Divided Supreme Court Confronts Race-Based College Admissions – By JESS BRAVIN, BRENT KENDALL and LOUISE RADNOFSKY Updated Dec. 9, 2015 2:42 p.m. ET

Challenge to University of Texas policy questions whether preferences are still needed

Plaintiff Abigail Fisher speaks outside the Supreme Court in Washington on Wednesday.

Plaintiff Abigail Fisher speaks outside the Supreme Court in Washington on Wednesday. Photo: Kevin Lamarque/Reuters

WASHINGTON—A divided Supreme Court Wednesday again confronted whether policies at the University of Texas at Austin meet the strict standards it has set out for the use of racial preferences in school admissions.

The court appeared conflicted on the question, with conservatives sharply questioning the school’s use of racial factors to add to its minority student body. Liberal justices, meanwhile, appeared supportive of the flagship university’s practice.

In a sign the court may not produce a definitive ruling on the issue, Justice Anthony Kennedy, likely the deciding vote, expressed frustration the case had arrived at the high court a second time without more data on whether the school’s admissions process was working as intended. He suggested the justices might need to send it back to a lower court for additional fact-finding.

“We’re just arguing the same case,” he said. “It’s as if nothing had happened.”

He nonetheless pressed the parties for an answer he could support. Early in the argument session, he asked attorney Bert Rein, who represented Abigail Fisher, a white applicant who was rejected in 2008, to outline what the university could do to create a diverse freshman class if the school’s current use of race is unlawful, as Ms. Fisher claims.

“It’s not easy to do, and it’s not our job to do it,” Mr. Rein said.

But he argued the school’s consideration of race in admissions was too broad and untethered from its stated diversity goals. He also argued there were race-neutral ways to achieve diversity, such as focusing on students’ socio-economic and geographic backgrounds.

Ms. Fisher, who spoke briefly outside the courthouse following the argument, said she was optimistic her case would bring significant changes to university admissions practices.

“Like most Americans, I don’t believe students should be treated differently because of their race,” she said. “Hopefully, this case will end racial classifications and preferences at the University of Texas.”

Rejected by UT, Ms. Fisher instead earned her bachelor’s degree at Louisiana State University, then returned to Texas. She is now 25 years old and works in Austin as a financial analyst for a software company.

The Texas case is on its second trip to the high court, following a 2013 ruling by Justice Kennedy that dodged the main question. It instead ruled 7-1 to reaffirm its 2003 position that student diversity remains a compelling interest, while stressing that courts should scrutinize the methods universities use to attain it.

That 2003 opinion narrowly approved affirmative action in university admissions, and the Supreme Court predicted that “25 years from now, the use of racial preferences will no longer be necessary” to achieve student-body diversity.

Chief Justice John Roberts pointed to those words, written by retired Justice Sandra Day O’Connor, late in the argument in what potentially was a crucial line of questions for Washington attorney Gregory Garre, who represented the school.

He asked Mr. Garre when the need for racial preferences would no longer be necessary, saying it was an “extraordinary power” for universities to be able to admit or deny students because of their race.

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The Supreme Court justices turn a simple question into something more complicated. – By Dahlia Lithwick DEC. 8 2015 7:41 PM

The Supreme Court justices turn a simple question into something more complicated.

 A voter enters the voting booth at Bishop Leo E. O’Neil Youth Center, Nov. 4, 2014, in Manchester, New Hampshire. Photo by Darren McCollester/Getty Images

A voter enters the voting booth at Bishop Leo E. O’Neil Youth Center, Nov. 4, 2014, in Manchester, New Hampshire.
Photo by Darren McCollester/Getty Images

It is a complete accident of history that the Supreme Court hears a case about whether noncitizens are to be counted when states draw legislative districts on the day after Donald Trump suggested that it’s a good idea to prohibit all Muslims from entering the United States for a while. But the fact that the former idea gets as strong a reception at the high court as it does this morning really isn’t an accident, even as it’s rather surprising. The argument that looked like nothing more than a fanciful thought experiment born of a conservative think tank could well prevail this term.

In the plainest sense, Evenwel v. Abbott simply asks the court to determine whether states—in this case Texas—should apportion legislative districts by counting the total population (as determined through the census) or the number of eligible voters. The plaintiffs, Sue Evenwel and Edward Pfenninger, contend that basing apportionment on persons rather than voters violates the line of 50-year-old cases, including Reynolds v. Sims, that established the principle of “one person, one vote” the court has located in the Constitution’s Equal Protection Clause.

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White House asks supreme court to rule on executive immigration action – Lauren Gambino Friday 20 November 2015 17.05 EST

Reforms would shield up to 5 million immigrants and administration argues coalition of Republican-led states had no legal standing to challenge them

Supporters of immigration reform protest outside the US supreme court on Friday. The protesters demanded the implementation of President Obama’s immigration relief programs.

One year ago, President Obama unveiled a sweeping initiative to shield from deportation millions of people living in the country illegally. In a televised address to the nation, the president said: “We are and always will be a nation of immigrants.”

On Friday, the Obama administration formally asked the supreme court to uphold that action, which would grant protection and work permits to 5 million undocumented immigrants, after a federal court decision left it in limbo, where judgments at state level have placed it.

The administration argued that a coalition of Republican-led states had no legal standing to challenge the president’s executive actions and that the president was within his rights to defer deportation for certain groups of immigrants.

“It [the challenge] will force millions of people – who are not removal priorities under criteria the court conceded are valid, and who are parents of US citizens and permanent residents – to continue to work off the books, without the option of lawful employment to provide for their families,” the solicitor general, Donald Verrilli, wrote in the filing.

