by Adam Winkler, Professor of Law, UCLA School of Law
June is every Supreme Court watcher's favorite time of year. There are always several important, potentially landmark, rulings to be handed down. This year, there are four major cases sure to make headlines: Fisher v. University of Texas on the constitutionality of race-based admission preferences; Shelby County v. Holder on the continued viability of a key provision of the Voting Rights Act; U.S. v. Windsor on the Defense of Marriage Act; and Hollingsworth v. Perry on California's ban on same-sex marriage. While no one knows exactly how the Court will rule on these controversies -- and last term's Obamacare decision reminds us that surprises are always possible -- there seems to be a good chance they will follow a distinctive pattern.
The conservative justices will be bold and assertive, while the liberal justices will be hesitant and incremental.
Instead of constrained, the conservative justices appear ready to declare an end to a half-century of law providing benefits for racial minorities who've suffered a long history of discrimination. In the Voting Rights Act case, the five most conservative justices on the Court -- Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito -- signaled their willingness to strike down or effectively nullify one of the most important and effective civil rights laws ever enacted. While other parts of the Voting Rights Act will remain intact, voiding Section 5, which requires pre-clearance of changes to voting rules by jurisdictions with a documented history of racial discrimination in voting, will be a severe blow to civil rights. Section 5 is a valuable prophylactic rule that does far more to prevent discrimination than the VRA's other central provision, Section 2, which directly outlaws discriminatory voting practices. Section 2 is an ex-post remedy and requires the challenger to satisfy a difficult burden of proof to win. Section 5 stopped the discrimination before it could occur. While the conservative wing of the Court may stop short of invalidating Section 5 entirely, they might just declare unconstitutional the formula used to determine which jurisdictions are covered. That would seem to be a narrow, incremental ruling but it would have the same practical result as invalidating Section 5. Given the growingly fierce GOP opposition to Section 5 and the general inability of Congress to pass anything of significance, there's almost no chance Congress will adopt a new formula. Section 5 might remain "on the books" but it would be essentially a dead-letter.