Bench Memos

This Week at the Supreme Court

This week features two of the most important cases of the Supreme Court’s Term, Evenwel v. Abbott and Fisher v. University of Texas at Austin (Fisher II). Let’s look at the whole lineup.

This morning the Court will start with a pair of unexpectedly interesting cases concerning inter-sovereign relations, Dollar General Corp. v. Mississippi Band of Choctaw Indians and Franchise Tax Board of California v. Hyatt. Dollar General asks whether Indian tribal courts have jurisdiction to hear civil tort claims against nonmembers who enter into consensual contractual or other relationships with the tribe. Hyatt addresses questions about the status of sovereign states in each other’s courts. The first question is whether a state court can refuse to extend the same immunities that it gives to its home state to foreign sovereigns that are haled into its courts. The second question is more foundational: Should one state be able to hale another into its courts without consent in the first place?

Shifting slightly to state political districting, Tuesday will feature two cases about state redistricting. First the Court will hear Harris v. Arizona Independent Redistricting Commission, which asks whether a redistricting scheme that devalues individual votes by overpopulating some districts (thereby implicating the Equal Protection clause and the “one-person, one-vote” principle) is justifiable. The two motives at issue are (1) partisan motives and (2) the desire to obtain favorable preclearance of the scheme by the Department of Justice. The latter motive is particularly problematic now because the Court struck down the preclearance requirements in Shelby County, Alabama v. Holder (2013).

Tuesday’s second case is Evenwel v. Abbott, which asks an important question about “one-person, one-vote” itself: What population counts for calculating the “one person” part of the equation? The Court has never clearly explained how to meet the standard since it created the “one-person, one-vote” standard in Reynold v. Sims (1964), and some lower courts have considered the issue to be an unreviewable political question (although respondent Texas does not think so). The three-judge panel below held that the states can use total population instead of voter population, thus diluting the impact of registered voters in the disfavored districts. (Carrie Severino and I filed an amicus brief in Evenwel that you can download here.)

On Wednesday the Court will wade back into the Equal Protection clause in Fisher II, this case’s second trip to the high court. (Carrie Severino filed amicus briefs in both Fisher I and Fisher II.) Two years ago in Fisher I, the Supreme Court vacated a decision by the Fifth Circuit that had granted summary judgment to the university by misapplying strict scrutiny, the constitutional standard governing race-conscious decisions by states. On remand, the Fifth Circuit again granted summary judgment, this time relying on its own Internet research and based on justifications not concocted by the university until several years into the litigation. The challengers ask the Supreme Court to definitively apply principles articulated in Fisher I and grant summary judgment for the plaintiffs.

After Fisher II is argued, the Court will hold no arguments until January 11, 2016, when it hears Friedrichs v. California Teachers Association, an important case about union dues and compelled speech. Stay tuned!

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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