Creative Retirement, Friday Round Table.

        " Supreme Court Decisions " ,   15November'13.

    1. Meet Baby Veronica, the Child at the Heart at the Supreme Court Case Adopt Couple v. Baby Girl

    The U.S. Supreme Court this morning issued its decision on Adoptive Couple vs. Baby Girl, a case involving Veronica, a three-year-old girl in the midst of a custody battle between her biological father Dusten Brown, and Matt and Melanie Capobianco, the couple who began caring for Veronica since birth. RadioLab‘s Tim Howard that the case first "struck him as a sad but seemingly straightforward custody dispute." However, because Brown is part of the Cherokee nation, the 1978 lndian Child Welfare Act (ICWA) came into play. The Act was passed by Congress in order to "help preserve Native American families by erecting high hurdles for ending the parental rights of lndian parents and to discourage adoptions outside tribes."
        Veronica was born to Brown and Christinna Maldonado in 2009. Although they were engaged, they broke up before she was born. Maldonado asked Brown whether he would rather pay child support or give up his paternal rights and Brown : reportedly texted her to say "that he would rather give up parental rights than pay child support." Maldonado signed custody over to the Capobiancos who were there for Veronica‘s birth and began raising her. Brown, however, denied that he meant to allow Veronica to be put up for adoption and challenged the adoption proceedings under the ICWA. A family court in South Carolina ruled the lCWA barred adoption and the South Carolina Supreme Court gave Brown custody in 2011. Veronica has been living with him ever since but the U.S Supreme Court today overturned the South Carolina Supreme Court‘s ruling, paving the way for her to return to the Capobianco‘s.
        SCOTUSBlog's Mike Bottlieb summarises today's decision by the Court:
        "The Court had before it two competing interpretations of the IC WA: the more expansive version, advocated by the biological father, argued that ICWA applies whenever a court is considering whether to terminate parental rights of a Native American parent; the competing interpretation, advanced by the adoptive parents, argues that ICWA ’s coverage is limited to the kinds of cases that Congress most likely had in mind when it passed ICWA — namely, those in which social workers and other government officials are seeking to remove Native American children from an existing Native American family. Today, in a five—to-four opinion, the Court adopted the latter interpretation. "
        Justice Alito, writing the Court's opinion said:
        "Under the State Supreme Court's reading...a biological lndian father could abandon his child in utero and refuse any support for the birth mother and then could play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests. If this were possible, many prospective adoptive parents would surely pause before adopting any child who might possibly qualify as an lndian under the ICWA. "
        The Supreme Court, however, did not grant the Capobianco's adoption of Veronica, but instead returned the issue to the South Carolina state courts for further proceedings.

