UPDATED AT 1:00 PM

Hey, about five minutes after I posted my Supreme Court preview, the Court announced that they are going to take up two of the cases I highlighted concerning same-sex marriage. One involves the constitutionality of the federal Defense of Marriage Act (DOMA) and the other concerns the Ninth Circuit's decision to strike down Prop 8.

It's important to note first that both cases are narrow. The DOMA case asks whether it's constitutional for the federal government to deny federal benefits to same-sex couples who have legally married in any of the nine states that allow gay marriage (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont, Washington, and the District of Columbia). Most likely, the key vote in this case will be Justice Kennedy, who wrote the majority opinion nine years ago striking down Texas's anti-sodomy law.
 
The Prop 8 case is dicey.  The Ninth Circuit's opinion, authored by its liberal lion, Judge Stephen Reinhardt, was written to be California-specific (in an effort to avoid Supreme Court review).  In particular, Judge Reinhardt's reasoning was closely tied to the fact that the California Supreme Court had ruled that same-sex couples could get married, only to have that right taken away from them with Prop 8.  Reinhard reasoned that you can't give a right and then take it away without some "legitimate reason" for doing so.  In short, Reinhardt said that it was arbitrary to pass a law that takes away rights that had previously been granted. 

But the constitutional hook that the Ninth Circuit relied upon -- that Prop 8 "treats different classes of people differently,"  and that the law "serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California, and to officially reclassify their relationships and families as inferior to those of opposite-sex couples" -- is precisely the reasoning the Supreme Court will have to affirm or reverse.  And, once again, it looks like it'll be up to Justice Kennedy.

It's tough to make predictions with hot-button cases like these, but here's my take: the States' rights argument here cuts against DOMA, but also against Reinhardt's Prop 8 decision. I can see Justice Kennedy concluding that States get to decide how to define marriage, and that DOMA cannot withhold benefits from those couples who legally marry in States like Washington. But, under the same reasoning, he could reverse Reinhardt and uphold Prop 8 because it represents a particular State's decision (in that case, California voters' decision to pass the law).
 
The case will likely be argued in March, and decided in late June.  Sure makes for an anxious Spring.    

ORIGINAL POST

The U.S. Supreme Court began hearing arguments this Fall for the 2012-2013 Term.  Last year’s Term ended in dramatic fashion with Chief Justice John Roberts crossing the aisle to vote with the liberals to uphold ObamaCare. 

This year’s Term promises to be another blockbuster, with the Voting Rights Act of 1965 potentially on the chopping block, along with marriage equality, and affirmative action.

On the Rocks: Affirmative Action

The most high profile case heard so far is Fisher v. University of Texas at Austin.  Abigail Fisher was denied admission to the University of Texas in 2008 and filed suit against the university for using race in its admissions process.  The university has a policy of admitting any Texas student that graduates in the top 10 percent of her class; Fisher was just outside the 10 percent threshold, so she was lumped together with all the other applicants who had to distinguish themselves based on other factors such as student activities, leadership qualities, and life circumstances—including race.

The question presented isn’t new: in a pair of cases in 2003, the Court considered the University of Michigan and Michigan Law School’s respective admissions programs. The Court concluded that the university’s program was unconstitutional because it relied too heavily on race, but also determined that the law school’s “holistic approach”—which considered race as only one of many factors—passed muster under the 14th Amendment’s Equal Protection Clause. The Court’s decision to hear the case surprised many because Texas' system has a lot in common with the Michigan Law School, and it was only 9 years ago that the Court upheld the affirmative action program.

Making affirmative action more difficult—if not impossible—for college admissions, will be the Court's latest step to the right when it comes to race.

 But two things have changed since then. First and foremost, moderate Justice Sandra Day O’Connor, the author of the Michigan case—Grutter v. Bollinger—retired in 2006, and was replaced by conservative Justice Sam Alito. And second, another member of the Grutter majority, Justice John Paul Stevens, has been replaced by Elena Kagan, who is recused from participating in this case because of her old job the Solicitor General’s office. That means that there are only 3 votes remaining from the old Grutter majority, and five lined up to overrule it.

