Chemerinsky: 2013 May Be Another Blockbuster SCOTUS Year
Erwin Chemerinsky
The year 2012 saw blockbuster decisions from the U.S. Supreme Court. The court will be most remembered for largely upholding the Patient Protection and Affordable Care Act (in National Federation of Independent Businesses v. Sebelius), and for striking down key provisions of Arizona’s restrictive immigration law, SB 1070 (in Arizona v. United States). In both, Chief Justice John G. Roberts Jr. joined the more liberal justices over the strong dissents from the court’s most conservative members.
Few expect this voting pattern to continue in 2013, although it again will be a year of blockbuster rulings, maybe even more so than 2012. The three most important matters to be decided in the first half of the new year all involve important issues of equality. In this area, Chief Justice Roberts so far has been with the conservatives, such as in his 2007 opinion in Parents Involved in Community Schools v. Seattle School Dist. No. 1, which proclaimed that the Constitution requires that the government be color-blind in its decisions.
One of the pending cases, Fisher v. University of Texas at Austin, was argued in the court Oct. 10. The issue is whether colleges and universities may continue to use race as a factor in admissions decisions to benefit minorities and to enhance diversity.
Based on his opinion in Parents Involved, there seems little doubt as to where Chief Justice Roberts will be on this issue. In fact, based on their prior rulings, Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito seem sure to be with Chief Justice Roberts in wanting to put an end to all affirmative action programs. Nor is there doubt that Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Sonia Sotomayor will be on the other side. (Justice Elena Kagan is recused from participating in Fisher.) The hope for affirmative action programs rests with Justice Anthony M. Kennedy and never since he came on the court in 1987 has he voted to uphold an affirmative action program in any context, neither in education, employment nor contracting.
If the court, as expected, imposes new constitutional limits on affirmative action, there will be a significant effect on colleges and universities across the country. Because of the history of discrimination and current inequities in school finance, restrictions on affirmative action will decrease, perhaps dramatically, the number of African-American and Latino students at many schools.
In another case, the court will hear oral arguments on Feb. 27 in Shelby County, Alabama v. Holder. The issue is whether Section 5 of the Voting Rights Act is constitutional.
The Voting Rights Act of 1965 is one of the most important civil rights laws adopted in American history. Section 2 of the statute prohibits race discrimination in voting and authorizes suits to enjoin violations. But Congress thought that relying on lawsuits to halt discrimination in voting was not enough; it was aware of how states, especially in the South, were continually inventing new ways of disenfranchising minority voters. Section 5 of the Voting Rights Act requires that jurisdictions with a history of race discrimination in voting get preapproval—preclearance—from the attorney general or from a three-judge court in Washington, D.C., of any significant changes in their election systems.
In South Carolina v. Katzenbach, decided in 1966, and again in City of Rome v. United States, decided in 1980, the Supreme Court upheld Section 5 as a constitutional exercise of Congress’s powers under the 14th and 15th Amendments. In 2006, Congress voted overwhelmingly to extend Section 5 for another 25 years, and President Bush signed this into law. Quickly there was a challenge to the constitutionality of this extension.
In Northwest Austin Municipal District v. Holder, decided in 2009, the court, in an opinion by Chief Justice Roberts, expressed great doubts about whether Congress had the power to do this. Chief Justice Roberts explained that the type of voting discrimination that existed in 1965 is thankfully largely a thing of the past. He spoke of the “federalism costs,” the intrusion on state sovereignty, by requiring that state and local governments get preapproval for changes in their election systems. The court, though, avoided the constitutional issue by interpreting the statute to allow the local government to “bail out” and avoid the requirements of Section 5 by showing that the jurisdiction does not have a recent history of race discrimination in voting.
But the constitutional issue that was avoided in Northwest Austin is now squarely before the court. Here, too, there seems little doubt as to where Chief Justice Roberts and Justices Scalia, Thomas and Alito will be. The key question is whether Justice Kennedy will be a fifth vote to invalidate this key provision of federal civil rights law.
Finally, in March (the exact date has not yet been announced), the court will hear oral arguments in two cases that present the question of whether the denial of marriage equality to gays and lesbians violates equal protection. In United States v. Windsor the court will consider the constitutionality of Section 3 of the Defense of Marriage Act. Section 3 provides that for purposes of federal law “the word ‘marriage’ means only a legal union between one man and one woman as husband and wife, and the word ‘spouse’ refers only to a person of the opposite sex who is a husband or a wife.”
In Hollingsworth v. Perry the court will consider the constitutionality of California’s Proposition 8, a voter-passed initiative that amended the California Constitution to say that marriage had to be between a man and a woman.
The cases pose a myriad of questions with enormous significance for the lives of so many people in the United States: How should discrimination against gays and lesbians be treated under equal protection? If a state extends a right not required by the Constitution, as California did, when may it take that right away? Does the right to marry protect only those marrying someone of the opposite sex? Does the government have any legitimate interest in denying gays and lesbians of the right to marry?
It is possible, though, that the court will never reach these questions as there are significant jurisdictional issues in both cases. In Windsor, the Obama administration has refused to defend Section 3 of the Defense of Marriage Act. Instead, Section 3 is being defended by the Bipartisan Legal Advisory Group (BLAG) of the U.S. House of Representatives. The BLAG, which consists of five individuals—the speaker, the majority and minority leaders, and the majority and minority whips—voted three to two to intervene in the case. The three Republican members of the BLAG, including House Speaker John Boehner, voted to defend DOMA; the BLAG’s two Democrats, including minority leader and former Speaker Nancy Pelosi, opposed intervention. The court has asked for a briefing as to whether the group has standing to defend a law when the executive branch refuses to do so.
Similarly, neither the governor nor the attorney general of California is defending Proposition 8. The issue is whether supporters of an initiative have standing to appeal a decision declaring the initiative unconstitutional when the governor and attorney general refuse to do so. Again, the court has asked for briefs and arguments on this question.
These decisions likely will affect, and perhaps determine, who gets into colleges and universities, who will get to vote and how, and who can marry. They are also likely to address the most important and intimate aspects of many people’s lives. Underlying each of the cases are important issues concerning the meaning of equality. It will be another blockbuster year in the Supreme Court.
Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.
