WASHINGTON — The Supreme Court returns to the bench 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 the last term’s 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 nation for decades.
“Last term will be remembered for one case," said Kannon Shanmugam, a lawyer with Williams & Connolly. “This term will be remembered for several."
The term will also provide signals about the repercussions of Chief Justice John Roberts’ 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 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 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 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 federal 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 Kennedy as a swing vote at the court’s center.
“We all start with the conventional wisdom that Justice Kennedy is going to decide the close cases," said Clement, who served as U.S. solicitor general under former 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 from federalism and the economy to questions involving race and sexual orientation. 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 Fisher, a white woman who says she was denied admission to the University of Texas based on her race. The university selects part of its class by taking race into account, as one factor among many, in an effort to ensure educational diversity.
Just 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 century.
But O’Connor retired in 2006. She was replaced by Justice Samuel Alito, who was appointed by Bush and who has consistently voted to limit race-conscious decision making by the government. 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."
Justices Antonin Scalia, Clarence Thomas and Kennedy all dissented in the Grutter case, and simple math suggests that there may now be five votes to limit or overturn it.
The court will probably also take on same-sex marriage.
“I think it’s most likely that we will have that issue before the court toward the end of the current term," Justice Ruth Bader Ginsburg said at the University of Colorado on Sept. 19.
She was referring to challenges to an aspect of the federal Defense of Marriage Act, which bars the federal government from providing benefits to same-sex couples married in states that allow such unions. The federal appeals court in Boston struck down that part of the law, and both sides have urged the court to hear the case. More than 1,000 federal laws deny tax breaks, medical coverage and burial services, among other benefits, to spouses in same-sex marriages.
Voting rights act
The justices are also quite likely to take another look at the constitutionality of a signature legacy of the civil rights era, the Voting Rights Act of 1965. In 2009, the court signaled that it had reservations about the part of the law that requires federal review of changes in election procedures in parts of the country with a history of discrimination, mostly the South.
“We are now a very different nation" than the one that first enacted the Voting Rights Act, Roberts wrote for himself and seven other justices. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today."