Erwin Chemerinsky on SCOTUS ’15-16 Term

Colleen Taricani and Dean Chemerinsky recording podcast

Dean Chemerinsky discusses the potentially blockbuster cases to watch in the 2015-16 Supreme Court term now that the docket is set, including cases on immigration, abortion and contraception.

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  • 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

  • Colleen Taricani (Host)

    Assistant Dean for Communications

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 at UCI #UCILawTalks

[Colleen Taricani] Hello and welcome. This is Colleen Taricani for UCI Law Talks and I'm always happy to see and talk with Erwin Chemerinsky, dean of UCI Law, but especially when he's going to discuss the Supreme Court. Oh! And also when he's passing out chocolate or donuts at the law school. Thank you, Erwin.

[Erwin Chemerinsky] It's a pleasure to talk with you and to do the podcast.

[CT] You referred to the Supreme Court's last term for liberals as the “Return of the Jedi.” How is this term shaping up?

[EC] I think this term for conservatives is going to be “The Empire Strikes Back.” I think that this term there are a number of cases where the conservative justices are likely to be in the majority and move the law significantly in a conservative direction.

[CT] Last time we had you on UCI Law Talks, you discuss three cases: Evanwel, the election law case; Friedrichs, the public school union dues case; and Fisher of course, the affirmative action case. All of those three now the Supreme Court has heard oral argument and what did you take from the oral argument and what can we read into what might happen?

[EC] In one of those three cases the oral argument was quite clear in terms of the direction of the court. Friedrichs v. California Teachers Association was argued on Monday, January 11. What this involves is in 1977, in Abood v. Detroit Board of Education, the Supreme Court reaffirmed that nonunion – no one can be forced to join a public employees union – but that nonunion members can be required to pay the share the union dues that go to support collective bargaining. They benefit from the collective bargaining in their wages, their hours, the working conditions, and the court said they shouldn't be able to be free riders but the court said no one can be forced to pay the share the union dues that go to support the political activities of the union. In Friedrichs, the Supreme Court is being asked to overrule Abood and said that it violates the First Amendment to force nonunion members to pay the share of the dues that go to support collective bargaining. The oral argument was striking in that one of the five conservative justices left the slightest doubt as to how he's going to vote. All five of those justices in every question asked seem to indicate that they're ready to overrule Abood and to hold that nonunion members don't have to pay anything towards collective bargaining. It will have a dramatic effect on unions in California and about 20 other states, lessening their revenue and likely decreasing their membership. The second case that I would talk about was Evanwel v. Abbott and here, it was very difficult to predict from the oral argument. You might recall that this case involves: how is districting to be done when you've got, say a city council or a state legislature or congressional district? In the 1960’s the court articulated the rule one person, one vote. For any elected body with districts will almost have the same in population. In Evanwel v. Abbott coming out of Texas, the challenges are saying districting should be on the basis of eligible voters not on the basis of population. So if you think of an area with substantial non-citizen population, documented or undocumented, it would be significantly disadvantaged by that. Or an area where there's a larger birthrate or an area where the significant number of people who are disenfranchised from voting because of a felony conviction. These tend to be predominantly minority communities so the effect of this would be a shift in voting strength from cities often to suburbs and rural areas is very much benefit Republicans over Democrats. Some of the justices on the court, say notably, Samuel Alito, seemed sympathetic to the idea it should be eligible voters not population. Other justices like Sonia Sotomayor seem very hostile to that but hard to know where the quote is going to come out on the basis of the oral argument. The final case that you mention in terms of argument is Fisher v. University of Texas at Austin. It was argued on Wednesday, December 9. This involves the University of Texas affirmative action program. This is the second time the case is in the Supreme Court. In 2013, the court said that Texas had to prove there is no race neutral way of achieving diversity. The fifth circuit on remand found that University of Texas had demonstrated there's no other way to achieve diversity and the Supreme Court granted review. It's important to remember in this case the Justice Elena Kagan is recused. She had been the solicitor general of the United States when the matter was handled in that office; so there's only eight justices participating. What makes this case different and harder to predict is we know there are four justices who want to overrule precedent and eliminate all affirmative action: Roberts, Scalia, Thomas, and Alito. We know there's three justices participating: Ginsburg, Breyer, and Sotomayor who want to continue precedent and allow affirmative action. It comes down to what’s Justice Kennedy going to do? In his questions and oral arguments could be read supportive for each side and so it's very difficult to read. Might he join the liberals and create a four-force split in which case the lower court is upheld without opinion by an evenly divided court? Might he join the conservatives in saying Texas didn't do enough to prove that there's no other way to achieve diversity? Might even join the conservatives and overruling Grutter. Can't tell from the oral argument, but it’s also worth remembering since Anthony Kennedy came on the court in 1987, he's never once voted to uphold an affirmative action program: not education, not contracting, not employment. I think it means that Justice Kennedy is much more likely to side with the conservatives than the liberals. Will he go as far as the conservatives want and overturning precedent? That's what we can't know at this point in time but certainly those who support affirmative action have every reason to be concerned about what the Supreme Court is likely to do. So notice in common in all three of these cases, there’s the potential for a quite dramatic conservative change in the law. I think it’s likely with regard to Friedrichs and possible with regard to Evanwel v. Abbott and Fisher v. University of Texas, Austin.

