Conservative boldness, liberal hesitancy?

June 13, 2013
Guest Post

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.

Roberts, Scalia, Thomas, Alito and Kennedy also seem certain to vote to strike down UT's affirmative action policy. While the Supreme Court has curtailed many an affirmative action policy in the past, the Court has always said that some race-based affirmative action policies are constitutionally permissible. Perhaps the Court will do the same in the UT case. But with the ruling still not issued, even though the case was argued in October, some experts are speculating that perhaps the back-and-forth over the opinions is the result of the Court going much farther in the direction of colorblindness than ever before. At least four of the justices look ready to accept Roberts' notion that the "way to stop discrimination on the basis of race is to stop discriminating on the basis of race."  The question is whether Kennedy is ready to join them.

Kennedy has not voted to uphold a single race-based affirmative action policy since he joined the high court. In the past, however, he has occasionally written separately to state that some use of race is still permissible. That's what happened the last tiem the Court ruled on an affirmative action-like policy, Parents Involved for Community Schools v. Seattle. Yet if Kennedy was going to do the same, it's hard to imagine why the opinions are taking so long. All the justices have written on this issue save for Sotomayor (Kagan recused in this case). A series of cut-and-paste opinions shouldn't take eight months to write. Hence the speculation that the Court is now ready to declare an end to race-based government policies.

While the conservatives seem prepared to throw out decades of case law and write into the Constitution their own personal views on race and equal protection, the liberals in the two big gay rights cases were anything but bold in the views they expressed in oral argument. In both cases, Justices Ginsburg, Breyer, Sotomayor, and Kagan focused very little on gay rights and largely on procedural issues that might give the Court a way to decide these cases without establishing any forceful new equal protection doctrine. Rather than declare LGBT classifications suspect or mandating equal marriage rights nationwide, those justices were searching to rehabilitate the "passive virtues." If that signaling proves accurate, the justices will side with the gay rights proponents but leave them much more to fight for in the future.

That the liberals would channel Alexander Bickel instead of Earl Warren was given additional support by recent remarks at the University of Chicago by Ginsburg. She once again repeated her view that the problem with Roe v. Wade was that the Court issued too broad a decision and sparked a backlash. The Roe Court went "too far, too fast," and should have left "for the future the question" of how extensive the right to choose was. While a number of scholars have challenged Ginsburg's history--and there are valid questions about the abortion/gay rights analogy given demographic and legal trends--it nevertheless reflected modern judicial liberals' reluctance to rely on the Court for broad rulings establishing new rights. And the timing of Ginsburg's remarks seemed a clear sign that people shouldn't expect too much from this term's gay rights cases.

None of this is to say that the Court won't make some progress on the gay rights front. Even if the Court uses procedural grounds to send back the California marriage case, gays and lesbians will probably soon have the right to marry there -- either because the trial court decision invalidating Proposition 8 will be left standing or because California Governor Jerry Brown will end enforcement of the ban. That will buoy gay rights proponents but won't mandate marriage in any other state.  In the DOMA case, oral argument suggested that at least five justices, including Kennedy, are prepared to strike that federal law down. But unlike the Voting Rights Act, which is half-a-century old and made a huge difference in American politics, the DOMA was a first-of-its kind federal intrusion into how to define marriage, which is traditionally a state function. Even if the law is struck down, no state with a ban on gay marriage will have to change its law.

If the Court does strike DOMA and allow gay marriage in California, it will be an important victory for gay rights and certainly will lead some to accuse the liberal justices of judicial activism. Yet the differences between the liberal justices of today and those of the Warren Court era are striking. These would be incremental steps, in contrast to the Warren Court rulings ending interracial marriage bans nationwide, requiring every state to adhere to the novel principle of one-person, one-vote, or mandating public school integration and effectively ending Jim Crow.

Today the bold and assertive justices willing to overturn decades of legislation and judicial rulings are more likely to inhabit the right wing of the Court.  If this term's cases come out the way they appear to be headed, perhaps they may finally put an end to the oft-repeated claim that liberals are the activists and conservatives are committed to judicial restraint. If so, then that will be one more small victory for truth and justice.