The Corner

Summer of The Courts

This summer is shaping up to be the summer of the courts. The big affirmative action decision should be handed down within weeks. And the Massachusetts Supreme Judicial Court will likely circumvent the legislature and legalize gay marriage by mid-July. At just about the same time, we are likely to be embroiled in a battle over an opening on the Supreme Court. It’s impossible to know exactly how the Supreme Court will decide the Michigan affirmative action case. (I gamed out the problem in “Diversity Questions.”) I suppose the most likely alternative is a finding that affirms diversity, while simultaneously putting some controls on the execution of affirmative action programs. (Colleges, of course, will promptly disregard or circumvent the controls.) And anything other than legal gay marriage in Massachusetts would be a big surprise. That means that in the midst of a major political battle over a Supreme Court appointment (or two), the country will be reeling from two major judicial decisions on cultural issues, each of which will probably be at odds with public opinion. And all of this will coincide with the battle for the Democratic presidential nomination. The upshot, I think, will probably be a net plus for the Republicans. The Michigan case and the Massachusetts court decisions will emphasize the danger of liberal judges. The public favors neither affirmative action nor gay marriage. That should make it much easier for the president to get his way on court appointments.

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