[CT] Thank you Erwin. Now you mention too that we were talking before that the Supreme Court has recently granted cert to three, well a few more cases but three, very notable cases that we want to talk about here. One on immigration, another on abortion, and another on contraception. Can you tell us what those cases deal with?

[EC] Sure. It is important to note that now the docket for October term 2015 is set. The Supreme Court has granted review in all of the cases that they're going to hear and decide this year. Anything else for review that is granted from now until the end of June won't be heard until next term and it's clear that like last term this is going to be another momentous blockbuster year. If you think about the three cases we just talked about and the three you mention it's going to be another amazing late June as we see these rulings come down. I’ll take them in the order you mention them. The first case that you talked about is United States v. Texas. The Supreme Court granted review on Tuesday, January 19. In November 2014, President Obama announced an executive action where he said that the United States government is not going to bring deportation proceedings against parents who have children who are citizens or who have children who have permanent residence if the parents have been here since 2010 and they don't have a criminal record. This is technically called DARP (Deferred Action for Parents). Immediately, Texas and 25 other states brought a challenge against the Obama executive action. Texas argued that President Obama had no authority to do this, he was usurping congressional power, je wasn't fulfilling his duty to carry the laws to be faithfully executed. The Obama administration said no president deports all who are here illegally, about 11 million people in the United States who are undocumented and any given year only about 400,000 deported. The Obama administration said we're just setting priorities we want to deport those who are dangerous rather than break up families. No government not federal, state, or local enforces every law. Possessing a small amount of marijuana violates a Federal Controlled Substance Act but the federal government doesn't prosecute. We wouldn't want the police to give a ticket to anybody who is one mile over the speed limit. The Obama Administration says we're just exercising prosecutorial discretion. The federal district court in Texas ruled against the Obama administration and issued a preliminary injunction. The United States Court of Appeals for the Fifth Circuit in a two to one decision affirmed ruling against the Obama administration. The Supreme Court granted expedited review to hear the case this term. There are many complicated issues. One is, does Texas, the state, have standing to sue in federal court in order to have standing for the federal court of jurisdiction, there has to be an injury. The Obama administration says Texas isn't injured by this in any way. Texas says well we have to process the request for driver's licenses; that costs us money; that's in injury. The district court, the Fifth Circuit agreed but is that enough of an injury for standing. Also, the Obama administration didn't go through a formal process for rule making. The district court said in order to have a rule like this you have to follow the Administrative Procedures Act. The Obama administration says we're not issuing a formal rule, we’re just telling you what our policy is going to be with regard to who we're going to who we're going to deport and not. And then there is the constitutional issue that the Supreme Court granted review on. Does the president's policy violate his duty to carry that the laws of the United States are faithfully executed?

