Two 5th Cir. Cases That Might Be Headed to SCOTUS

By Mark Wilson, Esq. on May 15, 2015 | Last updated on March 21, 2019

The Fifth Circuit never fails at providing an abundance of cases for the Supreme Court to hear. With about a month and a half left in the term, the Court has several petitions from the Fifth Circuit itself -- as well as other courts in that circuit -- to consider. Here are two of the big ones that you should be watching.

Fisher v. UT Austin


Back in 2013, the Supreme Court slightly chastised the Fifth Circuit for mishandling the test for race discrimination in college admissions under Grutter and Gratz. Abigail Fisher wasn't accepted to the University of Texas, Austin. She claimed the state's "top ten percent" rule -- which grants to the top ten percent of graduating high school seniors in Texas automatic admission to one of the state's public universities, including UT Austin.

The program was apparently successful, resulting in more diversity in the UT system. Abigail Fisher argued that this meant race-conscious admissions policies should be ended, as a "critical mass" of diversity had been achieved. The Supreme Court sent the case back for further determination as to whether such diversity had been reached, emphasizing that strict scrutiny was still the name of the game.

After more briefing, the Fifth Circuit affirmed the summary judgment grant to UT Austin. While the Supreme Court avoided the discussion of whether Grutter and Gratz should be reexamined, this version of Fisher asks that very question. Fisher's petition urges the Court to find that UT's program lacks both a compelling state interest and isn't the least restrictive means of achieving that interest.

Currier v. Jackson Women's Health Organization

In a preview of what's possibly to come in Texas and other states, this petition challenges Mississippi's requirement that doctors at abortion clinics have admitting privileges at local hospitals. A three-judge panel of the Fifth Circuit, by a 2-1 vote, said the law unconstitutionally burdened a woman's right to an abortion.

Last year's major abortion case, Planned Parenthood v. Abbott, dealt with a Texas law that famously ended up closing all but a few abortion clinics in Texas. There, the Fifth Circuit said requiring admitting privileges in a local hospital is a legitimate state interest. The panel in Currier found a way around Abbott by concluding that, under any constitutional test (whether rational basis or undue burden), the Mississippi law had the effect of unduly burdening the right to an abortion.

The Fifth has been the unfortunate home of several abortion cases, many of which have been decided differently. (Check out our Abortion Appeals Tracker to sort it all out.)

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