Waiting for the Supreme Court

Patricio Navia

Buenos Aires Herald, June 4, 2013


As its summer recess approaches, the Supreme Court will soon deliver key rulings that will shape social and political dynamics for years to come.  The Court’s decisions on gay marriage, affirmative action and voting rights will affect the daily lives of Americans in ways far superior than what a divided Congress and a gridlocked political establishment can accomplish in the next few weeks.


The 9-member U.S. Supreme Court will issue key decisions before it goes into its summer recess on June 24. With 5 conservatives and 4 liberals in the Court, the rulings expected should further move the equilibrium in favor of Republicans’ preferred policies.  However, just as the Court surprised most observers when it issued a 5-4 decision upholding the constitutionality of Obamacare last summer—with Chief Justice John Roberts joining the four liberals—the decisions to be announced later this month might depart from what a conservative court would be expected to do.


The most important decision the Court will issue involves same-sex marriage. There are two cases before the court. In the first case, the Court must rule on the constitutionality of the Defense of Marriage Act (DOMA), a federal legislation.  A case before the court claims that Fifth Amendment provisions are violated by the federal legislation that does not recognize same-sex marriages.  As some states legally recognize same-sex marriages, DOMA would violate the rights of same-sex couples.   The many potential implications of this ruling have led scholars and experts to anticipate that the court will issue a narrow ruling, marginally advancing the rights of same-sex couples.  The fact that same-sex marriage is slowly making its way through the state legislatures induces experts to believe that the Supreme Court will not just yet move to declare same-sex marriage constitutional.  Instead, it will wait until a larger number of state legislatures do so in order to prevent a polarization similar to what happened when it declared abortion constitutional in Roe v. Wade in 1973.


The second case on same-sex marriage involves Proposition 8, a California ballot measure passed in 2008 banning same-sex marriage. Because the California Supreme Court ruled same-sex marriage constitutional a few months earlier, hundreds of same-sex partners got married before voters in California voted to ban same-sex marriage.  A federal appeals court declared Proposition 8 unconstitutional, thus throwing the controversy into the hands of the Supreme Court. Experts anticipate the Court to issue a narrow ruling moving towards legalizing same-sex marriage, but stopping short of a broad ruling that would declare same-sex marriage constitutional in the entire country.


Another highly controversial decision might be issued on the constitutionality of the Voting Rights Act of 1965.  That law gives the federal government power to force states to drop measures that make it harder for minorities to register and vote.  As a legacy of the civil rights movement, the law is outdated and does not appropriately respond to contemporary needs and challenges to foster minority participation. But the efforts championed by several Republican local and state governments to prevent electoral fraud—or make it difficult for minorities to vote, according to critics of the measures—have transformed the Voting Rights Act in a contentious piece of legislation.  The Supreme Court is expected to change the scope of the legislation and will set cleared guidelines as to what the Federal government can do to regulate voter registration and electoral verification rules at the state level.


A final Supreme Court decision pertains to Affirmative Action. A case was brought against the University of Texas at Austin by a white student who claimed that she was denied admission for being white despite having higher scores than minority students who were admitted. Though the Court has issued rulings in the past that have limited the scope of affirmative action policies in school admissions, analysts expect that the Court will fine tune its position in favor of a narrow definition of affirmative action.  The Supreme Court has upheld that schools have the right to use criteria other than academic exam scores, but it has not fully endorsed using race as a defining criteria for admission.  The Court is expected to issue a ruling that will force many schools to fine tune their admission criteria, but it is not expected to declare affirmative action unconstitutional.


In Washington D.C., the month of June is normally associated with summer heat waves. Together with the high temperatures and humidity, Supreme Court rulings are also a central news item in the nation’s capital during the first month of the summer.  The Supreme Court has already begun issuing rulings. Yesterday, it declared constitutional the practice of some local and state police forces to take DNA samples from individuals arrested for different crimes. Other decisions will be issued in the coming weeks. The effects of the Supreme Court rulings on these four controversies will affect the rest of the nation in ways far more lasting than what a sharply divided Congress and an unforced error-prone Obama administration can muster to do in the next few weeks.