Supreme Court watch: big, big stuff coming this week

This week promises to be a truly blockbuster week in the history of the Supreme Court of the United States.  In three hugely contentious areas – affirmative action, same-sex marriage, and voting rights – the Court is expected to issue decisions that may well thoroughly remake the relevant legal landscapes.  Then again, it might not.

The Court does not announce in advance which decisions will come down when.  What we do know is that the Court will issue some decisions on Monday morning starting at 10 a.m., and most likely will issue more later in the week on days that are yet to be announced.  Barring a highly unusual development, all of the Court’s outstanding cases will be decided by Thursday morning.

As we learned last year with the Obamacare decision (in which CNN and others reported the result exactly wrong for an embarrassingly long time), you need to be very careful whom you listen to as the decisions are being reported.  The best place, bar none, to find out what really happened in real time is SCOTUSblog.  They do an excellent live-blog on mornings on which decisions are being announced.

As of now, eleven of this term’s cases remain undecided; four of them address the “big ticket” topics I’m discussing in this post.  Of the seven other cases, some are quite important (there’s a potentially important takings case, a tort case out of New Hampshire that concerns generic drugs, an employment case having to do with retaliation, and others), and the Court has already issued some important decisions this term in the areas of criminal law, voting rights, and others.  None of them approach what could happen this week.

On the flip, a summary of what’s on tap in affirmative action, marriage, and voting rights, along with some possible outcomes and some not-very-confident predictions.

Affirmative action: the Court must decide the case of Fisher v. University of Texas at Austin, in which a white student from Texas who was not admitted to Texas’s flagship public university sued the school, claiming that she was denied admission because of her race, in violation of the 14th Amendment.  Very briefly: the University of Texas automatically admits the top 10% of every high school in Texas, which accounts for about 80% of the freshman class, and fills out the class by looking at a number of other factors, including race.  Ms. Fisher did not make the top-10% cut, but claimed that she would have been one of the additional students admitted were it not for her race.  There are many places to look for more details on the case; here is one that lays out the basics nicely.

This case implicates the 2003 decision in Grutter v. Bollinger, a case authored by now-retired Justice Sandra Day O’Connor, in which the Court allowed the University of Michigan Law School to consider the race of its applicants as one among a number of factors in deciding whom to admit.  The relatively conservative U.S. Court of Appeals for the Fifth Circuit upheld Texas’s program under Grutter.  And, since Grutter is of relatively recent vintage, it would be surprising for the Court to have taken this case just to reaffirm Grutter.  The big question in the case, therefore, is whether the Supreme Court is going to overrule or cut back on the principles laid down in Grutter.  Roughly speaking, the possible “big” answers to that question would be “no,” in which case Grutter stands and the university’s program is probably upheld (this seems unlikely given the current composition of the Court, especially the replacement of Justice O’Connor with Justice Alito); “sorta,” in which case the Court adopts some sort of middle ground between Grutter and a completely race-blind admissions policy (this could mean either upholding or rejecting the university’s plan on narrow grounds, or sending it back for additional fact-finding); and “yes,” in which case Fisher replaces Grutter as the law of the land on affirmative action, and universities across the country, including the University of Texas, have to revise their admissions policies once again, perhaps this time to expunge all consideration of the race of their applicants.

There’s also a real chance that the Court won’t answer the big question.  Justice Kagan is not participating in this case, presumably because of her involvement in it as Solicitor General when the U.S. Department of Justice was considering whether to get involved (ultimately, it did, filing a friend-of-the-court brief in support of the university’s program).  That raises the possibility of a 4-4 split, in which case the ruling would simply be “affirmed by an equally divided Court” – i.e., Texas may continue to admit students as it has been doing (since Texas won in the Court of Appeals), but the Supreme Court’s action would carry no precedential effect.  Another possible outcome that avoids the big question would be for the Court to dismiss the case for lack of standing: Ms. Fisher has not proven that she would have been admitted even if the university gave race no consideration in its admissions process (indeed, the university has claimed that she would not have been), so the Court could conclude that unless she can do so (perhaps via a trial on remand), she may not challenge the university’s process.

As is often the case these days, Justice Kennedy’s vote is the one that is likely to decide the case.  Given that, this passage from his separate opinion in Grutter is especially interesting.

