From Marriage Equality to Affirmative Action, What Does the Supreme Court have in Store?

By Staff | October 4, 2012

Will these 4 walls see more landmark decisions this year? Will same-sex marriage become constitutional? Will the court strike down affirmative action?

As a new Supreme Court term gets underway, it looks like this cycle might just be as interesting as the last. Last term, among a flurry of first (free speech) and fourth (search and seizure) amendment cases, it was the 5-4 decision to uphold of the President’s healthcare bill that took center stage. This term, however, might see a few landmark decisions as the court looks at American (in)equality in all its forms — marital, electoral and educational.

Here’s a quick recap of what happened last term:

Healthcare

After long debates about whether or not the law is a tax, whether the federal government even has the power to regulate interstate commerce in this way, and broccoli, after a surprising about-face by Chief Justice Roberts that incensed Justice Scalia, the Affordable Care Act passed the Supreme Court by one vote, complete with the individual mandate.

First Amendment Rights

Between Citizens United in 2010, and the first amendment challenges faced by the Occupy Wall Street movement last year, first amendment battles are a constant feature of most Supreme Court terms. Last term, free speech came out on top in two big cases. In the first, the Supreme Court struck down a ban on corporate campaign expenditures in Montana — effectively reaffirming the position in Citizens United. And in the second, the court overturned the Stolen Valor Act that prohibited people from falsely claiming to be a military medal recipient.

Fourth Amendment Search and Seizure

In a “Big Brother” case, our fourth amendment rights were bolstered when the Supreme Court ruled unanimously that a warrant is required for GPS tracking of suspects. There is, however,likely to be continued discussion on this issue; the 6h Circuit Court of Appeals ruled that officials are allowed to track suspects through cellphones — including via GPS. As technology continues to develop, the law (and our centuries-old constitution) will be playing constant catch-up.

Immigration

Amidst arguments of racism and the role states should play in the federal terrain of immigration policy, the court considered Arizona’s strict immigration law. The law expanded the powers of state police officers to stop and hold anyone suspected of being an illegal immigrant and inspired a slew of other states (Georgia, Alabama, Indiana, South Carolina and Utah) to pass their own versions. In a 5-3 ruling, the court issued a mixed decision supporting checks on the immigration status of people stopped or arrested in Arizona, but striking down key parts of the law accused of racial profiling.

From a term all about the power and role of federal government, this term is all about the nature and status of American equality. Equality of marriage, equality of voters and equality of opportunity.

The fight for marriage equality

Speaking at the University of Colorado on Sept. 19, Justice Ginsburg stated: “I think it’s most likely that we will have that issue before the court toward the end of the current term.” The “issue” she’s referring to is challenges to DOMA — the Defense of Marriage Act that bars same-sex married couples from receiving federal benefits. Since the federal appeals court in Boston struck down that part of the law, both sides have urged the court to hear the case.

But it’s not just DOMA, There are more than 1000 federal laws that deny medical coverage and tax breaks (among others) to spouses in same-sex marriages. While a discussion of marriage equality looks likely, groundbreaking would be if the court decides to hear a more ambitious marriage case looking to establish a federal constitutional right to same-sex marriage.

The Voting Rights Act of 1965

As we predicted, it looks like Section 5 of the Voting Rights Act is set for an election-season review. Florida’s voter purge and moves from other states to implement voter identification requirements have not only set the scene, but remind us that maybe citizens of some states still need this protection.

In 2009, however, the court signaled reservations about the part of the law that requires 16 southern states with a history of discrimination to pre-clear any voting procedure changes with the Justice Department, or a panel of federal judges. Chief Justice Robert wrote: “We are now a very different nation” than the one that first enacted the Voting Rights Act. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

Pamela S. Karlan, a law professor at Stanford noted: “It will be interesting to see if the justices worry half as much about the emerging restrictions on voting as they worried about restrictions on political spending”

Affirmative Action

Another hot topic with roots in the civil rights era, affirmative action is coming under the microscope for the second time in a decade. Grutter vs. Bollinger was decided 5-4 with Justices Kennedy, Antonin Scalia and Clarence Thomas all dissenting. With Justice Alito now on the scene, replacing Justice O’Connor, simple arithmetic suggests that there might be five votes to limit or overturn it, barring racial preferences in admissions decisions altogether.

With Chief Justice Roberts’s last-minute switch on healthc are still reverberating around the court, this term might yet be full of surprises and generation-defining decisions. Harvard Law School’s Professor Fried notes: “This is a court that under Chief Justice Roberts called a ball a strike, a strike a ball, but got the batter to base where he belonged…So who knows what to expect.”