Affirmative Action, Marriage Equality, and Voting Rights: A Look at the New Supreme Court Term


Last year’s historic decisions upholding the constitutionality of the Affordable Care Act and striking as unconstitutional most of Arizona’s “papers please” immigration law set the tone for what promises to be an even more exciting and historic 2012-2103 term at the high court.

The term, which begins today, Monday, October 1, already promises a handful of marquee cases, including a direct challenge to affirmative action in the case of Fisher v. University of Texas. In 2003, the Supreme Court ruled in two separate but parallel cases—Grutter v. Bollinger and Gratz v. Bollinger—that universities have a compelling interest in creating a diverse student body and that they may consider race as one factor, among many, in deciding which students to admit. In 2005, after those cases were decided and in an effort to increase diversity of its student body, the University of Texas adopted an admissions program that was modeled in part on the Michigan program the Supreme Court had upheld in those decisions and as a supplement to its Ten Percent Plan—which automatically admitted the top 10 percent of each high school graduating class. The shift was based on the assumption that, de facto, most Texas schools are still segregated.

Abigail Fisher, a white student who was not in the top ten percent of her class, was denied admission to the school and challenged the policy by arguing that the court erred in looking at race as a factor in her admission decision. Now the Roberts Court will decide the case, a fact that makes many affirmative-action defenders anxious since the Chief Justice is on record as opposing any kind of policy that is not “race neutral” across the board.

The other sure-thing case before the Court is Kiobel v. Royal Dutch Petroleum, a case the Court will hear on the first day of arguments. In that case the Court will consider whether Congress intended the Alien Tort Statute, a law that says non-citizens can sue American corporations in American courts for conduct of those corporations abroad, to also hold American corporations accountable for human rights abuses committed abroad. The Kiobel challenge gets to the very heart of the law by questioning whether individuals who suffered severe human rights abuses abroad can sue those responsible for the abuses in the United States or whether those individuals are stuck with the laws and jurisdiction of where the abuses took place. If there’s been one consistent theme from the Roberts Court it is the expansion of corporate rights at the expense of individual rights and Kiobel looks to be another case that may cement that theme at a time when corporate accountability abroad is needed now more than ever.

There are two other big issues likely to come before the Court this term: marriage equality and a challenge to the Voting Rights Act. The question is how they get before the Court because that answer will tell a lot about how the Court will likely rule.

E.J. Graff has a great overview on the various challenges to the Defense of Marriage Act (DOMA) working their way up to the Court, as well as the challenge to California’s Prop 8. Which case the Court decides to hear will make all the difference in outcome, because Supreme Court law all depends on the way an issue is framed. There are five challenges to DOMA from which the Court could chose; each are limited in their scope and framing and each places the issue of same-sex marriage in the context of federal power. Specifically, the DOMA challenges ask: Does the federal government have the right to pick and choose which state marriages it recognizes without violating the equal protection guarantees of the Constitution?

In many ways that’s an easier question to frame for a conservative-leaning court than the question at the heart of the Proposition 8 challenge: Do same-sex couples have a fundamental right to marry under the Constitution? The Roberts Court has been outright hostile to the idea of any kind of fundamental rights, and would undoubtedly see this as an expansion of constitutional access, something the most strident of its justices have made a career trying to prevent. If the Court decides to hear Perry v. Brown in an effort to answer this question it could spell bad news for marriage equality.

Similar to marriage equality the Court has several avenues to attack the constitutionality of the Voting Rights Act (VRA). First is the possibility of the Court agreeing to review Shelby County v. Holder, a case where the Department of Justice objected to changes in Alabama voting law on which the DOJ has since backed off, or through several other challenges to the VRA in the appellate courts from Florida and Texas.

Each of the possible challenges question Section 5 of the VRA which requires the federal government to “pre-clear” any changes to election laws in certain jurisdictions with a history of racial discrimination. In an earlier voting rights challenge Chief Justice Roberts questioned the constitutionality of Section 5 but did not rule on it outright. This term may give him a chance to strike one of the most important achievements of the modern civil rights statutes.

There are a handful of other important questions the Court will also answer with regard to the rights of criminal defendants, and with a future challenge to Roe v. Wade only a year or two away at most, history may look at the Roberts Court as the conservative response to the great progressive days of the Warren Court. At least that’s how it is shaping up right now.

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