On Friday immigration advocacy groups marked the anniversary of Obama’s executive action with rallies near the supreme court and the White House, in which they called on the administration to stop carrying out deportations.

Among the protesters were many immigrants affected by Obama’s actions, which protect qualified parents of US-born children and undocumented immigrants who were brought to the country as children or teens.

If the supreme court agrees to hear the dispute, it could re-inject the highly contentious issue into a 2016 presidential election in which immigration is already a highly charged and central issue.

The initial challenge to Obama’s executive action was brought by a coalition of 26 Republican-led states, which argued that the president had overstepped the boundaries of his authority by going around Congress and acting unilaterally.

A federal judge in Texas placed an injunction on the action in February, temporarily suspending it while the challenge wound its way through the courts. Earlier this month, the conservative fifth circuit court of appeals, which sits in New Orleans, upheld the injunction. The Obama administration said then that it intended to appeal.

Immigration has become a central issue for candidates in the 2016 election cycle. The Democratic presidential candidates have all announced plans to expand Obama’s executive actions. Republicans have said the actions are an abuse of presidential power and vowed to repeal them.

“Latinos are listening, and in 2016 there will be 1.5 million Dapa- [Deferred Action for Parents of Americans] affected US citizen voters who won’t forget who stood in our way and actively sought to deport and separate our families,” said Cristóbal Alex, president of the Latino Victory Project advocacy group.

“Our community is strong and ready to hold people accountable and fight for relief.”

Ted Cruz Threatens To Take Away The Supreme Court’s Power To Decide Marriage Equality Cases BY IAN MILLHISER POSTED ON APRIL 6, 2015 AT 1:07 PM


In the likely event that the Supreme Court brings marriage equality to all 50 states this summer, Sen. Ted Cruz (R-TX) wants to strip the entire federal judiciary of its power to hear cases brought by same-sex couples seeking the right to marry, according to the Dallas Morning News.

Cruz’s remarks came during a speech in Sioux City, Iowa, where the tea party senator also praised the original, more discrimination-friendly version of Indiana’s new “religious liberty” law, and claimed that a cabal of liberals and big business endorsed a “radical gay marriage agenda” which says that “any person of faith is subject to persecution if they dare” disagree with marriage equality.

Jurisdiction stripping is a controversial idea that has occasionally been proposed by social conservatives seeking to neuter court decisions that they disapprove of. In 1981, for example, lawmakers introduced a total of 22 bills seeking to remove the Supreme Court’s power to hear cases involving “prayer in the schools, abortion, school busing, a males-only draft and state court rulings.” Reacting to Sen. Jesse Helms’s (R-NC) proposal to eliminate the Court’s authority to hear school prayer cases, Sen. Barry Goldwater (R-AZ) claimed that the bill was akin to “outlawing the Supreme Court.”

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President Obama’s no-Congress strategy

President Obama is pictured. | AP Photo

The president is done caring about congressional Republicans calling him a dictator. | AP Photo


President Barack Obama is planning to bypass congressional Republicans with a surge of executive actions and orders on issues like voting rights, health care, job creation, the economy, climate change and immigration.

And this time, he really, really, really means it. Really.

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Obama’s started to sell his pitch to congressional Democrats, meeting with caucus groups at the White House and going to the Hill on Wednesday morning to speak with House and Senate Democrats.

(PHOTOS: Obama’s second term)

“I have to figure out what I can do outside of Congress through executive actions,” Obama told the Congressional Black Caucus earlier this month, according to Rep. Karen Bass (D-Calif.).

“He’s very ready to use his executive powers whenever possible,” said Rep. Judy Chu (D-Calif.) who heard Obama discuss the new approach at a meeting of the Congressional Asian Pacific Caucus to the White House last week.

With the clock running on Obama’s time in office — he’s even started marking the number of days left in public speeches — the president is done caring about congressional Republicans calling him a dictator. Or calling him at all.

Obama can’t ignore Republicans forever. There’s no way for the president to avoid negotiations to get continuing resolutions to avoid a government shutdown and raise the debt ceiling — and depending how things go, rebuff GOP efforts to defund Obamacare and possibly a compromise on immigration reform. Chief of staff Denis McDonough’s functioning as an almost one-man legislative affairs office can’t do it all.

(Also on POLITICO: W.H. seeks to redefine grand bargain)

And he’s used the executive authority tactic before, including last summer’s controversial move to cut deportations for younger illegal immigrants and the mental health focus he announced as part of his gun control agenda after the Newtown massacre.

But administration officials and advisers say what’s ahead will be more extensive and frequent than previous efforts, and the White House is on the hunt for anything that can move without congressional approval, including encouraging efforts like Attorney General Eric Holder’s lawsuits to find new avenues of enforcement in the wake of the Supreme Court’s decision on the Voting Rights Act last month.

He’s even started soliciting suggestions for where to move next. Bass and other CBC members asked him to change the Medicaid process in territories to base allocations on income level, to repeal the Bush minimum wage federal contractor policies and to address child welfare. The CAPAC members also offered suggestions like changing the federal government’s process of recognizing native Hawaiians.

Obama told them he was open to all of them, and said his staff is working on others in the model of the new emission standards he announced as part of his climate agenda last month.

Eventually, executive actions and orders will be unveiled as part of the economic agenda Obama began hinting at in his speeches last week, addressing things like mortgage refinancing and restructuring — which is about as extensive as the White House expects things to get, even as they talk of welcoming negotiations with Republicans over the debt ceiling. And get ready, he’s told people, for a whole lot more recess appointments if Republicans start blocking his nominees again.

Executive actions are a familiar move for second-term presidents, and one that Bill Clinton and George W. Bush came to know well: rules and regulations can have deep and wide impact, and they come without all the messiness of Capitol Hill.

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