activity fee that went to support activities that they didn't agree with and the Supreme Court upheld student activities. Well if Abood gets overruled, might Southworth have to be reconsidered? So the case is enormously important for the strength of unions in this country, but it also has implications in these and other areas as well.

[JG] So there’s a kind of tragedy of the commons counterfactual here that there will be insufficient support of unions right if the court decides that people can fully opt out.

[EC] Exactly. And the concern as it’s been articulated, we refer to it as the tragedy of the commons or a free rider problem, is individuals who benefit greatly won’t pay if they don't have to. How many people would opt out of paying taxes, even if they benefit greatly from them, if it wasn't required?

[JG] What happened in the courts below? How did we get to the Supreme Court?

[EC] This is a very unusual case procedurally and that could matter in terms of the outcome. After the case that I mentioned in 2014, Harris v. Quinn, a lawsuit was filed in Federal Court in California to ask for the overruling of Abood. Well the Federal District Court can't overrule a Supreme Court precedent. In fact, the union asked for the chance to develop a factual record; facts matter here. How many people will choose to be free riders if union dues are not acquired? What will be the effect on unions? For that matter, how many people end up being members of the union if they don’t want to because they don't take the opportunity to opt out. The district court refused the union’s request of help with actual record and simply ruled in favor of the unions, the defendants. The Ninth Circuit without any explanation did the same thing saying we're bound by Abood and the Supreme Court on June 13, 2015 granted review. It might very well be that when the Supreme Court reads the briefs and hears argument it's going to say we need a factual record; we need the facts about the kinds of questions that I was referred to before deciding. And so one possibility is one that I increasing think would be the right one, we sent it back to the lower courts to develop that factual record.

[JG] Now you alluded a couple times to the political implications of this so I’d like to ask you a little more about that. If unions are effectively weakened, if they have less funding as a result of an adverse decision from the court, how does that ripple through, for example, the upcoming presidential election?

[EC] Unions have already been greatly weakened by Supreme Court decisions. I referred to Knox v. SCIU where the Supreme Court said nonunion members must opt in to supporting the political activities of union. It’s not good enough to say they can opt out. And that then decreases the number of people who are giving money to the unions for political activities. Unions are an important political force in this country, but membership in unions continues to decline; it’s decreased enormously. If this causes a further decrease in union membership, that will weaken the influence of unions. So bottom line: if the challengers win, the unions lose in Friedrichs. It will weaken the strength of unions in every way including politically and as you rightly point out that liberal implications in terms of our political system.

[JG] Is this litigation then? Last question about this case but is this litigation then part of an effort of partisan political effort?

[EC] Well there’s no doubt that the National Right to Work Committee has organized a national strategy, try to say, that nobody should ever be required to pay even the fair share of union dues that go for collective bargaining. They have been successful in getting right to work laws adopted in places like Wisconsin and in Michigan previously strong labor strongholds. Now they’re trying to get the court to constitutionalize right to work by saying no one can ever be forced to pay even the share of the union dues that they benefit from in terms of collective bargaining.

[JG] Any predictions you care to make?

[EC] This is a hard case to predict. On the one hand, five justices have called into question Abood. On the other hand, if there were five votes to overrule Abood, the court could have done that in Harris v. Quinn. And interestingly, it’s Justice Scalia who’s expressed more concern than any of the other justices, at least on the right in terms of the free rider problem. If you hear the argument during Harris v. Quinn, he was very concerned about the free rider problem. And he wrote a decision in 2001, the Leonard case where he specifically talked about why unions should be required to be able to collect money from nonunion members so as to avoid the free rider problem. And underlying this case like so much a constitutional law is, should the court defer to the political process to work this out? If a state wants to, it can adopt a right to work law. All of these union agreements are a result of bargaining in majority rule. Should the court say this violates the First Amendment?

[JG] Let’s turn to Evanwell v. Perry, the case involving the drawing of voting district lines. What are the plaintiffs arguing here?

[EC] Since the early 1960’s, the Supreme Court has said that one person, one vote is a constitutional requirement. That means for any legislative body with districts, all districts must be about the same in population. Here, what the challengers are arguing is, the district should be on the basis of eligible voters, not on the basis of population. And they are arguing that the Constitution requires the district you need based on eligible voters, that to do so on the basis of population is unconstitutional.

[JG] Is this a new argument?

[EC] It's not a new argument. The Supreme Court in a case called Burns v. Richardson had indicated that if the states wanted to, they could district on the basis of eligible voters and some judges in dissenting opinions some law professors and law review articles have argued this but it's the first time that it's directly come before the Supreme Court.

[JG] What would be the effect of changing how the district lines effectively are drawn?

