Rulings by the U.S. Supreme Court this week determined issues ranging from affirmative action to same-sex marriage. What follows are responses to the Supreme Court debate by Penn Law faculty members who specialize in constitutional law.
Prof. Kermit Roosevelt: The Supreme Court’s gay marriage decisions are modest steps towards greater equality
Editor’s Note: Kermit Roosevelt, Professor of Law, is a constitutional expert whose books include The Myth of Judicial Activism: Making Sense of Supreme Court Decisions.
The arc of the moral universe is long, said Martin Luther King, but it bends toward justice. Supreme Court equality decisions are similar. In its application of the Equal Protection Clause, the Court tends to move gradually towards recognizing the moral consensus of the American people. In response to the success of social movements for equality, first on the part of racial minorities, then women, and now same-sex couples, the Court reached out tentatively at first, but later with increasing assurance, to strike down discrimination that society had recognized as unjustified.
Today’s decisions fit that pattern. By striking down the federal Defense of Marriage Act, the Court took a small step. It did not impose same-sex marriage on anyone; no couple that could not legally marry yesterday can do so today as a result of that decision. It merely required the federal government to recognize marriages valid under state law.
But its reasoning, especially its dismissal of the justifications for the federal law, seems easy to apply to state laws in a future case. Chief Justice Roberts devoted his dissent to the argument that this was not so, but Justice Scalia, also dissenting, showed how easily the majority’s language could be adapted to the state-law case. And on this point, Scalia is clearly right. In 2003, in Lawrence v. Texas, the Court struck down a Texas law that criminalized same-sex sexual activity. The decision had nothing to do with marriage, the majority claimed. Don’t believe them, Scalia warned; the reasoning cannot be so limited. And today Justice Kennedy’s majority opinion about marriage relied on Lawrence. We know where this road leads.
We do not know how long the road will be. In the second decision, Hollingsworth v. Perry, the Supreme Court ruled that the defenders of Proposition 8 lacked standing. This was the most modest and incremental decision it could have rendered without going against the cause of same-sex marriage. The consequence is to leave intact the district court order enjoining the enforcement of Proposition 8. There are some interesting questions about the scope of that order, but in practical terms it is almost certain that same-sex marriage will now return to California.
That outcome seemed quite likely after oral argument in Perry. If there is a surprise, it is in the lineup. There is no logical connection between a Justice’s views on the merits and his or her views on jurisdictional issues like standing. But in practice, the more likely a Justice is to be in the minority on the merits, the more likely that Justice is to believe that jurisdiction is lacking. (In the DOMA case, for example, three of the four dissenters argued that the Court should not be deciding the case at all.) Yet in Perry, the Justices split along very unusual lines: conservatives Roberts and Scalia, voting against jurisdiction, were joined by the more liberal Breyer, Kagan, and Ginsburg. On the other side were conservatives Thomas and Alito, joined by the more liberal Sotomayor and the mercurial Kennedy.
It is impossible to be sure how these Justices would have voted on the merits, and, interestingly, not one said a word about it. But based on the opinions in Windsor, Perry looks like it would have been a 5-4 decision in favor of same-sex marriage, with Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan in the majority. That three of these Justices voted against jurisdiction suggests that they might have been worried about moving too fast, writing a broad decision that inspired a backlash. Breyer does seem a genuine believer in judicial restraint, and Ginsburg has worried publicly that Roe harmed the cause of women’s rights by foisting an abortion “solution” upon a nation not ready or willing to accept it.
If this theory is right, then the behind-the-scenes story of Perry is of liberal Justices exercising restraint, declining to seize a victory that could have been theirs. It would not be surprising if Ginsburg and Breyer, rather than Kennedy, turned out to be the ones that held back the pro-same-sex marriage bloc. Kennedy is often considered a swing Justice, but this is true largely in the sense of swinging for the fences: Kennedy may go left, or he may go right, but he almost always goes big.
In this context, though, Ginsburg’s worries are probably misplaced. The Court’s equality decisions, even the controversial ones, have won public acceptance. (Brown v. Board of Education, integrating the public school systems, is now an unquestioned icon of our jurisprudence, but at the time, it inspired massive resistance and public denunciation by hundreds of elected officials, requiring the intervention of federal troops for its implementation.) That may be so in part because the Court tends to move incrementally. But it is also so because disputes over equality get settled in a way that the abortion controversy likely never will be. Past discrimination based on race and sex seems outrageous and unjustified to the present in a way that opposition to abortion probably never will. As I detailed in an earlier post, sexual orientation discrimination is on its way into the outrageous category, and nothing the Court does can halt that progress.
