Two former solicitors general and a professor from the Gould School of Law came together Thursday to discuss the U.S. Supreme Court’s last term and what to expect in the Court’s current session, which began Monday.
Panelists for Gould’s fifth annual “U.S. Supreme Court: A Preview” included former U.S. Solicitor General Paul Clement, former acting U.S. Solicitor General Walter Dellinger and USC Newton Professor of Constitutional Law Rebecca Brown. The discussion was moderated by USC Provost Professor and Rader Family Trustee Chair Lee Epstein.
Epstein opened the discussion with a look at what the Court accomplished in its last term.
“We, and especially I, would love to hear the panelists’ views on the future of the courts against the backdrop of the upcoming presidential election,” Epstein said.
The first portion of the panel began with highlights from the Supreme Court’s last term, including the recent Supreme Court case decision on the Affordable Care Act, President Barack Obama’s signature legislation. The Court upheld the law 5-4, with the deciding vote cast by Chief Justice John Roberts, who wrote that the president’s individual mandate was constitutional as a tax.
All three panelists broke down the complex decision, which centered on the two major components of the law — the mandate and the Medicare expansion. Brown began with an overview of the individual mandate, noting three important ramifications of the decision: what the court did, what the implication for the state of the law is and what can be learned from the court’s decision.
Clement voiced concern regarding the law as a tax as opposed to a mandate.
“I’m not sure the law will be as effective,” Clement said. “Most people are law-abiding, so when you tell them they have a federal obligation to get insurance, they go do it. But if you tell them there is a tax for not having insurance, they’re going to ask how much the tax is and how much the insurance premium is and compare.”
Clement and Dellinger are both firsthand authorities in the Affordable Care Act debate. The two lawyers played roles in arguing the case before the Supreme Court. Dellinger filed a brief on behalf of the law and Clement represented the states challenging the act. The panelists, however, shared doubt over the effectiveness of the tax.
Janille Chambers-Corbett, a first-year student at the USC Gould School of Law, thought the event brought about a thoughtful discussion.
“The panel was really diverse,” Chambers-Corbett said. “They took the points of the health care bill and broke them down in a way that I could understand and gave me background that I had no knowledge of.”
The panelists also discussed the future of pivotal cases that might appear in the Supreme Court’s docket, including a case that challenges the Defense of Marriage Act, which Clement is defending.
“I think it’s going to be very difficult for the court not to take the DOMA case,” Clement said. “When the Court of Appeals strikes down an act of Congress as unconstitutional, the court will generally take that case up.”
Clement, who is actively involved in defending DOMA before the Supreme Court, predicts that the court will be hearing the case.
“The court is quite likely to take the DOMA case,” Clement said.
The discussion also spent time discussing an affirmative action case in the court’s docket, Fisher v. The University of Texas at Austin. The case was brought by Abigail Fisher, an undergraduate student at the University of Texas at Austin in 2008, who challenged UT Austin’s affirmative action policy. The policy allows that factors of race, religion and gender be considered in admission decisions.
The panel discussed how the court will have to determine whether its interpretation of the Equal Protection Clause of the Fourteenth Amendment and its 2003 decision in the case of Grutter v. Bollinger allows for UT Austin to use race as factor in its undergraduate admission decisions. Dellinger said the court’s decision to take the case is an indication that the university’s affirmative action might be overruled.
“The Texas program seems so molded after the University of Michigan,” Dellinger said. “I think the only reason the conservatives of the court would take this case is if they were prepared to overrule the University of Michigan Law School case in either one step or two.”
Clement said the fact that the court will be hearing Fisher v. The University of Texas at Austin should make affirmative action supporters at uneasy.
“For those that were fans of the diversity of affirmative action, I think it’s time to be nervous again,” Clement said. “This was not a case that the Supreme Court had to take. This was a case that they went out of their way to take.”