Last week, the Supreme Court issued a number of opinions that will affect the civil rights of millions of Americans. First, the court ruled that during DUI arrests, police can take warrantless breathalyzer tests, but not warrantless blood-draws. Second, the court ruled that universities may implement “race-conscious” affirmative action admission policies. Third, the court deadlocked 4-4 on President Obama’s “deferred-deportation” policy for undocumented immigrants, which leaves in place a lower court preliminary injunction against implementation of that policy.
First, in Birchfield v. North Dakota, the Supreme Court addressed state laws that make it a criminal act to refuse to take a breathalyzer or blood test when arrested for drunk driving. The court held that “the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving” because “the impact of breath tests on privacy is slight, and the need for [blood-alcohol concentration] testing is great. We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.” Essentially, the court held that individuals do not have a reasonable privacy interest in the air they exhale, though they do have a constitutionally-protected privacy interest in the blood in their veins.
Second, in Fisher v. University of Texas, the court rejected the case of a white woman who alleged that she was denied university admission because she is white, and that therefore the school had violated the Equal Protection Clause of the Constitution. The university’s admissions policy automatically accepted student in the top 10% of their high school class. For the remaining students, the university considered an academic score, which was a product of a student’s grades and test scores, and a “personal achievement index,” which was based on essays and a personal achievement score. Racial diversity was one of seven factors in determining the personal achievement score. In other words, race is considered as a factor of a factor of a factor.
There was only one plaintiff in this case, a white student named Abigail Fisher. In 2008, the year Fisher sent in her application, the “top 10%” students claimed 92% of the admission spots. Fisher’s grades were not high enough to qualify for that placement so she was applying for one of the remaining spots in the remaining 8% of the admissions. She was denied a spot, but although she claims her denial was based on the fact that she is white— only 47 students with lower grades than her were admitted, and 42 of them were white. Only five students admitted with lower grades than Fisher were students of color. Additionally, there were 168 applicants of color with grades as good as or better than Fisher’s who were also denied admission.
In truth, then, this case was not really about whether Fisher was actually denied admission just because she is white; the facts show that was not the case. Instead, Fisher was recruited for this lawsuit by an attorney named Edward Blum who has made a profession out of filing lawsuits across the nation to challenge policies meant to address race-based inequalities. His “Project on Fair Representation” is funded by the far right wing and seeks out plaintiffs across the country to create lawsuits to undermine fundamental civil rights policies. This time he failed, and the court upheld the “race-conscious” admissions policy of the University of Texas, and by proxy, many other universities across the nation.
Last, in U.S. v. Texas, the court deadlocked 4-4 in a legal challenge to President Obama’s DAPA program, which offers deportation deferrals to immigrants who have lived here since at least January 2010, have no serious criminal record, and have children who are U.S. citizens or legal permanent residents. The program would have affected as many as five million undocumented immigrants and allowed them to legally work in the United States and care for their children here.
Because the Republicans in Congress have deliberately obstructed any vote on the confirmation of a new Supreme Court justice to replace Antonin Scalia, there are only 8 justices currently on the court, which leads to tie votes in some cases. When there is a tie 4-4 vote, the lower court’s opinion is affirmed.
In this case, the lower court had issued a preliminary injunction to halt implementation of the DAPA program. In a one sentence order, the Supreme Court stated: “The judgment is affirmed by an equally divided court.” What this means is that a preliminary injunction stays in place, and millions of parents are again vulnerable to deportation. However, the full merits of the case have not yet been decided, so the policy has not been overturned. The lower courts will now determine whether DAPA is lawful in further court proceedings.
The actual legal challenge to the program by the State of Texas is only that the government did not provide a sufficient notice and public comment process prior to implementing the program. The lower courts found that this legal claim was likely to succeed, and that a preliminary injunction was therefore necessary because otherwise Texas would expend millions of dollars issuing drivers licenses in support of a not-yet-lawful program.