Another Big Month Ahead For The Supreme Court
It's going to be another eventful month for the Supreme Court.
By this time next month, the Supreme Court’s current term will likely be over and, just as they did last year, the Justices look ready to end the term with their most important and controversial cases they have heard over the past seven months:
Four weeks. Four major legal rulings. What the Supreme Court decides by the end of June could fundamentally change lives and legacies on a range of politically explosive issues.
The justices will meet in at least five public sessions to release opinions in its remaining 30 cases, among them some the most strongly-contested legal and social issues they have confronted in decades:
— Same-sex marriage: A pair of appeals testing whether gays and lesbian couples have a fundamental constitutional right to wed.
— Affirmative action: May race continue to be used as a factor in college admissions, to achieve classroom diversity?
— Voting rights: The future of the Voting Rights Act, and continued federal oversight of elections in states with a past history of discrimination.
— Gene patents: Can “products of nature” like isolated parts of the human genome be held as the exclusive intellectual property of individuals and companies, through government-issued patents?
“It’s almost unimaginable the number of things that the Supreme Court is going to decide that will affect all Americans in the next month,” said Thomas Goldstein, a top Washington attorney and publisher of SCOTUSblog.com.
“What would surprise me this term is if the court upheld use of affirmative action or the (enforcement tool behind the) Voting Rights Act. And I think it would be a big surprise if the court did anything radical when it came to same-sex marriage — either saying there was a constitutional right to it, or rejecting that claim outright and forever. I think that’s something they’re going to try and tread that middle ground path.”
The court will not say precisely when these hot-button opinions will be released, but the last scheduled public session of the term is set for June 24. Depending on how long it takes the justices to finish up, that deadline could easily slip a few days.
Oral arguments have ended for the term, and the justices have already secretly voted on these and about two dozen other pending cases. Individual justices have been assigned to write the one or more opinions, as well as separate dissents. Only they and their law clerks know how this will end.
And no one is talking– an unbroken tradition of discretion rare in leak-loving Washington.
“At the Supreme Court, those who know, don’t talk. And those who talk, don’t know,” Justice Ruth Bader Ginsburg has said, echoing similar comments from her colleagues.
It’s a virtual certainly that the opinions in the political hot-button cases — Affirmative Action, the challenges to Section 5 of the Voting Rights Act, and the two same-sex marriage cases — won’t be released until late in the term. That has been a common practice at the Court for decades now, and there’s no reason to think that they’ll change practice in that regard any time soon. Partly, it’s often because the opinions in these cases, both the majority opinion and the various concurrences and dissents that many accompany it, are likely still being drafted, edited, and perfected. Additionally, there’s the fact that there are many lower-profile cases still awaiting decision that need to be dealt with as well and the Court is still evaluating a number of petitions for appeal that will need to be ruled upon before they leave town for the summer at the end of June. So, there’s still much work for the Justices and their clerks to do over the coming four weeks. Given that, it isn’t entirely surprising that they would put off the public release of the high-profile decisions until later in the term so they can concentrate on getting the other work done first.
As for how these cases will turn out, your guess is as good as mine. As I noted in my posts regarding the oral arguments over the Defense of Marriage Act and Proposition 8, (see here and here) it doesn’t appear that the Court is going to go for a radical decision one way or the other in either case. If they uphold the challenged to Prop. 8, for example, it’s likely to be on grounds that are as limited in effect as possible, possibly only limited to California itself. Similarly, the oral arguments in the DOMA case suggest strongly that Anthony Kennedy, who is clearly the swing vote on the issue, is much more sympathetic to a federalism argument against the law than to an Equal Protection Clause argument that, potentially, would have a wide ranging impact on state laws against same-sex marriage. Justice Ruth Bader Ginsburg provided what may be a hint about the direction the Court is leaning when she commented recently that she believed that the Court’s 1973 decision in Roe v. Wade went too far in imposing a single standard on the entire nation rather than allowing the democratic process to work the issue out. In the two months since the Supreme Court heard arguments in the same-sex marriage cases, three states — Rhode Island, Delaware, and Minnesota — have legalized same-sex marriage. While the case was pending, three others states voted in referenda to do the same, meaning that same-sex marriage is now legal in twelve states plus the District of Columbia. Ironically, this may end up being impetus for the Court to issue rulings that are more conservative in how they advance the law on this issue.
The situation seems to be quite different when it comes to Affirmative Action and the challenge to the pre-clearance requirements under the Voting Rights Act. In both cases, oral argument seemed to reveal quite clearly that the conservative wing of the Court, including Kennedy, was skeptical of the current state of the law. We’ve known that Affirmative Action was going to be subject to limitation by the Court ever since Sandra Day O’Connor retired since she was the vote that ended up significantly limiting the Court’s decision in the University of Michigan Law School case that was decided some ten years ago. In the Voting Rights Act case, there was significant skepticism expressed at oral argument regarding the wisdom of keeping states and localities on the pre-clearance list some 48 years after the VRA had become law. In both cases, it seems likely that we’ll see decisions that are decidedly conservative, although any decision in the VRA case will be tempered by the fact that Congress is always free, pursuant to the 15th Amendment, to go back and draft new pre-clearance rules at any time.