[CT] Where do the circuits come down on the split?

[EC] Only one circuit has ruled. The United States Court of Appeals for the Fifth Circuit and it was a two to one decision and it was split along ideological lines. The two judges in the majority were both appointed by Republican presidents and are known as conservatives. The one in dissent was appointed by President Obama and is known as more liberal.

[CT] What do you think is going to happen in that case?

[EC] I don't have a prediction, of course the briefs haven't been filed. There hasn't been oral argument that won’t occur until the end of April, and there’s no prior case like this one. It's always make predictions easiest to do it when you can look to recent precedent and extrapolate from it. Now the most recent immigration case before the Supreme Court was Arizona v. United States in 2012 and involved Arizona's controversial immigration law, SB 1070. And the Supreme Court five to three ruled in favor of the federal government against Arizona striking down many of those provisions as being precluded, preempted by federal law. It was interesting Justice Kennedy wrote for the court joined by Chief Justice Roberts and Justices Ginsburg, Breyer, and Sotomayor; Justice Kagan was recused. The Obama administration wants to see this as a predictor of the court wanting to side with the government on immigration. On the other hand, everything about immigration is so politically charged, so divided along partisan lines as we saw in the lower federal courts. In this case, you've got to remember that there’s five justices on the Supreme Court who are appointed by Republican presidents, four by Democratic presidents. Will that matter in this context in the Supreme Court?

[CT] The next case is the abortion case that the Supreme Court just agree to hear. Can you tell us about that one?

[EC] The case is called Whole Woman's Health Center v. Cole; it involves a Texas law. The Texas statute has two provisions: one says as for any facility where abortions are performed, the doctors must have admitting privileges at hospitals within 30 miles and it turns out the hospitals don't give admitting privileges to these doctors. The other provision says that any facilities where abortions are performed must have surgical quality facilities. This is so even if no surgical abortions are performed there. Even if all the abortions are medically induced, still that of surgical level facilities. The effect of this would close down about 40 of 50 facilities in Texas where abortions are performed. If this is constitutional, in some states like Mississippi, it will close all of the facilities where abortions are performed. The constitutional issue is, is the Texas law in impermissible undue burden on the right to abortion? The Supreme Court in Planned Parenthood v. Casey in 1992 said that the government can regulate abortions before viability but can't prohibit them. The regulations cannot place an undue burden on the right to abortion. This is going to be the most important case since defining what's an undue burden. Now, the challengers say it's an undue burden that's going to close 80 percent of the facilities in Texas. The challengers say there's no evidence that these regulations will protect the health of women. The Fifth Circuit said that it’s not relevant whether or not the regulations would protect the health of women in assessing whether it's an undue burden on the right to abortion. So it's enormously important with regard to Texas, with regard to so many of the laws like this and for that matter there were more statutes adopted by the states between 2010 and 2013 regulating abortion than in the prior decade combined. This is going to give an indication how the Supreme Court's likely to deal with these statutes.

[CT] And this is really the first major abortion case in a while that we've seen. How does this court's make up change their perspective?

[EC] The last abortion case was Gonzalez v. Carhart in 2007. There, the Supreme Court five to four upheld the Federal Partial Birth Abortion Ban. The federal statute prohibited a procedure that anti-abortion groups called partial birth abortion was removal of a living fetus, a significant part of living fetus, with the intent of ending the fetus’ life. The Supreme Court overruled – implicitly overbold – a seven-year-old precedent that it said that such laws are an unconstitutional undue burden. So to answer your question based on that case, I think there are four justices on the current court: Roberts, Scalia, Thomas, and Alito who vote to overrule Roe v. Wade and they will vote to uphold any regulation of abortion. I think that Justice Kennedy has made clear he won't vote over rule Roe; he was the fifth vote in Planned Parenthood v. Casey to affirm Roe v. Wade but he’s very likely to uphold regulations up to the point of a prohibition of abortion. He wrote the opinion in Gonzalez v. Carhart. I think there are clearly four Justices: Ginsburg, Breyer, Sotomayer, and Kagan to strike down these regulations. Though this will be the first abortion case to be heard since Justice Sotomayor and Kagan came on the Supreme Court. So once more, like so much of what we're talking about, it comes down to Anthony Kennedy.

