The Choice Blog: Supreme Court to Hear Case on Affirmative Action in Higher Education

The Supreme Court on Tuesday agreed to hear a major case on affirmative action in higher education, Adam Liptak reports.

The court’s decision in the new case holds the potential to undo an accommodation reached in the Supreme Court’s 5-to-4 decision in 2003 in Grutter v. Bollinger: that public colleges and universities could not use a point system to boost minority enrollment but could take race into account in vaguer way to ensure academic diversity.

Justice Sandra Day O’Connor, who wrote the majority opinion in Grutter, said the accommodation was meant to last 25 years.

The court’s membership has changed since 2003, most notably for these purposes with the appointment of Justice Samuel A. Alito Jr., who replaced Justice O’Connor in 2006. Justice Alito has voted with the court’s more conservative justices in decisions hostile to the use of racial classifications by the government.

You can read the full report here.

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Stolen Valor Act Argued Before Supreme Court

The case arose from a lie told in 2007 at a public meeting by Xavier Alvarez, an elected member of the board of directors of a water district in Southern California.

“I’m a retired Marine of 25 years,” he said. “I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy.”

That was all false, and Mr. Alvarez was prosecuted under a 2005 law, the Stolen Valor Act, which makes it a crime to say falsely that one has “been awarded any decoration or medal authorized by Congress for the armed forces of the United States.” Mr. Alvarez argued that his remarks were protected by the First Amendment.

His case ran into trouble at the Supreme Court as it emerged that many justices accepted two fundamental propositions. First, most of the justices seemed to accept that the First Amendment does not protect calculated falsehoods that cause at least some kinds of harm. Second, there seemed to be something like a consensus that the government has a substantial interest in protecting the integrity of its system for honoring military distinction.

To arrive at those two propositions, the justices worked through any number of hypothetical questions and worried about the collateral damages to free speech values that a ruling upholding the law might generate.

Justice Stephen G. Breyer said it was all right to lie, for instance, when asked, “Are there Jews hiding in the cellar?”

Justice Samuel A. Alito Jr. suggested that it was acceptable to punish a false statement that “your child has just been run over by a bus.”

Justice Sonia Sotomayor asked about false statements made while dating. Justice Elena Kagan asked about lies concerning extramarital affairs.

Chief Justice John G. Roberts Jr. asked whether Congress could make it a crime to lie about having a high school diploma. Solicitor General Donald B. Verrilli Jr. responded that some states had indeed enacted laws concerning diplomas from public universities, and he indicated that they would be constitutional if they concerned calculated lies about verifiable facts that led to real harm.

Mr. Verrilli listed several laws that punish those kinds of falsehoods, including ones prohibiting false statements to federal officials and banning the impersonation of federal officers, as well as perjury.

Similarly, he said, the Stolen Valor Act punishes only knowing falsehoods that result in “the misappropriation of the government-conferred honor and esteem,” which he called “a real harm and a significant harm.”

The hardest hypothetical question for the justices seemed to concern state laws that make it a crime for politicians to lie in some settings. Mr. Verrilli said such laws might run afoul of the First Amendment because of their potential to chill truthful speech for fear of prosecution.

Justice Kagan asked a lawyer for Mr. Alvarez, Jonathan D. Libby, whether the Stolen Valor Act posed the same problem. “What truthful speech will this statute chill?” she asked.

Mr. Libby’s response seemed to surprise Justice Kagan. “It’s not that it may necessarily chill any truthful speech,” he said. “We certainly concede that one typically knows whether or not one has won a medal or not.”

Justice Kagan considered what she had just heard. “So, boy, I mean, that’s a big concession, Mr. Libby,” she said.

Mr. Libby also acknowledged that the government may punish false speech that is intended to obtain something of value. Chief Justice Roberts asked whether Mr. Alvarez, who was politically active, benefited from his lie. Mr. Libby said that was possible.

The chief justice said this, too, was “an awfully big concession.”

Justice Anthony M. Kennedy seemed to summarize the court’s conflicting impulses in the case. On the one hand, he said, the government should not establish “a Ministry of Truth.” On the other, he said of lies like Mr. Alvarez’s, “I have to acknowledge that this does diminish the medal in many respects.”

The New York Times Company and other news organizations filed a brief supporting Mr. Alvarez in the case, United States v. Alvarez, No. 11-210. The brief argued that most false statements are better addressed by exposing them in the marketplace of ideas than by punishing them as crimes.

