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 14^th 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 9^th 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 14^th Amendment. The Court must also decide whether the plantiffs (seeking to overturn the 9^th Circuit decision) have Constitutional Article 3 ‘standing’ to bring their appeal (if they've suffered ‘injury’ by the 9^th 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 5^th 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.

The Democratic Party's Constitutional Ambivalence

The Constitution is the guide which I never will abandon. July 28, 1795.

From the standpoint of his above quote, George Washington would not be happy with today’s Democratic Party. It’s hardly difficult to understand why. Following his revolutionary victory, in order to establish an American government checked by balanced of power, Washington turned down the opportunity for absolute personal power. Washington understood that in order for American democracy to survive the ages, the various mechanisms of our government would have to operate in respectful equilibrium. In response, the founding fathers gave us the Constitution. 

Unfortunately, today’s Democratic Party has become the standard bearer of Constitutional absurdity.

First, let's look at the Judicial component.

Taking Democrats at their word, you’d believe that their judicial philosophy has an overarching, unifying objective- the pursuit of core public interests and the protection of individual freedom. But this isn’t the case. Instead, for many Democrats, Constitutional interpretation has become a fundamentally subjective venture. Just check the record.

This Supreme Court session, considering two relevant cases, the Justices will decide on a major Democratic priority- 1) whether gay couples have a Constitutional right to marriage and/or 2) whether they have a right to the same benefits that are available to heterosexual couples. Generally, Democrats believe that the government has no right to grant or deny rights on the basis of moral judgments concerning intimate, adult relationships. Recognizing the Constitutional right to equal protection under law, I support this understanding (at least as it relates to the second case).  However, Democrats are far from consistent when offering their legal support for individual freedom. For one example, consider gun rights. As decided by the Supreme Court in Heller (2008) and McDonald (2010), the Second Amendment grants an incorporated right to all Americans, to possess handguns in their homes. Unfortunately, in their present pursuit of bans on all semi-automatic weapons (including handguns), imposing stringent magazine capacity limits (ten rounds or less) and requiring prospective handgun purchasers to submit fingerprints, many Democrats are actively challenging established Constitutional rights. While many conservatives (myself included) recognize that gun rights are not absolute, the boundaries of the law are clear: American citizens have the right to possess (at least some) semi-automatic weapons, without suffering excessive government obstruction.

It isn't just guns though. Consider the Democratic Party position on government power re- private conduct. When, in 2012, the Supreme Court upheld the Federal Government’s right to impose taxes on individuals who fail to buy health insurance, Democrats were overjoyed. Yet, as exemplified by their infinite outrage over the 2010 Citizens United ruling, Democrats also apparently believe that the government has the right to gag political speech. Under this  warped Constitutional theory, government can seemingly compel both consumer purchases and political silence. 

This is a legal framework without credibility.

 Ultimately, there is no Constitutional logic to a judicial interpretation which resides upon inconsistent, subjective whims of the moment. This is anathema to the Constitution’s existential purpose. The Constitution doesn’t exist as a kind of political ‘phone a friend’- a tool for difficult situations, but one to be ignored when so desired. It requires lasting respect.

Sadly, it’s not simply case law where Democrats are ridiculing the Constitution. 

Consider the on-going interactions between the Executive and Legislative branches of government. Before he entered the Oval Office, Senator Obama railed against President Bush for putting ‘more and more power in the executive branch’. However, since then, he's had a change of mind. Whether concerning Libya, executive privilege, energy policy, immigration, or now guns, on various critical issues, this President has no qualms ignoring congressional authority when he so desires. Not a great record for a former Constitutional law professor.

In the context of their previous complaints about Bush's executive, you might have expected at least a little hesitation from congressional Democrats over Obama’s executive reach. Conversely, congressional Democrats have become subservient allies to Obama’s expansive executive. A good example? The evolving battle over the March debt limit. Faced with congressional Republicans who understandably want entitlement reform in return for debt limit increases (without reform, we will continue our proud, national dive into the fiscal abyss), Democrats have offered a unique three-part alternative to honest negotiation.

 First, to demagogue against Republicans for not capitulating to the President’s demands. This first element is particularly bold, considering that former House Speaker Pelosi felt entitled to her own abysmal (really worth checking this link!) foreign policy during the Bush Presidency.

Second, change the rules.

Finally, if all else fails, ignore the Congress and its Constitutionally granted power of the purse.

Sidestepping Congress, what do Democrats suggest in return? Proposals, which are so utterly ludicrous, they appear to be the product of Monty Python movies. Suggestions of $1 trillion coins and intoxicated readings of the 14th Amendment are not acts of proud Democratic legislators; they are the product of a delusional deference to executive power. This is the obsessive pursuit of power as an end in itself.

Liberals like to claim that conservatives are to blame for our national political dysfunction and I’ll admit, we have to share some blame. However, in substituting cartoonish surrealism for the Constitution, Democrats are attacking the basic essence of American democracy.

Our country faces profound national challenges. It's understandable that difficult political dynamics will burden our efforts to find solutions. However, the Constitution should never be treated as a casual partisan tool. Over hundreds of years, our balanced system of government has guided us through the pain of civil and foreign wars, the misery of economic depression and the strife of great social upheaval. While Democrats played a crucial part in this national journey, the journey isn’t yet over. We still need the Constitution and it continues to deserve the Democratic Party's respect.