Supreme Court Faces Another Potentially Groundbreaking Term

The Court's 2012-2013 term begins tomorrow morning, and there are plenty of big cases on the docket.

As is the custom, the Supreme Court returns for its new term tomorrow, the first Monday in October,  and once again they’ll have a docket filled with the usual mix of cases, including several that touch upon politically polarizing issues ranging from Affirmative Action to same-sex marriage:

WASHINGTON — The Supreme Court returns to the bench on Monday to confront not only a docket studded with momentous issues but also a new dynamic among the justices.

The coming term will probably include major decisions on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily rival the last term’s as the most consequential in recent memory.

The theme this term is the nature of equality, and it will play out over issues that have bedeviled the nation for decades. “Last term will be remembered for one case,” said Kannon K. Shanmugam, a lawyer with Williams & Connolly. “This term will be remembered for several.”

The term will also provide signals about the repercussions of Chief Justice John G. Roberts Jr.’s surprise decision in June to join the court’s four more liberal members and supply the decisive fifth vote in the landmark decision to uphold President Obama’s health care law. Every decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court.

“The salient question is: Is it a little bit, or is it a lot?” said Paul D. Clement, a lawyer for the 26 states on the losing side of the core of the health care decision.

The term could clarify whether the health care ruling will come to be seen as the case that helped Chief Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.

It is also possible that the chief justice will become yet another disappointment to conservatives, who are used to them from the Supreme Court, and that he will join Justice Anthony M. Kennedy as a swing vote at the court’s center. There is already some early evidence of this trend: in each of the last three terms, only Chief Justice Roberts and Justice Kennedy were in the majority more than 90 percent of the time.

First up, and likely to be decided by sometime early in 2013, is an affirmative action case that could redefine the role of race-based admissions policies in public universities and, potentially, far beyond that:

On Oct. 10, the court will hear Fisher v. University of Texas, No. 11-345, a major challenge to affirmative action in higher education. The case was brought by Abigail Fisher, a white woman who says she was denied admission to the University of Texas based on her race. The university selects part of its class by taking race into account, as one factor among many, in an effort to ensure educational diversity.

Just nine years ago, the Supreme Court endorsed that approach in a 5-to-4 vote. The majority opinion in the case, Grutter v. Bollinger, was written by Justice Sandra Day O’Connor, who said she expected it to last for a quarter of a century.

But Justice O’Connor retired in 2006. She was succeeded by Justice Samuel A. Alito Jr., who was appointed by Mr. Bush and who has consistently voted to limit race-conscious decision making by the government. Chief Justice Roberts, another Bush appointee, has made no secret of his distaste for what he has called “a sordid business, this divvying us up by race.”

Justices Kennedy, Antonin Scalia and Clarence Thomas all dissented in the Grutter case, and simple math suggests that there may now be five votes to limit or overturn it.

The reach of such a decision could be limited by the idiosyncrasies of the admissions system in Texas. The university provides automatic admission to students in Texas who graduate in roughly the top 10 percent of their high school classes. That approach generates substantial diversity, partly because many Texas high schools remain racially homogeneous.

Ms. Fisher narrowly missed the cutoff at a high school whose students have above-average test scores for the state. She was rejected for one of the remaining spots under the part of the admissions program that considers applicants’ race.

The court may uphold the Texas system under Grutter, or it may rule against it on narrow grounds by saying, for instance, that race-conscious admissions are forbidden where a race-neutral method — like the 10 percent program — can be said to be working.

But the court may also follow the health care ruling with a second landmark decision, this one barring racial preferences in admissions decisions altogether. Given persistent achievement gaps, even after controlling for family income, such a ruling would make the student bodies of many colleges less black and Hispanic and more white and Asian.

You can find pretty much everything you need to know about the Fisher case at SCOTUSBlog’s information page for the case, as well as Lyle Denniston’s excellent “plain English” explanation of the issues at stake in the case. The one thing about this case that Adam Liptak of The New York Times misses in the text quoted above is something that I think is extremely important and is likely to make it more likely that the case will be far reaching in its impact. Specifically, it’s the fact that Justice Elana Kagan has recused herself from hearing this case because she was involved in evaluation and argument of the case at the lower court level when she was Solicitor General of the United States. This means that, looking at this from a purely ideological level based on how Justices have voted in previous cases, there are really only three definite votes that could be seen as reliable to uphold the University of Texas’s program (Ginsburg, Sotomayor, and Breyer). The rest of the Court is made up of people who, by their votes in previous Supreme Court or Courts of Appeals cases, can clearly be seen as likely to support a decision that would strike down the Texas program, and possibly the entire idea of race based college admissions. As he was in the Obamacare case, the deciding judge her may end up being Chief Justice Roberts, but in this case it’s really a question of how far he’s willing to go. Would Roberts support a far-reaching decision, or would he insist that the decision of the Court be limited to the constitutionality of the Texas program? We’ll have to wait and see what oral argument is like to answer that question. At the very least, though, I think it’s safe to say that the Texas program is constitutionally vulnerable and not likely to survive.