[CT] It really could be termed the Kennedy court.

[EC] It is the Kennedy court. For all of the cases we're talking about, Anthony Kennedy is the swing vote. But that's nothing new; this is been so ever since 2006 when Sandra Day O'Connor left the court and was replaced by Samuel Alito. You have Roberts, Scalia, Thomas, and Alito who are quite conservative. You have Ginsburg, Breyer, Sotomayor, Kagan who are the liberals on the court and when they split four to four, it's Kennedy who makes the difference. Prior to last year, in the first nine years of the Robert’s Court when those justices split four to four, Kennedy sides with the conservatives 70 percent of the time. With the liberals 30 percent of the time. Last term was different; last year there were 14 ideologically divided five four cases. Kennedy was with the liberals in nine, with the conservatives in five. But the issues that we're talking about First Amendment rights of nonunion members, voting districting, affirmative action, abortion, these are areas where Kennedy has historically been with conservatives much more than the liberals.

[CT] Well have to see what happens and that. And the last case that we want to talk about is the contraception case that has just been granted cert.

[EC] The case is called Zubik v. Burwell. There's actually seven cases where cert was granted; they've all been consolidated and this is going to be the title case. This goes back to the Patient Protection Affordable Care Act, what we often call Obamacare. One provision of it said that the Department of Health and Human Services should promulgate regulations to make sure that employer provided insurance included preventative healthcare coverage for women. We all know that traditionally, insurance provided benefits only when someone was ill. Congress wanted to make sure that insurance provided by employers also had well-care coverage. One, Health and Human Services promulgated the regulations. One part of them said that for religious institutions that oppose contraception like the Catholic Church, they don't have to provide such benefits to their employees. Another part of the regulation said for profit companies that employ more than 50 people, they have to if they provide insurance include contraceptive coverage for women. In 2014, in Burwell v. Hobby Lobby, the Supreme Court said it violates the Religious Freedom Restoration Act to require that close corporations, family held businesses, grant contraceptive coverage to women if it violates the owner's religious beliefs. Zubik v. Burwell and the other six cases involve the final part of the contraceptive mandate. It says, if a nonprofit is affiliated with a religion that opposes contraception, like a Catholic university, it can get out of this requirement by filing a statement with the federal government. It just has to attest that it's affiliated with a religion that opposes contraception and then contraception would be provided to the women at no cost to that nonprofit employer. The insurance provider the federal government will pay for it and provide it.

But non-profits that are affiliated with religion have come forward and said but that makes us complicit. We file a statement with the federal government and then others are providing contraception for the women, contraception that violates our religious beliefs, we’re the cause of this in the chain and therefore this is substantial burdening of our religion. Seven different United States courts of appeals rejected that argument saying that's just not a substantial burden on religion so it doesn't violate the Religious Freedom Restoration Act. The United States Court of Appeals for the Eighth Circuit then came to the opposite conclusion and found that it did violate the statute. The Supreme Court granted review in the first seven cases the last wasn't ready for review at the time that the Supreme Court took action. The court consolidated them and that's the issue. Does it violate the Religious Freedom Restoration Act to say that a not-for-profit can get out of providing contraception by signing the statement filed with the federal government when that means that others will then be providing the contraception? What is enough for substantial burden of religion?

[CT] So can we read anything vis-a-vis Hobby Lobby and how the Supreme Court is probably going to rule on this one?