    2 . Supreme Court Bolsters Gay Marriage With Two Major Rulings

    ln a pair of major victories for the gay rights movement, the Supreme Court ruled that married same-sex couples were entitled to federal benefits and, by declining to decide a case from California, effectively allowed same-sex marriages there.
        The rulings leave in place laws banning same-sex marriage around the nation, and the court declined to say whether there was a constitutional right to such unions. But in clearing the way for same-sex marriage in California, the nation’s most populous state, the court effectively increased to 13 the number of states that allow it.
        The decisions will only intensify the fast-moving debate over same-sex marriage, and the clash in the Supreme Court reflected the one around the nation. ln the hushed courtroom Wednesday morning, Justice Anthony M. Kennedy announced the majority opinion striking down the federal law in a stately tone that indicated he was delivering a civil rights landmark. After he finished, he sat stonily, looking straight ahead, while Justice Antonin Scalia unleashed a cutting dissent.
        The vote in the case striking down the federal Defense of Marriage Act was 5 to 4, and Justice Kennedy was joined by the four members of the court's liberal wing. The ruling will immediately extend many benefits to couples married in the states that allow such unions, and it will allow the Obama administration to broaden other benefits through executive actions.
        The vote in the California case was also 5 to 4, but with a different and very unusual alignment of justices. Chief Justice John G. Roberts Jr. wrote the majority opinion, and he was joined by Justice Scalia and Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan. The four dissenters — Justice Kennedy and Justices Clarence Thomas, Samuel A. Alito Jr. and Sonia Sotomayor -— said they would have decided whether Proposition 8 was constitutional. But they did not say how they would have voted.
        The case on the federal law was the more important one from a legal perspective, setting the terms for challenges to state bans on same-sex marriage. Justice Kennedy's reasoning, as Justice Scalia noted at length in dissent, could just as easily have applied to state laws as to the federal one.
        "The federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and injure those whom the state, by its marriage laws, sought to protect in personhood and dignity,” Justice Kennedy wrote. "By seeking to displace this protection and treating those persons as living in marriages less respected than others, the federal statute is in violation of the Fifth Amendment."
        He said the law was motivated by a desire to harm gay and lesbian couples and their families, demeaning the ”moral and sexual choices" of such couples and humiliating "tens of thousands of children now being raised by same-sex couples."
        The constitutional basis for striking down the law was not entirely clear, as it had elements of federalism, equal protection and due process. Justice Kennedy said the law's basic flaw was in its "deprivation of the liberty of the person protected by the Fifth Amendment.”
        He added that the ruling applied only to marriages from states that allowed gay and lesbian couples to wed.
        Dissenting from the bench, Justice Scalia said that that declaration took “real cheek.”
        "By formally declaring anyone opposed to same-sex marriage an enemy of human decency," Justice Scalia said, "the majority arms well every challenger to a state law restricting marriage to its traditional definition.”
        Exactly 10 years ago, Justice Scalia issued a similar dissent in Lawrence v. Texas, which struck down laws making gay sex a crime. He predicted that the ruling would lead to the legal recognition of same-sex marriage, and he turned out to be right.
        The court's four more conservative justices — Chief Justice Roberts and Justices Scalia, Thomas and Alito — issued three dissents between them in the case on the federal law. They differed in some of their rationales and predictions, but all agreed that the law, which passed with bipartisan support and which President Bill Clinton signed, was constitutional.
        Chief Justice Roberts said that he "would not tar the political branches with the brush of bigotry,” and that "interests in uniformity and stability amply justified Congress's decision" in 1996, which, "at that point, had been adopted by every state in our nation, and every nation in the world."
        Justice Scalia wrote that the majority had simplified a complex question that should be decided democratically and not by judges.
        "In the majority's telling, this story is black—and-white: Hate your neighbor or come along with us," he wrote. ”The truth is more complicated."
        The decision will raise a series of major questions for the Obama administration about how to overhaul federal programs involving marriage. Justice Scalia noted some of the difficult problems created by the decision in the case, United,States v. Windsor, No. 12-307. "imagine a pair of women who marry in Albany and then move to Alabama," he wrote. "May they file a joint federal income tax return? Does the answer turn on where they were married or where they live?
        The case before the justices‘ concerned two New York City women, Edith Windsor and Thea Clara Spyer, who married in 2007 in Canada. Ms. Spyer died in 2009, and Ms. Windsor inherited her property. The federal law did not allow the internal Revenue Service to treat Ms. Windsor as a surviving spouse, and she faced a tax bill of about $360,000, which a spouse in an opposite-sex marriage would not have had to pay. Ms. Windsor sued, and last year the United States Court of Appeals for the Second Circuit, in New York, struck down the federal law.
        The Obama administration continued to enforce the federal law, but it urged the justices to strike it down as unconstitutional, prompting House Republicans to step in to defend it. The justices differed on whether the case's odd procedural posture deprived the court of jurisdiction, much as the machinations in the Proposition 8 case had. Justice Kennedy said that the federal government retained a stake in the case, and that the lawyers for House Republicans had made "a sharp adversarial presentation of the issues." Because the "rights and privileges of hundreds of thousands of persons” were at stake, Justice Kennedy wrote, it was urgent that the court act.
        In the California case, Chief Justice Roberts said that the failure of state officials to appeal the trial court decision against them was the end of the matter. Proponents of Proposition 8 had suffered only a “generalized grievance” when the ballot initiative they had sponsored was struck down, the chief justice wrote, and they were not entitled to represent the state's interests on appeal. The ruling in the case, Hollingsworth v. Perry, No. 12-144, erased the appeals court's decision striking down Proposition 8.
        As a formal matter, the decision sent the case back to the appeals court, the United States Court of Appeals for the Ninth Circuit, in San Francisco, "with instructions to dismiss the appeal for lack of jurisdiction." That means the trial court's decision stands.
        Lawyers for the two sides had different interpretations of the legal consequences of the Supreme Court's ruling. Supporters of Proposition 8 said it remained the law in California because the trial court's decision applied only to the two couples who had challenged the law. The lawyers who filed the challenge to Proposition 8, Theodore B. Olson and David Boies, said the trial court decision was binding in all of California.
        As a practical matter, Gov. Jerry Brown, a Democrat, instructed officials to start issuing marriage licenses to same-sex couples as soon as the Ninth Circuit acts. lf California becomes the 13th state to allow same-sex marriage, about 30 percent of Americans will live in jurisdictions where it is legal. Until last year, when four states voted in favor of same-sex marriage at the ballot box, it had failed —- or bans on it had succeeded — every time it had appeared on a statewide initiative.

