Supreme Courtin' It

There’s a lot of buzz suddenly about the Supreme Court possibly changing the course of the election. The thinking is that with the Supremes about to hear several controversial cases right before the election, that could excite one side or the other to turn out. Uh... no. Few people connect the Court to the election. Moreover, the Court won’t be issuing rulings until after the election. Still, there are some interesting cases coming up.

● Case No. 1: Affirmative Action. Fisher v. U. of Texas is an affirmative action case arising out of the admissions program at the University of Texas. Texas uses race as a consideration in its admissions to ensure educational diversity. Nine years ago, in Grutter v. Bollinger, the Supreme Court said this was acceptable, but the Court has since moved to the right.

When it was originally created, affirmative action was approved by the Court on the basis that it would involve discrimination in favor of certain groups to address “prior wrongs.” This meant, it could be used only where there had been prior discrimination. This was meant to justify discriminating against people who never discriminated themselves because supposedly their racial/gender group had benefited even if they hadn’t. Over time, however, it spread to virtually everywhere, and it got the point that it applied to more than 60% of the public including people who had just arrived in America. That’s when the Court began reining it back in.

In this case, Fisher, who is white, claims that she would have been admitted to the school if she had been any other race. Texas counters that diversity is important to them. Obama’s Justice Department has backed the University.

It’s not clear what the Court will do, though Justice Roberts has attacked affirmative action in the past as being “a sordid business, this divvying us up by race.” Kennedy, Scalia and Thomas all opposed the Grutter case allowing race to be used at all, and Alito likely sides with them. So it’s possible the Court will end the use of race in admissions and hiring, or at least require proof of direct discrimination. That said, they could also rule much more narrowly by saying that race may not be used where a goal like diversity can be achieved through some race-neutral means (like taking the top X% of high school graduates within the state or looking at family income). Or they could just affirm the present order.

● Case No. 2: Gay Marriage. The Supreme Court is likely to take on two gay marriage cases. The first involves the Defense of Marriage Act (DOMA). DOMA defines marriage federally as between a man and a woman and denies around 1,000 federal benefits (tax breaks, social security benefits, burial services, etc.) to gay couples who have been legally married in their home states. Obama’s Justice Department has refused to defend the law and several lower courts have already ruled it unconstitutional. How the Supreme Court will rule is unclear, but I suspect they will strike DOMA down.

In the past, the Supreme Court has overwhelmingly struck down laws which denied gays the same rights and protections afforded to heterosexuals. In Lawrence v. Texas in 2003, the Court struck down a law making gay sex illegal. In Romer v. Evans in 1996, the Court struck down a Colorado amendment which banned the passage of gay rights laws. It’s likely that the Court will conclude that DOMA illegally discriminates between lawfully married couples and will strike it down.

The Court may also take on the more significant Hollingsworth’s case, which involves California’s Proposition 8, which banned gay marriage in California. Prop 8 was struck down by the Ninth Circuit on narrow grounds rather than on the basis of some right for gays to be married, but the practical effect of that ruling would be to allow California to go forward with gay marriage.

The Supreme Court could refuse to hear the case (deny cert) in which event the law would remain struck down. Or it could affirm the decision or overturn it. If I had to guess, I would say the Court avoids deciding whether or not there is a right for gays to marry and will instead find some technical reason to affirm or overturn the Ninth Circuit’s ruling. My guess is that ultimately (in some later ruling), the Supreme Court will affirm the right of the states to make up their own minds on the issue of gay marriage, and in anticipation of that ruling, it will stick very closely to making sure that each side complied with California’s legal process in this case. Thus, whichever side should have won under California’s election/legislative process will prevail. . . but the issue won’t be decided under the United States Constitution. But you never know.

● Case No. 3: Voting Rights Act. In 2006, the Congress extended the portion of the Voting Rights Act which requires state and local governments “with a history of discrimination” to get advance approval from the Justice Department before they can change their voting rules. Congress extended this law 25 more years and Bush signed it. It applies to Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia, as well as some counties in California, Florida, New York, North Carolina, South Dakota, Michigan and New Hampshire.

When the Court reviewed this provision in 2009, it expressed significant skepticism, but did not rule on its validity at the time. Said Justice Roberts:

“We are now a very different nation [than the one that first enacted the Voting Rights Act]. Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

With Congress renewing the law but without making any changes, and with these states arguing that any discrimination was in the distant past, it’s likely that if the Court hears this case that it will strike down or significantly narrow this provision. The practical implications of this can be seen in things like the recent Voter ID laws, which essentially need Justice Department approval or need to be litigated in advance. Without this provision, states would be much more free to pass these law and would no longer be presumed to have discriminatory intent.

Thoughts?