The Law

The Supreme Court's Next Big Showdown


"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" — Chief Justice John Roberts in a 2007 case

Photo illustration by 731; Photographs by Roger L. Wollenberg/via Bloomberg; C Squared Studios/Getty Images

"The way to stop discrimination on the basis of race is to stop discriminating on the basis of race" — Chief Justice John Roberts in a 2007 case

It’ll be tough to top the drama of the Supreme Court season that just ended. Or so it would seem. When the justices reconvene in October, they’re likely to consider some of the most contentious social issues dividing the country. And judging from snippets in past opinions, that could mean an upheaval in U.S. civil rights law.

The court has already announced that it will hear a challenge to affirmative action in higher education. In that case, a white student rejected by the University of Texas is arguing that the school doesn’t need to choose students based on racial preferences because it already achieves diversity by guaranteeing admission to state residents in the top 10 percent of their high school class.

Affirmative action was upheld nine years ago, but the composition of the court has changed since then. Five members are now openly skeptical of racial preferences. As Chief Justice John Roberts put it in a 2007 case involving integration at the K-12 level: “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The justices could also deal a blow to minorities if they take up a challenge to the 1965 Voting Rights Act brought by Shelby County, Ala. Officials there say a provision in that law requiring jurisdictions in 16 mostly southern states to get federal clearance before changing their voting rules—so as not to disenfranchise blacks and other minorities—unfairly targets jurisdictions for racial crimes of the past.

“I expect the Voting Rights Act to go down,’’ says Kermit Roosevelt, who clerked for former Supreme Court Justice David Souter and now teaches constitutional law at the University of Pennsylvania Law School. “The court has foreshadowed that result, and Roberts seems to want it.” In a 2009 challenge to the landmark law, the justices granted some local governments more leeway in changing their election procedures, and Roberts in particular hinted he’d be sympathetic to striking down the so-called preclearance provision, saying that it raises “serious constitutional questions.”

The court is likely to take up gay marriage. The consensus isn’t so clear on that issue, though the court will likely have its choice of cases to consider. Both the Obama administration and House Republicans have asked the justices to weigh in on lawsuits involving the Defense of Marriage Act, the 1996 federal law that defines marriage as being between a man and a woman. Alternatively, the court could choose to review a ruling that struck down California’s ban on same-sex marriage, known as Proposition 8.

Roberts is unlikely to have the same hesitation to “advance a conservative agenda” when it comes to race as he did in this year’s health-care case, says Roosevelt. But the chief justice will still need a fifth vote from a moderate. Look no further than Justice Anthony Kennedy, who in past rulings has championed gay rights yet voted to restrict affirmative action. As the traditional swing vote, he’s likely to keep the public in suspense.

The bottom line: Major issues such as affirmative action, gay marriage, and the Voting Rights Act could define the Supreme Court’s next term.

Stohr is a reporter for Bloomberg News in Washington.

Steve Ballmer, Power Forward
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