2013 Supreme Court Term Wrap-up: All’s Well That Ends Well
Participating in this roundtable:
Anthony Resnick, a lawyer representing labor unions in Southern California, and a contributing writer at Construction.
Sam Ennis, an attorney working for a national law firm that represents Indian tribal governments, Alaskan Native corporations, Native American-owned health corporations, regional tribal confederations and Native American health and social service providers, and a contributing writer at Construction.
Seth Korman, a lawyer and writer living in New York.
Saul Goodman (not his real name), a lawyer living in Los Angeles working in entertainment litigation.
Amanda S., a lawyer living in San Francisco.
Eric Lindberg, a patent litigator living in Seattle who was on the briefs in the Bowman v. Monsanto case at the Supreme Court this term on behalf of the farmer-petitioner (who lost 9-0).
ANTHONY RESNICK: Back in April, Sam and I used the oral argument in the gay marriage cases as a jumping off point to discuss the role public opinion plays in the Supreme Court’s decision-making. Now that the Court has ruled on gay marriage and other hot-button issues, it’s a good opportunity to twist that question a bit and look at the public’s opinion of the Court itself. In particular, the decision gutting the Voting Rights Act—Shelby County v. Holder—has people viewing the Court (or at least its conservative majority) as unprincipled and partisan. Lower-profile decisions on class action standards and anti-discrimination laws have some bemoaning the pro-corporate bias of the Court.
Are these views accurate? Are there any themes uniting the Court’s decisions? An agenda revealed? Should we be any more or less cynical about the Court than we were before?
To help answer these questions, Sam and I have brought some more lawyer friends of ours into the discussion. (Because these new voices will no doubt outclass us in legal analysis, Sam and I plan to compensate by stepping up the ad hominem attacks on our ideological opponents.) I’ll now turn to Sam to introduce the rest of our esteemed panel and to address the one topic that’s on everyone’s minds—tribal sovereignty!
SAM ENNIS: Thanks, Anthony! It’s interesting that you refer to Adoptive Couple v. Baby Girl as concerning tribal sovereignty; most media coverage focused on the admittedly tragic facts and the consequences for the child at issue rather than as a dispute about tribal sovereignty (full disclosure: I work for an entity that was involved in litigating the case).
By way of background, the case centered around Veronica, a child whose father was Cherokee and mother was a non-Indian. Her parents’ relationship deteriorated during the pregnancy, and the mother ultimately adopted the child to a non-Indian couple (there were contested facts as to whether the father had voluntarily terminated his parental rights and consented to the adoption). The adoption triggered the Indian Child Welfare Act, a law passed in the 1970s to address the fact that non-Indian groups (read: Mormons) were adopting Indian children, and raising them without any ties to their culture, at such rapid rates that it began to threaten many tribes’ very existence. ICWA provides procedural safeguards against the involuntary termination of an Indian parent’s rights and imposes placement preferences designed to funnel Indian adoptions to Indian parents.
The South Carolina Supreme Court had found that ICWA required placing the daughter with her Indian father, but the Supreme Court reversed, with Justice Alito writing in a 5-4 decision that ICWA applies only to the breakup of an Indian parent’s “continued” custody of the child. Because the father lacked physical or legal custody of the daughter at the time of the adoption, the father was not protected by ICWA and the child had to be returned to her adoptive parents. Justice Alito also wrote that the Indian preference provisions did not apply because no Indian family had moved to adopt the child at the time of her adoption (for a phenomenal evaluation of the case and its racial, practical, and Indian law underpinnings, check this out).
While the majority’s reasoning may seem facially plausible to those unfamiliar with Indian law, Justice Alito’s ruling entirely misses the point: he refers to the unwarranted removal of Indian children from their tribes, the very purpose of ICWA, as “mischief” to adoptive non-Indian families, repeatedly references Veronica’s low Indian blood quantum (a completely irrelevant fact given that she was undisputedly an “Indian child” under ICWA), and calls ICWA a “trump card” used by Indians to override placements to non-Indians (despite the fact that Congress explicitly found that allowing Indian children to stay with Indian families was already in their best interests when it passed ICWA). Alito’s opinion also glossed over the Indian preference provisions using the flimsiest of reasoning, holding that they only apply to “adoptions,” and that the father had merely sought to prevent the termination of his parental rights, and not actually adopt the child. What’s going on here?