The Court also faces the possibility of dealing with the issue of same-sex marriage:

The court will probably also take on same-sex marriage. “I think it’s most likely that we will have that issue before the court toward the end of the current term,” Justice Ruth Bader Ginsburg said at the University of Colorado on Sept. 19.

She was referring to challenges to an aspect of the federal Defense of Marriage Act, which bars the federal government from providing benefits to same-sex couples married in states that allow such unions. The federal appeals court in Boston struck down that part of the law, and both sides have urged the court to hear the case. More than 1,000 federal laws deny tax breaks, medical coverage and burial services, among other benefits, to spouses in same-sex marriages.

The justices will also soon decide whether to hear a more ambitious marriage case filed in California by Theodore B. Olson and David Boies. It seeks to establish a federal constitutional right to same-sex marriage.

Chief Justice Roberts has not yet voted in a major gay rights case. Justice Kennedy wrote the majority opinions in both Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians. Most observers see him as the decisive vote in same-sex marriage cases.

The California case, of course, is the case filed by Olson and Boies arguing against the Constitutionality of the state’s Proposition 8, a 2008 referendum that reversed a decision by the Supreme Court of California finding that same-sex couples had the same right to marry under the law as opposite sex couples do. After a lengthy trial, Federal District Court Judge Vaughn Walker, a Reagan appointee who has since retired to Senior status, held that the law was unconstitutional because it violated the Equal Protection Clause of the 14th Amendment. Walker’s decision was upheld by a three judge panel of the 9th Circuit Court of Appeals, and the full Court of Appeals denied a request for an en banc hearing earlier this year. The panel decision in the Court of Appeals did not go quite as far as Walker had in his opinion, and based their decision largely on the fact that the initiative had acted to strip gays and lesbians of rights that they already had under California law. They didn’t specifically say that laws barring same-sex marriage were unconstitutional. It is the Court of Appeals decision that is being appealed to the Supreme Court, not Judge Walker’s. What this means is that the impact of allowing the decision to stand would be limited to California itself, and it would be rather hard to use the Court of Appeals decision as persuasive authority to strike down laws in other parts of this country. For this reason, many Court observers have speculated that  the Court may decline to hear the California case, Hollingsworth v. Perry, thus effectively legalizing same-sex marriage in the nation’s most populous state. If they did take the case, the Court’s decision in Roemer v. Evans, in which Justice Kennedy wrote a majority opinion striking down a Colorado law that would have prevented any city, town, or county from enacting civil rights protections for gays and lesbians, suggests that the Court would narrowly uphold the 9th Circuit’s limited holding.

There are a number of other cases touching upon same-sex marriage rights making their way through the Court this term as well. Perhaps the most far-reaching is Massachusetts v. Dept. of Health and Human Services, which involves the appear of a First Circuit Court of Appeals decision that found the Section Three of the Defense of Marriage Act. That case is still apparently in the briefing stage and likely won’t be ready to be considered by the court for review until later this year at the earliest. Another case involving the constitutionality of Section Three of DOMA is Windsor v. United States. In this case, the Plaintiffs are seeking a direct appeal from the District Court for the Southern District Of New York, bypassing the Second Circuit Court of Appeals. While this route for an appeal is not usually granted by the Court, the may do so in this case if they also grant certiorari in Massachusetts v. HHS since the legal issues involved are so similar.  A final gay rights case that the Court will be asked to consider is Brewer v. Diaz, which involves a challenge to Arizona’s laws forbidding spousal benefits to same-sex partners, which the 9th Circuit Court of Appeals found to be in violation of the Equal Protection Clause of the 14th Amendment.

Given that the DOMA cases, of which these are only two examples of the many still making their way through the Federal Courts, involve direct challenges to Federal law, it seems more likely that they will agree to hear these cases. The Brewer case also seems a likely candidate for having certiorari granted because it’s ruling implicates similar laws across the country. How the Court will come down on these cases is another question. There are many conservative legal scholars who have argued for years that the Defense of Marriage Act cannot survive constitutional scrutiny because there’s nothing in the Constitution that gives Congress the power to define “marriage,” even for the purpose of federal benefits. Whether there are Justices on the Supreme Court who agree with this position is another story. Of the five Republican appointed judges on the Court, I would suspect that Justice Kennedy is the most likely to be drawn over to the other side on the Equal Protection arguments at issue in these cases, with Chief Justice Roberts possibly joining him. The potential importance of a Supreme Court decision striking down DOMA’s Section Three on legal challenges to same-sex marriage laws across the country cannot be understated.

