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Your cheat sheet to the end of a historic Supreme Court Term, in Plain English

The Supreme Court’s Term recently ended with major rulings on affirmative action, voting rights, and gay rights. Those cases received lots of media coverage. But beyond the splashy headlines, there are some important things the average observer doesn’t know about these landmark decisions.

Affirmative action

The affirmative action ruling addressed whether and when the Constitution permits public universities to use race as a factor in making admissions. Some more quick legal background: the Constitution’s Fourteenth Amendment says that the states (including state universities) must provide individuals equal protection of the laws; the same standards governing affirmative action probably apply to private, non-governmental universities too because of federal civil rights laws.

Most people expected the case – which involved the University of Texas – to strictly limit affirmative action in a five-to-four ruling with the conservatives outvoting the more liberal Justices. That made sense, because in the ten years since the Court last ruled that universities could account for race in admissions, it has moved significantly to the right. Justice Sandra Day O’Connor, who had been regarded as the “swing vote” on the Court, retired and was replaced by the more conservative Samuel Alito. On other ideological questions, the new conservative majority has been pretty aggressive about limiting or overruling important precedent with which it disagreed.

But to all our surprise, that did not happen. Instead, over only a single dissent, the Court sent the case back down to a lower court for further consideration. In the Court’s opinion, it made clear that public universities which want to consider race can only do so if they can show that their student bodies won’t be sufficiently diverse any other way. But the Court made little new law. It looks like the Court’s current ideological center – Justice Anthony Kennedy – ultimately wanted to write a ruling that could attract support from both of the Court’s wings. In the end, a major case turned out to be something of a dud.

The Voting Rights Act

But affirmative action is such a contentious issue that it is sure to be back at the Court. Something very similar happened when the Justices tackled the “preclearance” provisions of the Voting Rights Act. More background: the Voting Rights Act is the federal law that protects minority voting rights; the “preclearance” provisions say that states and local governments with a history of discrimination in voting must get permission from a federal court or the Department of Justice before changing any of their voting rules. Congress has reauthorized that list of “covered” jurisdictions by broad majorities, but it hasn’t removed any in several decades, leading to complaints that the list is outdated.

A few years ago, in an earlier challenge to the Voting Rights Act, the Court issued a decision with a broad majority of conservatives and liberals in which it refused to strike down the preclearance provisions. At the same time, however, the Court clearly warned Congress that the law had significant constitutional problems. In other words, like in this Term’s affirmative action case, the Justices crossed ideological lines to defer a major ruling.

But despite the Court’s warning four years ago, Congress did not update the Voting Rights Act. This Term, faced with a new challenge, the conservative majority decided to act. In a five-to-four ruling, the Court invalidated the formula used to determine which states and local governments had to comply with the preclearance requirement. It said that Congress could enact a new and narrower list. But that seems unlikely, because conservative House Republicans in particular would essentially have to agree to designate some of their home states as having recently discriminated against minorities in voting.

The practical upshot of these two race-related decisions is a little unclear. The affirmative action ruling will cause some courts to take a tougher look at public universities’ use of racial preferences in admissions. But those programs will not be thrown out or dramatically narrowed. Instead, the Court has probably set the stage for a more frontal assault on affirmative action in roughly three to five years. (In a later post, I’ll discuss what the Court’s composition might be like then.)

The Voting Rights Act ruling has real bite immediately. Right away, states that were seeking federal preclearance for changes in their voting systems – such as implementing voter ID laws – naturally withdrew those requests. The federal government probably will respond with new lawsuits arguing that these new voting rules are either unconstitutional or illegal under a different provision of the Voting Rights Act. But no matter what, a number of laws with the potential to reduce participation by minority voters may go into effect.

Same-sex marriage

The Court issued its very conservative voting rights ruling just a day before its very liberal decision striking down part of the federal Defense of Marriage Act, which prohibited the federal government from recognizing same-sex marriages. Here is the background: state law defines marriage (for example, whether to recognize common law or same-sex marriage), but many federal benefits (for example, better estate tax treatment and Social Security survivorship benefits) depend on whether a person was validly married. The widow of a lesbian partner challenged the Act, arguing that it violated the right of equal protection.

The Supreme Court agreed, again divided five to four. But this time, “swing vote” Anthony Kennedy joined with the four more liberal Justices. The ruling did not recognize a constitutional right for same-sex couples to marry. (And the Justices also refused to decide that question in the challenge to California’s Proposition 8.) Instead, the Court ruled that if states decide to give same-sex marriage licenses, the federal government cannot recognize heterosexual marriages but refuse to recognize same-sex unions.

As a legal matter, the decision leaves it to the states to decide whether to allow same-sex couples to marry. But as a moral matter, the case has broader consequences. The decision sends the message that the Court believes that same-sex unions deserve equal respect. With more and more states headed in that direction already, the dam may now have truly broken for undecided legislators and voters.

So what explains how we can get a very conservative ruling one day and a very liberal one the next? It really is all about Justice Kennedy, who is the only Justice in the majority in both cases. He is a strong believer in individuality – i.e., that the government should not define people as members of groups. That makes him suspicious of the Voting Rights Act, which draws many racial lines. But the same theory leads him to question statutes like the Defense of Marriage Act that discriminate on the basis of sexual orientation. Justice Kennedy is also a strong states’ rights supporter, leading him to conclude that states have the right both to design their voting rights and to truly define marriage.

Similar issues are sure to come up in cases that the Justices have agreed to hear next Term, including another major case related to affirmative action. I look forward to writing about those and other issues in upcoming posts.

Recommended Citation: Tom Goldstein, Your cheat sheet to the end of a historic Supreme Court Term, in Plain English, SCOTUSblog (Jul. 9, 2013, 5:19 PM),