Professor Spooner's Blog

The Supremes took on some of our most pressing social issues this term: abortion, affirmative action, corruption, and immigration. While there were disappointments (a tie in the immigration case leaves us all wanting for a ruling on executive power, and puts many immigrant families at risk of eventual deportation), there were decisions that I cheered. The term goes on record as one of our most liberal. But, viewed as a lawyer not an ethicist, this term should be entitled, “Oh How We Miss Justice Scalia.”

I will get to the conclusions I draw from Whole Women’s Health and Fisher II, but first we must mourn Scalia all over again. Although he would have voted the “wrong” way in terms of the social outcomes of these cases, without him the opinions were lackluster. As anyone who regularly reads the “June” (i.e. the most important) opinions of the Court knows, Scalia’s was the opinion you read first. He was the one who showed us the weaknesses in the Majority reasoning, who predicted the future (see Lawrence v. Texas), and explained what the Court was really deciding. If Scalia wrote the majority opinion, it would be short, easy to read, and lacking in legalese. Justice Ginsburg has been quoted as saying that Justice Scalia made her opinions better. She was implying his influence behind-the-scenes, but knowing that the world would read your words alongside his would press everyone to think harder, write better, and reason more carefully.

Whole Women’s Health v. Hellerstedt

Nowhere is Scalia’s absence more evident than in Whole Women’s Health v. Hellerstedt, the historic abortion case decided this week. I am thrilled at the outcome, and convinced as a woman (ethics) and a lawyer (law) that the Court got it right. But has there ever been a more boring opinion that would be so historic? Sorry Justice Breyer – I am happy to get your vote on my side, but how about some gorgeous language about women’s rights to control their bodies, the hypocrisy of Texas’s efforts to “protect” women’s health, and the real reasons for Texas’s laws? Instead we got a long discussion of science, statistics, and public health. Justice Ginsburg’s concurrence disappoints, an opinion with no fire, no rage at the false effort to protect us from ourselves, just a simple statement that, “it is beyond rational belief that H.B. 2 could genuinely protect the health of women” and a tweetable name for this type of legislation, “Targeted Regulation of Abortion Providers” (or “TRAP”).

As a matter of constitutional law, Justice Breyer’s opinion was appropriate, because the case was a fight about standard of review, not women’s rights. Indeed, the opinion is barely about abortion. What the Court cannot agree on is the meaning of “undue burden.” Not surprising, given that Justice O’Connor made the term up in Planned Parenthood v. Casey. I have always taken (and taught) undue burden to be shorthand for strict scrutiny – Roe v. Wade spent a lot of time explaining why abortion regulation was subject to strict scrutiny, so why would they abandon that standard in Casey without being explicit? This is especially true where, as in Casey, the first half of the opinion was reaffirming Roe’s central holding.

In Whole Women’s Health, the Court gives the undue burden standard teeth. The undue burden test requires that the Court “consider the burdens a law imposes on abortion access together with the benefits those laws confer.” It is a balancing test – if the law imposes a “substantial burden” on women, then the law better have a significant benefit to outweigh that burden. And the Court is allowed to find facts with regard to both the burden and the benefits, rather than defer to the state legislature. If the Court finds few (or no) benefits from a law, as it does here, the Court can trump the view of the Texas legislature, who found that the law provides health benefits to women. The Court easily finds, with lots of references to evidence, that the admitting privileges requirement and the surgical center requirement both create substantial burden on a women’s access to abortion because the regulations cause many clinic closures. Along with its conclusion on the burden, the majority concludes that this reduced access will not create any benefit for women — there is no evidence of a single woman helped by these laws. Hence, when the burden is balanced against the (absence of) benefits, the Court finds the laws unconstitutional.

Any ethics student knows the danger of a balancing test – where the Court takes a utilitarian approach, balancing the benefits and harms of a law, individual rights are ignored. Here, it is not really the individual, as much as the state. The state of Texas (or at least its legislators) purports to believe that these regulations are necessary to protect women from predatory abortion practices. Our ethical analysis falls apart, however, in the face of the duplicitous nature of Texas’s claims. If we really believed that Texas was honoring some deontological duty to protect women’s health, we (and the Justices) might feel differently about the laws here.

Justice Thomas, our best hope for a Scalia-esque rebuke, does a good job detailing the problems with this undue burden standard, but more importantly calls out the Court on what he thinks they are really doing: changing the rules to protect the rights they like best. He astutely points out that this very term, the Court requires deference to the state legislature’s factual findings (on what constitutes a “critical mass” for affirmative action) in Fisher II, while denying that very same deference to a state legislature’s findings on protecting women’s health in Whole Women’s Health. Any student of mine should agree with Thomas’s historical analysis of the ever-shifting standards of review in the Court’s cases. How many times have students tried to figure out why Lawrence v. Texas seems to be different from Obergefell and Roe is different from Casey? We are feeling our way through the Constitution here, which is great for ethicists (it is all relative, right?), but not so great for the legitimacy of the Court. (It is also more challenging for teachers and students trying to make sense of these opinions.) Despite being one of his best efforts in terms of writing, Justice Thomas’s Dissent just leaves me missing Scalia.

