By Josh Wolff
Research Attorney, Illinois Appellate Court, First District
The Association’s upcoming January luncheon will feature Adam Liptak, the renowned New York Times journalist who covers the United States Supreme Court. Last week, Liptak wrote multiple articles on oral arguments before the Court, including on Fisher v. University of Texas, No. 14-981 and Evenwel v. Abbott, No. 14-940. Liptak's article on Fisher may be found here while his article on Evenwel may be found here.
In Fisher, the plaintiff, Abigail Fisher, a white student, alleged that the University of Texas denied her admission because of her race. She challenged the school's admission plan which did not make race a deciding factor, but rather one element in considering the applicant's attractiveness. Liptak noted that based on the justices' "skeptical" questions to the attorneys representing the University of Texas, it appeared that the University's affirmative action plan would be held unconstitutional.
Justice Scalia suggested that minority students with inferior academic credentials might do better at "a less advanced school" or "a slower-track school." Chief Justice Roberts wondered "[w]hat unique perspective does a minority student bring to a physics class?"
Liptak noted that, in particular, Justice Kennedy appeared "frustrated" that the Court had encountered the Fisher case again. After all, in 2013, the Court remanded Fisher back to the United States Court of Appeals for the Fifth Circuit so that it could apply the proper strict scrutiny analysis to the University's plan. However, Fisher made its way back to the Court, where Justice Kennedy opined that "[w]e’re just arguing the same case … as if nothing had happened."
Some of the liberal justices, specifically Justice Breyer, wondered if the Court was about to "kill affirmative action through a death by a thousand cuts."
Justice Kagan recused herself from the case because of her involvement in the case as Solicitor General of the United States.
Also noteworthy was that oral arguments lasted 95 minutes, where a typical case is argued in only 60 minutes.
In Evenwel, Liptak observed that the question presented is what the "one person, one vote" principle means when creating voting districts. Do states and other localities count all residents or merely eligible voters? The current practice is to count all residents.
The case was brought by individuals who were challenging voting districts for the Texas Senate.
Liptak noted that people living in the United States who are ineligible to vote—for example, children and immigrants—usually are concentrated in urban areas which tend to favor Democrats. Meanwhile, rural areas, which tend to favor Republicans, tend to have a higher percentage of eligible voters. Thus, he observed, the resolution of the case has the potential to provide a "big boost to Republican voters in state legislative races in large parts of the nation."
Liptak also observed that the justices' particular political leanings were indicative of whether they thought counting all residents or only eligible voters was proper. During oral arguments, the Court's four Democratic appointees asked questions suggesting that counting all residents was the proper protocol while the Court's five Republican appointees asked questions suggesting that counting just eligible voters was proper.
Chief Justice Roberts opined, "[i]t is called 'one person one vote,' " which "seems designed to protect voters."
Justice Sotomayor differed, stating "[t]here is a voting interest, but there is also a representation interest." Liptak suggested that Justice Sotomayor meant that politicians do not just represent eligible voters, but rather all constituents.
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