The Supreme Court got a few big things right in its current term, but also added further confusion in a couple of places. Here are some thoughts on a few of the most prominent cases.
With the decision in Koontz v. St. Johns River Water Management, the Court again validated the constitutional takings clause in reversing the Florida Supreme Court ruling in a wetlands case that extended two previous rulings that prevent government from using development permit denial as a way to extort property without actually condemning it. A big victory for private property rights. Hopefully, the Court will soon revisit and reverse its abuse of eminent domain in its terrible Kelo v. City of New London decision of a few years ago.
In Shelby County v. Holder, the Court struck down the section of the Voting Rights Act of 1965 that prescribes the coverage formula for federal preclearance of states that want to change their voting laws. This is big and long overdue. Anyone who looks objectively at the voting records of states operating under the scrutiny of this law today compared to the situation in 1965 must conclude that this is a federal civil rights initiative that actually worked. Now let’s move on.
A 7-1 majority in Fisher v. The University of Texas at Austin rejected a lower court decision upholding how the University considers race in admissions on grounds that it didn’t meet the “strict scrutiny” test for using race. Unfortunately, the decision left standing the 2003 decision in Grutter v. Bollinger that allowed the continuing use of race in admissions in pursuit of a compelling state interest in “diversity”. I share the disappointment of many who wish that Clarence Thomas, who concurred with the majority, could have written its opinion. In his concurrence, he forcefully said that he would have preferred to overturn Grutter and the entire convoluted mess created by the Court’s tolerance of racial preferences beginning with the 1978 Bakke decision as a violation of the equal protection clause of the 14th Amendment. They will get another shot at it when the Court hears a case on the constitutionality of the ban on racial preferences passed by Michigan voters in 2006. Here’s hoping that, at long last, they will finally “end it, not mend it”.
The biggest muddle of the term involved the decisions on same sex marriage. In two 5-4 decisions, the Court overturned the Defense of Marriage Act (DOMA), defining marriage as between a man and a woman, and left California’s lower court decision intact in support of the repeal of its Proposition 8, which featured the same marriage definition, the latter case decided not on substantive grounds, but rather for lack of standing to sue on the part of the plaintiffs, a group of private citizens who supported Prop 8. So same sex marriage is legal in California and, with the decision on DOMA, the battle will now be fought out in the states, except that the equal protection language used by Anthony Kennedy in the DOMA opinion threatens to subvert that process. So this leaves a mess, and I think possibly the most damaging aspect of these rulings is the lack of standing ruling in the Prop 8 case, which could have the effect of undermining initiative and referendum and other forms of direct democracy across the country. The cleanup work here will take years.
This was a consequential term of the Court, and these cases in some ways illustrate the difference in the liberal and conservative philosophy of judicial review. The conservative tendency more often is to be in restraint of sweeping and disruptive changes and to focus on tightly worded adjustments and fine tuning to current law that often fail in overall satisfaction of resolution and sometimes add to the confusion. So, for example, the conservative majority gave Congress two chances over a seven-year period to fix the Voting Rights Act before striking the section on the coverage formula and then left it to Congress to revisit those provisions for repair. Likewise, it once again tinkered with race-based affirmative action in a further attempt to respect precedent and legislative prerogative, as opposed to abruptly ending a policy with which it basically disagrees. The DOMA decision could be considered sweeping, but the majority here, except for Kennedy, seemed to be searching for a legislative and political way out in dumping the issue back on the states. On the other hand, the liberal tendency has been to sweeping and disruptive change over the years, particularly with the cultural issues, in the mold of Griswold v. Connecticut, Roe v. Wade, Lawrence v. Texas, Brown v. Topeka, etc., in a manner that foreclosed democratic processes and exacerbated cultural conflict. And is there any doubt that, if there was a liberal majority on this court, it wouldn’t have hesitated for an instant to strike down in one fell swoop the 35 state laws banning same sex marriage? It often frustrates me that a conservative majority won’t be more sweeping in its opinions, particularly in reversals of badly misguided precedents, but my better judgment says that some restraint and deference to the political process is the better route.
More to the point in a currently unfolding issue in the special legislative session in Texas considering the imposition of limits to abortion, a Houston Chronicle editorial said this: “………..the abortion issue doesn’t belong in the political sphere. As Texas Monthly’s Paul Burka noted last week, ‘it’s a fight that cannot be resolved. There is no middle ground. When there is no middle ground, politics cannot work'”. Burka and the Chronicle are wrong. That’s exactly where it does belong. The fact that it was removed from the political process by the Roe v. Wade decision in 1973 is why it has so corrupted our politics since then. Politics is the only resolution of moral issues. We should have learned this from our Civil War.