Sunday, June 2, 2013
Supreme Court Rights Rulings Due This Month
The U.S. Supreme Court is set to rule by the end of this month on closely watched cases that will affect marriage rights for gays and lesbians, voting rights for African Americans and Latinos and opportunities for minority applicants in public colleges and graduate schools.   In two of those cases, the Roberts Court is being asked directly to limit or even overrule long-standing precedents upholding measures to remedy discrimination against or increase opportunities for African Americans in particular and other disadvantaged minorities. The gay marriage cases represent the court’s first full airing of those issues after having dismissed a plea by a gay couple in 1972 with a single sentence and without oral argument.   The justices start the final month of the 2012-2013 term with 49 decisions under their belts and 28 argued cases yet to be decided. Barring unanticipated difficulties, the court will release its final decisions during the week of June 24, allowing the justices to break for the summer until returning in late September to gear up for the next term.   Eleven of the cases yet to be decided were argued before the justices as recently as April, but the others go back further as far as the court’s first sitting in October. The accelerated pace of decisions in June is normal, though the workload can vary from term to term. The court issued 32 decisions in June 2011, but only 19 in June 2012.   The longest pending case, argued Oct.10, will represent the Roberts Court’s first direct ruling on the constitutionality of racial preferences for minority applicants in public universities. In Fisher v. University of Texas, Abigail Fisher, an unsuccessful white applicant for admission to the university’s flagship Austin campus, is challenging the school’s use of an applicant’s race as one factor in filling a small fraction of seats in the incoming freshman class.   The university contends that its system satisfies the conditions that the Supreme Court established for race-conscious admissions in 2003 in a case involving the University of Michigan Law School, Grutter v. Bollinger. Lawyers for Fisher argue that UT’s use of race goes beyond what Grutter allows, but they also invited the court to consider overruling Grutter if necessary to force new admissions policies for the Austin campus.   Justice Sandra Day O’Connor, now retired, wrote the majority opinion and cast the decisive vote in the Grutter case. Her successor, Samuel A. Alito Jr., has voted consistently to limit race-conscious policies in his seven-and-a-half terms on the court.   Justice Anthony M. Kennedy, who has voted against racial preferences in previous rulings, was widely seen as having the pivotal vote in the new case both before and after arguments. It is all but certain that he is writing the majority opinion in the case; he is the only justice with no majority opinion so far from the 10 cases argued in October. His questions during the argument suggested he is uncomfortable with the UT admissions system but reluctant to completely bar use of race in admissions policies.   A second case, Shelby County v. Holder, asks the Roberts Court to strike down a key provision of the federal Voting Rights Act that has been used to break down racial barriers to voting in parts of the country with a history of racial discrimination in voting. The provision section 5 requires several states in the Deep South and parts of other states to obtain “preclearance” from the Justice Department or a federal court in Washington before making any change in election law or procedures.   A conservative public interest law firm, the Project for Fair Representation, is helping challenge the provision in a suit brought by Shelby County, Ala. Lawyers for the county and other conservative interest groups argue that current conditions in the South no longer justify singling out southern states. The Obama administration, backed by traditional civil rights groups, argues that Congress had adequate grounds for re-enacting section 5 largely intact when it extended the Voting Rights Act in 2006 for another 25 years.   As in Fisher, Kennedy is widely seen as having the decisive vote in a case likely to divide the other eight justices along conservative-liberal lines. And, as in Fisher, Kennedy’s questions during the oral argument on Feb. 27 give only ambiguous clues about his likely vote.   Kennedy may also have the decisive votes in one or both of the gay marriage cases argued in late March. In United States v. Windsor, the court is considering the constitutionality of the federal Defense of Marriage Act (DOMA), the 1996 laws that bars federal marriage-based benefits to same-sex couples even if they are legally married in their home states. In the second case, Hollingsworth v. Perry, the court is considering the validity of California’s Proposition 8, the 2008 ballot measure that restored the state’s ban on same-sex marriage following the state supreme court’s decision six months earlier granting marriage rights to gay and lesbian couples.   Gay rights advocates won lower court rulings in both cases. The federal appeals court in New York City ruled DOMA unconstitutional in October in a case brought by a lesbian widow, Edith Windsor, who was hit with a $360,000 estate-related tax bill that would have not been levied on the surviving spouse of an opposite-sex couple. The Obama administration is supporting Windsor’s position, while the law is being defended by a Republican-controlled arm of the House of Representatives: the Bipartisan Legal Advisory Group.   In a similar situation, the state of California is not defending the constitutionality of Proposition 8. Instead, the law is being defended by sponsors of the ballot measure, which was approved with about 52 percent of the vote.   The unusual posture in the two cases poses procedural questions about the propriety of the court’s ruling on the merits in either or both. Court watchers predicted after argument that the justices are likely to rule on DOMA and likely to hold it unconstitutional. Many court watchers thought the justices are less likely to issue a substantive ruling on Proposition 8. If the justices dismiss the Prop 8 supporters’ appeal without a ruling, the action would leave in place the ruling by the federal appeals court in San Francisco in February 2012 that struck it down.   The court’s other remaining cases include more than a few of only limited interest, but some will create waves and make headlines when they are decided. Here are some of those:   Vance v. Ball State University, argued Nov. 26: Is an employer liable for sexual harassment by a supervisor who has no hiring or firing authority? The federal appeals court in Chicago said no.   Maryland v. King, argued Feb. 26: Can police take DNA samples from someone at time of arrest? The Maryland Court of Appeals said no.   Arizona v. Inter Tribal Council of Arizona, argued March 18: Can a state add proof of citizenship requirements for voting beyond those set in federal law? The federal appeals court in San Francisco said no.   Association for Molecular Pathology v. Myriad Genetics, argued April 15: Are the patents issued for breast-cancer genes valid? The federal appeals court in New York City said yes.   Salinas v. Texas, argued April 17: Can a prosecutor comment at trial on a defendant’s pre-arrest refusal to answer questions? The Texas Court of Criminal Appeals said yes.   The court has scheduled decision release days on Mondays beginning June 3. It is likely to add midweek decision days during the final two weeks of the month.