To me (and to others), Baby Veronica is about race: at oral argument, the Justices zeroed in on the “racialness” of ICWA, again without cause: Veronica’s heritage meant that she was, without question, an Indian child, and the majority opinion’s unwarranted focus on the burden ICWA places on non-Indians is baffling given that ICWA is, by definition, intended to burden non-Indians who try to adopt Indian children. I think that Baby Girl is an interesting microcosm of the Court’s general fumbling on race issues throughout this term. The Court saw a scenario in which a statute designed to write a historic wrong against a minority group led to an imposition against a member of the white majority. It then crafted an ends-based solution that ignored statistics, history, and legislative intent in order to disproportionately benefit white people. Sound familiar?
But hey, I’m an Indian lawyer and worked on this case, and am undoubtedly biased. Seth, am I overreacting, or do you think I’m onto something with my suspicion about the Baby Veronica’s racial undertones and the Court’s general problem with race . . . say, at the polls, or at the workplace?
SETH KORMAN: Sam, while my understandings of the background and details of the Indian Child Welfare Act obviously pale compared to yours, I do think that that Adoptive Couple provides a perfect example of the overriding theme and problem the some of the other major decisions of the term: the authority of legislatures to make and pass laws that by their nature classify/divide our citizens, and judicial respect for those decisions.
In this case, as in the DOMA (Windsor), Voting Rights Act (Shelby County), and University of Texas Affirmative Action (Fisher) cases, the issue is whether Congress and state legislatures has the authority (not to mention wisdom) to decide whether or not to divide the citizenry—to convey or restrict certain privileges to subsets of the population.
In Adoptive Couple (as in Fisher), this clearly involves race, and together the question seems to be whether legislatures have the right to use racial preference in their policymaking. In both cases, the (slim) majority of the court has essentially said “no.”
In Shelby County, which also involves race, though less directly, the court again ruled that Congress does not have the authority to base its preferred policies on the history of racial mistreatment at the polls. Or, in other words, Congress cannot pick on certain states and jurisdictions in this way; they cannot divide those that require preclearance from those that do not just because some have histories of racial discrimination.
In Windsor, on the other hand, the Court weighs in on whether Congress can make policy on the basis of sexual orientation. And though the decision is couched in the terms of state domestic-relations law, make no mistake. The majority is in this case is, as in the other cases, saying that Congress must be careful with it passes laws that pronounce divisions in society.
In this regard, Anthony Kennedy, the swing vote in all four cases, is in fact the most consistent: His bright line rulings seem to weigh in favor of race-blind and sexual–orientation-blind (and thus all suspect–classification-blind) legislatures and legislating.
It’s the other justices, however, who appear inconsistent. Scalia critiques the DOMA decision as aggrandizing the courts and diminishing the power of the people, yet he has no problem doing the exact opposite in the Voting Rights Act and Affirmative Action cases. Likewise, in Adoptive Couple, Justice Sotomayor writes that “the majority openly professes its aversion to Congress’ explicitly stated purpose in enacting the statute”—yet she does the exact same thing in Windsor by ignoring the plain meaning of DOMA, which was enacted with large majorities in Congress less than two decades ago. In short, the other eight justices appear to be merely couching their policy preferences in legal justification—but this is the Supreme Court, after all, and I’m but a legal realist/cynic.
AMANDA S.: Although I agree that Scalia’s opinions are internally inconsistent, I would not say the same about Sotomayor’s positions in Adoptive Couple and Windsor. We are now in a bizarre prudential world where white students bring successful discrimination claims, as does Shelby County, Alabama, but at least some on the Court act as though DOMA was just about “government efficiency.”
The astonishing result of the Adoptive Couple and Shelby County decisions, among others this term, is that efforts to address race and gender bias are more strictly scrutinized than the laws and policies that result in discrimination and unfair treatment. As others have noted, even though a bare minority of the Justices are able to see that a law called the Defense of Marriage Act was, indeed, discriminatory, they are blind to the reality of pervasive structural discrimination.
