There is hardly a political question in the U.S., Alexis de Tocqueville said, that does not sooner or later turn into a judicial one. The Supreme Court‘s new term — which began last week — may show just how right de Tocqueville was. The court could issue landmark rulings on affirmative action, same-sex marriage — and, less politically, in an array of other cases, including one involving the Constitution and drug-sniffing dogs.
The Supreme Court has a solid 5-4 conservative majority these days. The conservative Justices could deliver big setbacks to affirmative action and gay rights. But as the court demonstrated in June, when it unexpectedly upheld the new federal health care law, these things are not easy to predict.
This term’s biggest case is likely to be a challenge by a white student to affirmative action in university admissions. The court will hear arguments in the case, Fisher v. University of Texas, on Wednesday. In a pair of 5-4 decisions — in 1978 and 2003 — the court upheld affirmative action against charges of reverse discrimination. But the court’s 2003 ruling was only possible because Sandra Day O’Connor, a moderate conservative, voted with the liberal bloc. Since then, Justice O’Connor has been replaced by Samuel Alito, who is not a fan of race-based admissions policies.
The new lineup means there is a very good chance the court will strike down the University of Texas’ use of race in admissions. As a formal matter, the ruling would likely be limited to public universities, but it could clear the way for lawsuits challenging race-based admissions in private schools and race-based hiring. Still, a major unwinding of affirmative action is hardly a sure thing: the court could look at what a major change this would be for the nation and pull back.
On same-sex marriage, the court could agree to hear a challenge to the Defense of Marriage Act (DOMA), the 1996 federal law that defines marriage as a union between a man and a woman. Same-sex couples argue that the law denies them equal protection, since it excludes them from rights other married couples enjoy, such as filing joint tax returns or — if one spouse is not a citizen — obtaining a green card.
In May, a federal appeals court in Boston declared DOMA unconstitutional, and opponents of same-sex marriage have asked the court to hear an appeal. Although the court has not yet decided to take the case, Justice Ruth Bader Ginsburg last month told a group of students she thought the court would consider same-sex marriage this term.
A second way same-sex marriage may reach the court is an appeal of a ruling striking down California’s Prop 8, which denied same-sex couples the right to marry. The U.S. Court of Appeals for the Ninth Circuit ruled in February that the ballot initiative unconstitutionally took away rights from a single class of disfavored citizens — gay people.
Many conservatives want the Supreme Court to hold back the gains same-sex marriage has been making, but despite the court’s 5-4 conservative tilt, it is not clear it will do so. Anthony Kennedy, who is generally the swing Justice, has supported gay rights in important cases in the past. If he again votes with the pro-gay-rights side, the court could deliver landmark rulings in support of gay marriage.
There are other significant cases on the docket, including a pair involving a staple of on-the-ground law enforcement: the drug-sniffing dog. The court has struggled for years to define when a search is reasonable under the Fourth Amendment — including when a dog does the searching. This term’s cases pose the question of when police need a search warrant to have a dog sniff the outside of a home and the inside of a truck.
Court watchers will be focused on one more thing: Chief Justice John Roberts. He was a reliable conservative vote, but last June he unexpectedly provided the fifth vote to uphold the health care law. The far right has demonized the Chief Justice as a traitor. The question now is, Will he continue his independent ways or was his defection a one-time aberration? NPR Supreme Court reporter Nina Totenberg, for one, says, “Don’t hold your breath waiting for John Roberts to vote with liberals in a closely contested case again.” So by next June, affirmative action may be headed on a path toward oblivion and the same-sex marriage movement may have a powerful endorsement from the Supreme Court.