[EC] If the challengers win, the effect would be enormous, particularly on cities and especially on communities of color. Cities tend to have more people who are not eligible voters but are part of the population. This can include Latinos who are not citizens; it can include African-Americans who are a significant number of men often have convictions that cause them to be disenfranchised. It can include cities because there's more of a younger population and correspondingly, it would then help the more rural and suburban areas gain political strength. But when you think of this in terms of political power in this country, we very much work to the disadvantage of Hispanics, more generally minorities, and work to the benefit of white rural voters.

[JG] And what happened in the courts below? How did we get to the court this time?

[EC] This case comes to the Supreme Court from a three judge Federal District Court. What's important about that is there's almost no instance in which the Supreme Court is obligated to take a case. The Supreme Court almost always has discretion on a case it takes. Of the few instances where the Supreme Court must take a case is when there’s a decision of a three judge Federal District Court. So the fact that the Supreme Court is hearing this case doesn’t necessarily mean there are four justices who are inclined towards the challenge position; this is mandatory jurisdiction. The three judge Federal District Court rejected the challenger’s position. The three judge Federal District Court said the law is one person, one vote and the Supreme Court's not hearing the case.

[JG] Any predictions on this one?

[EC] My prediction here is that the Supreme Court is going to say as it did in Burns v. Richardson that states have a great deal of discretion in choosing how to draw lines, that a state could, if you wanted to, draw lines on the base of eligible voters, but the Constitution doesn’t require it. So, one person, one vote is constitutional. There is a fascinating underlying question about political theory. Who does someone represent when elected to office? Is the person representing the whole population or is the person representing just the voters? I think the far better rationale is the former: somebody elected represents everybody. Everybody deserves representation, but that's really what the case is about.

[JG] And to that extent, if you're interested in this case you should tune in to a later podcast when we'll have Rick Hasen on about it in more detail. But Erwin I want to ask you about our last, Fisher v. Texas. This is the case involving the use of affirmative action in the University of Texas system. Can you tell us a little bit about the challenge in this case?

[EC] Sure. In 2004 the Regents of the University of Texas realized that their undergraduate population was less racially diverse than it had been even as recently as 1996. There were fewer African-Americans in the University of Texas in 2004 than in 1996. So the Regents of the University of Texas adopted a new admissions plan. They said they would take about 75 percent of each freshman class by accepting the top ten percent from high schools across the state. Texas is sufficiently racially segregated that it would produce some racial diversity, but Texas realized that would not even create the level of diversity from 1996. They needed to do more. So they say they’d take the other 25 percent of each class by doing an individualized review of every application. For every applicant, an admission score was calculated as a sum of two numbers. One was the academic achievement index, the student’s grades and test scores. The other was a personal achievement index that came from grading two essays required for applications and also looking at six factors; one of the six factors was race. So it appeared that the Regents of the University of Texas had done exactly what the Supreme Court prescribe in its 2003 case Grutter v. Bollinger to use race as one factor among many admission decisions to achieve diversity. Abigail Fisher applied for the University of Texas in 2008; she was rejected. She attended Louisiana State University from which she graduated in 2012 but when she was rejected from the University of Texas, she brought a lawsuit arguing that its consideration of race denied equal protection. The Federal District Court rules against Abigail Fisher based on Grutter v. Bollinger. The United States Court of the Fifth Circuit affirmed the ruling in favor of the University of Texas but then the Supreme Court in 2013 in a 7 to 1 decision reversed the Fifth Circuit. Justice Kennedy writing for the court he said, “The diversity is a compelling interest but the state has to prove that the use of race is necessary to achieve diversity. State of Texas must prove that there's no race neutral alternative that can achieve diversity.” The court sent the case back to the Fifth Circuit. In the summer of 2014, the Fifth Circuit gave a 2 to 1 decision said that it looked at all of the evidence in the record, included there was no other way to achieve diversity except by using race as a factor in admissions decisions and then the Supreme Court granted review with regard to this decision.

[JG] Can we read anything into the fact that the Supreme Court is taking the case now a second time?

[EC] I think we can read a lot into it. I think we know that there are four justices on the Supreme Court who want to overrule Grutter v. Bollinger and eliminate affirmative action in higher education. In a case in 2007, parents involved in commuting schools receive this number one. Chief Justice Roberts wrote an opinion joined entirely by Justices Scalia, Thomas, and Alito in which Chief Justice Roberts said the Constitution requires that the government be colorblind and Chief Justice Roberts rejected the idea that diversity is a compelling interest. So we know four justices want to overrule Grutter. And it takes four votes for the Supreme Court to hear it. We also know that since coming on the court in 1997, Justice Anthony Kennedy has never voted to uphold any affirmative action program in any context not in education, not in contracting, not in employment. We also know, thanks to a book that was published last fall, that when the justices first considered Fisher in conference, there was a majority of five justices who wanted to overrule Grutter v. Bollinger. Joan Biskupic, who covers the Supreme Court for Reuters published a book in the fall of 2014, called, Breaking In, and she got several justices to talk to her. And the justices told her that when the justices voted in conference and Fisher, there were five votes to overrule Grutter and then the justices backed away in that case because it wasn't necessary. All of this leads to speculation that there might be five votes now to overrule Grutter or at least five votes to reverse the Fifth Circuit.