    3 . United States Supreme Court case concerning affirmative action.

    Fisher v. University of Texas is a United States Supreme Ceurt case concerning the affirmative action admissions policy of the University of iexas at Austin. The Supreme Court voided the lower appellate court's ruling in favor of the University and remanded the case, holding that the lower court had not applied the standard of strict scrutiny, articulated in Gratter v. Bemnger and Regents of the University of California v. Bakka, to the University's admissions program. The Supreme Court's ruling in Fisher took Grutter and Bakke as given and did not directly revisit the constitutionality of using race as a factor in college admissions.
        The suit, brought by undergraduate Abigail Fisher in 2008, asked that the Court declare the University's race-conscious admissions inconsistent with Grutter, which had in 2003 established that race had an appropriate but limited role in the admissions policies of public universities. While reasserting that any consideration of race must be "narrowly tailored," with Fisher the Court did not go on to overrule Grutter, a relief for those who feared that the Court would end affirmative action.
        The United States District Court heard Fisher v. University of Texas in 2009 and upheld the legality of the University's admission policy in a summary judgment. The case was appealed to the Fifth Circuit which also ruled in the University's favor. The Supreme Court agreed on February 21, 2012, to hear the case. Justice Eiena Kagan recused herself from the case. On June 24, 2013, the Fifth Circuit's decision was vacated, and the case remanded for further consideration in a 7-1 decision, with Justice Fiutii Seder Ginsburg dissenting. Justices Antonin Scelie and Clarence Themes filed concurring opinions.
    Background
        Plaintiffs Abigail Noel Fisher and Rachel Multer Michalewicz applied to the University of Texas at Austin in 2008 and were denied admission. The two women, both white, filed suit, alleging that the University had discriminated against them on the basis of their race in violation of the Equal Protection Claus of the Feourteenth Amendment. The University of Texas at Austin accepts students in the top 10% of each Texas high school's graduating class, regardless of their race; under Texas House Bill 588, 81% of 2008's freshman class were admitted under the plan.
        Applicants who, like Fisher, fail to graduate in the top 10% of their high schools, have a further opportunity to gain admission to the University by scoring highly in a process which evaluates their talents, leadership qualities, family circumstances and race. Fisher had a grade point average of 3.59 (adjusted to 4.0 scalejm and was in the top 12% of her class at Stephen F. Austin High School. She scored 1180 on her SAT (measured on the old 1600 point scale, because UT Austin did not consider the writing section in its undergraduate admissions decision for the 2008 incoming freshman class). The 25th and 75th percentiles of the incoming class at UT-Austin were 1120 and 1370. She was involved in the orchestra and math competitions and volunteered at Habitat for Humanity.
        During the case proceedings, Fisher enrolled at Louisiana State University, where she was in her final year as an undergraduate in 2O12. ln 2011, Michalewicz withdrew from the case,leaving Fisher as the sole plaintiff.
    Opinions of the Court
        ln a 7-1 decision, the Court vacated and remanded the Fifth Circuit‘s ruling. Writing for the majority, Justice Kennedy concluded that the Fifth Circuit failed to apply strict scrutiny in its decision affirming the admissions policy. instead, he wrote, the Fifth Circuit held that Fisher could only challenge "whether the University's decision to use race as an admissions factor ‘was made in good faith.' lt presumed that the school had acted in good faith and gave petitioner the burden of rebutting that presumption." Kennedy argued that per the Grutter v. Bollinger ruling, the burden of evidence primarily lies with the university "to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity."
        Justice Scalia wrote a one-paragraph concurring opinion, stating that he still holds the view that he first expressed -in his concurring opinion in Grutter v. Bollinger: "The Constitution proscribes government discrimination on the basis of race, and state-provided education is no exception". Because the petitioner did not ask to overturn the holding in Grutter, that there is a compelling evidence in the educational benefits of diversity to justify racial preferences in university admissions, he joined with the majority in full.
        Justice Thomas issued his own concurring opinion, stating his reasons for overturning Grutter v. Bollinger, and rule that the use of race in such higher education admissions decisions violates the Equai Protection Clause. Comparing such university admissions with desegregation cases, he wrote that "there is no principled distinction between the University's assertion that diversity yields educational benefits and the segregationists' assertion that segregation yielded those same benefits." He also wrote that he believed that such admissions programs may actually be more harmful: "Blacks and Hispanics admitted to the University as a result of racial discrimination are, on average, far less prepared than their white and Asian classmates the University/s discrimination does nothing to increase the number of blacks and Hispanics who have access to a college education generally any blacks and Hispanics who likely would have excelled at less elite schools are placed in a position where underperformance is all but inevitable because they are less academically prepared than the white and Asian students with whom they must compete".
        In her dissenting opinion, Justice Ginsburg explained her reasons for affirming the Fifth Circuit's ruling. Noting that the university's 10 percent plan admitted students regardless of their race, she argued that “the University's admissions policy flexibly considers race only as a ‘factor of a factor of a factor of a factor‘ ... and is subject to periodic review to ensure that the consideration of race remains necessary and proper to achieve the University's educational objectives As l see it, the Court of Appeals has already completed that inquiry, and its judgment, trained on this Court's Bakke and Grutter pathmarkers, merits our approbation".

