Equality Is Theme as U.S. Justices Convene ; Decisions Are Expected on Marriage, Voting Act and College Admissions

By Liptak, Adam | International Herald Tribune, October 1, 2012 | Go to article overview

Equality Is Theme as U.S. Justices Convene ; Decisions Are Expected on Marriage, Voting Act and College Admissions


Liptak, Adam, International Herald Tribune


For the Supreme Court's new term, the anticipated issues are concrete and consequential: Who gets to go to college? To get married? To vote?

The U.S. Supreme Court returns to the bench on Monday to confront not only a docket studded with momentous issues but also a new dynamic among the justices.

The coming term will probably include major decisions on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily rival those of the last term as the most consequential in recent memory.

The theme this term is the nature of equality, and it will play out over issues that have bedeviled the United States for decades. "Last term will be remembered for one case," said Kannon K. Shanmugam, a partner in the law firm Williams & Connolly. "This term will be remembered for several."

The term will also provide signals about the repercussions of Chief Justice John G. Roberts Jr.'s surprise decision in June to join the court's four more-liberal members and supply the decisive fifth vote in the landmark decision to uphold President Barack Obama's health care law. Every decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court's conservative wing, has moved toward the ideological center of the court.

"The salient question is: Is it a little bit, or is it a lot?" said Paul D. Clement, a lawyer for the 26 states on the losing side of the core of the health care decision.

The term could clarify whether the health care ruling will come to be seen as the case that helped Chief Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of U.S. power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.

It is also possible that the chief justice will become yet another disappointment to conservatives, who are used to them from the Supreme Court, and that he will join Justice Anthony M. Kennedy as a swing vote at the court's center. There is already some early evidence of such a trend: In each of the last three terms, only Chief Justice Roberts and Justice Kennedy were in the majority more than 90 percent of the time.

"We all start with the conventional wisdom that Justice Kennedy is going to decide the close cases," said Mr. Clement, who served as U.S. solicitor general under President George W. Bush. "We've all been reminded that that's not always the case."

The texture of the new term will be different, as the court's attention shifts to questions involving race and sexual orientation from federalism and the economy. The new issues before the court are concrete and consequential: Who gets to go to college? To get married? To vote?

On Oct. 10, the court will hear Fisher v. University of Texas, No. 11-345, a major challenge to affirmative action in higher education. The case was brought by Abigail N. Fisher, a white woman who says she was denied admission to the University of Texas based on her race. The university, which is state-supported, selects part of its class by taking race into account, as one factor among many, in an effort to ensure educational diversity.

Nine years ago, the Supreme Court endorsed that approach in a 5- to-4 vote. The majority opinion in the case, Grutter v. Bollinger, was written by Justice Sandra Day O'Connor, who said she expected it to last for a quarter of a century.

But Justice O'Connor retired in 2006. She was succeeded by Justice Samuel A. Alito Jr., who was appointed by Mr. Bush and who has consistently voted to limit race-conscious decision making by the government. Chief Justice Roberts, another Bush appointee, has made no secret of his distaste for what he has called "a sordid business, this divvying us up by race. …

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