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Spring 2017
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The Defense Line: A Publication From The Maryland Defense Counsel, Inc.

Recap of the SCOTUS 2015–16 Term

Marisa A. TrasattCaroline E. Willsey Marisa A. Trasatti and Caroline E. Willsey

With the United States Supreme Court 2016-2017 term well underway, we wanted to provide a recap of some of the most high-profile cases from last term. The untimely passing of Justice Antonin Scalia in February left the Court ideologically split between four (4) “liberals” – Justices Sotomayor, Kagan, Ginsburg, and Breyer – and four (4) “conservatives” – Justices Roberts, Kennedy, Alito, and Thomas. Indeed, this eight-person Court was unable to reach a majority on several cases last term – namely the major immigration case, United States v. Texas. This ideological split may come to an end during the 2016-2017 term, as the Hon. Neil Gorsuch, President Trump’s nominee to fill Justice Scalia’s seat, awaits confirmation.

Immigration — United States v. Texas, 579 U.S. ____ (2016)

One of the most buzzed-about cases of the 2015-2016 term was United States v. Texas. There, the Supreme Court heard a challenge to two (2) of President Obama’s executive actions on immigration. The first executive action – issued on November 20, 2014 – expanded Deferred Action for Childhood Arrivals (DACA+), a 2012 executive action deferring deportation of certain undocumented immigrants who arrived in the U.S. while under the age of sixteen (16). The second executive action – known as Deferred Action for Parents of Americans (DAPA) – deferred deportation of certain undocumented immigrants with U.S.-citizen children. Together, these two (2) executive actions affected an estimated 4.7 million undocumented immigrants.

Twenty-six (26) states joined in a lawsuit in the U.S. District Court for the Southern District of Texas challenging the constitutionality of DACA+ and DAPA. The district court issued a preliminary injunction halting the implementation of DACA+ and DAPA while litigation was pending. The Fifth Circuit upheld the injunction. While the preliminary injunction was based solely upon the federal government’s failure to adhere to the procedural requirements of the Administrative Procedure Act, the Supreme Court indicated, when it took the case, that it would also consider the underlying constitutionality of the executive actions under the Take Care Clause of the Constitution.

Unfortunately, the Supreme Court never got the chance to address the substantive constitutionality of the executive actions. The Court split 4-to-4 and on June 23, 2016, the Supreme Court issued a one-line per curiam opinion stating that the lower court’s judgment was affirmed. With the preliminary injunction firmly in place, the case will now proceed to trial in the Southern District of Texas.

1. Voting Rights — Evenwel v. Abbot, 578 U.S. ___ (2016)

In Evenwel v. Abbot, two (2) Texas voters challenged the 2011 redistricting of thirty-one (31) seats in the Texas Senate. The Texas voters alleged that they were placed into state senate districts where their votes would count less than the votes cast in another district, despite the fact that both districts had relatively equal populations. The Texas voters contended that the state should have used the registered-voter population, rather than the total population as the measure of district size because urban districts have proportionally fewer votes.

The Supreme Court was asked to determine whether a three-judge panel of the U.S. District Court for the Western District of Texas correctly held that the Equal Protection Clause’s  “one-person, one-vote” principle allowed the states to use total population (rather than registered voter population) when apportioning legislative districts.

In a unanimous decision (8-0), issued on April 4, 2016, the Court affirmed the lower court’s decision. The decision maintained the status quo and was, in a sense, more memorable for what it did not do. Writing for the Court, Justice Ginsburg explained, “[n]onvoters have an important stake in many policy debates – children, their parents, even their grandparents, for example, have a stake in a strong public-education system – and in receiving constituent services, such as help navigating public-benefits bureaucracies.” By upholding one-person, one-vote, the Court ensured that “each representative is subject to requests and suggestions from the same number of constituents,” thus promoting, “equitable and effective representation.”

2. Public-Sector Unions — Friedrichs v. California Teachers Association, 578 U.S. ___ (2016)

Under California law, the state may decide whether workers – even those who choose not to join unions – are contractually obligated to pay union representation fees. Currently, public teachers in California are contractually obligated to pay union dues, and may only opt-out of the roughly thirty (30%) of dues that are devoted specifically to political lobbying. In Friedrichs v. California Teachers Association, Rebecca Friedrichs, a California teacher, asked the Supreme Court to overturn its prior ruling in Abood v. Detroit Board of Education. The Supreme Court had previously ruled in Abood that states could require all public-sector employees represented by a public-employee union to pay an equal share of the bargaining costs related to wages, benefits, and working conditions.

The case was widely anticipated, because it presented the opportunity for the Court to rule broadly in a manner that would impact all unions representing public-sector employees. Instead, the Court was deadlocked in another 4-to-4 tie. This was an unexpected outcome in the wake of Justice Scalia’s death. It was widely anticipated that the conservative justice would have voted to overturn Abood, marking a 5-to-4 victory for Friedrichs. Instead, the tie vote left the Ninth Circuit’s decision upholding the California law in place.

