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Summer SCOTUS Update

The latest session of the Supreme Court may have ended several weeks ago, but there have still been some recent developments on cases of BBA interest, namely marriage equality and the use of affirmative-action measures in higher education. 

The BBA has long been a supporter of marriage equality both in the Commonwealth and federally, filing amicus briefs in its defense in 2002, 2005, 2011, and most recently in 2013 in the Supreme Court cases U.S. v. Windsor and Hollingsworth v. Perry.  Windsor challenged Section 3 of the federal Defense of Marriage Act (DOMA), which defined marriage as a legal union between a man and a woman, while Perry challenged California’s Proposition 8, a gay-marriage ban approved by a 2008 ballot initiative.  Our brief for these two cases argued that sexual-orientation classifications warrant heightened scrutiny under the Equal Protection Clause.  We were pleased that the Supreme Court’s ruling affirmed that all married couples deserve equal treatment from the federal government.

The Supreme Court’s opinion may be sought again, this time in a case from the Fourth Circuit striking down Virginia’s ban on same-sex marriage as well as a similar case from Utah.  The Virginia case concerns both a state’s power to forbid same-sex marriage within its boundaries and its power to decide whether to recognize same-sex marriages legally performed in other states.  These are just two cases in what has been, by one count, a string of 35 consecutive state and federal rulings on the side of same-sex marriage in the 14 months following the Supreme Court ruling.

It appears likely that the local Virginia county clerk will file a petition for SCOTUS review of the case by the end of October.  The next Supreme Court term begins on October 6, and while the Court has complete discretion on whether to take up this or any other case, it seems inevitable that the justices will weigh in again, probably sooner rather than later, on this fast-moving issue.

Another case of BBA interest, Fisher v. University of Texas, continues to evolve.  The BBA has for some time supported the use of race-conscious admissions policies for higher-education institutions, a position that inspired amicus briefs in the 2003 case, Grutter v. Bollinger, and 2012’s Fisher v. University of Texas.  In each case, the BBA’s amicus briefs argued that race-conscious admission policies are constitutional as well as positive and necessary, especially to achieve increased diversity in the legal profession.  To quote our Fisher brief:

until the composition of the legal profession more closely resembles that of the public whose interests are at stake, the perception will remain that the legal system is entrusted to and accessible to the white majority above all others.  Not only does that perception undermine the legitimacy of the judicial system, it further discourages participation by people of color, creating a self-perpetuating cycle of exclusion.

Grutter v. Bollinger was a landmark case in which the Supreme Court upheld the University of Michigan law school’s affirmative-action admissions policy.  This session, in Fisher, the Court vacated and remanded a Fifth Circuit Court of Appeals decision for failing to apply strict scrutiny in reviewing the University of Texas’s race-conscious admissions policy.  The ruling effectively upheld race-conscious admissions policies, but also complicated the overall picture by cautioning that race-conscious admissions policies must establish a quantifiable interest in the educational benefits of a diverse student body, and that higher-education institutions must be able to show that “workable, race-neutral alternatives” will not suffice, and demonstrate that the consideration of race is narrowly tailored.  The BBA provided some clarity on the college admissions process going forward with a program in mid-September, but the issue remains open to discussion and interpretation. 

In July, a three-judge panel on the Fifth Circuit again upheld the University of Texas admissions plan.  The same procedural course of events transpired in the initial case, which was taken up by the Supreme Court after a three-judge panel upheld the University’s policy and the Fifth Circuit denied an en banc review.  Given this latest ruling, it looks like the plaintiffs may again seek SCOTUS review.  Perhaps anticipating this move, the University of Texas President penned an op-ed posted online by the National Law Journal earlier this week, arguing that higher-education institutions still need affirmative-action policies.  We agree.

The BBA is always interested in drafting or signing on to amicus briefs that fall within our mission – to advance the highest standards of excellence for the legal profession, facilitate access to justice, and serve the community at large.  Both improved diversity in the legal profession through equal access to higher education and marriage equality fall squarely within these goals.  We will continue to keep an eye on both of these issues going forward. 

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
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Cell Phones, Searches, and Seizures: How a Boston Case Will Establish Precedent for High-Tech Devices under the Fourth Amendment

Last Tuesday, the U.S. Supreme Court heard oral argument in a potentially groundbreaking case with close ties to Boston.  In United States v. Wurie, a case originating in South Boston, the Justices will interpret the Fourth Amendment, which prohibits unreasonable search and seizure.  In 2007, Brima Wurie was arrested for selling drugs in a Dorchester Avenue parking lot.  After he was picked up by the police, his cell phone rang from a number identified as his home.  The police traced the number to a house which they then searched with a warrant, finding drugs and a gun.