    4 . Shelby County v. Holder: The Opinion in Plain Simple English

    In Shelby County v. Holder, the Supreme Court ruled that Section 4 of the Voting Rights Act is unconstitutional. its formula can no longer be used as a basis for subjecting jurisdictions to preclearance. The South has changed, SCOTUS said, and the rules have, too. The way the federal government intervenes in voting law will have to change massively as a result.
        Shelby County, Alabama, challenged Section 5 of the Voting Rights Act of 1965, which requires that states and counties with a history of trying to block minorities (i.e. most of the South) from voting get pre-clearance from the Justice Department to change any voting laws -— anything from the requirements to register to vote, to the location of a polling station.
        ln Shelby County v. Holder, the Supreme Court sought to determine whether Congress’ decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre—existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the Fourteenth and Fifteenth Amendments, and thus violated the Tenth Amendment and Article IV of the Constitution.
    The decision was 5-4.
        SCOTUS ruled that Section 4 -— the formula that determines which specific locations Section 5 applies to -— is unconstitutional in light of current conditions. The 5-4 ruling, authored by Chief Justice John Roberts and joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito, found that "things have changed dramatically” in the south nearly 50 years after the Voting Rights Act was signed.
        In 1966, the formula was rational in both practice and theory.
        The court makes clear that: "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting found in [Section] 2. We issue no holding on [Section] 5 itself, only on the coverage formula. Congress may draft another formula based on current conditions." Clarence Thomas, in a concurring opinion, noted that he would have found Section 5 unconstitutional as well.
        ln Justice Ginsburg‘s dissent, she says: "ln the Court's view, the very success of Section 5 of the Voting Rights Act demands its clormancy."Ginsburg read the dissent aloud from the bench, a rare occurrence at the court which more or less represents a major "F*ck You!" to the majority.
        Although Section 5 survives, it will have no actual effect unless and until Congress can enact a new statute to determine who should be covered by it.
        While the majority opinion says Congress is free to write a new formula to reflect current conditions, it seems unlikely Congress will act, given the House's conservative leanings and the Republican Party's dominance in the states that have historically been subjected to Section 5.
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