Supreme Court Faces Weighty Cases and a New Dynamic
By ADAM LIPTAK
Published: September 29, 2012
WASHINGTON — The Supreme Court
returns to the bench on Monday to confront not only a docket studded
with momentous issues but also a new dynamic among the justices.
Hiroko Masuike/The New York Times
Elliott Dunham-Murphy, 2, and his mother came to
Manhattan in June for a rally celebrating the court’s ruling on health
care.
Related
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Justices Uphold Map for West Virginia Voting (September 26, 2012)
Related in Opinion
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Editorial: October Term, 2012 (September 30, 2012)
Alex Brandon/Associated Press
The term begins on Monday at the Supreme Court, which
was under a protective scrim last week as facade work was being done.
The coming term will probably include major decisions on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily rival the last term’s as the most consequential in recent memory.
The theme this term is the nature of equality, and it will play out over
issues that have bedeviled the nation for decades. “Last term will be
remembered for one case,” said Kannon K. Shanmugam, a lawyer with Williams & Connolly. “This term will be remembered for several.”
The term will also provide signals about the repercussions of Chief Justice John G. Roberts Jr.’s
surprise decision in June to join the court’s four more liberal members
and supply the decisive fifth vote in the landmark decision to uphold
President Obama’s health care law.
Every decision of the new term will be scrutinized for signs of whether
Chief Justice Roberts, who had been a reliable member of the court’s
conservative wing, has moved toward the ideological center of the court.
“The salient question is: Is it a little bit, or is it a lot?” said Paul
D. Clement, a lawyer for the 26 states on the losing side of the core
of the health care decision.
The term could clarify whether the health care ruling will come to be
seen as the case that helped Chief Justice Roberts protect the authority
of his court against charges of partisanship while accruing a mountain
of political capital in the process. He and his fellow conservative
justices might then run the table on the causes that engage him more
than the limits of federal power ever have: cutting back on racial
preferences, on campaign finance restrictions and on procedural
protections for people accused of crimes.
It is also possible that the chief justice will become yet another
disappointment to conservatives, who are used to them from the Supreme
Court, and that he will join Justice Anthony M. Kennedy as a swing vote
at the court’s center. There is already some early evidence of this trend:
in each of the last three terms, only Chief Justice Roberts and Justice
Kennedy were in the majority more than 90 percent of the time.
“We all start with the conventional wisdom that Justice Kennedy is going
to decide the close cases,” said Mr. Clement, who served as United
States solicitor general under President George W. Bush. “We’ve all been
reminded that that’s not always the case.”
The texture of the new term will be different, as the court’s attention
shifts from federalism and the economy to questions involving race and
sexual orientation. The new issues before the court are concrete and
consequential: Who gets to go to college? To get married? To vote?
On Oct. 10, the court will hear Fisher v. University of Texas, No.
11-345, a major challenge to affirmative action in higher education. The
case was brought by Abigail Fisher, a white woman who says she was
denied admission to the University of Texas based on her race. The
university selects part of its class by taking race into account, as one
factor among many, in an effort to ensure educational diversity.
Just nine years ago, the Supreme Court endorsed that approach in a 5-to-4 vote. The majority opinion in the case, Grutter v. Bollinger, was written by Justice Sandra Day O’Connor, who said she expected it to last for a quarter of a century.
But Justice O’Connor retired in 2006. She was succeeded by Justice
Samuel A. Alito Jr., who was appointed by Mr. Bush and who has
consistently voted to limit race-conscious decision making by the
government. Chief Justice Roberts, another Bush appointee, has made no
secret of his distaste for what he has called “a sordid business, this divvying us up by race.”
Justices Kennedy, Antonin Scalia and Clarence Thomas all dissented in
the Grutter case, and simple math suggests that there may now be five
votes to limit or overturn it.
The reach of such a decision could be limited by the idiosyncrasies of
the admissions system in Texas. The university provides automatic
admission to students in Texas who graduate in roughly the top 10
percent of their high school classes. That approach generates
substantial diversity, partly because many Texas high schools remain
racially homogeneous.
Ms. Fisher narrowly missed the cutoff at a high school whose students
have above-average test scores for the state. She was rejected for one
of the remaining spots under the part of the admissions program that
considers applicants’ race.
The court may uphold the Texas system under Grutter, or it may rule
against it on narrow grounds by saying, for instance, that
race-conscious admissions are forbidden where a race-neutral method —
like the 10 percent program — can be said to be working.
