The US Supreme Court begins its 2012-2013 term on Monday with a
blunt question: Which version of Chief Justice John Roberts will
show up at the high court this year?
Will it be the hard-charging conservative who struck down
election-season speech restrictions on corporations in the 2010
Citizens United decision, and who invalidated racial preferences in
public schools in Seattle and Louisville in 2007?
Or will it be the circumspect judicial minimalist who guided the
high court away from overturning a major provision of the Voting
Rights Act in a 2009 Texas case, and who last June voted with the
courts liberal wing to prevent the election-year invalidation of
President Obamas health care reform law?
The chief justice is expected to have ample opportunity in the
new term to become reacquainted with his conservative colleagues in
potential blockbuster cases involving affirmative action, voting
rights, and gay marriage.
The question is, will he?
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Legal analysts suggest Chief Justice Roberts has earned a degree
of good will from would-be liberal critics in the wake of his
surprising vote to uphold the health care law. Some scholars praised
the chief justices acrobatic decision as a modern-day version of
Marbury v. Madison.
Conservatives scoff at such suggestions. They say Roberts appears
to have caved in to bullying and threats from President Obama and
others who launched what they say was a sustained campaign of
intimidation once it looked like the court was poised to overturn
the health care mandate.
Whatever explanation [exists] is not legitimate because we all
agree that it is not a good thing for justices chief justices or
judges to act politically, to try to split the differences, to try
to balance competing imperatives, Washington Lawyer David Rivkin
said during a recent panel discussion at the libertarian Cato
Mr. Rivkin, who served as a lawyer challenging the health care
law, said a similar campaign of intimidation would likely arise in
future high-stakes cases.
The courts docket suggests it may not be a long wait.
On October 10, the Supreme Court is set to examine the
constitutionality of racial preferences in college admissions at the
University of Texas.
In addition, the high court is expected to soon consider whether
to take up appeals involving Californias Proposition-8 ban on same-
sex marriages and whether the Defense of Marriage Acts prohibition
on same-sex spouses collecting federal benefits violates the
Constitutions guarantee of equal treatment.
If the high court agrees to hear one or both of these issues, the
new term would become a major test of the scope of gay rights in the
US and the Supreme Court would once again become a flashpoint in the
ongoing culture war.
The justices are also likely to take up at least one of more than
five pending appeals raising the same issue the court confronted and
dodged in 2009 whether Section 5 of the Voting Rights Act is an
unconstitutional extension of congressional power.
Section 5 requires certain designated states and counties with a
past history of discrimination (in the 1960s and 1970s) to obtain
pre-approval in Washington before making any changes to voting
procedures that might undercut minority political clout.
Many of the covered jurisdictions complain that they have run
discrimination-free elections for decades and should no longer be
punished for violations a generation ago.
The internal dynamics on the nine-member court are well known. In
general terms, there are four conservative justices, four liberal
justices, and conservative-centrist Anthony Kennedy, who often casts
a deciding swing vote in close cases.
The conservative-liberal breakdown rarely comes into play in
routine cases, but the lineup does emerge in disputes presenting
high-stakes, hot button issues like affirmative action, voting
rights, and abortion. …