The issue is whether the police violated the Fourth Amendment by “opening” Wurie’s cell phone.  The Fourth Amendment traces its roots to the American Revolution, when British soldiers were permitted to search and seize essentially anyone for any reason.  Protection against unreasonable search and seizure has become a founding principle of our Constitution and our way of life, protecting our safety and privacy, even for those accused of crimes.

There is a great deal of case law defining just what is and isn’t reasonable in the area of search and seizure.  Many warrantless searches are allowed in connection with arrests in order to protect officers and prevent the destruction of evidence.  However, cell phones and other hi-tech devices complicate the issue because of the massive amounts of data they contain and their advanced capabilities, such as activating a potentially dangerous remote device.  Complicating matters even further, there is technology available that can remotely wipe a cell phone’s memory, so police wanting to search a phone may have to carry it in special bags or try to access it in specially equipped rooms that would block such signals.  There are questions about the reliability of this type of technology and the infrastructural capabilities of police forces around the country to address them.

At oral argument, the federal government argued for a bright line rule – that cell phones should be subject to unwarranted searches just like an arrestee’s wallet or personal effects.  The Justices seemed reluctant to go this far, noting the extreme amount of information, much of it highly personal, that police officers could access for even the most minor crime.  However, they also recognized that this information could be useful for police in solving and preventing crime and that criminals often make use of such technology to further their illicit ends.  Thus, the Justices spent much of oral argument discussing potential compromises, though none were forthcoming at the end of their debate.

We look forward to a decision by the end of the summer to address this issue – one that will balance personal privacy with public safety.

– Jonathan Schreiber
Legislative and Public Policy Manager
Boston Bar Association
Comments are disabled for this blog. To submit your comments please e-mail  issuespot@bostonbar.org

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SCOTUS Fall 2012 Starting Lineup

Amid much anticipation, the United States Supreme Court opened its 2012-2013 term on October 1st.  At the Boston Bar Association (BBA), we are watching three specific cases with great interest in their impact on civil rights and equality.

Fisher vs. the University of Texas is scheduled for oral arguments on Wednesday, October 10th.  The issue at hand in the Fisher case is the diversification of student bodies in higher education.  However, the impact of the decision in this case will be far reaching – with the potential to derail whatever progress is being made in advancing diversity in the legal profession.

Fisher challenges the Court’s 2003 ruling in Grutter v. Bollinger a case challenging the affirmative action policies at the University of Michigan Law School.   Our amicus brief in Grutter supported the position that race-based criteria in admissions decisions pass constitutional muster.

We fervently believe that race-conscious policies promote more diverse student bodies, which lead to more racially representative legal communities.   This determined our position when we filed an amicus brief this summer in Fisher. If the Court chooses to overturn the constitutionality of race-based admissions policies, the impact on the higher education landscape will be devastating, not just in Texas but throughout the country.

This particular brief was drafted for the Boston Bar Association by Bingham McCutchen on a pro bono basis. Thank you again to the Bingham team –Jon Albano, Deena El-Mallawany and Caleb Schillinger.

Meanwhile we can only hope that the Court will take up another civil rights issue presented in MA v. U.S. DHHS and Gill v. OPM.  These two cases –one filed by Gay & Lesbian Advocates & Defenders (GLAD) and the other by the Massachusetts Attorney General’s office – challenge the constitutionality of the federal Defense of Marriage Act (DOMA).  DOMA bars the federal government from recognizing same-sex spouses for any federal purpose.

Last winter, the BBA joined an amicus brief drafted by GLAD and the Massachusetts Attorney General’s Office challenging the constitutionality of DOMA.  DOMA presents a challenge to our civil rights, posing a significant threat to fundamental concepts of fairness and equality.

Civil marriage – which allows a couple to seek a license to marry – should not be confused with religious wedding ceremonies that may take place in churches, mosques or synagogues.  As a matter of equality under the law, the BBA supports civil marriage for same sex couples. The BBA filed an amicus brief in the landmark case Goodridge v. Department of Public Health, which led to the legalization of same-sex marriage in Massachusetts.

We celebrated when theU.S. Court of Appeals for the First Circuit in Boston struck down the section of DOMA that denies federal benefits to same-sex couples married in states that have legalized such unions.   We will celebrate again at the 3rd Annual Beacon Award for Diversity and Inclusion ceremony on November 13th when we honor GLAD and the Attorney General’s Office for their work in this area.

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