June is the busy month for the United States Supreme Court as they scurry to finish up their business. With no cases to be heard- oral arguments stopped in April- the race is now on to decide the remainder of the cases presented this term. They have five scheduled days left starting on Monday June 10th and scheduled to end on Monday June 14th. Obviously, the cases argued in April are traditionally the last to be decided and announced and, in fact, only two of the April cases have been decided, both rather simple 9-0 unanimous, non-controversial decisions. Additionally, the Court is still receiving petitions for the term that begins in October, 2013 and there are some interesting cases in the pipeline touching on free speech, campaign finance, unions and the NLRB’s recess appointment controversy. Interestingly, the Court has yet to take on an abortion case, a subject they have not directly visited in five years now.
There is one thing about John Roberts and that is that he likes to spread the opinion writing around in a sense of fairness while keeping the truly big ones sometimes for himself if he is in the majority. Rarely does he write a dissenting opinion preferring to sign on to a dissent from another member of the court. Generally, after oral argument the Court meets that Friday to take an initial vote on the cases they heard that week. Usually the votes do not change although some members have been known to change positions based on a circulated opinion, or sometimes out of political reasons. There are stories, for example, of Sandra Day O’Connor ready to sign onto more conservative opinions regarding abortion only to change her mind because the “majority went to far” and she was unwilling to go that far. Often after initial circulation of the majority opinion, other Justices may suggest changes or looking at the case from a different angle and sometimes these “suggestions” make it into the majority opinion, or they may be presented as a concurring opinion. The same goes for the dissent. The Chief Justice assigns the case opinion to a member of the majority if they are in the majority (or the dissent if he is in the dissent). The dissenting opinion is assigned by the most senior Justice in the dissent. Thus, Roberts likes to spread the writing of opinions around rather evenly when it is his choice.
This may give some insight into the only case yet to be decided that was heard in October- the affirmative action case involving the state of Texas. From oral argument, it became apparent where the lines were drawn on the Court with Scalia, Roberts and Alito leading a series of at times sarcastic questions at the state of Texas over the justification for, implementation of and practical effects of their affirmative action guidelines in the Texas college system. By extension, one would believe that Justice Thomas is also in that mix (he never asks questions during oral arguments). It is also apparent that the liberal wing of the Court was striving for three things. First, they were trying to find justification for hearing the case in the first place by questioning whether Abigail Fisher, who has since graduated from college, had standing to even sue in Court. They argued that the non-refundable $30 application fee would not have been refunded in any scenario whether racial preferences were an issue in determining admission or not. Second, they tried to find justification for the use of affirmative action specifically with respect to the University of Texas system by deference to their admissions offices. And third, they tried to distinguish how this case differed from the Grutter case out of Michigan nine years ago when the Court determined that race can be one among many factors in college admissions. In other words, it was an appeal to precedent.
That case was decided 5-4 in a decision written by O’Connor and joined by Ginsburg and Breyer and since departed Justices David Souter and John Paul Stevens. Scalia and Thomas wrote opinions in which they concurred in part and dissented in part while then Chief Justice Rehnquist wrote the dissenting opinion which Scalia, Thomas and Anthony Kennedy signed onto. That is the key component as we try to divine a decision here. From the October session of the Court this term, they heard nine cases. Eight have been decided with the opinions evenly divided among the Justices except Justice Kennedy. If Roberts holds true to form, then the Fisher decision should fall to Kennedy. Now, just because he was in the dissent in 2003 does not mean that he will simply ignore Grutter and overrule it. Grutter is the controlling precedent here and Justices are shy of overruling precedents except in very rare cases. In fact, during oral argument, Kennedy seemed to be straining to reconcile his dislike for racial consideration in college admissions and what amounts to the law of the land vis-a-vis the Grutter decision.
Most likely, Kennedy will find some middle ground extolling the virtues of racial diversity on the college campus and it being a worthy goal, but that the University of Texas at Austin had gone too far and had, in fact, not increased ethnic diversity. There are even some statistics to indicate that the program had the opposite effect and served to disadvantage other minorities like Latinos and Asians. Outright overruling Grutter does not seem to be in the cards and that possibility may come next term when the Supreme Court will hear, ironically, a case out of Michigan which asks whether states can pass constitutional amendments barring affirmative action programs in state college admissions criteria. Depending on the wording, one would expect either a 5-4 or a 6-3 decision in this case written by Kennedy.
The other case of importance where some guidance can be had regarding the outcome is Shelby County, Alabama’s facial challenge to the Voting Rights Act of 1965, specifically the criteria used to determine whether a jurisdiction is covered or not and needs clearance from the Federal government to enact voting law changes. That case was argued in February and of the nine cases heard that month, six have been decided. Each one of those six cases have opinions written by six different Justices. Roberts, Scalia and Sotomayor have yet to author a decision from a case heard in February. Hence, one would put the odds that the Voting Rights Act is endangered since two out of three Justices will likely write the opinion in this case and both have expressed worries over the VRA in the recent past. Here, one would expect Roberts to keep the case in a 5-4 decision unless Kennedy decides the other way in which case Sotomayor gets the opinion.
The other two cases from February involve federal sentencing guidelines and the Ex Post Facto clause of the Constitution, an area where Scalia has been particularly vocal. The other case involves arbitration and when a case can be class certified, an area where Sotomayor, especially in her dissents, has been very vocal. My guess is that one of those cases will go to either of these Justices with the Shelby case going to Roberts. Most likely, the VRA will be upheld by the Court, but that Congress will then have to take up the criteria for determining coverage attaches to jurisdictions, a problem that Roberts basically warned Congress about a couple of years back yet they failed to heed that warning. If that is the case, then any pending clearance application before the Justice Department or a federal court in Washington DC would have to be reconsidered. These include issues ranging from redistricting in Texas to voter ID laws in South Carolina. That is, VRA pre-clearance enforcement would have to wait until Congress adjusted the rationale for coverage that reflects the reality of 2013, not 1964. Politically, this will place civil rights and race relations squarely into the lap of Congress as we head into an important midterm election cycle.
Regarding the other major cases yet to be decided this term- the gay marriage cases- it is almost impossible to divine a decision or an opinion author using these methods. They were two of ten cases argued in March and only three of those cases have been decided, again each by a different author. Most interesting is that of the three cases heard in March and decided, the authors have been Sotomayor, Breyer and Ginsburg. That leaves only one true liberal to author a pro-gay marriage opinion- Kagan. Of course, it is possible that Kennedy will be the tie-breaker and write one of the two gay marriage opinions. Hence, if I were a betting person right now, I would believe that the Court has looked around and noted that since the cases first came to the Court, several states have adopted same sex marriage or laid the groundwork for it through the political process. It is likely that in the DOMA case, the liberal view will prevail and that the sections of the law at issue will be struck down. However, I firmly believe that the backers of Proposition 8 in California have renewed life and it will be up to the voters of California to undo Proposition 8, a fact that was brought out during oral argument.