Emily Martin, Vice President and General Counsel

Today, Constitution Day, is a moment to take stock of the document that has served as the bedrock of our country for more than 220 years and the importance of constitutional interpretation by the Supreme Court for women. This past Supreme Court term was a constitutional blockbuster, dealing with cases from preemption of immigration laws to the right to lie under the First Amendment. Of particular import to women was the decision to uphold the Affordable Care Act.

Most ACA supporters think of the decision in the health care cases as an unmitigated victory for uninsured Americans. However, on a 7-2 basis, the Court found that the ACA’s Medicaid expansion, which required states to expand Medicaid coverage to all adults under 133 percent of the poverty level as a condition of continuing to receive Medicaid funding, was unconstitutionally coercive, because a noncomplying state could lose all of its Medicaid funding. A majority of the Court remedied the violation by holding that the federal government could not condition all of a state’s Medicaid funding on the state’s expansion of eligibility, but only the additional Medicaid funding provided by the ACA. Many Supreme Court watchers posit there will be a wave of follow-up litigation to test the limits of other laws that are, like Medicaid, based on Congress’ authority under the Spending Clause to place conditions on federal funding to states.

On Monday the National Women’s Law Center and 22 other women’s organizations urged the Supreme Court to affirm the constitutionality of UT-Austin’s race conscious admissions. The Court will hear Fisher v. UT-Austin in early October, considering the constitutionality of race-conscious admissions to forward diversity in higher education for the first time since Justices Roberts and Alito joined the Court. (Justice Kagan is recused from the case, meaning that it will be decided by the remaining eight Justices. If the Justices split 4-4, the decision below, upholding UT-Austin’s admission plan, will stand.)

UT-Austin fills most of its freshman class through its Top Ten Percent Plan, under which the top ten percent of the graduating class every Texas high school is automatically entitled to admission. The remainder of the UT-Austin class is filled based on consideration of individual students’ academic credentials and personal experiences and qualities, including, in some instances, race. As the Fifth Circuit Court of Appeals held last year in upholding the constitutionality of the plan, UT-Austin carefully crafted this process to comply with the Supreme Court’s 2003 ruling in Grutter v. Bollinger, which held that consideration of race in public university admissions could properly forward the compelling interest in diversity in education. But those challenging UT-Austin’s consideration of race argue that the Top Ten Percent plan produces sufficient racial diversity at UT-Austin and that the university thus does not have a compelling interest justifying its consideration of race as a factor in filling the remainder of its entering class.