Fisher decision

The New York Times reports that the United States Supreme Court has come out with their ruling in the case of Fisher v. University of Texas. Many months ago, I wrote an op-ed on this topic. I wrote shortly before the Supreme Court heard arguments in the case, where I repeated the assertion made often in the media at that time, that a 5-4 division of the Court would have struck affirmative action as unconstitutional.

That was before the court heard arguments, however. As this decision approached, I became convinced the Court would render an exceedingly narrow opinion, pertaining only to Texas because of the 10% rule, in a nearly unanimous manner. For the first time in many, many years, I was right about one of these things.

The Supreme Court held 7-1 that the Fifth Circuit had, indeed, erred in their ruling. However, they attributed this to the Appeals court incorrectly not applying heightened scrutiny to UT’s affirmative action program.  6 Justices specifically held not to overturn Grutter v. Bollinger, the most recent Supreme Court opinion upholding affirmative action.

The Justices, for all intent and purposes, were actually divided into three groups. 5 Justices (Roberts, CJ., Kennedy, Breyer, Alito, Kagan, J.J.) held the opinion of the court, the thing with heightened scrutiny and what not. 2 Justices (Scalia and Thomas, J.J.) would have scrapped all affirmative action. Justice Ginsburg would have affirmed the Fifth Circuit’s opinion. The missing link, Justice Kagan, did not take part in the case since it was pending while she was the President’s Solicitor General.

This was especially interesting since Justice Kennedy was in the dissent of Grutter. While Chief Justice Roberts and Justice Alito were not on the Court in that year, Justices typically as conservative as them were dissenting in the previous case, like Chief Justice Rehnquist.

We’ll see how the Legislature deals with all this in 2015, though.

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Lege update 6/20

There are a few other things that have happened at the Capitol in the last two days that I have missed. So, briefly, I will attempt to explain and discuss these two actions.

First, reports The Texas Tribune, the Senate is moving towards approving SJR2, which would amend the constitution to allow for the the rainy day fund to be partially depleted in order to fund transportation infrastructure projects. I talked about this bill at length a few days ago, when it passed a Senate panel. 
Off the Kuff has more about the topic.

Next, the San Antonio Express-News reports that the House has taken up the Senate’s bill to apply life-with-parole to 17 year-olds who commit Capital Murder. I talked at length about this bill when the Senate passed it. The House Criminal Jurisprudence Committee unanimously approved the Senate’s bill. The House, however, discussed alternative proposals, preserving the possibility that the Senate may retake up the measure.

Rep. Bryan Hughes (R-Wood County), never really especially progressive, pleasantly surprised me by offering up a better solution to this problem: allowing juries to choose a range of punishments ranging from 25 years to life-without-parole. As a reminder, the Supreme Court said that life w/o parole for 17 year olds is not unconstitutional, per se, but rather only when they are the mandatory sentence. Accordingly, a greater consensus existed in the House to preserve the penalty as an option, allowing juries to choose between life with parole and life without parole. This presents an interesting conundrum, because, in Texas, prosecutors and defense attorneys generally do not discuss parole options before a jury takes up a sentencing matter. When a jury convicts for life with parole, they usually just think they are convicting for “life.”

Third, the Austin American-Statesman discusses the building momentum in the House to override Perry’s line item veto of Public Integrity Unit funding. Sylvester Turner, recently named the “Bull of the Brazos” by Texas Monthly, is leading a coalition to override the veto. This will be interesting to watch. Obviously, Turner can get the votes of all the Democrats. Thereafter, he will still need about 45 Representatives and 9 Senators. I think that is possible, though. Perry ticked off a lot of Republicans when he vetoed their bills (Kel Seliger and Dan Patrick, anyone?), so they may be easy pickings for payback. Just a theory, though.

Last, but certainly not least, and this is fresh off the press, the House has voted to rubber stamp the Redistricting bills. The Houston Chronicle  states that these are second readings, with final approval expected tomorrow. At that point, it will just be the Governor’s signature standing in the way of these vile maps being adopted.

I’m up in Dallas for the next few days on official business. Saw/met Ken Starr and Justice Samuel Alito today, so I guess you could say it was a success.  I’ll probably have more to talk about tonight.

Supreme Court update

Three major cases were decided today by the United States Supreme Court. All three will have a major impact upon our State for the future.

First up, the case of Arizona v. Inter-Tribal Council. In the 7-2 ruling, authored by Justice Scalia, the Court held that the State of Arizona had no right under to regulate election or voting requirements, being precluded from doing so under Federal Law. The issue in question revolved around the requirements Arizona used to prove citizenship. While Federal Law, under the National Voter Registration Act of 1993 (colloquially styled the “Motor Voter Act”), requires only a signed formed, the Arizona statute required proof through either birth certificates, passports or naturalization papers.

The case sets an important precedent in the relation between Federal and State oversight of elections. Most directly, the decision will mean that Texas could not institute a similar measure. In a more expansionist view of this ruling, States would be prohibited from instituting more strict voting requirements than Federal Law allows. This view was partially taken by Scalia’s opinion, which relied heavily upon the Motor Voter Act’s instruction for States to “accept and use” federal forms. This could possibly have the implication of blocking more and more of super-strict State voting restrictions.

Next, the Court decided the case of Salinas v. Texas. In a typical 5-4, Conservatives versus Liberal ruling, written by Justice Alito, the court held that Miranda protections, most notably the right to remain silent, are not applicable. In that case, Defendant Salinas voluntarily entered a police station in order to answer questions about a recent murder investigation. After answering questions, Salinas stopped somewhat abruptly. At trial, the prosecution used Salinas’ silence as evidence of his guilt.

Justices Scalia and Thomas insinuated in a concurrence that, even if Salinas had expressly invoked his fifth amendment rights, it would not have granted him protection. The seven remaining Justices, however, disagreed.

Finally, in yet another 5-4 decision, the Court ruled in Alleyne v. United States to overturn a 2002  decision, Harris v. United States, pertaining to mandatory sentencing and Sixth Amendment litigation. In this case, the issue pertained to the sentencing of an individual found guilty of a crime, where a sentence would be enhanced if a certain fact were proved.

Specifically in Alleyne, the issue pertained to a Defendant convicted of armed robbery. The sentence would be enhanced if it could be proven that the Defendant was brandishing  firearm. Although the jury could not find this fact satisfied, the Judge did, and so the Defendant was sentenced with the enhanced penalty. In reversing the 11 year old Harris case, Justice Thomas joined with the 4 traditional liberals on the Court to state that the Sixth Amendment protects Defendants from anyone other than juries deciding such facts.