Where We Stand with a Vacancy on the Court

How would an empty seat in the U.S. Supreme Court affect cases that impact Asian Americans?

by Eugene Chay

This week, the U.S. Supreme Court issued a 4–4 tie in a case deciding whether the wives of two real estate investors should be held financially responsible for their husbands’ failed endeavor. With a one-sentence ruling, the Court left in place a lower court’s ruling — and failed to resolve conflicting lower court rulings — because it was unable to reach its own.

This is a scenario advocates across the country have feared since February 23, when Chairman Chuck Grassley, joined by other Republican members of the Senate Judiciary Committee, submitted a letter to Majority Leader Mitch McConnell stating that they will not hold hearings on any Supreme Court nomination made by President Obama.

The sentiment was affirmed last week, when President Obama announced Chief Judge Merrick Garland as his nominee to the U.S. Supreme Court. Almost immediately afterwards, a number of Republican Senate leaders stated their intentions to stall the judicial nomination process:

This attitude simply isn’t fair to the American people.

There are critical issues before the Court this term, and Americans deserve to have a fully functioning third branch of government. Many of today’s cases have serious implications for Asian Americans and Pacific Islanders (AAPIs) and other communities of color. Here are brief summaries of the various issues that stand before the Court today.

Relief for immigrant families

Over a year ago, President Obama took bold action to make changes to immigration policies and practices. The signature component of his proposed action — expanded Deferred Action for Childhood Arrivals (DACA) and the new Deferred Action for Parents of American citizens and lawful permanent residents (DAPA) — was delayed because of a lawsuit filed by 26 states in a district court in Texas.

Nearly 400,000 Asian Americans stand to benefit from expanded DACA and DAPA but their dreams have been put on hold. These families have waited long enough for relief. We need a full Supreme Court to resolve the case and enable eligible immigrant families to live without fear of separation and uncertainty, and to be able to receive work authorizations, obtain driver’s licenses, and more.

Affirmative action in higher education

At issue in Fisher v. University of Texas is whether the University may consider an applicant’s race as a factor of a factor when evaluating their possible admission to the university.

This case has implications for all minority students applying to colleges. Contrary to popular beliefs about AAPIs as the “model minority” — believed to be better students, more intelligent, and with broad and easy access to higher education — deeper looks into demographic data show that affirmative action in higher education is still needed by our communities.

U.S. Census Bureau data shows that the educational attainment of Hmong, Cambodian, Laotian and Vietnamese Americans is the lowest among Asian American ethnic groups: only 61 percent of Hmong Americans hold a high school degree, and only 12 percent of Laotian Americans have graduated from college. Holistic admissions policies like the one under consideration at the University of Texas allow admissions officers to consider factors like a student’s race or ethnicity alongside other measures, like whether the student has demonstrated the ability to overcome outstanding obstacles or family circumstances, leadership in community groups or endeavors, and more.

And affirmative action policies don’t just benefit those who are being helped directly by them. The ability to learn with and learn from people of diverse backgrounds makes every student better equipped to work in today’s global economy. That’s a benefit we should all be interested in.

“One Person, One Vote”

In the case of Evenwel v. Abbott, the Supreme Court will consider the legal question of whether the Constitution’s promise of equality of representation requires district lines to be drawn based on the total population of a district, or the number of registered voters.

This is an important case that could have a far-reaching effect on all minority voters. For many Asian American voters, limited English skills and unfamiliarity with the voting process are already obstacles that keep AAPI citizens from registering or turning out to vote. Changing the way we interpret “equality of representation” to count registered voters would further silence the Asian American vote.

The immediate losers in a scenario that draws districts based on voters instead of total population are children, permanent residents who are not citizens, and all residents of urban areas that tend to have greater populations of young people and undocumented immigrants. At the same time, rural, white districts would gain more representation.

Threatening unions that help close income inequality

In Friedrichs v. California Teacher’s Association, the worst case outcome could overturn a 40-year-old case that allows unions to charge a fee to non-members as compensation for the collective bargaining the union engages in, which benefits members and non-members alike. Such a decision would ultimately impact the membership of unions, reducing incentive for individuals to join and pay dues and weakening unions’ ability to advocate for greater wages and benefits.

AAPIs and workers from other disenfranchised communities benefit from wage and benefit increases that come with union-driven collective bargaining — increases that help close the wage and race gap and reduce income inequality.

Standing in the way of women’s health

Whole Women’s Health v. Cole is the Supreme Court’s first abortion case in 20 years. Texas state laws have placed unnecessary and cumbersome requirements on clinics that perform abortions, while arguing they are “safeguarding women’s health.” The Court’s decision on this case could potentially affect how abortion restriction laws are evaluated nationwide.

Affordable heathcare versus religious freedom

In Zubik v. Burwell, the Court must decide whether the Affordable Care Act violates the Religious Freedom Restoration Act, in that it requires employers to “facilitate” contraception coverage if the employer declines to provide it for religious reasons. Similar to the abortion case, we have concerns regarding laws that impact access to contraception and preventative health services.

This week’s deadlocked non-decision in the Supreme Court is a scenario we should not repeat if it can be helped. With issues at stake as important as affirmative action, immigration, access to health and much more, the American people deserve a full and functioning Court to make the decisions that impact so many American lives.

Join Advancing Justice | AAJC and our partners to urge the Senate to #DoYourJob and hold fair hearings and a vote to consider Chief Judge Garland as the next U. S. Supreme Court Justice.

For more information on Judge Garland and the history of Supreme Court nominations, visit www.whitehouse.gov/scotus.