There is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity, but an educational institution must ensure, through sufficient procedures, that each applicant receives individual consideration and that race does not become a predominant factor in the admissions decisionmaking…. I reiterate my approval of giving appropriate consideration to race in this one context [diversity in higher education].

The question for Justice Kennedy, then, would seem to be whether he has been persuaded that Texas’s plan adheres to that standard – i.e., that every applicant receives “individual consideration” and that race is not a “predominant factor.”  Whatever that means.

Fisher was argued in October.  And, since Justice Kennedy is the only Justice who has not yet authored an opinion from the Court’s October sitting, and Fisher is the only case outstanding from that sitting, it is likely (though not certain) that Kennedy started out as the author of the lead opinion in Fisher.  However, it’s unusual, even for a big-ticket case like this one, for the Court to take this long to decide a case, so given the length of time that has elapsed, I’d expect there to be a number of separate opinions issued.  Indeed, it’s quite possible (I’d even say it’s likely) that there will be no single opinion that commands a majority of five Justices, which may well complicate the legal landscape, leaving universities unsure of how to structure their admissions procedures without getting sued.  It’s also possible that, during the course of draft opinions being circulated within the Court, some votes shifted, as supposedly happened with the health care case last year.  That could account for the unusual delay in deciding this case, and could mean that everyone is in for some sort of big surprise when the Court finally announces its decision.  All of this makes the case exceptionally difficult to predict.  My guess, and it is only that, is that the Court’s judgment will be announced by Justice Kennedy, though he will not be able to get four other Justices to join him.  I think he’ll probably declare that Texas wasn’t careful enough in crafting this policy, but that if it tweaks the policy, it can still consider race as a factor in admissions.  If that’s how it goes, litigation in this area will continue indefinitely.

Same-sex marriage: two separate cases are before the Court that concern same-sex marriage.  One, Hollingsworth v. Perry, is a challenge to California’s infamous “Proposition 8,” which purported to write a ban on same-sex marriage into the California Constitution. Although the bottom-line issue in this case – whether the 14th Amendment guarantees the right of same-sex couples to marry – seems easy enough to state, the case is actually quite complicated, and there are many possible outcomes because of the very weird way in which it made its way to the Supreme Court.  I wrote up a lengthy post on the Prop 8 case when it was argued back in March, and I’d respectfully refer the interested reader to that post for further details.

The other case, United States v. Windsor, is a challenge to section 3 of the federal Defense of Marriage Act (DOMA).  DOMA, of course, refuses federal recognition of legal same-sex marriages, thereby depriving legally-married same-sex couples of something like 1,100 federal benefits of being married (section 2 of DOMA, which has to do with reciprocity among states, is not at issue in this case).  The plaintiff in this case, Edith Windsor (an 80-something-year-old New York resident), is about as sympathetic a plaintiff as one can imagine.  Ms. Windsor legally married Thea Spyer, with whom she had lived for over 40 years, in Canada in 2007.  After Ms. Spyer died, Ms. Windsor inherited her estate, but she also faced a large federal estate tax bill (THE DEATH TAX!!) which, had she been married to a man, she would not have faced.  So the issue here is not whether there is a federal constitutional right to same-sex marriage, but rather, whether the federal government may constitutionally treat same-sex and opposite-sex legally-married couples differently.  Interestingly, a conservative arguing that Ms. Windsor should lose her case is put in the awkward position of defending the application to her of the very tax that all good conservatives love to hate.

The merits of this case are reasonably straightforward: if Ms. Windsor wins, DOMA section 3 is unconstitutional and the federal government must afford legally-married same-sex couples the same federal benefits that opposite-sex couples enjoy.  If she loses, the federal government may continue to discriminate against same-sex couples until Congress repeals the law.

Unfortunately, this case too is afflicted with procedural problems that may result in a decision that avoids the merits of the case.  You may recall that, while the case was being litigated, the Obama administration announced that it would no longer defend the statute as constitutional.  This unusual situation led to the so-called Bipartisan Legal Advisory Group or “BLAG,” an entity under the control of the House of Representatives and Speaker John Boehner, being substituted as the party defending the statute.  The Court instructed the parties to address the question whether the BLAG was a proper party – if it’s not, the Court lacks jurisdiction to decide the case and will dismiss it without a decision on the merits (result: the U.S. Court of Appeals for the Second Circuit’s decision declaring DOMA unconstitutional would stand, and would apply in New York, Vermont, and Connecticut; similar decisions in other circuits, such as the First Circuit case also declaring DOMA section 3 unconstitutional and that applies to ME, MA, NH, PR, and RI, would also remain in effect).