Although I was thrilled with the result of Windsor, reading the dissents is chilling. First, Roberts managed to ensure his cousin could finally marry by writing the Prop 8 opinion, while still pleasing the “bigots or superstitious fools” (Alito said it best) with his vote and dissenting opinion in Windsor. He seems torn, and I would almost be sympathetic to his perhaps tough role as Court peacemaker if I wasn’t so tired of having to accept these small victories for actual progress. Whatever Roberts is trying to do here, if he truly thinks—as he states in the Windsor dissent—that 342 Representatives, 85 Senators, and a President would not sign on to a law that means to and in fact does harm a minority group, then he is not doing his job.
Alito’s dissent says it all. He balks at creating protection for what he calls “a very new right.” The struggle he and others are facing is that up until fairly recently, blatant homophobia was widely accepted. He struggles to see how, all of a sudden, the Constitution protects a group that, less than 20 years ago, was subject to official hate speech by the President and Congress. It turns out that it is much easier for at least some on the Court and in this country to recognize our most recent and blatant discriminatory errors than it is to acknowledge the long history and the reality of racism and sexism. I’m looking at you, Kennedy.
Finally, Scalia. There is something downright reassuring about the image of Scalia practically spitting out his 26-page angry invective from the Supreme Court bench to a crowd that was running out of the room to announce the historic news. I wonder if those left in the room were so giddy that they giggled in spite of themselves when Scalia said the majority opinion was a “naked declaration” that “takes real cheek.” If he wants to see some real cheek, he should come celebrate with us at Pride. As for the rest of the opinion, I second Nancy Pelosi’s response when asked for her reaction to another crazy rant released that day, namely Michele Bachmann’s. “Who cares?” said Pelosi. At some point, you just have to ignore this crap and go celebrate.
Given this Term’s rulings, I think the only hope for squeezing some actual justice out of the Supreme Court in the next decade or so is in a changing of the guard. Justice Ginsburg says she is often asked when we will know that there are enough women on the Court. When there are four? Five? The question is absurd, but it is a similar question that Roberts was asking during oral arguments in Windsor—the gays have a powerful lobby, right? So aren’t we done with this whole equality thing? Here is the answer from Ginsburg: “When there are nine.” Until we get to the point where this whole power structure is turned on its head, there is still work to be done.
SAUL GOODMAN: There is a lot about the reaction on the anti-gay marriage side that makes little sense to me. Hysterics aside, what’s the long game here? Besides the cynical short-term nonsense of playing to an audience that wants to believe that equal rights will be the death of society as we know it, what’s the benefit in being on the wrong side of the most important civil rights issue of our generation? As to Roberts’ mental gymnastics, I’m just assuming that he’s able to partition his brain the way I had my Mac hard drive partitioned so that I could run Windows in order to take law school exams. Otherwise, I do not know how he sleeps at night.
On to more nerdy pursuits—I clerked for Judge Stephen V. Wilson in the Central District of California. He’s a Reagan appointee but an extremely moderate Republican. He’s an extremely by-the-book judge—he believes that the cases that bind him as a district judge should dictate the outcome, regardless of his personal feelings about a particular case. That made deciding the DOMA case that came our way easy, even if I thought the result, frankly, sucked. I was able to take some small comfort in knowing that there was no way I could have persuaded Judge Wilson to ignore a binding case, and it seemed clear that the Supreme Court was going to take up the issue soon, regardless. The case also led to this excellent piece of journalism.
The case is called Lui v. Holder (currently on appeal before the Ninth Circuit). The facts are basically identical to a pretty gross 1982 Ninth Circuit case called Adams v. Howerton, 673 F.2d 1036. In Adams, a same-sex couple got married in Colorado. At the time, Colorado law did not say one way or the other whether a same-sex marriage was valid under Colorado law. The citizen spouse then tried to use his status to bring the non-citizen spouse in under Section 201 of the Immigration and Nationality Act as an “immediate relative.” The Ninth Circuit concluded that, even assuming that the marriage was valid under Colorado law, the INS did not intend to include same-sex marriages within the definition of spouse/immediate relative for immigration purposes. Game, set and match, institutionalized discrimination.