3. Racial Preferences — Fisher v. University of Texas at Austin, 579 U.S. ___ (2016)

The Supreme Court considered the legitimacy of the University of Texas’ race-conscious admissions program for the second time in Fisher v. University of Texas at Austin. Abigail Fisher brought a lawsuit against the University of Texas, claiming that she was denied admission because she is white. The University of Texas uses an admission program known as the ten (10%) percent plan – students in the top ten (10%) of their high school class are automatically admitted, which fills approximately seventy-five (75%) percent of the seats in each class. The remaining twenty-five (25%) percent of seats are filled through a “holistic” process that considers the applicant’s entire record. Minority applicants are not admitted through the use of quotas, but an applicant’s minority status may be considered as part of the “holistic” process.

In 2013, when the Supreme Court considered Fisher for the first time, it ruled that the Fifth Circuit had not applied a sufficiently strict level of scrutiny in judgment the University of Texas’ race-conscious admissions policy. On remand, the University of Texas was required to demonstrate that its admissions program was “necessary” to further a “compelling” state interest. Under this new standard, the Fifth Circuit upheld the University of Texas’ admissions program for a second time. 

The Court voted 4-to-3 in favor of the University of Texas. Justice Kagan recused herself from the case because she had worked on it during her time as Solicitor General. Justices Sotomayor, Ginsburg, Breyer, and Kennedy were in the majority, while Justices Roberts, Alito, and Thomas were the dissenters. The vote in favor of the University of Texas was a surprise from Justice Kennedy who had never before voted to uphold an affirmative-action plan.

4. Abortion — Whole Woman’s Health v. Hellerstedt, 579 U.S. ___ (2016)

In the first abortion rights case heard in nearly a decade, the Supreme Court considered a challenge to a Texas law requiring (1) abortions to be performed in ambulatory surgical centers, (2) by doctors with admitting privileges at nearby hospitals. The Texas law would have required more than half of Texas’ forty (40) abortion clinics to close. Proponents of the Texas law argued that its purpose was not to place an “undue burden” on women’s access to abortions – previously declared unconstitutional by the Supreme Court in Planned Parenthood v. Casey – but to ensure the abortions were conducted safely.

The Supreme Court voted 5-to-3 against the Texas law, holding that both provisions violated Casey’s prohibition on placing an “undue burden” on the ability to obtain an abortion. Writing for the majority, Justice Breyer held that neither provision of the Texas law “offers medical benefits sufficient to justify the burdens upon access that each imposes.” Because each provision “places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the Constitution.” Justices Kennedy, Ginsburg, Sotomayor and Kagan joined in the majority. Justices Alito authored a dissenting opinion, which was joined by Justices Thomas and Roberts. Justice Thomas also authored his own dissent.

5. Religious Exemption — Zubik v. Burwell, 578 U.S. ___ (2016)

 The Supreme Court heard a challenge to the Affordable Care Act’s (ACA) contraceptive mandate for the second term in a row, previously having decided Burwell v. Hobby Lobby Stores in its 2014-2015 term. In the wake of Hobby Lobby, the Department of Health and Human Services (“HHS”) developed an “accommodation” for religious institutions seeking to be exempt from the ACA’s contraceptive mandate. The religious institution seeking an exemption was to file a request with HHS, and the government would ensure that the employees of the exempt institution continued to receive access to contraceptives by working with the religious institution’s health insurer. In Zubik v. Burwell, a coalition of exempt religious institutions challenged the contraceptive mandate itself, arguing that the current system of applying for an accommodation did not sufficiently protect their religious liberty.  The coalition argued that having to file for an accommodation “sufficiently burden[ed]” religious employers’ free exercise of religion in violation of the Religious Freedom Restoration Act of 1993 (RFRA).

Yet again, the Supreme Court did not reach a decision on the merits in this highly-anticipated case. The Court announced in an unsigned decision on May 16, 2016, that it would not rule again on access to contraception. Instead, the Court remanded the cases before it to the respective United States Courts of Appeals for the Third, Fifth, Tenth, and D.C. Circuits, urging those courts to consider whether compromise between the parties was possible, consistent with the supplemental briefing submitted by the parties in the weeks after oral argument. Some commentators viewed this as a sign that the Court was trying to avoid another 4-to-4 split in the wake of Justice Scalia’s passing.


Marisa A. Trasatti is a partner at Semmes, Bowen & Semmes in Baltimore, Maryland. She is also outside General Counsel of the California-based dermatological laser and light medical device company, Sciton, Inc. Her practice focuses primarily on civil litigation, with an emphasis on products liability litigation. She is president-elect of the Maryland Defense Counsel, president of the Maryland CLM chapter, Co-Chair of the FDCC’s 2017 Corporate Counsel Symposium Program, and past chair of the FDCC’s Drug, Device and Biotechnology Committee. She is a member of the Character Committee of the Court of Appeals of Maryland for the Sixth Appellate Circuit, as well as the Maryland Judicial Disabilities Commission.

Caroline E. Willsey joined Semmes, Bowen & Semmes as an associate in September 2016. Her practice focuses on civil litigation and pharmaceutical/medical device law.

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