The gene patent case is one that I admittedly haven’t paid much attention to, and which involves scientific principles that I must rely upon others to explain or me. However, it is potentially the most far-reaching patent law case the High Court has heard in a long time. A ruling that parts of the human genome can be patentable under the right circumstances would have a wide-ranging impact. Of course, Congress would always have the option of revising our patent laws to work around whatever decision the Court comes up with but, of course, the drafting of IP law in Congress has been in the control of the parties holding the patents, copyrights, and trademarks for quite some time now so the odds of anything sensible happening in that area seem pretty low.
In any event, it’s going to be another eventful month in the legal world. If you’re really interested in following what unfolds over the next four weeks, I recommend making SCOTUSBlog a regular part of your reading schedule. We’ll cover the big news here at OTB as appropriate, though.
IIRC:
American law did an odd thing with gene patents. Someone took a human gene for insulin and put it in a specific bacterium for mass production. When they took that bacterium to the patent office they tried, as lawyers will do, to generalize the claim. Perhaps they were even surprised that they ended up not just with a patent on their bacterium with an insulin gene added, but any other bacteria with an insulin as well.
It’s like after Luther Burbank made an apple, he owned all future apples, even those bred in a completely separate path.
It was crazy, and of course a MASSIVE restraint on innovation.
@john personna:
Genetics is just one area that stands as an example of how outdated our IP laws are at this point. As I noted, though, the parties that have a financial interest in the issue are far more active in lobbying Capitol Hill than anyone else. Also, to be honest, these cases typically involve complicated scientific issues that make it hard to turn them into a political issue that people can rally behind.
Depending on how this case turns out, that may change when we start talking about things like the genetic tests for a person’s susceptibility to specific forms of cancer, such as breast cancer. The recent announcement that Angelina Jolie had double mastectomy because of the results of her genetic tests brought that issue to the forefront to some degree, but the truth is that the test involved is, because it is subject to patents that center on genes, incredibly expensive. Maybe that will make people start to care about this stuff, I don’t know.
I wonder if Thomas ever stops to think that once upon a time, his marriage was illegal.
@anjin-san: I have seen little evidence that Thomas ever “stops to think.”
It might be a big day for eight of them. All depends if Clarence Thomas is awake and actually participates in anything! Most of the time he appears to look like a bump on a log with little or no interest in any of it. He gets money for old rope as far as I’m concerned! He’s an embarrassment.
@Caj:
You have obviously never read any of Thomas’s opinions, concurrences, or dissents. He’s far from an idiot. And, to be honest, I’ve been in many courtrooms throughout my career and encountered many judges who choose not to interrupt oral argument with questions. It’s not as nearly uncommon as people seem to think.
I am far more concerned with Thomas’ apparent unconcern with conflicts of interest than his verbosity or lack of it.
@Doug Mataconis: “He’s far from an idiot.”
Agreed. He’s bitter, hate-filled and eager to take away the rights of citizens and hand them to corporations. But he’s not an idiot.
Doug wrote:
Ginsburg’s comment is very ironic since the only reason we give justices life appointments is that we want them to do what the constitution requires instead of worrying about how the people will vote/react.
Marriage equality either is or is not a constitutionally protected right. There really isn’t much of a grey area, and the court does no one any favors by ducking the question.
Let the conservative justices stake out their position on the wrong side of history, if that is what they want to do. There have been lots of reviled court decisions over the years, which were then overturned for the better when the court changed — this can be the Roberts’ Court moment of bigoted infamy.
I remember getting cold chills when Roberts was confirmed as CJ.
50 years old with a life-time appointment.
When reason sleeps, nightmares become possible, as Goya said.
The voting rights act case is the one that annoys me the most. Justifying striking down preclearance requires the most logical twists and turns to justify. Striking it down wouldn’t really be an affirmation of anything other than the desire of whites to seek absolution from history without having to actively grapple with the past. There is nothing stopping the voting rights act being hashed out in democratic process besides the shame of a nation.
The idea that states have to be actively engaged in wrongdoing to need the oversight explicitly granted by an amendment isn’t a checkmark in the column of freedom.
@Doug Mataconis:
I would say there’s a difference from not interupting to showing no interest at all. From what I’ve seen of Clarence Thomas he seems to be there just to make up the numbers!
@anjin-san: Not really very long ago. The last anti-miscegenation laws were overturned by SCOTUS in Loving v/ Virginia in 1967. Up ‘til that point such laws were on the books in basically the whole old Confederacy plus a couple of states. I don’t know where the Thomases resided after he married Ginny in 1987, but if it was VA, it had only been legal for twenty years.
@Doug Mataconis:
Glad we settled that.
IMO,to make the decisions Thomas makes, you would have to idiotic, insane, or wicked. We agree he is not an idiot, and its clear he is not insane, so what’s left is wicked. Sold.
@Console:
You probably mean “illogical turns and twists” . Whatever is required, I’m sure that Scalito and “Uncle” Thomas will get there. My understanding is that Roberts has had a 30 year hard-on for repealing the VRA, so he seems this as a chance to achieve a longed-for climax, evidence be damned. I’m hoping that King Kennedy will pay attention to the plentiful evidence of voter suppression efforts in the 2012 elections, and save the VRA once more-at least till we get a better Congress.