RACHEL MARTIN, HOST:
OK, so we've looked ahead to this week's presidential debate. Now, we're going to shift our focus to the Supreme Court. A new term opens tomorrow, and you may remember the Court's last term and it was that dramatic decision to uphold the Obama health care law when Chief Justice John Roberts sided with the Court's liberals. Well, this time around, the nine justices have before them yet another potentially historic docket; hot button issues that could come up include: affirmative action, same-sex marriage and voting rights.
Nina Totenberg is, of course, NPR's legal affairs correspondent. She joins us now to talk more about the upcoming Supreme Court docket. Thanks for being with us, Nina.
NINA TOTENBERG, BYLINE: My pleasure. But don't hold your breath waiting for John Roberts to vote with liberals in a closely-contested case again.
MARTIN: It's not going to happen anytime soon?
TOTENBERG: Well, I don't expect that much this year.
MARTIN: OK, so let's talk about this year. The big case coming this October, very soon, has to do with affirmative action. Give us a little background on this.
TOTENBERG: You know, the Court has twice before upheld affirmative action in higher education, as long as race is only one of many factors that college officials use to decide who gets in, and as long as there are no quotas. So it decided this in 1978. It reaffirmed that decision in 2003 in an opinion written by Justice O'Connor. But guess what? She's retired and she's been replaced by Justice Samuel Alito, who is a dedicated foe of race-conscious programs in college admissions.
When the Court agreed to hear this issue again, this time from the University of Texas, it did seemed to signal that it might be willing to either reverse the past decisions, or cut back on them so much that there could be affirmative action at least in theory, but perhaps not in fact. There is one interesting wrinkle. Justice Kagan is out of this case so...
MARTIN: She is recused herself?
TOTENBERG: She is recused herself presumably 'cause she had something to do with it when she was solicitor general in the Obama administration. So the best that the liberals can hope for is a four-four tie, which will mean there is no decision. The lower court has affirmed automatically, that upheld the affirmative action program, and it sends a signal to everybody: don't come back here again anytime soon.
MARTIN: So, as we mentioned, the Court may also considered same-sex marriage later the term. One case concerns the Defense of Marriage Act. The other is about Proposition 8. That's the controversial California ballot initiative that define marriage between a man and a woman. What's at stake in these?
TOTENBERG: When this law was passed in 1996, as one law professor said gay marriage was sort of a fringe idea. Nobody really thought much about it. Well, hello. Now there are six states that have legalized it, including New York, which is, all right, big state and the District of Columbia. And there are a lot of people - over 100,000, I think - who are legally married gay people in this country. And they're not happy. They can't get Social Security benefits, survivors' benefits for their spouses.
There's one of these cases brought by a widow who has to pay hundreds of thousands of dollars more in taxes, because her marriage - which is legal in New York - is not viewed as legal by the federal government. They all claim this is discrimination and the Court will take one of these cases and decide that issue. And it may or may not decide the Prop 8 issue.
MARTIN: Now, at the beginning of her conversation, you made a comment. You said don't expect Chief Justice John Roberts and to vote with the Court's liberals anytime soon. We, of course, were referring to his vote in the Obamacare decision. Did that disagreement, the controversy over the health care decision, did it create any discernible riffs on the Court?
TOTENBERG: There was this contemporaneous leak about dissension in the ranks over this is, and how Roberts had, quote, "changed his vote." It's pretty clear he changed it a few weeks after his first vote, if he ever changed it at all. But that in any event the conservatives felt betrayed. A lot of people have this idea that they're ready to throttle each other, and they might've been, a few of them.
But these people have to live with each other for the rest of their professional lives. And it is not in their interest or in the interest of the Court, as an institution, to maintain a fight.
MARTIN: NPR's legal affairs correspondent Nina Totenberg giving us a preview you of the Court's upcoming docket. Thanks so much, Nina.
TOTENBERG: Thank you, Rachel.
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MARTIN: And you're listening to NPR News.
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