Last week, in two cases, the Court has an opportunity to chip away at the legacy of the civil rights movement as well as take on a fundamental tenant of our democracy. Both would negatively affect African-americans. Once again, courtesy of SCOTUSBLOG, I give my impressions.
First up Harris v Arizona Independent Redistricting Commission. Part of what divides the right and the left politically is around this notion of who is qualified to vote. We know that voter suppression has been a tool used against african americans for decades. The Voting Rights Act was created to thwart attempts at voter suppression. The section of the act that was most effective at this was recently gutted by the Roberts Court in the case Shelby County v Holder.
But voter suppression is not the only tool. Controlling who can vote based on where they live is another weapon. Legislators draw new district lines (called redistricting) after the census. The new lines are meant to accurately show populations changes. But it is rarely used for that purpose alone. By controlling the district lines, you can control the political power of one party. When Republicans are in power, the lines are draw to their favor. When Democrats are in power it is in their favor.
That what brings us to Harris v Arizona. In what appears to be purely political move Arizona drew new lines which piled more residents in Republican leaning districts and fewer residents in Democratic leaning districts. Amy Howe in her write up notes:
“[Plaintiffs] told the Justices that partisanship was “rank” in the redistricting process. But some Justices were unconvinced, with Justice Ruth Bader Ginsburg telling him that she found it “odd” that he was alleging partisanship when “the end result was that the Arizona plan gave Republicans more than their proportionate share of seats in the state legislature.” If this was, she continued, an effort to “to stack the deck” in favor of Democrats, “it certainly failed.”
“[Defendants] painted a very different picture. He asserted that partisanship had played such a “tiny role” in the redistricting process, and its effect was so minimal, that “it’s simply not something that ought to be taken seriously as a constitutional problem.”
But defendants got push back from the more conservative justices.
“Justice Samuel Alito reminding him that the lower court in this case had indeed found that “partisanship played some role” in the redistricting process. And Justice Antonin Scalia referred back to a case from last Term, in which the Court upheld the Arizona commission’s authority to draw federal congressional districts. Observing that the Court had previously been assured that the commission “was going to end partisanship, get politics out of redistricting,” “
The focus of the hearing, bizarrely turns to issues with the VRA. The chief justice Roberts called the rules “fairly opaque” and many on the court believe the problems of the case hinged on Arizona’s attempts to comply with the law.
Next, affirmative action is in the court again. The case on the surface appears to be about Abigail Fisher seeking $ 100 bucks in damages from the University of Texas. But in truth, it could upend the policy of taking race into consideration when accepting applicants into schools nationwide.
Fisher v. Texas is not a new case but an old case being reheard. In Texas, when a white woman, (who has since graduated from another school and moved on) Ms. Fisher, was denied entry into the Texas University she sued the institution assuming her rejection was due to her spot being taken by a less qualified black person.
The Court, surprisingly, never questioned that assumption and took up the case immediately challenging the University’s admitting policies only as it pertained to people of color. From Lyle Denniston:
“Fisher still believes that she was excluded solely because she is white, based on what she views as a flawed, race-based admissions policy. The university still insists that her scores were not high enough, and she was not eligible for an automatic place in the class, so there was no way she could have been admitted, whatever her race.
Strangely, the Court has not tried to sort out who is right in those conflicting perceptions, instead proceeding to look at the Texas admissions policy itself as if neither of those views mattered. That way, it has avoided an Article III question that has hung over the case for all of its five years: is this a real, live constitutional controversy? The Court has simply assumed that it is, without saying so.
The case seem to be a cause célèbre for the conservative justices. The lower appellate court has twice thrown the case out. But Scalia has now infamously gone full Donald Trump making statements like “[it might be better for some blacks go to] a slower-track school where they do well” and “I don’t think …it stands to reason that it’s a good thing for the University of Texas to admit as many blacks as possible.”
Scalia also said: “Most of the black scientists in this country don’t come from schools like the University of Texas,” and “They come from lesser schools where they do not feel that they’re being pushed ahead in classes that are too fast for them.”
Scalia gets this line of thinking from amicus briefs supplied to the court. Within some of the briefs, they espoused a belief called mismatch theory which posits:
“…students who are (1) not up to a college’s usual admissions standards and (2) nonetheless admitted for reasons wholly unrelated to their academic backgrounds are less likely to have good educational outcomes than if they had gone to a college for which they were more properly prepared and qualified. It’s not a new argument.”
Some some call mismatch theory a “respectable argument”.
The chief justice Roberts expressed impatient wondering “What unique perspective does a minority student bring to a physics class?”
Will this case finally do away with Affirmative Action? After oral arguments, Mr. Garrer seemed to disagree when talking to the press. The case which will not have a ruling until June 2016 but he believes:
“Now is not the time and this is not the case to roll back student body diversity in America,”
Solicitor General Donald B. Verrilli Jr., who argued in favor of the Texas plan, said, “What the court is going to say in this case obviously is going to apply eventually to every university in the country.”