U.S. Supreme Court

Chemerinsky: The year the law did not change

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Erwin Chemerinsky

Erwin Chemerinsky.

The Supreme Court’s October Term 2015 was the year that the law did not change. It is hard to remember a Supreme Court term where the decisions did less to change the law. That, of course, does not make the decisions unimportant. But their significance is in preserving the status quo, not altering it.


In part, of course, this is the result of the death of Justice Antonin Scalia, on February 13. The court split 4-4 on some of the cases where it was being asked to change the law. In Friedrichs v. California Teachers Association, the court was asked to overrule Abood v. Detroit Board of Education (1977), which had held that non-union members may be required to pay the share of the union dues that support the collective bargaining activities of the union. At the oral argument on January 11, it was clear that there were five votes to overrule Abood, which would have had a devastating effect on public employees unions in many states. But without Justice Scalia, predictably the court was evenly divided.

Similarly, in Franchise Tax Board v. Hyatt, the Supreme Court kept available an important way of holding state governments accountable: the ability to sue a state government in another state’s courts. In Nevada v. Hall (1979), the court ruled that sovereign immunity does not protect a state from being sued in another state’s courts. The court declared: “no sovereign may be sued in its own courts without its consent, but [sovereign immunity] affords no support for a claim of immunity in another sovereign’s courts.” One of the questions presented in Franchise Tax Board v. Hyatt was whether the court should overrule Nevada v. Hall. The justices split 4-4 on that issue, which means that Nevada v. Hall remains the law and states can be sued in the courts of other states.

United States v. Texas, which concerned the legality of President Obama’s executive action on immigration, Deferred Action for Parents of Americans, might have significantly changed the law with regard to the standing of state governments to sue or the president’s constitutional duty to enforce the law. But again, the court split 4-4.

Zubik v. Burwell might have been one of the most important decisions of the year, but the court remanded the matter back to the federal court of appeals without a decision. Zubik involved a provision of the contraceptive mandate adopted pursuant to the Patient Protection and Affordable Care Act. Not-for-profit institutions that are affiliated with religions that oppose contraception—such as a Catholic university—can get out of the requirement of providing insurance coverage for contraceptives for women employees by filing a form with the insurance provider or the Department of Health and Human Services. They simply need to attest that they are affiliated with a religion that opposes contraception. Then, at no cost to the employer, the insurance provider and the federal government must provide contraceptive coverage for women employees.

Employers object, however, that this makes them “complicit” in the provision of contraceptives. Their filing of the form leads to the provision of contraceptives to women, albeit by others. They claim that this violates the Religious Freedom Restoration Act, which prohibits the federal government from substantially burdening a person’s religious beliefs unless its action is necessary to achieve a compelling government purpose. The issue of what is “complicity,” and when it is a substantial burdening of religion, is enormously important.

But the justices seemed deadlocked 4-4 and they did something highly unusual, if not unprecedented. They issued an order proposing a compromise, asked for briefing on it, and then remanded the cases for consideration. Nothing was decided.


In the major cases where the high court reached the merits, it again did not change the law. In Evenwel v. Abbott, the court reaffirmed that state governments may draw election districts based on total population. The challengers had urged the court to require that districting be done on the basis of eligible voters. This would have dramatically changed the law and required redistricting throughout the country. There would have been a significant detrimental effect on minority communities and cities in their political influence.

But the court unanimously, in an opinion by Justice Ruth Bader Ginsburg, held that it is constitutional for districting to continue to be done on the basis of total population. This is an important reaffirmation of a basic principle of American government: an elected official represents all constituents—citizen and non-citizen, adult and child.

In Fisher v. University of Texas at Austin, the court upheld the University of Texas’s affirmative action program, but did not change the legal analysis to be used in considering the constitutionality of race-conscious programs. A contrary decision could have put in jeopardy affirmative action programs throughout the country. But the court, in a 4-3 decision with Justice Kennedy writing for the majority (Justice Kagan was recused), held that Texas met its burden of demonstrating a compelling interest in having a diverse student body, and that there was no race neutral way of achieving it.

Although the court in Fisher reaffirmed the existing law, the tone of Justice Kennedy’s opinion signaled a greater willingness of the court to allow affirmative action programs. The court declared: “Considerable deference is owed to a university in defining those intangible characteristics, like student body diversity, that are central to its identity and educational mission. … In striking this sensitive balance, public universities, like the States themselves, can serve as ‘laboratories for experimentation.’”

Likewise, in Whole Women’s Health Center v. Hellerstedt, the court reaffirmed existing law with regard to abortion, but indicated a greater willingness to strike down laws regulating abortion. In writing the 5-3 opinion, Justice Breyer declared unconstitutional a Texas law imposing significant restrictions on abortion providers. The law required that any doctor performing an abortion to have admitting privileges at a hospital within 30 miles and that all places where abortions are performed have surgical quality facilities, even if no surgical abortions are performed there. This would have closed 75 to 80 percent of all the facilities where abortions are provided. The court concluded that there is no evidence that these restrictions protect women’s health and held that they are an unconstitutional undue burden on women’s right to abortion.


In some of the most important cases of the term, the high court applied existing law, but again did not change it. In Montgomery v. Louisiana, the court held that Miller v. Alabama (2012) applies retroactively. In Miller, the court held that it is cruel and unusual punishment for a state to impose a mandatory sentence of life in prison without the possibility of parole for a homicide committed by a juvenile. Montgomery, a 6-3 decision, held that Miller was a substantive change in the law and thus applies retroactively those whose life sentence was final before 2012. Similarly, in Welch v. United States, the court held that its decision from a year earlier in Johnson v. United States (2015), which declared unconstitutional on vagueness grounds the residual clause of the Armed Career Criminal Act, applied retroactively.

In Foster v. Chatman, the court applied Batson v. Kentucky (1986), to hold that peremptory challenges had been impermissibly used based on race to strike prospective jurors. Timothy Foster was prosecuted for murder in Georgia. There were four prospective African-American jurors and the prosecutor used peremptory challenges to exclude each of them. Foster’s lawyer objected, but the trial judge found that the prosecutor had offered sufficient explanations apart from race and overruled the objection. Foster was convicted and sentenced to death.

Many years later, Foster’s lawyer filed a request through the Georgia Open Records Act seeking access to the state’s file from his 1987 trial. The file contained stunning evidence of race discrimination in the exercise of peremptory challenges. One document was a list of prospective jurors. The names of the black prospective jurors were highlighted in bright green. A legend in the upper right corner of the document indicated that the green highlighting “represents Blacks.” The letter “B” also appeared next to each black prospective juror’s name. They were ranked, “B#1,” “B#2,” and “B#3,” respectively, indicating the prosecutor’s preferences among them. Another document in the file was handwritten and titled, “definite NO’s”; it listed six names and included all of the prospective African-American jurors. Based on this evidence, the court, 7-1, found a violation of Batson v. Kentucky.

Looking ahead to next term, it is likely that the court will go most or maybe all of the year with only eight justices. This seems to be causing the court to take fewer cases and to stay away from controversial ones that might lead to a 4-4 split. Next year may be another year of the status quo.

Erwin Chemerinsky is Dean and Distinguished Professor of Law, and Raymond Pryke Professor of First Amendment Law at the University of California, Irvine School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

Updated at 10:57 a.m. to fix typo pointed out in comments.

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