In late June the nation’s attention was focused on the Supreme Court as it announced the fate of President Obama’s health-care-reform law. Subsequent reports that Chief Justice John Roberts may have switched his vote in that case, joining liberals to salvage the law at some point after the oral argument, kept the justices in the public eye over the summer. But don’t think the Court is done with high-profile cases. As the Court reconvenes for the 2012 term this week, it is preparing to reconsider the constitutionality of affirmative action in university admissions. By term’s end, next June, it could weigh in on gay marriage as well. How the Court decides will determine how these and other important issues go — and with three justices over 75, how the election goes could determine how the Court goes in future years.
The Court last considered university affirmative action in 2003, when Justice Sandra Day O’Connor led a 5–4 majority in Grutter v. Bollinger, approving the University of Michigan’s use of race as a plus factor for law-school admission. Such limited use of race was permissible if it was done for diversity purposes, O’Connor ruled, particularly if there were few viable alternatives. Though intended to limit race-based university admissions, Grutter instead gave schools a road map, detailing what they would have to say and do to survive judicial review.
But the University of Texas may have trouble defending its affirmative-action policies, Grutter notwithstanding. In 1995 a federal court forced UT to abandon race-based affirmative action, prompting adoption of the “10 percent plan,” which guaranteed admission to the top 10 percent of graduates from any high school in the state. This plan increased racial diversity at UT, but not enough to satisfy administrators. So when Grutter was decided, UT started openly using race as a factor again, prompting this latest suit. The plaintiffs claim that UT puts more emphasis on race than Grutter allows, but they would also be happy for the Court to reconsider Grutter and bar consideration of race altogether. Such an outcome is a real possibility, particularly now that Justice O’Connor is no longer on the Court and Justice Kagan has recused herself, but it’s also possible the Court could strike down the UT policy while leaving existing doctrinal standards in place.
The War on Terror comes back to the high court in Clapper v. Amnesty International, which arises out of an activist suit against surveillance of terrorists under the Foreign Intelligence Surveillance Act (FISA). Various activist groups claim FISA amendments unconstitutionally expanded terrorist surveillance by removing the federal government’s obligation to identify the specific target of surveillance in order to obtain a FISA warrant. They brought their challenge to the Court, only to be told they lacked standing to pursue their claims. However much Amnesty International and others may oppose existing surveillance rules, they don’t have standing to sue unless they can demonstrate they are harmed by the government’s new rules. Although the activist lawyers cannot prove even that they have been subject to surveillance, let alone that such government oversight could cause them harm, lower courts have been sharply divided over whether such plaintiffs have standing. Green-lighting such suits would further inject federal courts into the conduct of the War on Terror.
Other cases on the Court’s docket for this term include a suite of cases challenging the U.S. Court of Appeals for the Ninth Circuit’s aggressive interpretations of the Clean Water Act. If the past is any guide, the justices will look skeptically at the notoriously activist Ninth Circuit’s decisions to expand regulatory requirements faced by local governments and timber companies. This term will also feature the Roberts Court’s first takings case, Arkansas Game & Fish Commission v. United States, arising out of the U.S. Army Corps of Engineers’ repeated flooding of a wildlife refuge in Arkansas. Because the flooding was only temporary, the government argues, no taking occurred when trees were damaged, and no compensation is due under the Constitution (though a tort action is still possible). Yet exempting such “temporary” occupations from the Fifth Amendment’s takings clause would leave many landowners unprotected from governmental overreach, regulatory and otherwise.
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.