[EC] Well, Hobby Lobby was a very sharply divided five-four decision. Justice Alito wrote joined by Roberts, Scalia, Kennedy, and Thomas. Ginsburg read the dissent and it was a vehement dissent joined by Justices Breyer, Sotomayor, and Kagen. That might indicate that those same five justices in the majority will be sympathetic to the nonprofits that are affiliated with religion and find that violates the Religious Freedom Restoration Act. On the other hand, it's a different issue because in Hobby Lobby, the for profit company would have to be providing the contraceptive coverage itself. Here, all the nonprofit does is file a statement saying that it's affiliated with a religion that opposes contraception. So Hobby Lobby is what we have to try to draw inferences from to make predictions from but of course the Obama Administration say it’s a totally different issue. Is this a substantial burdening of religion?

[CT] What do you think?

[EC] Again, we haven't had an oral argument in the case. It's always difficult to make predictions. I think it's important that seven federal courts of appeals considered and said just filing a statement isn't enough to be a substantial burdening of religion when there's no cost whatsoever to the nonprofit affiliated with this religion. On the other hand, many of the critics of Hobby Lobby said noticed that the five justices in the majority were five Catholic men and their views about contraception and reproductive autonomy were surely reflected in their decision. If one wants to draw inferences from something like that, it would point in the other direction. So in other words, until we read the briefs and until we’ve heard the oral argument, I'm going to be more cautious about making predictions.

[CT] When is the oral argument scheduled in that case?

[EC] It's in March.

[CT] And the other two cases?

[EC] In United States versus Texas, no oral argument date has yet been set but it will surely be at the very end of the argument calendar in late April. Whole Woman’s Health v. Cole will also be argued in March.

[CT] Anything else that we should discuss about this term or the cases upcoming?

[EC] Well there's so many important cases on the docket this term. There’s important cases with regard to criminal law and criminal procedure. There’s important cases with the regard to intellectual property; there's other important cases with regard to freedom of speech. I think what I would end by saying is how remarkable this time is in the United States Supreme Court. I’ve been a law professor for 36 years now teaching constitutional law so I followed the court closely for a pretty long time. I can't think of any time in recent memory where year after year, there are so many blockbuster decisions from the Supreme Court. We just think of the last few years. In 2012, you had a case that upheld the Affordable Care Act, National Federation of Business v. Sebelius. In the case that struck down large parts of Arizona's SB 1070, Arizona v. United States. In 2013, you had the Supreme Court in United States v. Windsor striking down a key provision of the federal Defense of Marriage Act. You also had the Supreme Court striking down a crucial provision of the Voting Rights Act and Shelby County v. Holder, first time a civil rights law dealing with race has been invalidated since the end of Reconstruction really. Then you've got in 2014, other major blockbuster cases coming down at the end of the term. In 2015, you've got marriage equality coming down upholding the Affordable Care Act and then you look at the cases that are in the docket this term. Hard to remember any time in recent memory where the Supreme Court has had so many blockbuster cases in such a short period of time and maybe that leads to the most crucial message of all. I think that the most important issue in the November 2016 presidential election is who's likely to fill four seats on the Supreme Court? The average retirement age of a Supreme Court justice since 1960’s was 79 years old. In 2017, the year the next president inaugurated will have four justices who are 79 years old or older. Ginsburg, Scalia, Kennedy, and Breyer especially if it's a two term president, that individual is going to fill four seats. The most long lasting legacy of any president is appointments to the Supreme Court, the federal courts. So I think both Democrats and Republicans, liberals and conservatives, all of this that we're talking about shows there's nothing more important in the coming presidential election than who's going to fill these vacancies on the Supreme Court.

[CT] Indeed and I'm very much looking forward to our Supreme Court Term in Review event in July. There's going to be a lot to talk about.

[EC] Most definitely.

[CT] Thank you so much Erwin, always a pleasure.

[EC] My pleasure, thank you.

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