Friday, June 14, 2013

The Supreme Court is about to make 3 important rulings

Next week, the US Supreme Court is expected to rule on three major cases.

The first, Fisher v University of Texas, regards the question of affirmative action. Specifically, the extent to which the University of Texas-Austin may lawfully consider an applicant’s race as part of their admissions process. The plaintiff is Abigail Fisher, a student who claims that her application to UT was unlawfully rejected due to that institution’s affirmative action policy. In legal terms, Fisher submits that UT is in breach of the Equal Protection Clause of the 14th Amendment for making a functionally prejudicial judgment on the color of her skin.

Fisher challenges the law in the context of two cases that were heard in 2003- Grutter v Bollinger and Gratz v Bollinger. In Grutter, the Court held that if racial considerations were judged as a ‘plus factor’ rather than as a ‘defining’ factor of a student’s application, and that assuming other factors (extracurricular activities etc.) were also granted substantial consideration, affirmative action policies could be legitimate. In contrast, with Gratz, the Court held that where racial background was empowered under an automatic point system; such consideration represented an excessively dominant and thus unlawful procedure. Ultimately, from Grutter and Gratz, the law established that affirmative action requires racial accounting to be ‘narrowly tailored’ to the ‘compelling state interest’ of advancing minority participation in higher education.

Why is Fischer important?

Well, if the Court decides that Fisher suffered unlawful discrimination, the consequential impact for US society could be considerable. Supporters of affirmative action claim that without a cognizant facility to address under-representation of minorities in higher education, American society will lack a broadly representative foundation. Without this foundation, they suggest, businesses and institutions cannot represent the communities that they serve. Conversely, Fisher’s supporters argue that affirmative action propagates the very concern that it aims to redress–racism. By asserting one race in preference to the other, they argue that affirmative action devalues the ethic of hard work as the primary mechanism of American social mobility.

What will the Court decide?

Recognizing that Grutter carried a close 5-4 margin and with the liberally aligned Elena Kagan sitting this one out, the Court seems likely to rule in Fisher’s favor. This being said, it’s important to note that although the Court’s conservative aligned Justices were passionate in their questioning, even if the Court does rule for Fisher, this doesn’t necessarily mean the Justices will overturn Grutter. We’ll just have to wait and see.

Next, let’s consider the other two cases where a decision beckons.

The first is Hollingsworth v Perry. Here, the Court must first decide if the 9th Federal Circuit Appeals Court was correct in ruling that California’s state-constitutional ban on gay marriage (as codified by Proposition 8) breaches the equal protection and due process clauses of the 14th Amendment. The Court must also decide whether the plantiffs (seeking to overturn the 9th Circuit decision) have Constitutional Article 3 ‘standing’ to bring their appeal (if they've suffered ‘injury’ by the 9th Circuit’s decision). As Lyle Denniston notes, the Court must also decide whether Proposition 8 is specifically unlawful in California, or whether bans on gay marriage are unlawful across the United States.
The second gay marriage case is that of United States v Windsor. Here, the case turns on whether the Defense of Marriage Act (DOMA) unlawfully restricts Windsor’s rights under the equal protection clause of the 5th amendment. On the death of her spouse (a marriage that was lawfully recognized in New York) Windsor was forced to pay Federal inheritance taxes that would not have been due had she been in a heterosexual marriage. Though the Court will also decide on Article 3 considerations in a similar vein to Hollingsworth v Perry, there are two key questions at stake with Windsor. First, the determination as to whether homosexual marriages are unlawfully prejudiced by DOMA’s sex based denial of an array of Federal benefits. Second, whether the Federal Government can challenge Windsor, even if (as is the case here) the Justice Department had previously sided with her.

It’s important to note that through Windsor, we’re witnessing another example of the discord between the Obama Administration and House Republicans (who provide the central element of the Government’s DOMA defense). Regardless of ruling, uproar will follow.

Taken together, these three cases offer major legal clarification on issues of profound public interest. Whatever the Supreme Court decides next week, their rulings are likely to induce noticeable social effects. Albeit adorned by cloaks of formality, the raw power of the American Judiciary remains undeniable. If interested, check out my opinion on free speech.

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