First Monday in October
Adam Winkler: The High Court’s Coming Land Mines
No easy term? Same-sex marriage, voting rights, and affirmative action are on the way. By Adam Winkler.
Given all the public attention devoted to the Supreme Court’s blockbuster decisions on Obamacare and Arizona’s new immigration law, you’d be forgiven for thinking the justices, who prize their relative anonymity, would try to stay out of the headlines for a while. You would, however, be wrong. In the Supreme Court’s new term, which begins Monday, the justices are poised once again to jump into the political fray, with numerous high-profile cases dealing with some of the most controversial issues dividing the nation.
Race relations is at the top of the court’s agenda. Certain to grab headlines is a case out of Texas, which asks the justices to decide whether race-based affirmative action in college admissions is still constitutional. For 40 years, the Supreme Court has consistently held that public universities, like the University of Texas, whose admissions policy is at issue in the case to be decided this term, can use race as one factor in deciding which students to admit. Most recently, the court in 2003 upheld the University of Michigan Law School’s affirmative-action policy, finding that schools had a compelling interest in ensuring a diverse student body.
Yet that was before John Roberts and Samuel Alito joined the high court. Since then, the court has taken a harder line against any uses of race by government. The Roberts Court’s new approach was summed up in a case from 2007, which invalidated two laws designed to ensure that public high schools were racially diverse. “The way to stop discrimination on the basis of race,” the chief justice wrote pithily, “is to stop discriminating on the basis of race.” Court watchers expect this colorblind view of the Constitution to prevail again and UT’s policy to be invalidated. The only question is whether the justices will use the opportunity to overturn decades of precedent and declare an end to all race-based affirmative-action policies by colleges and universities.
The justices may also declare an end to key provisions of one of the most important pieces of civil-rights legislation in American history, the Voting Rights Act. Enacted in 1965, the law requires certain jurisdictions with a proven history of racial discrimination in voting to “preclear” any proposed changes in their voting rules with the Department of Justice or a federal court in Washington. Five years ago, when Congress passed a law reauthorizing the VRA by overwhelming margins—the House vote was 390 to 33—the notion that the preclearance requirements might be unconstitutional would have been seen as far-fetched.
Once again, however, that was before Roberts and Alito joined the court. Their view that it’s time to get over race has created doubt about the continuing validity of this landmark legislation. In 2009, the court narrowly upheld the preclearance requirements—but only after Chief Justice Roberts wrote that those provisions “now raise serious constitutional concerns” because they allow “federal intrusion into sensitive areas of state and local policymaking.” He implied that Congress should step in and revise the law, an invitation that was never taken up by the deeply divided Congress. So in the name of “states’ rights”—which, truth be told, has been a rallying cry of racists throughout American history—the Roberts Court now appears prepared to curtail voting-rights protections. Whether the recent wave of voter-identification laws that promise to disenfranchise many poor and racial-minority voters causes the court to think twice about whether the ballot box is now free from discrimination remains to be seen.
No less than eight cases concerning same-sex marriage await action by the justices, including challenges to California’s Proposition 8, which took away the right of gay people in the state to marry, and to the Defense of Marriage Act, a law that denies legally married gay couples the federal benefits that opposite-sex couples receive. The court hasn’t yet agreed to hear any of these cases and it’s possible, though unlikely, that the justices would stay out of the marital thicket. One of the defining features of the modern Supreme Court is that the justices usually feel compelled to enter into any fray, whether it’s unnecessarily deciding a presidential election (Bush v. Gore) or aggressively reshaping the electoral process, even though no party asked them to do so (Citizens United).
Indeed, the court is all but compelled to take a DOMA case because earlier this year a federal court of appeals struck down the relevant provision. Unless the justices want to see federal law enforced in one part of the country, but not other parts—and have the federal government awarding marital benefits to some gay married couples, but not others—they have little choice but to review that lower court decision. The court would not be required to rule on the constitutionality of same-sex marriage bans generally. Instead, the DOMA cases simply pose the question of whether the federal government can discriminate against lawfully married gay couples. Gay-rights advocates are hopeful that Justice Anthony Kennedy, who is generally strong on LGBT issues, will join the four most liberal members of the court to strike down the law.
The gay-rights community is far more worried about the Proposition 8 case, which features the all-star legal team of Ted Olson and David Boies, the two lawyers who went head-to-head in Bush v. Gore. Now the two are united in asking the high court to strike down California’s marriage ban. While some advocates hope the court issues a broad ruling requiring marriage equality nationwide, others are fearful that the justices aren’t quite ready to strike down same-sex marriage bans in more than 30 states. Most Supreme Court experts expect a narrow decision that rests on procedural grounds or only overturns California’s law, without affecting the laws of other states.
Of course, the court’s docket has numerous other cases of great significance, including potentially landmark cases on the lawfulness of drug-sniffing dogs who conduct “searches” without a warrant; the liability of corporations for aiding human-rights abuses; and cases on the scope of the nation’s environmental laws. And journalists will be watching the justices closely for any signs of strain after last year’s Affordable Care Act ruling, which prompted reports of infighting and hostility among the justices.
If the justices had gone the other way on Obamacare, there’s little doubt the court would be a major issue in the presidential campaign. As it is, the court has been notable only for its absence. Nevertheless, the justices continue to have a profound effect on some of the most hot-button issues in America.