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From Kedar Bhatia’s ever-useful StatPack, we see that this year, there were eight 5-4 decisions where AMK voted with the liberals, and only five where AMK voted with the conservatives. In Walker, Justice Thomas voted with the four liberals. In Williams-Yulee, CJ Roberts joined Ginsburg, Breyer, Sotomayor, and Kagan. So there were 10 cases where four liberals were joined by one conservative. But the only case where four conservatives were joined by one liberal was Breyer joining in Armstrong. But even there, Breyer only concurred in judgment with Justice Scalia’s opinion, which fractured significantly. Adam Liptak discusses the “discipline” of the liberals in his insightful end-of-year piece.

 

Here is the question presented by the Court in Fisher v. Texas II:

Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).

This is precisely how the issue was framed in Fisher’s cert petition:

Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).

This is also similar to how the question presented was framed by the Court in 2011 for Fisher I:

Whether this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Grutter v. Bollinger, 539 U.S. 306 (2003), permit the University of Texas at Austin’s use of race in undergraduate admissions decisions.

Note that neither QP asks to overturn Grutter.

Recall that during arguments, Bert Rein told Justice Breyer that they were not trying to overturn Grutter.

JUSTICE BREYER: If you are going to the merits, I want to know whether you want us to — or are asking us to overrule Grutter. Grutter said it would be good law for at least 25 years, and I know that time flies, but I think only nine of those years have passed. And so, are you? And, if so, why overrule a case into which so much thought and effort went and so many people across the country have depended on?

MR. REIN: Justice Breyer, we have said very carefully we were not trying to change the Court’s disposition of the issue in Grutter, could there be a legitimate, a compelling interest in moving — in using race to establish a diverse class. What — the problem that we’ve encountered throughout the case is there are varying understandings, not of the legitimacy of the interest, but how you get there; is it necessary to use race to achieve that interest; what does a critical mass-

JUSTICE BREYER: Well, how do you want to argue it right now in the next ten minutes? I’m interested because I have a very short time to get my question out, and I need to know how you are going to argue it.

MR. REIN: Well, Justice Breyer, our argument is we can satisfy Grutter if it’s properly read.

So, once again, Fisher II can only pick around the margins of the Michigan cases. And we only have 8 Justices, with Justice Kagan recused.

Johnson v. U.S. (which I am only now getting a chance to read) finds the “residual” clause of the Armed Career Criminal Act was void for vagueness, and violated the Due Process Clause of the 5th Amendment. Justice Thomas dissented, and argued that the void for vagueness doctrine was akin to substantive due process, and needs to be reconsidered as a matter of original meaning. It is well worth reading.

But buried in a footnote was a citation to his join dissent in NFIB v. Sebelius.

By “penal,” I mean laws “authoriz[ing] criminal punishment” as well as those “authorizing fines or forfeitures . . . [that] are enforced through civil rather than criminal process.” Cf. C. Nelson, Statutory Interpreta- tion 108 (2011) (discussing definition of “penal” for purposes of rule of lenity). A law requiring termination of employment from public insti- tutions, for instance, is not penal. See Keyishian, 385 U. S., at 597– 604. Nor is a law creating an “obligation to pay taxes.” Milwaukee County v. M. E. White Co., 296 U. S. 268, 271 (1935). Conversely, a law imposing a monetary exaction as a punishment for noncompliance with a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___–___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26).

The Chief cited the joint dissent in King v. Burwell as well, in case you missed that too:

It is implausible that Congress meant the Act to operate in this manner. See National Federation of Independent Business v. Sebelius, 567 U. S. ___, ___ (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 60) (“Without the federal subsidies . . . the exchanges would not operate as Congress intended and may not operate at all.”).

In any event, Thomas views the void for vagueness doctrine as a species of substantive due process, which he abjured in McDonald v. Chicago.

That we have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, 19 How. 393, 450–452 (1857) (stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, 561 U. S. 742, 811 (2010) (THOMAS, J., concurring in part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfun- damental rights that do not”). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels.

In what also may be a first, Justice Thomas notes that the first draft in Roe was premised on a vagueness, not privacy rationale:

In more recent times, the Court’s substantive due pro- cess jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly signifi- cant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U. S. 113 (1973), on the theory that laws pro- hibiting all abortions save for those done “for the purpose of saving the life of the mother” forced abortionists to guess when this exception would apply on penalty of con- viction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116–118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See 410 U. S., at 164.

 

 

In Justice Sotomayor’s Horne dissent, she used what seemed to be the wrong word:

Approbation (approval) is the exact opposite of what she meant. I thought she meant disapprobation (disapproval).  Kevin Walsh made the same observation.

On June 23, the day after the opinion was published, SupremeCourt.gov quietly uploaded a new PDF. The word was changed to “opprobrium.” (According to SCOTUSServo).

Confusing approbation with opprobrium should be viewed with disapprobation.

 

The Houston Chronicle quoted me on my reaction to the Supreme Court taking Fisher another time.

The court’s decision to take up Fisher’s case again could signal that it doesn’t believe the 5th Circuit met this standard and might be poised to reverse the appeals court’s ruling, said Josh Blackman, an assistant law professor at Houston’s South Texas College of Law.

“The key point is, the fact that they took it means the 5th Circuit probably didn’t do what they were supposed to and the Supreme Court is going to clean up the mess,” Blackman said.

I suspect the 5th Circuit will be reversed. But here, as with all affirmative action cases, the question is how the 5th Circuit gets reversed. Justice Kennedy’s decision in the Fair Housing case reaffirms his level of comfort with some use of race, as he cited a few times his concurring opinion in Parents Involved. But no matter how you slice it, the 5th Circuit did not apply the level of scrutiny that Justice Kennedy urged last time. In Fisher I, Justice Sotomayor was (apparently) able to keep the Court from ruling on the merits. Let’s see what happens this time.

Totally apart from the merits, in recent years, the Court has taken several cases twice–what Richard Re called “SCOTUS repeaters“–and went on to reverse. Bond II, Zivotofsky II, Horne II.

Also, sooo many amicus briefs are going to be recycled from last time.