The only difference in Lui was the existence of DOMA, which as everyone knows by now, defines marriage as between a man and a woman, and spouse as a member of the opposite sex, for purposes of federal law. Judge R. Gary Klausner had a case identical to Lui, Torres-Barragn v. Holder, the only difference there being that Torres-Barragan came up before the Obama administration decided to stop defending the constitutionality of DOMA. We wrote that, like it or not, we were bound by Adams, and that the real fight over Adams and DOMA is at the circuit (where the 9th Cir. could reverse Adams en banc) and SCOTUS level.
My question is, what happens now? I heard the same clip over and over on NPR of a couple (two men, one citizen, one non-citizen) celebrating the fact that they can now get married and use the citizen’s status to bring the non-citizen in lawfully. Is it that simple? It seems like it should be, and USCIS Director Alejandro Mayorkas indicated that the USCIS will grant green cards for same sex marriage. However, I found at least one article that suggests that the road forward might not be so simple. Of course, that article omits that Lui is on appeal, which gives the Ninth Circuit a golden opportunity to reconsider Adams in light of Windsor.
Another question: obviously standing was the big (ultimately the only) issue in Hollingsworth, but there’s a pretty massive standing fight in Windsor as well. The Court went so far as to appoint HLS professor Vicki C. Jackson to argue the issue in an amicus brief. She argued that the Bipartisan Legal Advisory Group, which, frankly, is a bizarre offshoot of the House of Representatives, lacked Article III standing. These arguments actually get a lot of ink in the case, though practically no coverage in the media, for obvious reasons. Did anyone make anything of these arguments? Frankly, I found it a little scary that the BLAG could just go around intervening in cases all over the country the way it has, but maybe that’s the correct result.
SAM ENNIS: I think we need to take a step back and explain to our non-lawyer audience a bit about the concept of standing, given that it’s played such a major role this term, and for the Roberts Court generally. In order for a party to participate in a lawsuit, it must demonstrate that it has “standing,” which is a term used to mean one of three things: either the plaintiff has been directly harmed (or will be imminently harmed) by the law or action it seeks to challenge, the plaintiff is suing on behalf of related parties that are being harmed by the law or action but cannot bring the suit themselves (this one’s a bit more difficult, and usually only applies in the First Amendment context), or a statute explicitly gives a certain class of people (or everyone) standing to sue (often seen in environmental laws). If the party cannot establish standing, the court will refuse to hear the case on the merits. Basically, this requires parties to have a direct skin in the game in order to participate in a lawsuit.
In Hollingsworth, the state of California chose not to defend the Prop 8 in court, as state officials themselves believed the proposition was unconstitutional. Conservative activist groups intervened in the case (a procedural move that allows third parties to participate in lawsuits when they can establish that their interests are intertwined with those of the plaintiff or the defendant), arguing that, as California citizens, they suffered an injury due to the state’s failure to defend a duly-passed voter initiative. The Supreme Court’s majority rejected this argument, reasoning that the activists groups themselves had not suffered any legal wrong: they were not being told to do or refrain from doing anything, and the injured party here was technically the State of California given that one of its laws was declared unconstitutional. Rather, the only harm to the activists was the general, non-specific harm to the citizenry at large, which courts have long held is insufficient to confer standing in a lawsuit.
Standing is a very controversial subject in the legal field, as liberals argue that conservative judges manipulate the doctrine in order to make it harder for people to bring lawsuits against corporations and/or employers, or to protect the environment. Eric, any additional thoughts?
ERIC LINDBERG: Sam, although you and Anthony probably invited me to this party because you expected me to offer something cogent and hilarious about Article III standing doctrine, I find myself with little to say. Justice Kennedy’s discussion of “prudential standing” in Windsor surely went right over the heads of all (non-lawyer) civilians, and while I understand his doctrinal points I find that I cannot be bothered. Actually, I thought that both non-parties, the BLAG and ProtectMarriage.com, had standing to appeal. The laws being challenged were clear, and the petitioners had sufficient incentives to litigate and were capably represented by very expensive lawyers. I also thought that the California Supreme Court’s unanimous opinion that the Hollingsworth petitioners had a special role under state law to be entitled to some weight by the Court.
Reading Chief Justice Robert’s opinion in Hollingsworth, however, I am persuaded that Mr. Hollingsworth did not have standing to appeal to the Ninth Circuit or to petition to the Supreme Court. It’s just a shame that the Ninth Circuit panel spent so much time and energy on the case, even certifying a question to the California Supreme Court and seemingly doing everything by the book. Poor Judge Reinhardt, reversed by the Supreme Court for the 12th time this term.
