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.

Warrant required for DWI blood test

The Washington Post carried this BIG story yesterday, and I meant to get to it, but never had time. In an 8-1 opinion, written by Justice Sonia Sotomayor (Thomas was the lone dissenter), the court ruled that police must try or have a reasonable duty to obtain a warrant before forcing a blood test to test for BAC. I have no idea how “try” or “reasonable” will be interpreted by the states.

The case, Missouri v. McNeely, denoted that the extraction of blood for the purposes of testing constituted a “search” under the fourth amendment. Accordingly, a Judge’s warrant would be required before said extraction.

I did not think that this really applicable to Texas law, but, evidently, it is. Texas (especially Houston) generally allows for defendants to refuse BAC test (the individuals would then incur an automatic license suspension), but it is becoming less common in recent years. I have a hunch that back in the good ole’ boy days, since half the legislators seemed to be defense attorneys in their other jobs, exemptions and the like were a lot more ubiquitous.

However, times have changed and the average legislator nowadays is a Republican businessman from the suburbs, instead of a Democratic attorney from the country. Localities now have broad power to set “no-refusal weekends” during certain big-events, as well as the State providing exemptions from the privilege of refusing BAC tests for a variety of categories (repeat offenders, children in the vehicle, etc). The Statesman had a good article about all this. Austin generally uses warrants, and the article insinuated Houston did as well, but it suggested that rural areas rarely did.

The Statesman article stated that Austin PD will not be doing any more warrantless blood tests. I wonder if HPD will follow.