One final contentious area that the Court will deal with this terms is the always political charged debate over voting:

The justices are also quite likely to take another look at the constitutionality of a signature legacy of the civil rights era, the Voting Rights Act of 1965. In 2009, the court signaled that it had reservations about the part of the law that requires the federal review of changes in election procedures in parts of the country with a history of discrimination, mostly the South.

“We are now a very different nation” than the one that first enacted the Voting Rights Act, Chief Justice Roberts wrote for himself and seven other justices. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

The chief justice seemed to invite Congress to revise the law, but lawmakers have taken no action.

Challenges to the law have arisen in several lawsuits in the current election season, including ones concerning redistricting and voter identification requirements.

There are two cases involving the Voting Rights Act before the Court this term. The case, Nix v. Holder and Shelby County v. Holder, are a direct challenge to that portion of Section Five of the Act, as it was amended in 2006,  that gives the Justice Department supervisory and review authority over certain designated jurisdictions deemed to have a history of discrimination in voting procedures and accessibility. Lyle Denniston’s write up about both cases can be found here. Additionally, we can expect that the State of Texas will appeal the decision by a three judge panel striking down its Voter ID Law that was handed down earlier this month. It is still early enough in the term that the Court could schedule the case for argument sometime next spring, with a decision likely in June. It’s hard to read the Court on this issue. The 2009 case suggests that there’s at least some opening for reconsidering Section Five of the act, but striking down even part of something that has been Federal law for 47 years isn’t something that happens every day.

Given the potentially far reaching cases the Court is about to hear this year, and indeed hears every year it seems, Jeffrey Toobin laments the fact that nobody seems to be talking about the Court on the campaign trail:

What’s the most important issue that neither President Obama nor Mitt Romney ever mention on the campaign trail?

The future of the Supreme Court.

Need proof? Try imagining how this election season would have unfolded if the justices had decided Citizens United a different way in 2010. Or suppose that the court had overturned, rather than upheld, the Affordable Care Act earlier this year. The Obama presidency, to say nothing of his campaign, might look very different today. As always, it was the Supreme Court that had the final word on what endures in the American government and in American life


Presidents pick justices; we just don’t know when. The current Supreme Court is now a very old group. There are four justices in their 70s. Ruth Bader Ginsburg is 79; Antonin Scalia and Anthony Kennedy are 76; Stephen Breyer is 74. Justices also care deeply about who chooses their successors. Ginsburg has said that she would like to serve until she is 82, like her idol Louis Brandeis. Even so, we can be sure that she will leave some time next term, but only if her fellow Democrat, Barack Obama, wins a second term. By the same token, it’s unlikely that Scalia or Kennedy, both Republicans, would leave during an Obama presidency.

But that’s only if they have the choice. The melancholy fact is that people in their 70s don’t always get to choose when they will retire. Nature sometimes intervenes. And predictions about retirements (like predictions about cases) are perilous. Jimmy Carter is the only president to serve a full term and not have the opportunity to name a single justice. Richard Nixon was president for only five and a half years (he had to leave early) but he had four appointments to the Supreme Court.

Toobin has a point, but it’s also worth noting that, when candidates do talk about the Supreme Court during the course of a campaign, it’s usually in the most banal and general terms. Both sides have their talking points, most of which are meant to appeal more to the base than any independent voters and, moreover, I’m not really sure that independent voters really care all that much about the Supreme Court. So, yea, it would be nice to have a grand debate about Constitutional law, but we’re not going to get it so I’m not sure we’re missing anything. Additionally, given the current level of polarization in Washington, and the likelihood that which ever party has the Senate in 2013 will have only the slimmest of majorities, the odds that any President will be able to get through a truly radical nominee are fairly slim. Besides, I think many observers overestimate the number of retirements we’re likely to see over the next four years. My guess is that, if Obama is re-elected, we’d see Ginsburg and Breyer eventually step aside but that retirements from Kennedy and Scalia would be unlikely unless their health took an unfortunate turn. I’d expected the reverse if Romney wins the election. So, yes the Supreme Court is important, but the ability of the next President to remake it isn’t as apparent as some are thinking.

As for the term going forward, while we’re unlikely to see the level of interest that the Obamacare cases generated, there are some fairly important cases awaiting the Justice’s consideration. So, stay tuned.

Update: Jazz Shaw also previews the new term, including a case that I had missed.