The bigger curiosity for me is the voting lineup in Hollingsworth: Roberts, Scalia, Ginsburg, Breyer, Kagan . . . not your typical 5-4 decision. Did the liberals, who typically do not vote to narrow standing doctrine, vote with Chief Justice Roberts in order to lock in the victory over Prop 8 in California? Did they think that Justice Kennedy would have stopped short of declaring marriage equality in Mississippi? Or was it Justice Scalia who voted to find no standing and avoid the issue because Justice Kennedy was ready to affirm and extend marriage equality beyond California?
Before we move away from the Marriage Cases, however, I want to mention my favorite moment from the oral arguments this term. During the arguments in Windsor, and right after Justice Ginsburg’s fabulous line about “full marriage” versus “skim milk marriage,” Justice Kagan engaged conservative super-lawyer Paul Clement on Congress’s purpose in enacting DOMA. Mr. Clement argued that Congress defined marriage to exclude gay marriage not out of animus but in order to promote “uniformity.” Justice Kagan let Mr. Clement make his arguement, and then directly quoted from the House Report: that “Congress decided to reflect an honor of collective moral judgment and to express moral disapproval of homosexuality.” Mr. Clement, the finest conservative lawyer of his generation, blurted out, “Does the House Report say that?” His recovery was no better, foreshadowing the majority opinion’s logic in striking down section three of DOMA, when he said, “Of course the House Report says that. And if that’s enough to invalidate the statute, then you should invalidate the statute.” Which is precisely what the Court did.
But the case I really want to talk about is Bowman v. Monsanto. In that patent law case . . . wait, what’s that? . . .
. . . Oh no, that’s Justice Alito’s music! And here he comes, with yet another partisan 5-4 decision!
Jokes about Justice Alito as a wrestling heel aside, he had quite an eventful term, and he further solidified his growing reputation as the go-to partisan for the conservative majority. The Baby Veronica case; an awful decision for employment discrimination in Vance; conservative activism in property rights and takings in Koontz v. St. John’s River Water Management District, further gutting of Miranda rights in the Salinas decision, and a holding that no one has standing to sue for government surveillance in Clapper v. Amnesty International USA. All 5-4 conservative decisions, just this term! And if that is not enough to make him a wrestling heel, his rude behavior toward Justice Ginsburg (shaking his head, rolling his eyes, and generally huffing and puffing when she read her dissent in Vance from the bench last week) and President Obama (shaking his head and mouthing “not true” after the President criticized Citizens United during the State of the Union address) puts him over the top.
What did everyone else think of the two 5-4 employment discrimination cases that came down at the end of the term, and Ginsburg’s dissents in those cases? Or the Court’s amazing pro-corporate record this term, especially in cases regarding class actions and arbitration?
SETH KORMAN: I’d like to chime in on the employment cases from this term, but in a somewhat different light, if that’s alright. Namely, I see them as revealing both in their evolution—or should I say, devolution—of employment law, but also as endemic of another, larger trend in this term: the victory of corporate interests and organized money, and the Court’s relentless creep to the right. I’ll briefly address each in turn.
Both of the employment cases make it more difficult for employees to protect themselves from harassment. In Vance v. Ball State University, the Court limited the definition of “supervisor,” making it more difficult for employees to hold employers responsible for the actions of mid-level managers and other superiors. In University of Texas Southwestern Medical Center v. Nassar, the Court essentially ruled that in order for an employee to prove retaliation by his employer, he/she must show that their employer’s discriminatory action was retaliatory—or in other words, that retaliation was not just a motivating factor in their discrimination, but the “but for” factor.
Both decisions add hurdles to employee’s claims of discrimination and harassment. Similarly, both decisions afford employers increased protection from lawsuits. And this is the overarching trend from this year’s Supreme Court term. In case after case, many of which (like the two above) were 5-4 decisions, the Court repeatedly ruled in favor of employers or corporate interests. Business was the big winner at the Court this term. And its successful record is only getting stronger.
