Saturday, June 29, 2013 3:15 pm
Momentous Supreme Court term ends with flourish
By MARK SHERMANAssociated Press
The justices struck down parts of two federal laws - the Voting Rights Act and the Defense of Marriage Act - that were passed with huge bipartisan majorities of Congress.
Yet only one justice at the center of this conservative-leaning court, Anthony Kennedy, was on the winning side both times. Kennedy joined the four more conservative justices on voting rights and he was with his liberal colleagues in the gay marriage case.
Just in that 24-hour span, the rulings demonstrated two truths about the court under the leadership of Chief Justice John Roberts.
The 58-year-old lawyer who cut his teeth in the Reagan administration put to rest any questions he may have raised about his conservative credentials a year earlier when he cast the deciding vote to uphold President Barack Obama's health care overhaul.
Roberts has shown himself to be a skillful judge who can get even ideologically differing colleagues to agree on narrow rulings that help form the basis for more definitive later judgments, as happened in the voting rights case.
The chief justice sees a benefit to the court as an institution and to his longer-term goal of saying, "We could go farther here, but let's wait and see," said Kermit Roosevelt, a University of Pennsylvania law professor and former high court law clerk.
But Roberts can move the court no further to the right than Kennedy is willing to go.
Divisive civil rights cases dominated the high court's work in the past nine months, including a challenge to affirmative action in higher education that ended in a compromise ruling.
The second gay marriage case, involving California's constitutional ban on same-sex marriage, also produced something of a compromise. It ended in a technical, legal ruling that clears the way for same-sex unions in California, but said nothing about a constitutional right to marriage.
The justices also delivered important victories for business in cases that limited class-action claims and lawsuits over international human rights abuses, allowed authorities to collect DNA from people they arrest, ruled that human genes cannot be patented and called into question agreements between pharmaceutical companies that delay the entry of cheaper generic drugs on the market.
The timing of the voting rights and gay marriage decisions was not planned, but was perhaps inevitable, because the court's toughest cases typically are the last ones resolved before the justices take a long summer break.
Last Tuesday, Justice Ruth Bader Ginsburg wondered what had happened to the court's "usual restraint" in the voting rights case. On Wednesday, Justice Antonin Scalia said society's debate about marriage should "be settled democratically rather than by judicial command."
Paul Clement, a former Bush administration official who argued that the federal marriage law should be upheld, said what links those two cases, apart from Kennedy's vote, is the idea that Congress did not give sufficient respect to states.
It subjected some states to strict federal oversight of elections based on old data rather than current conditions, Roberts said in the voting rights case. Congress made second-class citizens of same-sex couples in denying them federal benefits even after states extended them the right to marry, Kennedy said in the gay marriage case.
"It's certainly the thread that united the votes of Justice Kennedy in the DOMA case and the voting rights case," Clement said.
Roberts first expressed reservations about the voting rights law when he was a young lawyer in the Reagan White House. A debate was then taking place in Congress about extending the law's key requirement that states with a history of racial discrimination in voting get Washington's approval before changing the way they hold elections. This "preclearance" provision, often called a crown jewel of civil rights law, was enormously effective in heading off the creative ways some states devised to keep minorities from voting.
When the justices looked at the voting rights law four years ago in a case from Texas, Roberts wrote a consensus opinion that pointedly criticized the law as being focused on past problems, but he sidestepped the larger question that the court now has emphatically answered.
The affirmative action decision ordered lower courts to cast a more skeptical eye on college admissions programs, but did not throw out the University of Texas program that was being challenged. Nor did it make a major pronouncement about affirmative action.
But it may have set the stage for a more consequential ruling in future years, in much the way that the court's voting rights decision flows from its 2009 case.
In the affirmative action case, seven justices formed the majority, including the unlikely pair of justices who have benefited from affirmative action, Sonia Sotomayor and Clarence Thomas. Sotomayor has spoken positively of affirmative action, while Thomas has been an unyielding critic who has voted to ban all racial preferences.
Their agreement in the Texas case should not mask a deep division on the court about the validity of race-conscious admissions programs.
The court's business cases predictably took a back seat to the run of high-profile civil rights cases. But the business cases show a court that has steadily made it harder for plaintiffs to band together in class actions that can be more efficient and lucrative for plaintiffs, but much more expensive for companies that most often are the defendants in such claims.
Doug Kendall of the liberal Constitutional Accountability Center said the court's conservatives "were completely united in the push to protect corporations from being held accountable in federal court."
Theodore Boutrous Jr., a Los Angeles-based lawyer who often represents business interests at the Supreme Court, pointed out that some of the business cases were unanimous outcomes, not ideological.
"The court again showed deep skepticism toward efforts to stretch statutes and rules to expand class actions and liability based on new and creative theories," he said.
The court showed both more unanimity, in nearly half its cases, and more 5-4 splits, nearly 30 percent of the time, than the average in recent years, according to scotusblog.com.
Those splits often were based on ideology, but not always. Notably, in three cases Scalia aligned himself with Justice Elena Kagan, Ginsburg and Sotomayor. In those instances, including the DNA evidence case, liberal Justice Stephen Breyer was the fifth vote for the majority.
When looking at the four newest justices - two conservative Republicans and two liberal Democrats - the division is stark. In 5-4 cases, even when the court is not strictly split along ideological lines, Roberts and Justice Samuel Alito almost always disagreed with Sotomayor and Kagan.
Supreme Court: http://www.supremecourt.gov