The disturbing failure to prosecute alleged rapists in Maryville, Missouri, represents an all-too-common failure of American legal systems. In The Nation, Jill Filipovic has a must-read article highlighting another part of the problem: the Supreme Court. The Court's conservative justices have taken a federal remedy away from sexual-assault victims, in a case that represents a pattern in the Republican war on civil-rights enforcement.
Yesterday, the Court heard oral arguments in Schuette v. Coalition to Defend Affirmative Action. The case involves a decision by the 6th Circuit Court of Appeals to strike down a Michigan constitutional amendment banning the use of racial preferences in higher education. The oral argument did nothing to dispel the nearly universal assumption of court-watchers that the decision will be reversed, although the argument against the amendment has a stronger basis in precedent than it's sometimes been given credit for.
One thing the three most anticipated cases of the recently completed Supreme Court term have in common is the questions they didn't answer. Hollingsworth v. Perry, by ducking the question on jurisdictional grounds, left the constitutional status of state bans on same-sex marriage an open question. Shelby County v. Holder theoretically permitted Congress to update the preclearance formula to put the teeth back into the Voting Rights Act. However, the Court gave lower courts future Supreme Courts no useful guideline for how Congress could proceed. (Admittedly, the answer for how Congress can constitutionally proceed, at least for the Roberts Court, is almost certainly "it can't.") But the term's clearest passing of the buck was the decision in the potentially major affirmative-action case, UT Austin v. Fisher. While many people (including me) expected the Court to use the case as a vehicle to declare virtually all affirmative action in public higher education unconstitutional, after eight long months the Court issued a brief opinion that merely sent the issue back to the lower courts without a definitive ruling. What then, does Fisher suggest about the future of affirmative action?
Today, the Supreme Court finally issued two long-awaited major opinions on gay and lesbian rights. One of them was a historic opinion and a major victory for civil rights. The other stopped short of what could have been, but will at least result in same-sex marriage being legal in the nation's biggest state.
“The stated purpose of the Civil War Amendments was to arm Congress with the power and authority to protect all persons within the Nation from violations of their rights by the States,” writes Justice Ruth Bader Ginsburg in her dissent against the five justices who ruled to overturn Section 4 of the Voting Rights Act.
As the Prospect's Jamelle Bouie notes, yesterday the Supreme Court finally released Fisher v. University of Texas, its long-awaited affirmative action ruling and ... mostly decided not to decide. There is surely a juicy story waiting to be uncovered about why the Court took eight months to issue a ruling that barely took up 40 pages and left the current state of the law essentially untouched.
Today, the Second Circuit Court of Appeals struck down a major part of the Defense of Marriage Act (DOMA). Since DOMA had already been held unconstitutional by the First Circuit, on one level this doesn't change anything, since the case was almost certainly headed to the Supreme Court anyway. But today's opinion is important because the theory underlying the court's holding goes much further than the First Circuit did.
Yesterday, Ben Smith quoted a conservative lawyer offering a way the Supreme Court's conservative majority may think about striking down the Affordable Care Act. Essentially, this lawyer said, they think that the last 70 years of the Court's interpretation of the Constitution's commerce clause, which underlies much of what the modern American government does, is a giant fraud perpetrated by liberals. Even though they know they can't toss out that last 70 years all at once, they have no problem finding some ridiculous justification for striking down the ACA, no matter whether they really believe it or not. "You have built a fantasy mansion on the Commerce Clause," the lawyer tells Smith.
U.S. District Court Judge Jeffrey White's recent opinion holding a key provision of the Defense of Marriage Act unconstitutional presents an interesting contrast to Judge Stephen Reinhardt's recent opinion on California's Proposition 8. Reinhardt, trying to maximize the chances that his opinion would not be overruled and therefore create a bad Supreme Court precedent, wrote a cautious and narrow opinion closely tailored to the unique facts of the case at hand. Judge White, conversely, wrote a broad (though clearly argued) opinion that would have much wider implications. Whether White's opinion can survive further appellate review remains to be seen.
Affirmative Action: Perhaps the defining characteristic of the Rehnquist Court was a certain last-minute reticence. On issue after issue—the Commerce Power, abortion, even the long-standing conservative desire to do away with Miranda v. Arizona—the Court would walk up to the edge of the abyss, dangle its toes over the side, and then step (slightly) back. While moving the law far to the right, the Court seldom engaged in the kind of radical overruling that would have perhaps called its legitimacy into question.
Many progressive legal commentators, including Dahlia Lithwick and Garrett Epps, have praised Judge Stephen Reinhardt’s opinion holding that California’s Proposition 8—a referendum passed in 2008 making same-sex marriage illegal—is unconstitutional. The praise, however, has not been unanimous.
Along with his fellow Republicans, Jeff Sessions spent much of the first day of Elena Kagan's confirmation hearings weirdly taking aim at the storied judicial career of Thurgood Marshall. Why? Because Marshall was an enemy of originalists, and the senators wanted to portray Kagan, who clerked for him, as cut from the same ideological cloth.