There was universal agreement on one point at Wednesday’s argument. No one spoke up for Mr. Alvarez, including his lawyer.

“Certainly, people are entitled to be upset by these false claims,” Mr. Libby said. “I mean, I’m personally upset by these false claims.”

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Washington Memo: Supreme Court Justices Remain Security Exceptions

In an era when many top American officials are blanketed in security, Justice Breyer and his colleagues are the exceptions, freer but also more exposed than their counterparts in the executive and legislative branches.

Nowadays, it often seems that anyone who is anyone in Washington has a driver and a gaggle of taciturn protectors. Congressional leaders sweep into restaurants trailed by members of the Capitol Police; top White House advisers have Secret Service agents.

And every president is more heavily encircled than the one before. When President Obama wants to snorkel on his Hawaii vacations, the Secret Service clears the airspace above him, the shoreline in front of him and the water around him. An aide said Mr. Obama had even been surrounded by agents in wetsuits as he floated.

However, the nine justices often slip around Washington like ordinary citizens, causing barely a pause at stop signs, parties, supermarkets and houses of worship. It is hard to name many officials with more influence than Justice Anthony M. Kennedy, the court’s perennial swing vote, who may determine the fate of Mr. Obama’s health care law this spring. But it is easy to name many officials with far more constant protection.

Court officials do not discuss security arrangements in detail, but according to longtime observers and Congressional budget requests, they vary depending on a justice’s location: traveling out of town for a speech, walking around Washington or working inside the heavily fortified court building.

In the capital, the justices are protected mainly by the court’s own small force, said a spokeswoman, Kathy Arberg. When the justices leave Washington, the United States Marshals Service takes over, and local police departments help, too.

Protection may be relatively light because justices have worked to preserve their freedom of movement, and the Supreme Court has a lucky history — its members have not met with serious violence. The most recent attack took place nearly three decades ago: an assailant who objected to Supreme Court decisions on pornography and school desegregation punched Justice Byron R. White in the face. (By contrast, federal and state judges have experienced far worse, including assassinations and the murders of family members.)

Like Justice Breyer, Justice Ruth Bader Ginsburg and retired Justice David H. Souter have been victims of everyday crime, committed by people who probably did not recognize them. In 1985, a bullet pierced the living room window of Justice Harry A. Blackmun, but investigators concluded that it had probably been fired at random.

“Based on history, it’s tough to make the case that there should be mandatory protection,” said Robert Fein, a forensic psychologist who conducted a Secret Service study of assassins and near-attackers.

Over the years, the justices have cited security to support their longstanding objections to broadcasting the court’s oral arguments. (In keeping with tradition, only the few hundred observers who can crowd into the courtroom will be able to witness the proceedings over the national health care law next month. A C-Span video request is pending, though likely to be denied.)

The justices have many reasons for avoiding the cameras, including not wanting their courtroom statements turned into television sound bites, several longtime court observers said. But Justice Clarence Thomas has told lawmakers in Congress specifically that he fears that broadcasting oral arguments could put him and his colleagues in greater jeopardy, and security experts say he is probably correct.

“The fact that they maintain low profiles helps to maintain their overall security,” said Marisa Randazzo of Sigma Threat Management, who has consulted on protection for government officials. Television coverage “can really increase someone’s grievance or fixation, especially if we’re dealing with someone who may not be mentally stable,” she said.

Still, the justices are not the remote figures of the past. Today, they give frequent speeches at law schools and bar associations, and they have appeared widely on television, from C-Span to a cameo this month by Justice Sonia Sotomayor on “Sesame Street.”

Such appearances undercut the case against televised proceedings, in the view of Dennis J. Hutchinson, a professor at the University of Chicago Law School and a historian of the court. “They’re all over the place,” he said.

Some justices have delighted in their near anonymity. Retired Justice John Paul Stevens cherished one particular encounter, said Richard Davis, a professor of political science at Brigham Young University. One day, Justice Stevens was walking outside the court when tourists stopped him. They wanted to know if he would mind moving out of the way so they could take a good photograph of the Supreme Court.

This article has been revised to reflect the following correction:

Correction: February 19, 2012

A previous version of this article misspelled the last name of Justice Ruth Bader Ginsburg.

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