Only one week remains for the U.S. Supreme Court to rule in four major civil-rights cases, and the excitement is palpable. When a handful of opinions came down last Thursday, 100,000 people tuned in to SCOTUSblog to await the opinions -- more than at this time last year when court-watchers were awaiting the fate of President Barack Obama’s health-care law. Yet, it’s possible the week could end not with a bang, but with a whimper.
With cases on gay marriage, affirmative action and voting rights before the court, the landscape of civil rights in America could be drastically different by around 10:30 a.m. EDT this coming Thursday, the last day the Supreme Court is likely to hand down opinions this term. Or the court could punt on the difficult issues by determining that one of the parties doesn't have “standing” -- the ability to sue -- and avoid ruling on the merits.
The standing doctrine ensures that parties before the court have skin in the game. For example, if there’s no way you could be injured in some way by the outcome of the case, you can’t sue.
Due to the ideological bent of the court, the likelihood that a majority of the justices will invoke the standing doctrine varies in each case, and the fallout would be different in each. But, in all four, there are questions about who is even able to bring the cases forward -- and legitimate reasons why the court shouldn’t rule on the substance of the case.
The Gay-Marriage Cases
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Where the court is most likely to take the easy road out and rule on standing is Hollingsworth v. Perry, the case on the constitutionality of California’s gay-marriage ban, known as Proposition 8. After U.S. District Judge Vaughn Walker in the Northern District of California struck down Prop 8 in 2010 as unconstitutional, then-Gov. Arnold Schwarzenegger refused to defend the law at the appellate level. This left groups that oppose gay marriage to defend the law in court themselves. But, unlike the state of California, which is considered an injured party in the case, it's arguable that these antigay marriage advocates don’t have standing to appeal the original decision because they won't be affected by the outcome. During oral arguments in March, when a significant amount of time was dedicated to the question of standing, court-watchers said five of the justices appeared sympathetic to the issue.
In this case, a decision based on standing would leave intact Walker’s original opinion and legalize same-sex marriage in California. It wouldn’t be the ruling that advocates expect will one day legalize gay marriage nationwide, but it would nearly double the number of people who live in states, as well as the District of Columbia, that allow same-sex couples to marry.
“I think the liberals on the court figure they don’t have the votes to declare marriage a constitutional and protected right nationwide, so they’ll use standing doctrine to avoid ruling on the Prop 8 case,” Adam Winkler, a constitutional-law professor at the UCLA School of Law, said.
While many believe that the fate of Prop 8 may come down to standing, consensus opinion is more optimistic that the court will hand gay-rights advocates a major victory by striking down the Defense of Marriage Act, or DOMA. But Winkler said there are murmurings in Washington that the DOMA case might be decided on standing as well. If it is, then this time it would be a victory for conservatives and a blow to the marriage-equality movement.
When her spouse Thea Spyer died in 2009, Edie Windsor had to pay more than $360,000 in estate taxes that she could have avoided if her marriage had been recognized by the U.S. government. Windsor decided to challenge DOMA’s Section 3, which defines marriage as between one man and one woman. As United States v. Windsor made its way to the Supreme Court, both Republican- and Democratic-appointed judges ruled in Windsor’s favor.
But there are actually two standing questions in the case. In early 2011, the Obama administration announced that it too believed Section 3 was unconstitutional and that it would no longer defend the law in court. Republicans in the House of Representatives were left to defend the law and created the Bipartisan Legal Advisory Group to do so. Now, the fact that the government is essentially on Windsor’s side could jeopardize her case. The court could rule either that the government’s position on DOMA deprives the Supreme Court of the authority to rule on the case or that the House Republicans’ group doesn’t have the authority to act as a stand-in for the government. For the conservative justices who don’t want to strike down DOMA but don’t have enough votes to uphold it either, this could be a way to keep the controversial law alive.
Affirmative action in undergraduate admissions is also on the line this court term. Abigail Noel Fisher of Sugar Land, Texas, has argued she was denied admission to the University of Texas at Austin because she is white, violating her rights under the Equal Protection Clause of the U.S. Constitution’s 14th Amendment. The university considers race as one of many characteristics for some applicants, but it disputes that race was a factor in its decision not to admit Fisher. In high school, Fisher had a 3.59 grade-point average and a SAT score of 1180 out of 1600 -- marks that the state’s flagship public university has argued weren't good enough to get in even if she were a minority.
During oral arguments, liberal Justice Ruth Bader Ginsburg quickly asked the first question: “The question of standing. The injury -- if the injury is rejection by the University of Texas, and the answer is no matter what, this person would not have been accepted, then how is the injury caused by the affirmative-action program?” In other words, if Fisher wasn’t actually injured by the policy, can she bring suit against it?
Ginsburg’s question aside, the justices didn't seem particularly interested in the standing issue during oral arguments, although the liberal justices may prefer it as a way to preserve the university’s admissions policy. Few expect the court will deal a death blow to affirmative action in undergraduate admissions, but it's likely to continue to chip away at them.
Last but not least, the Supreme Court this week will decide the fate of a key provision of the 1965 Voting Rights Act. Under the law’s Section 5, certain states and other areas of the U.S. with a history of racial discrimination, mostly in the South, must get what is called preclearance before they make any changes to their election procedures. Which states are covered by Section 5 is determined by the “coverage formula” -- and is a crucial question in the case, Shelby County v. Holder, now before the court.
Alabama’s Shelby County is among the areas that must obtain preclearance for any changes to its election laws. In 2010, the county decided to challenge Section 5 in court, arguing that the preclearance requirement under the current formula exceeded the government’s authority to fight discrimination. The South, Shelby County argues, isn't the same place it was in 1965 and no longer has the kind of discrimination that justifies the intrusive federal oversight of Section 5. Moreover, the county claims, Congress exceeded its constitutional authority when it reauthorized the law in 2006 without updating the coverage formula.
This time during oral arguments, liberal Justice Sonia Sotomayor interrupted the plaintiff’s attorney, the same lawyer who argued the Fisher case, to say: “Assuming I accept your premise, and there’s some question about that, that some portions of the South have changed, your county pretty much hasn’t. In the period we’re talking about, it has many more discriminating -- 240 discriminatory voting laws -- that were blocked by Section 5 objections. There were numerous remedied by Section 2 litigation. You may be the wrong party bringing this.”
Essentially, does Shelby County -- which as of a few years ago was still passing discriminatory election laws, according to NAACP Legal Defense and Educational Fund Inc. -- have standing if it would qualify for preclearance treatment under any coverage formula? As Sotomayor put it, Shelby County “is the epitome of what caused the passage of this law to start with.”
“There’s a legitimate question about whether Shelby County, which has a long history of discrimination, is an appropriate party to challenge the Voting Rights Act,” UCLA School of Law’s Winkler said. “Nevertheless, the justices did not seem interested in those questions at oral arguments. So I don’t expect [them] to avoid ruling on the voting-rights case because of standing.”