Anticipating Supreme Court Decisions

by Dave Schuler on June 22, 2013

The Supreme Court, as is not unusual, has saved its most controversial cases for last, presumably so the justices can beat a hasty retreat after announcing their findings. Of its eleven remaining cases at least four are of some significance.

In Fisher v. University of Texas at Austin the court has considered a challenge to the university’s use of affirmative action in its undergraduate admission standards.

Windsor v. U. S. is a challenge to the Defense of Marriage Act, which limits federal benefits to opposite sex couples and requires interstate recognition only to opposite sex marriages.

Hollingsworth v. Perry is a challenge to California’s Proposition 8 which limits marriage to heterosexual couples.

Shelby County v. Holder is a challenge to Section 5 of the Voting Rights Act, which requires certain state and local jurisdictions to gain approval from the Justice Department when seeking to change their voting statutes.

There’s a pretty good review of these cases here at The Atlantic.

So far this session the Obama Administration has not done particularly well:

Historically, there is no single litigant more successful in the Supreme Court than the United States. The court usually pays special attention to the arguments of the government’s representative, the solicitor general, whose office is known to have the best lawyers and the longstanding respect of the justices. Studies show that, in the past, the solicitor general won approximately 70 percent of its cases in the Supreme Court. That’s why the solicitor general is often referred to as the “10th justice.”

This term, however, the executive branch has lost far more cases than it has won. Although there are still some decisions to come—and one or two cases are mixed decisions that are hard to categorize—so far the court has clearly decided 24 cases in which the United States was a party. Fifteen of those cases went against the government, while only 9 sided with the administration. That’s a winning percentage of only 37 percent—a huge drop from historical patterns.

Some of that can be attributed to the Court’s faction of more conservative justices. That does not, however, explain all or even most of the administration’s setbacks. In quite a few cases the administration’s positions have been rejected unanimously by the court or by six or seven justices. I think it would be fairer to say that the Obama Justice Department has been pushing the envelope of the prevailing state of the law.

The SCOTUSologists are now predicting that the majority opinion of all four of these cases are likely to be written by justices from the more conservative faction of the court. I honestly have no idea what that might mean or what it sigifnifies as to how any of the four cases above will be decided. With respect to the affirmative action and VRA cases, it was always understood that these provisions of federal law would be temporary. The questions that are now being considered are how long temporary is and under what conditions the provisions will be deemed unacceptable.

With respect to the DOMA and the Prop. 8 cases, what I find most interesting is how they will be decided in combination. If the DOMA and Prop. 8 are both thrown out as unconstitutional, the effective result will be allowing homosexual marriage in all states and territories and under federal regulations and statutes. If DOMA and Prop. 8 are both upheld, the laws of the majority of states and the federal government in this regard will be upheld and the fate of same-sex marriage will remain a state matter.

The circumstance in which DOMA is upheld and Prop. 8 is struck down is IMO the most bizarre. In essence, it will leave same-sex marriage up to the states to decide but will ban their deciding it in any way other than approval. I’m not sure of how to interpret the DOMA’s being struck down while Prop. 8 is upheld.

I’ve stated my opinion on the subject of same-sex marriage here previously: I think the best policy decision is one that abolishes civil marriage entirely.

{ 8 comments… read them below or add one }

superdestroyer June 23, 2013 at 7:53 am

The most interesting ruling will be Fisher vs Texas. I suspect that the Supreme Court will find a way to justify separate and unequal standards for students based upon ethnicity and race.

The the question becomes how do the Republicans support comprehensive immigration reform when those immigrants and their children will be eligible for affirmative action, quotas, set asides, and different standards.

Roy Lofquist June 23, 2013 at 9:17 pm

DOMA struck down and Prop 8 upheld would be a strong affirmation of the Tenth Amendment. This would be a continuation of recent SCOTUS decisions.

Prop 8 was a valid amendment to the California Constitution that was prompted by the Supreme Court of California’s overruling Prop 22, passed in 2000. The reasoning of SCOC in that decision was dubious.

The main legal argument in this case is standing. A lower court Judge overturned Prop 8. The sponsors of the proposition appealed his ruling. The State refused to join the appeal – contrary to the State Constitution. The 9th Circuit refused review on the basis of standing.

In California, successful propositionsTem become articles in the State Constitution (however wise this may be). Thus, the courts and the State Government twice overturned valid amendments.

10th: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

California chose to allow the voters to amend their constitution, thus making amendments (propositions) immune to and superior to elected officials.

sam June 24, 2013 at 6:39 am

“California chose to allow the voters to amend their constitution, thus making amendments (propositions) immune to and superior to elected officials”

Nonsense. No state can amend its constitution to, for instance, deny a citizen of the state the right to vote based in that citizen’s race. Similarly, no state can amend its constitution to deny a couple the right to marry based on the race or races of the couple. When an invocation of the 10th Amendment collides with the 14th Amendment, the invocation of the 10th loses.

Dave Schuler June 24, 2013 at 7:00 am

sam:

At least in part that’s what the Supreme Court’s decisions in these cases will be about. Gender and race are protected classes under the U. S. Constitution and, consequently, laws respecting gender and race are subjected to strict scrutiny.

Sexual preference, however, is not similarly a protected class. At least not yet. We’ll see what happens with the Court’s decisions.

sam June 24, 2013 at 7:16 am

Oh, I agree with the last. My only objection was to the idea, which I took Roy to be advancing, that somehow the 10th amendment trumps the 14th. It doesn’t.

Roy Lofquist June 24, 2013 at 8:37 am

The 10th and the 14th are only tangentially connected. The 10th is the embodiment of Federalism, the 14th extends the Bill of Rights protections to state laws.

sam June 24, 2013 at 8:56 am

Dude, that is some tangent.

Jimbino June 25, 2013 at 9:50 am

It is not true that “Defense of Marriage Act, which limits federal benefits to opposite sex couples….” DOMA limits federal benefits to opposite-sex MARRIED couples. Other couples, friends, lovers, cohabitors, mother-daughter, two brothers, are still totally screwed at both state and federal level, with or without DOMA.

Furthermore, I thought that sex discrimination has been subject to intermediate, not strict, scrutiny.

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