Friday, June 28, 2013


SCOTUS has now spoken and done so inconsistently; undermining and upholding civil rights in the same week.  On one hand, the Roberts Court essentially neutered the Voting Rights Act that has provided protection for minorities from discrimination at the polls.  In the same vein, it insured an uncertain future for Affirmative Action; a program aimed a leveling the playing field for all Americans.  And then, the same Court struck down The Defense of Marriage Act (DOMA), a law that discriminated against married Gay and Lesbian citizens by denying them the same federal rights and benefits accorded to their heterosexual counterparts.  Then in ruling the plaintiffs had no standing, it effectively confirmed the Appeals Court overturning California's Proposition 8.  It was a week that provided opportunities to both cry and cheer.

In its decision on the Voting Rights Act, Chief Justice Roberts (joined in his opinion by four conservative colleagues) contended that times and conditions had changed.  And so they have.  An African American sits in the White House and more people of color hold public offices and vote than was the case when it was first enacted or renewed.  The bottom line is that Roberts and company doesn’t think southern states should be singled out any more, that voter suppression is a thing of the past.  I invite him to visit North Carolina where I live and where a newly empowered Republican super majority in the legislature and a newly elected governor are seeking to undue years of progress.  And yes, now that the Court has spoken, a voter ID law like the one to be implemented in Texas (another southern state) is at the top of their agenda.  Add this week's ruling to Citizens United and its fair to say the Roberts Court has had a profound impact on the electoral process, one that has especially impacted negatively on the disenfranchised, exactly those who need and deserve to be heard most.

In terms of our society, the DOMA decision may turn out to be the most important of the week.  In it the Court effectively put its stamp of authenticity on same-sex marriages, performed in twelve states.  By equalizing benefits it equalized the marriages.  But the decision is far more than symbolic.  It will have a meaningful economic impact on couples who will now be able to file joint tax returns, be treated equally on inheritance taxes (the issue that was brought to the Court) and benefit from a host of programs available to other married couples.  Working out the mechanics of implementation will be challenging and that in itself may be one of the ruling's dividends.  As the federal government reconfigures its eligibility lists and programs, it is likely to run up against conflicting state laws.  Litigation is bound to follow and may ultimately lead to the Court facing the inherent Constitutional question of equal rights.

And that of course brings me to the Court's punt; it's non-decision in the Proposition 8 case.  Many of us had hoped that this case, argued by a non-partisan dream team of advocates, might settle the matter of marriage equality.  If DOMA is unconstitutional, shouldn't state laws like North Carolina's marriage amendment, be as well?   But the Court wasn't ready and perhaps we should have known it.  Most significantly, it turns out, Ruth Bader Ginsburg wasn't ready.  The tipoff came just a month ago when the most senior liberal Justice spoke at Chicago University's Law School.  Ginsburg, who had been a strong and unwavering proponent and supporter of abortion rights, is having second thoughts about the marquee Roe decision.  She hasn't changed her pro-choice views but seems to think Roe was a tactical mistake.  With hindsight, the Justice suggests that the Court's legalizing abortion across the country in 1973 was premature and in fact stopped a legalization momentum that was building among the states.  In effect, cutting off the process before the country as a whole was ready, set off a backlash of ugly divisiveness that remains to this day.

Here is how Meredith Heagney reported her talk on the Law School's website:

"My criticism of Roe is that it seemed to have stopped the momentum on the side of change,” Ginsburg said. She would’ve preferred that abortion rights be secured more gradually, in a process that included state legislatures and the courts, she added. Ginsburg also was troubled that the focus on Roe was on a right to privacy, rather than women’s rights.

Roe isn’t really about the woman’s choice, is it?” Ginsburg said. “It’s about the doctor’s freedom to practice…it wasn’t woman-centered, it was physician-centered.”

Whether Ginsburg is right in her analysis can be debated.  The countless women whose lives were impacted, and in some cases saved, by Roe might rightly disagree.  But it seems clear that Ginsburg's reasoning — her tactical reasoning, I'd argue — drove her to supporting a punt on Prop 8.  By ruling the plaintiffs had no standing, the Court effectively sustained the ruling made at a local level.  California will soon become the 13th state to provide for marriage equality and as many as twelve other states are expected to follow in the coming months.

Marriage equality is in our future and we are fast moving toward it.  It's pretty well agreed that the Court, to bring along the inevitable holdouts, will ultimately have to take the decisive vote they avoided this week.  One would hope that would happen sooner rather than later.  But what I was thinking about this week was more than the issues at hand.  While there were some surprise alliances, especially on the California case, we see a Court that, like the Congress and the country, is deeply divided, ideologically and politically.  In past Courts who appointed a Justice didn't seem to matter as much as how that jurist developed once exposed to decision making.  Justices appointed by conservative presidents might emerge a moderate or even liberal and ones appointed by liberal chief executives might turn in another direction.  That time, it would seem, is gone.

What is the Roberts Court?  Well it is one whose majority was appointed by Republican presidents and who hold fast to a shared conservative ideology.  This Court tends to be pro-business rather than pro-labor, it seems to want to put an end to any special treatment for minorities, and it likes to cede more power to the states and less to Washington.   While the current majority likes to criticize previous Courts, especially the Warren Court, as being activist, this group is clearly more than holding its own in that regard.  As Adam Liptak reminds us in his Times analysis of the Roberts Court, the Chief is only 58 and could be in place for decades to come.  That's true — and disturbing if you believe in term limits, which I do — but the makeup of federal courts is in the hands of the president and senate.  A number of the justices are advanced in age and what happens in the next decade, will determine if the Roberts Court of today will be the Roberts Court of tomorrow.  A swing of just one vote can make the difference.

In that regard, from where I sit, nothing can be more important in the years ahead than insuring a Democrat succeeds President Obama.  But first things first, a president needs a like-minded senate majority to move forward and confirm his appointments. The redistricting of the past years has stacked the deck against Democrats in the House, a place where all politics is absolutely local.  But statewide elections are not as impacted by narrow and often oddly drawn lines.  When it comes to both 2014 and 2016 I'd suggest that two words be kept top of mind at all times are: Supreme Court.  Adam Liptak says Roberts takes a long calculating view and is deft at moving the Court to the right.  But ultimately numbers do count and who serves as  president will have more to say about numbers than the Chief.  Tomorrow's Roberts Court could look and act very differently than today's.

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