[JG] I want to ask you about the potential impact but before I get to that, a more general question. Why do we see this continuing to be litigated –the use of race in selective institution admissions?

[EC] Few legal issues are more divisive in our society than affirmative action. On the one hand there are those like me who believe that the only way that we can possibly remedy past discrimination, the only way we can have diversity in the classroom, is to have race conscious admissions decisions. There are those on the other side who believe that any use of race is wrong; they believe that the Constitution requires colorblindness and between those two factions there's not a middle ground.

[JG] What’s the impact of the Supreme Court if there are as you say in fact, five votes against permitting the use of race and in the admissions decision?

[EC] So much of course will depend on how the Supreme Court writes the opinion. They could do so narrowly, saying that the evidence was insufficient here to prove the absence of race neutral alternative. And that will put an even heavier burden on colleges and universities to be able to provide proof that there's no other way to achieve diversity. The court could go further though and write a broader opinion, the one that apparently five justices initially wanted when they were deciding the case just a couple of years ago. And then the court could say that any use of race to achieve diversity is unconstitutional. Race can be used only to remedy proven past discriminations that injured these individuals. If the Supreme Court does that, it would have a devastating effect and diversity in colleges and universities across the country. We saw that here in California in 1996. California voters passed an initiative Proposition 209. It amended the state constitution to say that neither the state or its political subdivisions could use race or gender in terms of either discrimination or preferences in education, contracting, or employment. UCLA, today in 2015, has fewer minority students – especially fewer African-American students – than it did in 1996 even after almost 20 years. It hasn't found a way of overcoming Proposition 209. The statistics in terms of the effects of Proposition 209 say in the law, schools in California really show what the effect would be because of the history of current discrimination without consideration of race there often won't be diversity. Now so far this has all been about public colleges and universities but it can also apply to private universities as well. Title VI of the 1964 Civil Rights Act said recipients of federal funds can't discriminate based on race. The Supreme Court has repeatedly said that the standard under Title VI is the same as the standard of equal protection. Every private university takes federal funds. In fact, there are now lawsuits pending against a number of private universities including Harvard University saying its affirmative action plans violate Title VI and so if the Supreme Court eliminates affirmative action it will have an enormous, a devastating effect on diversity especially to leading colleges and universities, public and private, across the country.

[JG] I’d like to wrap up by asking if there are other questions I should be asking or other topics related to the upcoming term that perhaps we should talk about?

[EC] Well of course we've only covered three cases. Last year the Supreme Court decided 66 cases after briefing in oral argument. Just to quickly allude to some of the other important issues before the Supreme Court. This Supreme Court has a very important case with regard to punishment of juveniles. A few years ago in a case called Miller v. Alabama, the Supreme Court said that it’s cruel and unusual punishment to have a mandatory sentence of life without possibility of parole for homicides committed by juveniles. Does that apply to people who were convicted and sentenced before that decision? That’s before the Supreme Court. Also the Supreme Court has not yet granted review but it has got its docket some important abortion cases. The cases coming out of Mississippi and out of Texas, they involve laws that say that doctors at clinics where abortions are performed must have admitting privileges at local hospitals. And since local hospitals won’t give these doctors admitting privileges, the effect is to dramatically reduce the places where abortions are available. It would close the last clinic in Mississippi where abortions are performed in many of the clinics in Texas. The Texas law also says that facilities where abortions are formed have to have surgical level facilities even if it’s medically induced abortions. My prediction is the Supreme Court will get one or more of these abortion cases, so I think the bottom line prediction is that it’s going to be another amazing year in the court.At the end of next June we're all going to be waiting with great anticipation to see what the Supreme Court does because it affects all of us, often most important and intimate aspects of our lives.

[JG] You hinted there at the importance of the composition of the court and I hope we can have you back to talk about the presidential campaign and its significance for the shape of the court in the years to come.

[EC] I’d love to. I think there’s no more important issue for the 2016 presidential election than who’s likely to fill as many as four vacancies on the Supreme Court that are likely to happen.

[JG] Erwin, thank you very much for joining us.

[EC] Thank you.

[Narrator] Thank you for joining us for UCI Law Talks produced by the University of California, Irvine School of Law.