 Because the Fisher case is too narrow, the Court is unlikely to prohibit affirmative action altogether, but it does look like it’s primed to significantly limit the use of race in college admissions from this point forward. The Court moves slowly—the turtle sculptures outside the courthouse aren't just ornaments, they're symbols of an institution that likes to take things one step at a time. Making affirmative action more difficult—if not impossible—for college admissions, will be the Court's latest turtle-step to the right when it comes to race.

Last Legs: Section 5 of the Federal Voting Rights Act of 1965

In terms of voting rights, the 2012 election was notable for two things.  First, the steady stream of voter identification laws (or what liberals might call “voter suppression laws”) that popped up throughout the country, many of which were struck down as discriminatory. Second, minorities reelected Barack Obama by wide margins. Three days after the election, the Supreme Court agreed to hear a case that challenges the validity of Section 5 of the Voting Rights Act.

Section 5 concerns so-called “covered jurisdictions” throughout the United States.  These jurisdictions historically discriminated against racial minorities—particularly African Americans and Latinos—so much that they were effectively placed on a list of jurisdictions that had to seek approval from the federal government before implementing any changes in their voting practices or procedures. Through this process of “preclearance” the Department of Justice was able to weed out discriminatory reforms—such as moving polling places at the last minute or requiring voter IDs.

They warned Congress to update the coverage formula so that it’s based on current needs, not 50-year-old history. But Congress failed to act.

Here’s the rub: Congress renewed Section 5 in 2006 for another 25 years, and the same jurisdictions that were covered in 1965 are still covered today (with a few exceptions). Three years ago, the Court warned Congress that Section 5’s burdens must be justified by current needs, not outdated reasons from the 1960s. The case this Term is Shelby County v. Holder. Shelby County, which includes Birmingham, Alabama, is arguing that Section 5 violates the 10th Amendment because its “coverage formula”—which determines what jurisdictions must get preclearance—is woefully outdated.

Just three years ago, eight justices voted to uphold Section 5 in 2009 (Conservative African American Justice Thomas would have struck it down). However, they warned Congress to update the coverage formula so that it’s based on current needs, not 50-year-old history. But Congress failed to act.  So now the Court appears poised to strike down a key provision of this historic civil rights law.

Marriage Equality

The attention given to voting rights and affirmative action will be dwarfed many times over if the Court decides to hear a case on same-sex marriage. In fact, the Court will consider today ten petitions for review concerning marriage equality and decide soon whether to accept any of these cases for oral argument.  Eight of the 10 involve the constitutionality of the federal Defense of Marriage Act—a law that President Obama’s Justice Department has stopped defending in federal court.

It’s important to make clear that these cases aren’t asking the Court to declare a constitutional right to gay marriage—contrary to what Justice Scalia might tell you.  

But it’s important to make clear that these cases aren’t asking the Court to declare a constitutional right to gay marriage (contrary to what Justice Scalia might tell you if he’s in dissent).  Rather, they’re simply asking the Court to invalidate Section 3 of DOMA, which defines marriage as between a man and a woman for purposes of federal benefits such as Social Security or tax breaks.  Or, put differently, same-sex couples are simply asking the Court to make clear that the federal government cannot overtly discriminate against them.

The Court is almost certain to grant at least one of the petitions. In fact, Justice Ruth Bader Ginsberg—the Court’s senior liberal justice—acknowledged in a speech this summer that the Court is likely to review DOMA this Term.

The Court is also considering a petition to reverse the 9th Circuit's decision to strike down Prop 8 in California. (Prop 8 outlawed gay marriage.)  If the Court takes a pass, then same-sex marriages will officially be legal in California. If the Court decides to hear the case, the marriages will have to wait until the Court issues a decision. Currently, gay marriage is on hold.

UPDATE: The court has decided to take up both the DOMA issues and the Prop 8 case.

For a preview of the Washington State Supreme Court docket check out LawNerd's previous column.