New York, Oct. 17, 2012
—The U.S. Supreme Court will decide blockbuster cases this term, including on affirmative action, said Columbia Law School Professor Theodore M. Shaw
’79, a former president of the NAACP Legal Defense Fund who has argued affirmative action cases several times during his accomplished career.
Shaw and three other professors shared their thoughts on the high court’s docket during the Law School’s 17th annual Supreme Court Roundup, hosted by the Social Justice Initiatives Program on Oct. 10.
“If last year was all about health care, then this year is about race and human rights,” said Steven Shapiro
, adjunct professor and legal director of the American Civil Liberties Union, who moderated the session.
On the same day as the Law School’s roundup, the Supreme Court heard oral arguments in one of the most closely watched cases of the term—Fisher v. University of Texas, a challenge to an affirmative action admissions policy.
“This is a ‘don’t ask, don’t tell’ race plan,” said Shaw, who was lead counsel in 2003 for black and Latino students who intervened to defend a University of Michigan affirmative action policy in Gratz v. Bollinger. “The key vote here is Justice [Anthony] Kennedy. He has never voted to uphold anything race conscious that’s come before him,” said Shaw of the jurist who is often the swing vote on the court.
In the Fisher case, a white student who applied to the University of Texas, Abigail Fisher, claims she was harmed by a two-tier approach to admissions that automatically offers seats to Texas high school graduates in the top 10 percent of their class and fills a smaller number of slots by using several measurements, including race. Arguing she was unfairly rejected, Fisher’s lawsuit calls into question the high court’s 2003 decision in Grutter v. Bollinger. There, a 5-4 majority upheld a University of Michigan Law School diversity program, finding it served a compelling state interest and was holistic and narrowly tailored.
What’s changed since that decision, said Shaw, is the composition of the court, including the 2006 retirement of Justice Sandra Day O’Connor, who wrote Grutter. “Most expectations are that Grutter will not survive this intact,” Shaw said.
Another hot-button issue, gay marriage, also is on a trajectory to the Supreme Court with cert petitions pending on cases from both coasts.
“I won’t bet as much on the outcome as on the fact that the court will take at least one of the cases,” said Professor Suzanne B.Goldberg
, co-director of the Center for Gender and Sexuality Law. While she was a senior attorney with Lambda Legal, Goldberg was co-counsel on two cases that eventually became cornerstone gay rights victories–Lawrence v. Texas
, which invalidated Texas’ sodomy law; and Romer v. Evans
, which struck down an anti-gay Colorado constitutional amendment.
One set of gay marriage cases the court could accept for review challenges the 1996 Defense of Marriage Act (DOMA), which, in Section 3, denies federal benefits to same-sex couples. Four lower courts have recently found that section unconstitutional.
A different case, Hollingsworth v. Perry, seeks Supreme Court review of the constitutionality of California’s Prop 8. In February 2012, the Ninth Circuit ruled that the ballot measure limiting marriage to heterosexual couples is unconstitutional.
In Perry, “the issue is whether the equal protection clause and the due process clause of the United States Constitution require states to recognize the marriage of same-sex couples,” Goldberg said.
Shapiro predicted the court will take the DOMA case and pass on Prop. 8.
Panelists also discussed provocative decisions from last year.
Constitutional law Professor Jamal Greene
said Chief Justice John G. Roberts Jr.’s ruling on Medicaid funding in the health care decision is “the sleeping dog.” While otherwise upholding the Affordable Care Act
, the opinion said states could not be coerced into participation under threat of losing all Medicaid funding.
“It opens an incredibly large door,” said Greene, adding that many federal programs use funding sanctions. “This is serious. This going to generate a tremendous amount of litigation.”
Greene, a former clerk for retired Justice John Paul Stevens, said the justices don’t spend a lot of time scouring public opinion polls.
“But they are members of society,” he added. And the cases coming before them this term, said Goldberg, ask a central social question: “In what direction is this country going?”
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