I could go through all the cases in which corporate interests prevailed, but there are too many. As shorthand, the Chamber of Commerce briefed seventeen decided cases this term—and they were victorious in fourteen of them, including all of the most polarized. Many of these cases were dry and unexciting, dealing with class arbitration (American Express v. Italian Colors Restaurant), class actions and antitrust (Comcast v. Behrend), federalism and pharmaceuticals (Mutual Pharmaceutical Co. v. Bartlett), and so forth.
My biggest disappointment from this year’s term, however, is how all of these cases have been overshadowed by one large, important, and meaningful victory for the left, which in turn has masked the increasingly rightward direction the Court has taken. This year that case is Hollingsworth, and to a lesser extent, its companion case Windsor; last year it was National Federation of Independent Business, the Affordable Care Act case. In both terms, the Court released, on its final week in session, a politically charged 5-4 decision for the left that overshadowed a term’s worth of 5-4 decisions that favored corporate and moneyed interests. And most notably, in both cases Chief Justice Roberts provided the crucial fifth vote.
Make no mistake: while Justice Kennedy is most frequently the swing vote in close decisions, this remains John Roberts’ Court. And while I agree with the outcomes in the Prop 8 and Obamacare cases from a matter of policy, I see both merely as fig leaves, convenient cover for the drastically rightward and pro-moneyed turn the Court has taken.
This creep is clearly evident, both in the aforementioned employment-law decisions and many of the other cases discussed by my colleagues herein. But as Amanda noted, it maybe that only a “changing of the guard” will arrest this trend.
ERIC LINDBERG: Looking back, I think that the focus and outpouring of joy in reaction to the Marriage Cases is entirely correct, and that Justice Kennedy’s legacy-defining opinion in Windsor will be the most famous case from the term. But I can’t stop thinking about Shelby County v. Holder. I think that the Court’s decision to gut a key portion of the Voting Rights Act ignores the facts, relies upon invented and really lame legal reasoning, and that the decision will look even worse in retrospect. Much like another infamous case from the Roberts Court, 2010’s Citizen’s United decision, which opened up the floodgates (even further) to corporate money in politics.
Sam, you asked at the beginning of this roundtable if the Roberts Court has a general problem with race? Yes, I think several justices have a problem with race; peculiarly, it seems like some of them want the issue to go away. Certain justices seem anxious to put racism, discord, and discrimination into “the past” and to purge government and society of current remedial measures—current racial injustice and discrimination have no place in this vision of America. The Shelby County decision is the culmination of this, a veritable “Mission Accomplished” banner hanging behind the Justices as the Court declares victory against racism and voter discrimination in the old confederacy. Let’s talk about why this is wrong.
The Voting Rights Act protects the right to vote in two principle ways. In Section Two it outlaws any “standard, practice, or procedure” that denies or abridges the right to vote on account of race. Both citizens and the government can sue to block or remove racially discriminatory voting laws. But responding to every change in voting laws with a lawsuit is often inadequate, and often the first election after a racially discriminatory law goes to the discriminators. So Congress created Section Five, which requires certain states, counties, cities, etc, to submit any changes in voting laws to the Department of Justice or a federal court before the change goes into effect. Congress selected the states that had to comply with Section Five based on a 1965-based formula in Section Four. As of last week, Section Four covered, roughly, the old confederate states of the South (Alabama, Arkansas, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, Texas, and Virginia).
In Shelby County, the Court ruled Section Four of the Voting Rights Act unconstitutional. In 2006, when Congress considered whether to reauthorize the law before it expired, Congress collected 15,000 pages of evidence that showed voter discrimination in the covered states. Congress re-upped the law by a 98-0 vote in the Senate and a similar landslide in the House, but without changing the 1965-based formula in Section Four. The Court said that Congress was not allowed to use the old formula because, well, things are so much better today than they were 40 years ago.
But like the premature declaration of victory in Iraq by the President who nominated Chief Justice Roberts for the Court, the gains made by racial minorities in voter registration and turnout in the old confederacy do not hold up under scrutiny. As Justice Ginsburg pointed out in dissent, the majority decided that the covered states no longer needed the umbrella of Sections Four and Five because the states were not getting wet. Never mind that it is still raining. Racial antagonism and racial partisanship is stronger and more prevalent in the old confederacy (just ask Paula Deen). More to the point, the umbrella was still working. In the recent election and fights over congressional redistricting there were several laws blocked by Sections Four and Five. And on the same day that the Court tossed out the umbrella, five previously-covered states immediately announced that voter identification laws that had been previously blocked would go into effect ASAP.
