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.