Prof. Theodore Ruger: Whether the Justices like it or not, race and race discrimination remain a part of American life
Editor’s Note: Theodore Ruger, Professor of Law, is a constitutional expert whose scholarship focuses on the application of judicial authority.
Change was in the air – and in the opinions – at the Supreme Court this week. In his Shelby County v. Holder majority opinion invalidating a key portion of the Voting Rights Act of 1965, Chief Justice Roberts stressed that “things have changed dramatically” over the past 50 years, and that “history did not end in 1965.” These words are clearly apt when applied to the Supreme Court’s decision the following day striking down the Defense of Marriage Act; few could have imagined on DOMA’s passage in 1996 that public (and judicial) attitudes would shift so substantially in favor of same sex marriage in less than two decades.
Yet the theme of a changed world is more problematic and ambiguous within the realm of unequal minority access to political power, the issue area where the Chief Justice made those assertions in the Shelby case. The Court’s majority is surely correct that the forms, and extent, of outright electoral discrimination based on race have changed and lessened in the past half century. Still, the phenomenon persists even as the toolkit for diminishing minority voting power has changed; within a few hours of the Supreme Court’s Shelby ruling the Texas state legislature announced it would press ahead with a restrictive voter ID law of a form known to depress minority electoral participation.
By striking only one of several of the VRA’s provisions potentially available to restrict discriminatory electoral practices, the Supreme Court left on the books other avenues for challenging dubious voting structures, although ones with starkly different institutional and temporal valence. With Section 5’s federal administrative preclearance mechanism effectively eviscerated, minority plaintiffs can (and will) still sue under Section 2 of the VRA, but this litigation will be decentralized in disparate individual lower federal courts, and will be resolved only well after the fact, as opposed to the relatively quick ex ante review formerly provided by the Justice Department.
Taken together with some of the language in Justice Kennedy’s Fisher opinion a day earlier remanding the affirmative action issue back to the lower courts with instructions to consider “race neutral” alternatives, the Chief Justice’s emphasis on a changed world of racial politics in Shelby evinces an insistent – but perhaps unrealistic – impatience with the ongoing relevance of race in American life among some of the key Justices on the current Court. But whether the Justices like it or not, race and race discrimination remain a part of American life. The Chief Justice is surely correct that “history did not end” in 1965, but it did not start there either, and even fifty years of federal civil rights legislation have proven insufficient to unravel the effects of centuries of racial discrimination in the United States.
Prof. Theodore Ruger: SCOTUS affirmative action decision hands higher-education a “homework assignment”
Certainly neither party to the Fisher v. University of Texas affirmative action case decided yesterday would have preferred the narrow ruling the Supreme Court issued, effectively punting the issue back to the lower federal courts for further fact-finding. Nor was the ruling the outcome favored by the numerous amici organizations on both sides of the case who argued for a more robust judicial affirmation – or repudiation – of the use of race in university admissions.
From the extraordinary length of time that passed between last October’s oral argument and the ultimate decision in Fisher, we can surmise that many of the Justices themselves likewise preferred a more definitive resolution of the dispute, only coalescing on yesterday’s remand as a late compromise as the Term’s end loomed.
Yet by shifting the case back to the lower courts, the Supreme Court has encouraged the constitutional debate on affirmative action to continue among a broader set of institutions around the country.
In the short term, litigation in the Fifth Circuit will focus on the specifics of the University of Texas policy, but in other parts of the country other individuals, universities, state legislatures, and federal courts will approach the debate differently, probably achieving diverse end results over the next decade.
Such multimodal constitutionalism frustrates values of national uniformity, but is in the best tradition of our federalism and constitutional pluralism, currently also displayed on developing issues like same-sex marriage and physician assisted suicide, where the institutions and individuals driving major constitutional change are situated outside of Washington, D.C.
This is not to say the Supreme Court was entirely passive in its ruling on Fisher. On one hand, it reaffirmed a core principle of both Bakke and Grutter that the consideration of race in university admissions is not categorically unconstitutional so long as institutions use race in appropriate fashion. On the other, the Court emphasized the searching scrutiny that reviewing courts are to give to challenged admissions policies, effectively ratcheting up the burden of justifications on institutions who use race in admissions.
The ruling will operate as a judicial homework assignment to the nation’s higher education leaders. To support using race in admissions, colleges and universities will need to accumulate more evidence, and offer more complete justifications, of current admissions policies.