A Very Texan Supreme Court Term

July 2nd, 2013

I prepared this entry for the South Texas College of Law Alumni Magazine. Some readers may find my Texas-spin on this year’s term of some interest.

This term, Texas had a very busy year at the United States Supreme Court. Two significant cases involving affirmative action and Miranda rights originated here in Texas. In Fisher v. University of Texas at Austin, the Supreme Court stopped short of finding that all uses of affirmative action was unconstitutional, but ruled that the state has a much higher burden to justify this use of race in higher education. In Salinas v. Texas, the Justices split on whether the police can comment on a suspect’s questions before Miranda warnings are provided.

Fisher v. University of Texas, at Austin

For nearly four decades, the Supreme Court has struggled with the question of affirmative action, and whether state schools considering race to admit students violates the Fourteenth Amendment’s guarantee of equal protection under the law. The Court’s first attempt to resolve this issue in Regents of the University of California v. Bakke in 1978 resulted in a splintered opinion, with competing rationales over the validity of affirmative action. Justice Powell’s concurring opinion, which would eventually prove to be the most influential, held that race could be used as one of many factors. However, race could not be used by itself to justify a quota, as was done in the University of California system. The Supreme Court revisited the issue of racial preferences for government contracts during the 1980s, but would not return to affirmative action in higher education until 2003.

That year, the Supreme Court decided two landmark cases involving the University of Michigan. In the first case, Gratz v. Bollinger, the Court found that Michigan’s undergraduate admission policy was unconstitutional, because it would award additional points to minorities based solely on their race. Because the students were not being assessed individually, but assessed based on their race, the Court found a violation of the 14th Amendment. However, in a companion case, Grutter v. Bollinger, the Court upheld Michigan Law School’s affirmative action program because it only used race as a “plus” factor among other factors. The Court stressed that diversity in higher education was a compelling state interest, and warranted this limited use of race. In the Michigan cases, the Court struck a balance on the scope of affirmative action. However, a few years later, one important factor changed. Justice Sandra Day O’Connor, who voted in the majority in both cases, was replaced by Justice Samuel Alito, who would join a 2007 opinion that would have eliminated all affirmative action.

This brings us to the case of Abigail Noel Fisher, who attended high school in Sugarland. Fisher, who graduated outside the top 10% of her class, was not guaranteed admission to the University of Texas at Austin under the so-called “Top 10% Plan.” Fisher applied to UT, but was not accepted. Claiming that it was unfair that minority applicants with lower grades were admitted due to affirmative action, Fisher filed a suit challenging the University’s admission policy. Both the district court, and the Fifth Circuit Court of Appeals ruled against Fisher, finding that UT’s admission policy was permissible under Grutter, as it considered race as one of many factors. Fisher appealed the case to the Supreme Court, setting up a showdown about the fate of affirmative action in the Lone Star State, and throughout the country.

The Supreme Court had several options in this case. First, they could have reversed Grutter, and ruled that all uses of affirmative action were unconstitutional. However, Fisher’s lawyers gingerly avoided the question of whether all affirmative action was unconstitutional, and did not ask the Court to overrule Grutter. Second, the Court could have found that UT’s affirmative action policy was unconstitutional, but approved of the Top 10% Plan which (on it’s surface) was race-neutral (though by its very design, it effectively set aside seats for students from predominantly minority high schools). Instead, the Court took door number three, holding that the Fifth Circuit Court of Appeals did not apply the correct level of scrutiny. In other words, the lower court too-readily agreed with the University’s stated rationales for using affirmative action to improve diversity. Instead, the court must closely scrutinize the UT’s motives, and ensure that no other race-neutral methods could achieve diversity.

Perhaps what was most unique about this holding was that the final vote was 7-1. With Justice Elena Kagan recused, only Justice Ruth Bader Ginsburg dissented. The majority opinion was written by Justice Anthony M. Kenendy, and joined by Chief Justice John G. Roberts, and Justices Antonin Scalia, Clarence Thomas, Steven G. Breyer, Samuel A. Alito, and Sonia S. Sotomayor. This broad consensus reflects something of a middle ground on the issue. Though, in reality, it just kicks the affirmative action can down the road. The Court of Appeals will likely have to remand the issue to the trial court to gather new evidence, and hold what will certainly be a lengthy, and controversial trial. Eventually, maybe in two or three years, the case may travel from the capital of our Republic to the capital of our other Republic. It’s anyone’s guess what the Court will do in Fisher II.

Salinas v. Texas

The second big Texas case this term began right here in Harris County. In 1992 Genovevo Salinas voluntarily went to the police station to talk about two murders. At the time, because he was not under arrest, he was not in “custody.” The police asked him a series of questions which he answered. When the police asked him about shotgun shells found at the scene of the crime, he stayed quiet. Salinas was ultimately arrested, and convicted of murder. During trial, the prosecutor commented on the fact that Salinas answered all of the police’s other questions, but was silent about the shells question, in an effort to to get the jury to draw a negative inference. After many appeals, Salinas argued that the prosecutor’s comments about this statement violated his rights under Miranda v. Arizona.

In a 5-4 opinion, the Court held that Salinas’s conviction was proper. The controlling opinion, authored by Justice Alito, and joined by Chief Justice Roberts and Justice Kennedy, held that because Salinas did not affirmatively invoke his right to remain silent at the police station, Miranda did not apply. Justices Thomas and Scalia concurred in the judgment, and wrote that the prosecutor could have commented on the silence even if the suspect had invoked his Miranda rights. The dissent by Justice Breyer, joined by Justices Ginsburg, Kagan, and Sotomayor, argued that conviction was improper, and in violation of Miranda.

This case has another special connection to South Texas. Alan Curry, a South Texas alum,  and Harris County’s longest serving Assistant District Attorney, successfully argued the case before the United States Supreme Court. I worked with the College to organize a moot for Alan before arguments. In fact, Curry is the second STCL alum to appear before the high court. Lynne Liberato successfully argued Granite State Insurance Company v. Tandy Corporation before the Nine in 1992. South Texas grads are batting a 1.000 at One First Street!

The Supreme Court Comes To South Texas

The road from Texas to the Supreme Court is a two-way street. For the second consecutive year, Chief Justice John Roberts will lecture at a South Texas study-abroad program sponsored by the Consortium for Innovative Legal Education. Last year, days after Roberts closed out the busy Supreme Court term, and his decision in NFIB v. Sebelius, he embarked for Malta. As I recount in my forthcoming book, Unprecedented: The Constitutional Challenge to Obamacare, before his departure, the Chief Justice joked that he was retreating to an “impregnable island fortress.” This summer, Chief Justice Roberts will teach abroad in Prague. Our students are very honored to learn with the Chief.

In addition, South Texas was very fortunate to host General William K. Suter, the Clerk of the United States Supreme Court, as our commencement speaker. Suter, who will retire from the Court this summer after 22 years of service, is an icon in Washington. Suter is former major general in the United States Army, and served as acting Judge Advocate General. Suter delivered an insightful address to the graduating students, stressing the importance of honesty, integrity, and hard work. Prior to the graduation, we were treated to a sitdown with General Suter and Admiral Guter, or Guter and Suter, as they styled it. The two had an open discussion about the law, the Supreme Court, the Constitution, and life. General Suter took many questions from the students, faculty, and alumni in attendance. It was an amazing event.

With that, the Supreme Court term is officially over. Until the first Monday in October when it starts all over again.