FILED UNDER: 2012 Election, Law and the Courts, Race and Politics, Supreme Court, US Politics, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. I’m also interested to see the ruling on Arkansas Game & Fish Commission v. United States. It involves a lawsuit that began after the Army Core of Engineers released a large amount of water from a dam to prevent flooding above the dam, but in the process flooding a large area below the dam, including a wildlife preserve that was destroyed as a result. The question is whether a deliberate decision by the government to flood your property requires reimbursement as a taking under the fifth ammendment.

  2. LCaution says:

    I am definitely not looking forward to this term. I suspect Conservatives and Libertarians are.

  3. superdestroyer says:

    Anyone who thinks that Roberts will take away any power from the government is a fool. After Roberts went out of his to ensure that the Affordable Care Act was constitutional, it should be obvious that Roberts has moved to the left while on the court (similar to what happens to most justices).

    Robert will go with the four liberals to find a way to keep separate -and-unequal legal as long as non-whites benefit from the separate-and-unequal laws.

  4. Mr. Prosser says:

    I imagine DOMA and the affirmative action cases will not cause as much stir as voting rights this session because I’m afraid there may be a debacle in the national election results in November. I think the pressure will be on all the justices on that case. Oh, SD, do you really believe the stuff you post?

  5. superdestroyer says:

    @Mr. Prosser:

    Do you really think that the Supreme is really going to put a stake through affirmative action when they have when the last 33 years finding legal excuses to keep it going.

    Do you really believe that Roberts is going to limit the power of the government when Justice Roberts spent the last session of the court affirming the power of the federal government?

  6. Eric Florack says:

    An interesting question, SD.

  7. flataffect says:

    Fool me 50 times, shame on you.

  8. Ben says:

    Unfortunately, even though Roberts did the right thing on PPACA, I can totally see him doing the wrong thing on DOMA. I hope he has another crisis of conscience and strikes it down.

    As for the tendency to “move to the left” once on the court, might that have something to do with finally being immune to the political process?

  9. michael reynolds says:

    DOMA will be the moment when Roberts decides if he’s Taney or Warren.

  10. michael reynolds says:

    Of course I’m especially interested in the case of Michael Reynolds v. That Goddamned Comcast Remote Control.

  11. @Mr. Prosser:

    Oh, SD, do you really believe the stuff you post?

    What makes you think I don’t?

  12. Mr. Prosser says:

    @Stormy Dragon: I was asking superdestroyer, I shouldn’t abbreviate. And no, I don’t think they will put a stake through it but not for the reasons you say superdestroyer.

  13. Tsar Nicholas says:

    Ah, the SCOTUS. One of the three biggest prizes of this election cycle. Arguably the prize. There could be 3-4 vacancies over the next four years.

    Regarding this particular term it’ll be interesting to see if Roberts gets back in touch with his inner reality check or whether he indeed has begun a permanent shift towards Loopyville. Hard to believe that a guy with that pedigree could flip out to that extent. But stranger things have happened.

    Concerning that Texas school case, I always get a kick out of watching and listening to the left jump through its own collective arsehole about the soft bigotry of low expectations, i.e., “affirmative action.” I attended grad school at the loopiest public university in California and arguably, well, anywhere. This was a long time ago, but still it was over a decade after the Bakke case and thus (a) long after the left determined that white people had to be discriminated against so that leftists could feel good about themselves at cocktail parties and such, (b) long after the left had to figure out a way other than literal quotas to accomplish that goal.

    So you would have thought that there would have been hordes of racial minorities attending this particular program, right? Not only that but they would have been succeeding like gangbusters and then going on to meaningful careers? Um, no. My fellow classmates were as white as any gentrified neighborhood in any big liberal city. Now 20 years later, looking around the legal profession in Northern California, it’s as white as the Democrat leadership in the Senate. Save for the occasional token racial minority in public interest law, in public defender offices, or in other low paying endeavors. So the question arises as to what exactly the left has accomplished with “affirmative action?” Ironically enough what they’ve accomplished is nothing, at the cost further of dividing the country along racial lines and further propagating a dependency class. But this shouldn’t at all be surprising. Leftism doesn’t work in real life. Never has. Never will.

  14. grumpy realist says:

    I’d be perfectly happy if we went to a finance-based affirmative action program. This would still help blacks more than whites, because black families are on the whole, poorer. It would however give a leg up to poor whites, which also is good.

    I doubt we’ll ever get rid of legacy-based affirmative action, however. When so-called conservatives start squawking about that as much as they do about blacks getting into university then I’ll believe they actually have a moral reason behind their complaints, rather than just being against those of a darker complexion.

  15. grumpy realist says:

    @Tsar Nicholas: I suggest you look at the number of females on the bench now as opposed to 30 years back and then repeat your last statement. We’ve managed to break the glass ceiling in at least certain areas.