But the court may also follow the health care ruling with a second
landmark decision, this one barring racial preferences in admissions
decisions altogether. Given persistent achievement gaps, even after
controlling for family income, such a ruling would make the student
bodies of many colleges less black and Hispanic and more white and
Asian.
The court will probably also take on same-sex marriage. “I think it’s
most likely that we will have that issue before the court toward the end
of the current term,” Justice Ruth Bader Ginsburg said at the University of Colorado on Sept. 19.
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Supreme Court Faces Weighty Cases and a New Dynamic
Published: September 29, 2012
(Page 2 of 2)
She was referring to challenges to an aspect of the federal Defense of
Marriage Act, which bars the federal government from providing benefits
to same-sex couples married in states that allow such unions. The federal appeals court in Boston struck down that part of the law,
and both sides have urged the court to hear the case. More than 1,000
federal laws deny tax breaks, medical coverage and burial services,
among other benefits, to spouses in same-sex marriages.
Doug Mills/The New York Times
Chief Justice John G. Roberts Jr., center, will be
scrutinized for signs of whether he has moved to the ideological center
after his unexpected decision on President Obama’s health care law.
Related
-
Justices Uphold Map for West Virginia Voting (September 26, 2012)
Related in Opinion
-
Editorial: October Term, 2012 (September 30, 2012)
The justices will also soon decide whether to hear a more ambitious marriage case
filed in California by Theodore B. Olson and David Boies. It seeks to
establish a federal constitutional right to same-sex marriage.
Chief Justice Roberts has not yet voted in a major gay rights case. Justice Kennedy wrote the majority opinions in both Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and Romer v. Evans,
a 1996 decision that struck down a Colorado constitutional amendment
that banned the passage of laws protecting gay men and lesbians. Most
observers see him as the decisive vote in same-sex marriage cases.
The justices are also quite likely to take another look at the
constitutionality of a signature legacy of the civil rights era, the
Voting Rights Act of 1965. In 2009, the court signaled that it had reservations
about the part of the law that requires the federal review of changes
in election procedures in parts of the country with a history of
discrimination, mostly the South.
“We are now a very different nation” than the one that first enacted the
Voting Rights Act, Chief Justice Roberts wrote for himself and seven
other justices. “Whether conditions continue to justify such legislation
is a difficult constitutional question we do not answer today.”
The chief justice seemed to invite Congress to revise the law, but lawmakers have taken no action.
Challenges to the law have arisen in several lawsuits in the current
election season, including ones concerning redistricting and voter
identification requirements.
“It will be interesting to see if the justices worry half as much about
the emerging restrictions on voting as they worried about restrictions
on political spending,” said Pamela S. Karlan, a law professor at Stanford.
On Monday, the new term will start with a case of great interest to
business groups, Kiobel v. Royal Dutch Petroleum, No. 10-1491. The case
was brought by 12 Nigerian plaintiffs who said the defendants, foreign
oil companies, had been complicit in human rights violations committed
against them by the Abacha dictatorship in Nigeria. The question in the
case is whether American courts have jurisdiction over such suits, and
business groups are hoping the answer is no.
In the last term, business groups achieved a series of victories, often
by lopsided majorities. In cases with an individual on one side and
business interests on the other, the court ruled for the business side
12 out of 14 times, according to calculations by Lauren R. Goldman,
a lawyer with the firm Mayer Brown. In the two previous terms, the
number of business cases was comparable, but individuals won at least
half of the time.
Introducing himself to the nation at his confirmation hearings in 2005, Chief Justice Roberts said that “judges are like umpires” in that they do not make the rules but merely apply them.
“Nobody ever went to a ballgame to see the umpire,” he said.
But the calls Chief Justice Roberts made in the health care case were
surprising enough that it will be hard to look away. He voted with the
court’s conservatives to say that the law was not authorized by
Congress’s power to regulate interstate commerce and then joined the
court’s liberals to say it was authorized by Congress’s power to levy
taxes. No other justice joined every part of his controlling opinion.
Charles Fried,
who served as solicitor general in the Reagan administration and filed a
brief in support of the law, said the reasoning in the health care
decision was mystifying enough to foreclose predictions about the future
of the Roberts court.
“This is a court that under Chief Justice Roberts called a ball a
strike, a strike a ball, but got the batter to base where he belonged,”
said Professor Fried, who teaches at Harvard Law School. “So who knows
what to expect.”
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