Both Windsor and Hollingsworth were argued in March.  Three Justices have not yet authored an opinion from the March sitting: Chief Justice Roberts, Justice Kennedy, and Justice Alito.  I think it quite unlikely that a relatively junior Justice like Alito would be assigned the majority opinion for a case as important as these two, so it’s a fair bet that either Roberts or Kennedy – or maybe both – will be issuing opinions in these cases.  Most professional tea-leaf readers seemed to agree that, at oral argument, Kennedy seemed quite bothered by DOMA – in particular, he was annoyed that DOMA intruded on the traditional authority of the states to regulate marriage.  Therefore, the conventional wisdom – which is notoriously unreliable when it comes to the Supreme Court – is that, if the Court can get through the procedural obstacles to deciding Windsor, it seems poised to deliver a decision invalidating DOMA section 3.  But it might do something else.  And what happens in Hollingsworth is anybody’s guess.  If I had to offer a prediction: the Court either dismisses Hollingsworth or upholds the Court of Appeals’ decision striking Prop 8 on extremely narrow grounds (such that the case is effectively limited to California) in a 6-3 opinion by Roberts, and declares DOMA section 3 unconstitutional in a 6-3 or 5-4 opinion by Kennedy.  But I’m not especially confident of either prediction.

Voting rights: the Court has before it a direct challenge to section 5 of the Voting Rights Act (“VRA”) in Shelby County v. Holder.  Section 5 is the so-called “preclearance” provision of the VRA, pursuant to which “covered jurisdictions” must receive advance permission from the U.S. Department of Justice before making any changes, even seemingly minor ones, to their voting procedures.  As of today, the list of “covered jurisdictions” includes the entire states of AL, AK, AZ, GA, LA, MS, SC, TX, and VA, and parts of CA, FL, NY, NC, and SD (interestingly, the list used to include a handful of communities in Massachusetts, as I explained in this post).

The purpose of preclearance is to head off procedural changes that make it more difficult for minorities to vote.  The VRA of course outlawed a variety of procedures that did exactly that.  But because some states and localities had proven to be remarkably resourceful when it came to denying certain citizens the right to vote, VRA section 5 went further by barring any changes to voting procedures without first getting federal approval.  Section 5 has been extraordinarily successful, and its success may be part of what proves its undoing.

After this case was argued, I wrote up a post summarizing some of what transpired at argument, and predicting that “the Supreme Court will invalidate section 5 by a 5-4 vote in an opinion authored by Chief Justice Roberts.”  I still think that is what is going to happen, particularly since Shelby County is the only remaining undecided case from the February sitting, and Roberts is the only Justice not to have written an opinion from that sitting.  I do not know of any procedural obstacles in this case, so as far as I know, the Court is likely to issue a decision on the merits.  And I think that decision is going to make a lot of advocates for voting rights very unhappy.  I will reiterate a point I made in February with respect to a lot of lefties who, after Chief Justice Roberts wrote the opinion upholding Obamacare last year, decided that Roberts was the awesomest thing since sliced bread:

the prediction here (and in many other places) is that the Supreme Court will invalidate section 5 by a 5-4 vote in an opinion authored by Chief Justice Roberts.  When that happens, look for many of the same people who, in the wake of the Obamacare decision, were absurdly falling over themselves to declare Roberts the savior of the Court (if not the entire Republic) and the greatest statesman currently in public life, to castigate him in equally harsh terms.  To those people – I’m looking at you, Larry Tribe, Chris Matthews, Jeff Rosen, Gillian Metzger – I say this: you got snookered.  Roberts, IMHO, knew exactly what he was doing with respect to Obamacare, and it had very little to do with statesmanship or any other high-minded purpose.  It had everything to do with preserving the Court’s “political capital” for what Roberts considers to be more important battles.  Gutting the individual mandate (which, as we’ve discussed, is not really a mandate at all) was not really worth the brouhaha it would have caused.  But finally realizing a career-long dream of gutting the Voting Rights Act – now that would be worth it.

Of course, as we’ve discussed, anything can happen, and at the Supreme Court it sometimes does.  But of the big-ticket cases awaiting decision, this is the one for which I’m most comfortable offering a prediction.  I’d be delighted to be surprised.