Another Big Year for the Supreme Court

(AP Photo/Carolyn Kaster)

Women pray on the front steps of the Supreme Court in Washington, D.C. on Monday, October 1, 2012. The Supreme Court is embarking on a new term that could be as consequential as the last one with the prospect for major rulings about affirmative action, gay marriage, and voting rights.

The Supreme Court’s 2011 term, which concluded with a narrow escape for the Obama administration’s defining policy achievement, the Affordable Care Act, was a compelling reminder of the importance of the highest Court in the land to our country’s politics. The 2012 term, which started this week, may have an even further-reaching impact. Here’s a roundup of the cases and issues that could be considerably helped or hindered by the Court’s deliberation.

Corporations and Human Rights 

The first case of the term, which started oral arguments earlier this week, considers the application of a 1789 statute allowing aliens to file civil tort claims that involve violations "of the law of nations or a treaty of the United States." A plaintiff named Esther Kiobel filed suit against the oil Giant Royal Dutch Petroleum based on human-rights violations committed in Nigeria. Not surprisingly, the Court did not appear sympathetic to the suit, which was rejected in a 2-1 decision by the federal circuit court. As the New Republic's Jeffrey Rosen dryly observes, the Court is likely to hold "that corporations aren’t persons when they support torture abroad but are when they want to spend millions to influence U.S. elections." 

Affirmative Action 

State programs attempting to address historic exclusions by considering race during admissions or hiring processes have long faced intense scrutiny from the Supreme Court. Since 1978, public universities have been bound by the idiosyncratic swing opinion of Justice Lewis Powell, who held that affirmative-action programs might be permissible for the purpose of increasing diversity on campus (but not for any other reason). Powell's opinion barely survived a brush with a more conservative Court in 2003; in Grutter v. Bollinger, the Court struck down the University of Michigan's undergraduate admissions system (which gave points to people based on ethnic diversity) but upheld the system of the UM law school (which took race into account in a more holistic manner). The swing vote in Grutter was Sandra Day O'Connor, who was later replaced by the reactionary party-liner Samuel Alito. For this reason, Fisher v. University of Texas may be the death knell for affirmative action in higher education.

The University of Texas program is a good test case—it's very modest, with race taken into account as one of many factors only for a relatively small percentage of the student body, after automatic admission is granted to the top 10 percent of every high-school class in the state. But the affirmative-action program the Supreme Court considered in the 2006 Parents Involved case—using race only as a rare tiebreaker—was even more modest, but it failed to survive.

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race," Chief Justice Roberts wrote. This ahistorical tautology is, unfortunately, likely to lead to a decision holding all (or virtually all) affirmative action in post-secondary education unconstitutional. 

Same-Sex Marriage 

In the term's other potential blockbuster, the Supreme Court is slated to hear oral arguments in a suit challenging California's Proposition 8, which re-banned same-sex marriage after it had been ruled unconstitutional by the state's highest court. Because swing Justice Anthony Kennedy has written two major decisions in favor of gay and lesbian rights—Romer v. Evans and Lawrence v. Texas—there is more reason for optimism than with most other cases this term.

There are three possibilities. The Court could uphold Prop. 8, with Kennedy drawing a line at the same-sex marriage stand. They could strike it down with an opinion that made sexual orientation a "suspect classification" under the equal-protection clause of the 14th Amendment, which would make same-sex marriage legal at the national level—a home run for human rights. Finally, the Court could—following the Ninth Circuit opinion that held Prop. 8 unconstitutional—hold that Prop. 8 is unconstitutional because it involves removing rights already granted, while leaving the constitutionality of same-sex marriage bans in other states open. Like many court-watchers, I think the last option is the most probable, but any of the three is possible. 

Voting Rights

The Voting Rights Act of 1965 is one of the most important—and most effective—pieces of legislation ever passed by the United States Congress. Nearly 100 years after the 15th Amendment banned voting restrictions on the basis of race on paper, the Voting Rights Act enfranchised racial minorities that had been denied the franchise on the ground.

At the heart of the Voting Rights Act is the "preclearance" provision, which requires states and localities with a history of discrimination to submit any changes to their voting laws to the Department of Justice for approval. Given the extensive history of states evading the 15th Amendment when left to their own devices, it's hard to argue that this was an unjustified measure, and Congress reauthorized the preclearance provisions in 2006. Nevertheless, a state with an extensive history of discrimination is challenging the constitutionality of the statute.

Shelby County, Alabama, argues the preclearance provisions exceed the enforcement powers given to Congress by Section 2 of the 15th Amendment. Given the widespread vote-suppression efforts that have been seen in many states in 2012, this argument could hardly be less timely; if anything the preclearance provisions should be extended to all states rather than eliminated. But this doesn't mean that the Supreme Court—which upheld an Indiana vote-suppression statute in 2008 while admitting that there was no evidence that the "vote fraud" Indiana was allegedly trying to address existed—won't be sympathetic to Alabama's arguments.

In addition to the individual cases, some court watchers will be interested to see if the stunning decision of Chief Justice Roberts to join the Court's more liberal wing during the Affordable Care Act case is an anomaly or reflects a moderate turn that will be seen in future cases. Given that Chief Justice Roberts joining the Court's four Democratic appointees to produce a 5-4 decision was unprecedented, I lean heavily toward the "anomaly" theory. But it will bear watching as the Court considers these potentially landmark cases.

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