Affirmative Action and the Court: What Happened to Article Three and the Eleventh Amendment? (Guest Post by Eric J. Segall)

By Eric J. Segall

This week the Supreme Court has given us a lot to talk about: affirmative action, gay rights, voting rights, and several five-to-four pro-big corporation statutory interpretation decisions decided along partisan lines. Lost in this wild scramble, however, and yet quite troubling, is what happened to Article III and those pesky little “case” or “controversy” requirements the Justices, especially Justices Scalia and Thomas, say they love so much. You remember those pre-requisites to federal jurisdiction, the ones that have kept numerous public interest and Establishment Clause challenges out of court for so long in cases like Allen v. Wright, Lujan v. Defenders of Wildlife, Hein v. Freedom from Religious Foundation and now Hollingsworth v. Perry as well. Moreover, related to the concerns for appropriate jurisdiction is the Court’s Eleventh Amendment doctrine which has been used by the Justices to block virtually all suits for damages against states and their officers. The Eleventh Amendment was also ignored by the Court this week. Although history may not record it, the Court’s decision in Fisher v. Texas (along with the no-standing decision in Perry) is yet another conspicuous reminder of what everyone who teaches a course on or even follows federal jurisdiction already knows: Supreme Court Justices, especially the conservatives but not only the conservatives, manipulate Article III and Eleventh Amendment case law to simply hear cases they want to hear and dismiss cases they want to avoid.

As I detailed here, the Fisher case needed to be dismissed for lack of jurisdiction because the plaintiffs’ constitutional claims were moot, she had no standing, and the Eleventh Amendment blocked her claims for damages.  (Theoretically the plaintiffs have statutory claims under Title VI which may be viable under the Eleventh Amendment because that federal law was enacted under Congress’ Section 5 authority.  But, even if that is true, the Court should have dismissed all of the plaintiff’s constitutional claims. Moreover, as discussed below, even possible Title VI claims would likely be barred by standing requirements.) If you don’t believe me, Adam Chandler wrote a longer, more scholarly-oriented, article concluding that the case’s jurisdictional defects made the case “botched beyond repair.”

To sum up the problems, Abigail Fisher, who has graduated from LSU, conceded that she would never again apply to the University of Texas, thus mooting her claims for injunctive relief. In fact, she didn’t even appeal the Fifth Circuit’s holding that all her non-damages claims were moot. Significantly, and unlike the plaintiffs in Grutter and Gratz, she didn’t bring a class action on behalf of other non-minority students.

The only damages claims Fisher has asserted are for her application fee and housing deposit to be returned to her. But she is suing officials of the State of Texas and therefore her constitutional claims for retroactive monetary relief are barred by the Eleventh Amendment under unambiguous Supreme Court precedents such as Edelman v. Jordan. Texas could waive that immunity but usually the Court requires an unambiguous, explicit waiver, which hasn’t happened here. Moreover, the fees she wants back were totally non-refundable whether she was admitted to the school or not, and thus her alleged injury wasn’t caused by the possible illegality of the schools’ affirmative action program flunking the second prong of Justice Scalia’s beloved three-part standing test.

The most amazing aspect of the Fisher case, therefore, is not that it took so long to decide, or that only one moderate Justice dissented, or that Justice Kennedy was able to garner the votes of the conservatives (other than Thomas), but that despite the substantiality of the numerous jurisdictional defects, some of which, like causation, can’t be waived by the defendant, the Court didn’t spend one syllable on whether it had the power to hear the case. Not one! And this happened during the same week that Justice Scalia ranted in Windsor (the DOMA case), that:
declaring the compatibility of state or federal laws with the Constitution is not only not the ‘primary role’ of this Court, it is not a separate, free-standing role at all. We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become “‘the province and duty of the judicial department to say what the law is.’
Well, it was completely unnecessary for the Court to decide the Fisher case because the only plaintiff in the case had nothing to gain. The moral of the story, therefore, is not a newsflash but it should serve as a somber reminder of an important fact. The Justices of the Supreme Court have no stake in the principled application of jurisdictional pre-requisites but simply use them when they are convenient. The next time the Court dismisses an important public interest or Establishment Clause lawsuit based on standing, mootness, or even the Eleventh Amendment, we will be reminded of this sad state of affairs one more time.