3. State Affirmative Action Bans: Schuette v. Coalition to Defend Affirmative Action.
upreme Court will hear the latest in a long and divisive run of affirmative action cases. In the court’s last term, it made clear that institutions that choose to use any form of affirmative action in higher education admissions need to show, under the tough “strict scrutiny” standard, that the plan is necessary to create a diverse student body. Now the court is considering the other side of that question: Does it violate the Constitution’s guarantee of equal protection when a state bans such considerations in public-university admissions across the state through a constitutional amendment?
Justice Elena Kagan is not participating in the case, but a 4-4 decision would mean the Sixth Circuit’s decision holding the ban unconstitutional would stand, so supporters of the amendment need at least five votes to uphold the amendment. The opponents of the amendment argue, in part, that the “political restructuring” of banning race and sex considerations by amendment limits considerations of those factors in a way that no other factor is limited and, as such, is unconstitutional. Proponents say, to the contrary, that this amendment is, by its terms, nondiscriminatory and could never violate the Constitution.
If the ban is upheld, as many observers expect, expect the foes of affirmative action to turn their attention to forcing other states to follow, and to further limit the scope of affirmative action.
4. Reproductive Health Clinic Buffer-Zone Law: McCullen v. Coakley.
In its 2013 decision upholding the Massachusetts law that bans anti-abortion protesters — that is, anyone other than employees, police, and others with a reason to be there — from entering a 35-foot “buffer zone” around the entrance and exits of such facilities, the 1st Circuit judges were clearly frustrated with the challenge: “This case does not come to us as a stranger.”
“The plaintiffs have also marshaled other recent Supreme Court cases in their ambitious effort to reinvent First Amendment doctrine,” Judge Bruce Selya wrote of the First Amendment arguments put forth by opponents of the buffer zone. “For present purposes, it suffices that these decisions, by no stretch of even the most fertile imagination, sully either the reasoning or the doctrinal infrastructure of [the court’s earlier decision upholding the law].” Now however, the Supreme Court will examine whether the law is different from a 2000 decision upholding a Colorado buffer zone and, more broadly, whether that decision should be limited or overruled.