Putting aside the Constitution, the Court sees this Texas law for what it is: a duplicitous effort to limit abortion. This law was motivated by a desire to protect the unborn child, not a desire to protect women’s health. As I have said over and over in class, I have no problem with the desire to protect the unborn child. But do not pretend it is all about protecting me. Justices Ginsburg, Sotomayor, and Kagan, so forceful in this case’s oral argument, were not about to let that go. Nor were they willing to let this historical moment pass, especially when looking at the risks involved in November’s election. But they are constrained by our now somewhat tortured jurisprudence on the Bill of Rights, so here we are with yet another standard of review.

In terms of the impact of this term on the Court’s legitimacy, it is all in the eye of the beholder. If you view the Court’s role as a protector of the Constitution, as does Justice Thomas, the Court moved down another few pegs this June. But if you, like most non-lawyers, view the Court as protector of individual rights and arbiter of tough social issues, the Court is doing just fine.

Fisher v. University of Texas II

The majority opinion in Fisher II should be entitled, “Will It Ever End?” Justice Kennedy surprises us by authoring the 4-3 opinion (Justice Kagan was recused), given that he has never before voted in favor of a race conscious admission plan. Tired of this endless case, reticent to send it back for more fact-finding despite Texas’s inability to articulate a standard on critical mass, the opinion does little more than reiterate and apply the strict scrutiny standard articulated in Fisher I to a whole mess of facts.

Applying the first step of the strict scrutiny test, the Court quickly defers to Texas’s conclusion that it must consider race to achieve diversity’s educational benefits – because Texas cannot use a quota, it would be wrong to ask them to define a “critical mass” of diverse students. Justice Alito’s Dissent properly hammers the majority for this deference. The Court’s affirmative action cases have left universities between a rock and a hard place – unable to use quotas, but required to explain how much diversity will result in educational benefits. If, in these older cases, California, Michigan, or Texas (or the Court) had stated the real reason for affirmative action – to make amends for continued discrimination, segregation, and poverty faced by minority applicants – universities could attempt to define when those amends are no longer necessary.

Moving on with a reference to the university’s good faith, the Court spends much of its opinion on the narrowly tailored part of the strict scrutiny test. It reviews the suggested alternatives to affirmative action, and finds that none are “workable” and “available.” Hence, Texas’s affirmative action is narrowly tailored and constitutional.

Rather than a celebration of the values of affirmative action, increasing minority enrollment at elite universities, or diversity in the classroom, the opinion contains a depressing drumbeat of “this won’t last forever.” Justice Kennedy repeatedly notes that the University has an obligation to continue to collect data and review the impact of and need for its consideration of race. I am not sure who is going to be checking up on Texas over the next years, and we won’t get to Justice O’Connor’s 25 year deadline for the consideration of race until 2028. Narrow use of race, only when necessary, is required by strict scrutiny, and in many ways, seems right. But can’t we settle this affirmative action question once and for all?

Justice Kennedy also tries to limit the precedential value of Fisher II by noting that the situation in Texas is “sui generis.” Invoking Latin usually means the Court is on shaky ground. And is Texas really all that unique? Aren’t there other states that use the Top 10% (or similar) plan? Nearly every university in the country is struggling to achieve diversity, but this decision provides little guidance on how to do it legally (or well).

Justice Alito’s dissent seems to have the better side of the argument on the first step of strict scrutiny. The majority asks me to defer to the “good faith” assertions of UT regarding the level of diversity required to gain educational. Does anyone who has gone through the admissions process lately have any faith, good or otherwise, in the process?

More personally, I am in a university classroom every other day. I know that racial diversity would make my classroom better, but I could not tell you how many students we need, what color they should be, or where they should be from. The truth about the classroom is that your experience is about 1/3 my preparation, 1/3 your preparation, and 1/3 a magical chemistry among students that creates a culture of open-minded discussion, learning and leadership. It is lightning in a bottle. And no amount of affirmative action will guarantee that chemistry.

In the end, we are all so tired of Texas. The Court may be ready to move on to new affirmative action cases (including a fascinating statutory claim against Harvard by Asian-American students). Maybe Justice Alito is right, however, that the Court “cannot side with UT simply because it is tired of this case.”

Conclusion

It may take me a few years to stop missing Justice Scalia’s concise writing, wit, and laser focus. What I missed most in these June decisions was his ability to cut to the heart of what the case was really about. Whole Women’s Health is not really about defining the undue burden standard, it is about the female Justices trying to stop the #TRAP laws and salvage Roe at an essential moment in our history. (I think this is a hashtag now. If it isn’t, it should be.) Similarly, Fisher II purports to apply strict scrutiny (as defined by Fisher I), but it is about protecting the freedom of universities to use race as they wish, all the while knowing that their affirmative action plans are the Captain Hook to Justice O’Connor’s crocodile clock.