Court Prepares To Write New Chapters In Civil Rights History

The Supreme Court is set to deliver opinions in cases involving affirmative action, the voting rights law and same-sex marriage. i i

The Supreme Court is set to deliver opinions in cases involving affirmative action, the voting rights law and same-sex marriage. Jonathan Ernst /Reuters /Landov hide caption

itoggle caption Jonathan Ernst /Reuters /Landov
The Supreme Court is set to deliver opinions in cases involving affirmative action, the voting rights law and same-sex marriage.

The Supreme Court is set to deliver opinions in cases involving affirmative action, the voting rights law and same-sex marriage.

Jonathan Ernst /Reuters /Landov

It's not unusual for the Supreme Court to find itself at the center of roiling national debates.

But this month, justices are poised to deliver blockbuster opinions involving three of the most divisive issues in the public arena. And in doing so, they will write new and potentially groundbreaking chapters in America's civil rights story.

Affirmative action. Voting rights law. Same-sex marriage.

By June's end, Americans will know if and how public colleges and universities may administer programs designed to enroll more minority students.

Whether a key 1965 Voting Rights Act provision will survive, and with it federal monitoring of places with histories of discriminatory voting practices.

And if congressional action barring federal recognition of same-sex marriage is constitutional, and similar state restrictions enforceable.

"It is fascinating to see the court right smack in the middle of the hottest political controversies in the country," says Stephen Wermiel, a court and constitutional law expert, "albeit deciding their legal dimension, but with extraordinary societal ramifications."

Upcoming Decisions

Affirmative Action

Fisher v. University of Texas at Austin

Issue at stake:

Does a public university violate the Equal Protection Clause of the 14th Amendment when it considers race in admissions decisions?

The court in 2003 ruled 5-4 that "student body diversity is a compelling state interest that can justify the use of race in university admissions" if the program is "narrowly tailored."

Petitioner Abigail Fisher, who is white, argues her 14th Amendment rights were violated because lesser-credentialed minorities gained admission when she was denied.

Voting Rights

Shelby County v. Holder

Issue at stake:

Did Congress, in its 2006 reauthorization of the Voting Rights Act for 25 years, exceed its constitutional powers by extending a section that requires federal approval of election law changes in certain jurisdictions?

Congressional reauthorization included requirements that jurisdictions with patterns of voter discrimination obtain federal "preclearance" before making any election law changes, including those involving voter registration rules. Shelby County, Ala., subject to the preclearance, argues that preclearance is tantamount to a double standard and infringes on state rights.

Same-Sex-Marriage Rights

United States v. Windsor

Issue at stake:

Does the federal Defense of Marriage Act, which says marriage is between a man and a woman, violate the constitutional rights of same-sex couples legally married under state law?

Edith Windsor, a New York widow, challenged the act after she was ordered to pay $363,053 in federal taxes on the estate of her longtime partner and, eventually, wife. A heterosexual surviving spouse would not have been subject to the tax. Windsor's marriage was recognized in New York State, but not under DOMA.

Hollingsworth v. Perry

Issue at stake:

Does the state of California's definition of marriage as the union between a man and a woman violate the Equal Protection Clause of the Constitution? And do the petitioners have standing to bring the case to the court?

A state ballot proposition, now known as Proposition 8, passed in 2008, overturning an earlier state Supreme Court ruling that gave same-sex couples the right to marry. An appeals court in 2012 declared Proposition 8 unconstitutional; proponents appealed to the U.S. Supreme Court.

Indeed, the court will weigh in at a time when national sentiment is in transition. The public is increasingly supportive of same-sex marriage. African-Americans are voting in percentages that rival their white counterparts. And race-based admission programs are continuing to fall out of public favor.

"These [cases] really go to the heart of who we are as a country, and the things that divide us as a country," says Wermiel, law school professor at American University and biographer of the late Justice William Brennan.

"As de Tocqueville wrote," he says, referring to the 19th century French thinker and author of Democracy in America, "every political issue in America ends up as a legal issue."

Who Are We?

Predicting how justices will rule is a dicey business (think Obamacare, upheld by a divided court just a year ago, and Chief Justice John Roberts' deciding vote to uphold). Conventional wisdom has coalesced around most-expected scenarios, given the court's makeup and the tenor of questions justices posed during arguments earlier this year.

There is speculation that the conservative court, typically divided 5-4 along ideological lines, will diminish the ability of public colleges and universities to use race as a favoring factor in enrollment. And that it will hem in the federal government's ability to monitor voting practices in specific jurisdictions — mostly in the South.

But while the court may be poised to curtail those programs, born of the civil rights movement and efforts to mitigate the cultural ravages of slavery and discrimination, it also seems ready to expand federal, if not state, marriage recognition to same-sex couples.

"This would confirm the court's willingness to play a central role in American life," says Jeffrey Rosen, law school professor at George Washington University and new head of the National Constitution Center in Philadelphia.

The court, Rosen says, has never before confronted marriage equality so squarely, while at the same time contemplating the prospect of what he characterized as "truly restrictive" action on affirmative action and voting rights.

That expected — emphasis on "expected" — outcome, he says, would underscore the influence of Justice Anthony Kennedy, part of the court's conservative majority but a past swing vote on decisions that advanced the rights of gay Americans.

"The decisions under this scenario would reaffirm the Kennedy court, rather than the Roberts court, as the central dynamic among the justices," Rosen says.

If the court does strike down the Defense of Marriage Act, the legislation banning federal recognition of gay marriage, gay couples married in the dozen states where it's legal would have the same federal rights as heterosexual couples.

The Progressive Court Recedes

Linda Greenhouse, a Yale Law School lecturer and former New York Times Supreme Court reporter, views the changes expected out of this month's decisions as part of a decades-long move away from the progressivism embodied by the late Justices Brennan and Thurgood Marshall, both of whom retired in the early 1990s.

They were "the last true liberals on the Supreme Court," she said recently during a speech at Harvard, "the last who sought to harness the Constitution as an engine of social progress."

Greenhouse said that the question now is whether that liberal progressivism and its ideals will persevere or be seen as a "fading historic moment."

"Which," she asks, "is the true American story?"

It's likely that the court will end up issuing a complicated, nuanced answer to that question, not a single, central-themed message about civil rights.

"They may thoughtfully, carefully decide what's outlived its usefulness," says Wermeil, the Brennan biographer, "and what is just beginning a new life."

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