The Court also has its share of business-related cases, covering corporate liability for alleged human-rights abuses occurring overseas and the requirements for class-action lawsuits. The Court will also be asked to consider the scope of state-action antitrust immunity in FTC v. Phoebe Putney Health System. This case involves the acquisition by one hospital system of another one nearby, which the state of Georgia approved over the objection of the Federal Trade Commission. It will give the Court an opportunity to curtail the ability of state and local governments to immunize anti-competitive conduct, thereby constraining a legal doctrine that encourages rent-seeking and cronyism, especially in state and local government.
In all likelihood, the Court will add cases evaluating the constitutionality of the Voting Rights Act and the federal Defense of Marriage Act, if not California’s Proposition 8, which banned gay marriage. The VRA requires many jurisdictions, primarily in the South, to obtain federal “preclearance” before changing any voting procedures or practices. This means covered jurisdictions have to get permission from the Justice Department or a federal court before amending voting districts, altering absentee-ballot rules, or adding voter-identification requirements. Covered jurisdictions argue powerfully that these requirements are outdated, disproportionate, and beyond the scope of federal power to enforce the Fourteenth and Fifteenth Amendments. The Court was asked to consider the act’s constitutionality in a 2009 VRA case, but it declined to rule on that question, deciding the case on other grounds. This time around, the constitutional challenge will be harder to avoid.
The constitutional challenges to DOMA will be the Court’s first foray into the marriage debate, whether or not they’re joined by a consideration of California’s Proposition 8. Several lower courts have declared DOMA unconstitutional on equal-protection grounds, virtually assuring high-court review. If that’s not enough, the Obama administration is encouraging the justices to hear one or more of the DOMA cases. The Justice Department has refused to defend DOMA, asserting that there are no reasonable arguments that can be made on the statute’s behalf. This made it easier for lower courts to conclude that the federal government lacks a sufficient basis for refusing to recognize same-sex marriages recognized under state law. Whatever the Court does with DOMA, future cases on same-sex marriage are assured. A petition for certiorari seeking review of the Ninth Circuit’s decision to strike down California’s Proposition 8 is pending, and cases challenging other state laws defining marriage as a union between one man and one woman could reach the Court soon as well. While gay-marriage proponents have sought to return to the ballot box in some states, federal courts remain the primary battleground on this issue in the war over marriage.
At his confirmation hearing, Chief Justice Roberts famously compared judges to umpires. No one ever goes to a ballgame to watch the umpires, he observed, suggesting it would be better for the country if judges and courts played a lesser role in the nation’s political life. In Roberts’s view, political fights should be resolved politically, not in the nation’s courtrooms. Yet as the Court’s recent dockets suggest, it is not so easy to extricate the judiciary from contentious political debates. If it’s not health care and immigration, it’s affirmative action and same-sex marriage. (And don’t forget abortion, which is bound to end up back on the Court’s docket again soon.) Diminishing the importance of the judiciary in political debates may be a noble goal, but until courts are willing to stay their hands, it’s not something the chief justice is likely to achieve.
— National Review Online contributing editor Jonathan H. Adler is the Johan Verheij Memorial Professor of Law and director of the Center for Business Law and Regulation at the Case Western Reserve University School of Law.