The Supreme Court’s fraught new term

What happened

The Supreme Court this week began its 2012–2013 term, wading into cases that may have major consequences for such divisive issues as affirmative action, gay marriage, and voting rights. The court reconvened amid intense curiosity about its internal dynamics and partisan allegiances, sparked by conservative Chief Justice John Roberts’s surprise decision in June to join the court’s liberal wing in upholding President Obama’s health-care law. Next week, the court will hear oral arguments on a challenge to the University of Texas’s policy of taking race into consideration to ensure racial diversity in admissions. The justices may also take up several challenges to Section 5 of the Voting Rights Act, which forces states with a history of racial discrimination to seek federal consent before changing voting or election laws.

Later in this term, the court is also likely to decide the constitutionality of the Defense of Marriage Act (DOMA)—a case with the potential to sweep away all prohibitions on same-sex marriage. Court watchers expect moderate Justice Anthony Kennedy to be the swing vote in many of these cases, though Roberts’s vote to uphold “Obamacare”—reportedly motivated by a desire to preserve the court’s credibility as a nonpartisan body—has raised questions as to whether he’ll be less consistently conservative. That vote caused at least a temporary rift with other conservative justices.“We all start with the conventional wisdom that Justice Kennedy is going to decide the close cases,” said Paul Clement, the former U.S. solicitor general who argued against the health-care law. “We’ve all been reminded that’s not always the case.”

Subscribe to The Week

Escape your echo chamber. Get the facts behind the news, plus analysis from multiple perspectives.

SUBSCRIBE & SAVE

Sign up for The Week's Free Newsletters

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

From our morning news briefing to a weekly Good News Newsletter, get the best of The Week delivered directly to your inbox.

Sign up

What the editorials said

First up, the court will decide whether foreign nationals can sue foreign corporations in U.S. courts for human rights violations that occurred overseas, said The Wall Street Journal. Nigerian activists wish to sue Royal Dutch Petroleum in the U.S. for allegedly colluding with the Nigerian government to torture and kill protesters. “Why is this in an American court?” It’s a nonsensical claim, and it’ll be easy for the court to rule on this one.

The court’s rulings on affirmative action and the Voting Rights Act will be a far more revealing test, said the Los Angeles Times. Both cases rest on the “naïve assumption that racism and racial discrimination are ancient history”—and that laws designed to protect Americans against them are now themselves discriminatory. Chief Justice Roberts suggested as much when he said, in 2007, that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” But African-Americans remain underrepresented in most colleges, so conservative justices should exercise some “judicial restraint.”

What the columnists said

In its last term, the Supreme Court was asked to rule on the limits of government power, said David Cole in NYBooks.com. This term the justices will “focus on equality”—deciding whether the Constitution’s guarantee of “equal protection of the law” extends to the right to be married, or to go to college.

Gay marriage will be this year’s most explosive case, said Ed Whelan in NationalReview.com. With appeals of DOMA and California’s Proposition 8 pending, there’s a real danger that the liberals and a fifth justice will overrule the public, and create “a federal constitutional right to same-sex marriage.” If that happens, and gay marriage is suddenly legal everywhere, it will “ignite a decades-long firestorm” among social conservatives that will make Roe v. Wade “appear minor by comparison.”

Don’t expect this court to make a major turn to the left, said Lincoln Caplan in NYTimes.com. Chief Justice Roberts is no centrist. His health-care law vote was the only time he sided with the liberals in a 5–4 vote over 117 decisions. Legal analysts agree that the Roberts court is “the most conservative since the anti–New Deal court of the 1930s.” It won’t take the conservative justices long to reassert their dominance, said Andrew Cohen in TheAtlantic.com. When it rules on the University of Texas case, the court will “finish off once and for all the concept of affirmative action in academia.”