As Supreme Court reconvenes, civil rights issues in the fore
(CBS News) Three months after ruling on President Obama's landmark health care law last June, the Supreme Court officially reconvenes on Monday for the 2012 session, facing a long list of high-profile cases grounded in controversial, emotionally-charged questions about discrimination and civil rights.
Despite the controversy the court invited last summer, when it upheld the Affordable Care Act in what was reported to be a rancorous, bitterly-fought decision, this year's lineup is likely to be equally contentious. Though the docket is not yet finalized, many expect the court to take up a series of cases touching on race, voting laws, and gay rights.
The first hot-button issue on the schedule is slated for October 10, when the court will take up Fisher v. University of Texas at Austin, a case that calls on the justices to interpret the Equal Protection Clause of the Fourteenth Amendment - and will determine whether or not race may be used in deciding undergraduate admissions. It's a case that takes on longstanding questions about the legality of affirmative action in American universities, and could result in profound changes in how colleges cull their student bodies.
"The Supreme Court has always been deeply divided about affirmative action and the use of race in achieving diversity in education," said Stephen Wermiel, a Fellow in Law at American University Washington College of Law, who authors a biweekly column on SCOTUSblog.com. "When the court speaks on this subject is has enormous immediate practical effect - it's sort of like watching a weathervane... The Texas case revisits the case of how you can use race in trying to achieve diversity in higher education, and what the court says about that may have significance for other institutions all over the country."
According to Wermiel, it's not unlikely that the court will object to at least some part of the Texas provision - in part because Justice Elena Kagan, one of the court's liberal judges, has recused herself from the case. But the key, he says, is whether the court interprets the decision broadly or narrowly: "There's a good possibility that the court will say that when a university already has a plan in place to achieve some diversity, which is what Texas has, that when they then want to use a second plan that takes race into account, that has to be really justified by the strongest possible reasons and used in the narrowest possible way -- and that that's not happening here."
If the court were to object narrowly to Texas's plan, a smaller group of schools would be directly affected by the ruling. Whereas if the court ruled more broadly against the Texas system, saying schools can't use race in achieving educational diversity, then "every institution of higher education, practically, would have to reconsider the way they do their admissions."
"The stakes are significant," Wermiel said.
Aside from the affirmative action case, some of the most controversial topics expected to come up for review this season have yet to be tapped for the docket - including several cases addressing the legality of same-sex marriage.
Wermiel says that the court has little choice but to take up a case about the Defense of Marriage Act, which defines marriage as between one man and one woman, given the fact that it is "being declared unconstitutional with some regularity" in states across the country, and that it impacts whether or not same-sex marriage couples are entitled to a host of benefits and federal programs.
There are a number of DOMA-related cases working their way through the courts - but that which is farthest along in the process would demand Kagan to recuse herself, due to her involvement in the process of filing the brief to the appeals court, which could have pivotal consequences for the outcome of the ruling.
Susan Low Bloch, a law professor at Georgetown University who has written extensively about the Supreme Court, doesn't anticipate that outcome. In her estimation, the court will likely hear multiple cases or hear one of those from which Kagan would not have to recuse herself.
"The justices are all focused on the long-range interest of the institution," she said, not the politics of keeping Kagan off a case. Moerover, she says, " the danger if it's only an eight-person court is that, if they split four-four, the whole thing will have been a waste of time."
Another prominent same-sex marriage case, Perry v. Brown, has been primed for a Supreme Court showdown nearly since the get-go: The plaintiffs are represented by the high-profile team of Ted Olson and David Boies, who come from opposite sides of the political spectrum and faced off against each other in Bush v. Gore in 2000. But again, that case has yet to be scheduled for the high court.
Unlike the DOMA suits, Perry v. Brown addresses whether or not the voters of a state can take away a right - in this case, same-sex marriage - once the state Constitution has been interpreted to provide for it.
Amid a handful of lawsuits nationwide addressing issues surrounding the legality of laws requiring voters to carry a certain form of photo identification, the Supreme Court is expected to take on another controversial law relating to voting rights: Section 5 in the Voting Rights Act of 1965. That provision says that states with particularly egregious records of trying to deny the vote to people on the basis of race could not make any changes in their voting systems without getting prior approval either by the Department of Justice or a special three-judge federal court. But the rules for the 16 states in question, many of which are southern, were determined based on their records during the civil rights era and before.
"The argument is that it's become outmoded" and that it's "not fair to single out" this particular handful of states at this point in time, said Wermiel. "The law has largely been upheld in the lower federal courts, but the betting is that the Supreme Court will take up the case to decide whether it's time to scrap it."
Bloch argues that striking down the provisions in the Voting Rights Act could have a profound impact on voting rights today -- both in the jurisdictions outlined and in general.
"Depending on how states react, we could revert back to some ugly situations," she said. "I think it's making a big statement to do it. I think it potentially has large significance for voters today."
Bloch was skeptical, however, that the contention over last term's health care ruling would impact the court's actions this term.
"There are nine grown-ups who know they have to keep working together," she said. "In some sense, they're all married to each other without the possibility of divorce. They know that. They also have this ability of keeping separate their decisions and their personal interactions and it's a remarkable ability that they all have it. They can write very strong opinions that differ dramatically and then go to the opera together."