Not only did the Court willfully ignore the persistent problems of racism and racial discrimination in order to dismantle another part remedial framework of the civil rights movement (see also: affirmative action), the Court also butchered the law in order to get to its preferred result. The Court held that singling out the old confederate states under the 1965-based formula impaired the states’ “equal sovereignty.” Never mind that the Court previously said that this concept does not apply to Section Four of the Voting Rights Act or that nobody really had heard about this concept before. Or that the concept of “equal sovereignty” is demonstrably false—many federal laws and regulations treat certain states different to other states and this has never been questioned in the mainstream. Even worse, the conservative justices rely on this concept in the face of the text of the 15th Amendment to the Constitution, which specifically empowers Congress—not the courts—to pass appropriate laws to protect against racial discrimination in voting.
Seth, earlier you talked about how the Court, and Justice Kennedy in particular, voted this term to restrict or disregard the authority of Congress to make laws that divide or treat our citizens differently. But I don’t think it is fair to compare the unequal treatment of gay versus straight marriage, or even the unequal treatment of college applicants, to unequal burdens placed upon states in order to remedy and prevent those states from impairing the rights to vote. First, in light of the post-Civil War amendments to the Constitution, Congress’s power is at its height when legislating to protect the right to vote. Second, as Justice Holmes observed in a 1903 case, voter discrimination is “a great political wrong” that requires a political solution from Congress . . like the Voting Rights Act! And last, discrimination and differential treatment of individuals should be worrisome to a conservative–libertarian such as Justice Kennedy, but states and political subdivisions have political safeguards and institutional checks on federal power.
I hear the “wrap it up” music playing, so I will say two more things. First, I do not think there is any way that Congress will be able to pass a new Section Four that survives Supreme Court review. Congress is so highly-polarized that it has largely lost its ability to correct the Court when the Court strikes down or misinterprets a statute, and even if Congress passes something the Court will likely use “equal sovereignty” to move the goalposts again. Second, I worry about affirmative action in light of what the Court did with the Voting Rights Act. Four years before Shelby County the Court punted on an opportunity to gut the law in a near-unanimous opinion, just like the Court punted on the issue of affirmative action in a 7-1 decision in Fisher v. the University of Texas. I am concerned that the Court’s conservatives realized after argument in October that Fisher wasn’t the right case to use to end affirmative action. But in March, the Court decided to hear a different affirmative action case called Schuette v. Coalition to Defend Affirmative Action. Hence the punt in Fisher. Get ready for next June.
SAM ENNIS: A rather gloomy end to a rather gloomy term for we progressives; I certainly have colleagues openly despairing that Indian tribes or tribal interests will never win another Supreme Court case until a Democrat President gets a chance to replace one of the five conservatives. But perhaps all hope is not lost: some are speculating that the four liberals (such as they can be considered liberals when compared to the Brennans of the world), recognizing that they sit on arguably the most conservative Supreme Court in history, are doing the best they can to duck issues on the merits, throw cases back to lower courts, and try to wait out the clock while limiting the damage when they can. After all, Democrats have won five of the past popular votes, and early polls (albeit wildly premature) show presumptive Democratic candidate Hillary Clinton trouncing her similarly presumptive Republican opponents. Maybe an eight year Clinton presidency could give her the chance to replace a few of the conservatives?
Or maybe, the Supreme Court reflects America more than we like to think. America is hounded by staggering income inequality; federal, state, and local governments often find themselves at the mercy of a Tea Party movement with undisputedly racist origins; our campaigns are beset by a flood of corporate money; poor and minority voters face suppression efforts at every turn; and corporations abuse our citizens with impunity. While the Roberts Court is undoubtedly responsible for enabling many of these issues through its slavish pro-corporate agenda, it is the American voters who consistently elect and reelect politicians that share these anti-populist values and fuel the increasing marginalization of all but the most moneyed classes. Is the Roberts Court the problem? Or is it just an uncomfortably accurate reflection of America as a whole?
There have been some small victories for progressives this term, Windsor foremost among them. But for the foreseeable future, it seems more likely than not that we face an uphill battle.