Eyeballing Equality
California Lawyer

Eyeballing Equality

September 2013

Although many commentators predicted that the 2012-13 term of the U.S. Supreme Court would be a blockbuster, now that we have the opinions in hand, it doesn't look that way to me.

Wait a minute, you say. Didn't the Court endorse same-sex marriage (United States v. Windsor, 133 S.Ct. 2675 (2013))? Limit the use of race to achieve diversity in admissions (Fisher v. Univ. of Texas at Austin, 133 S.Ct. 2411 (2013))? Overturn the preclearance portion of the Voting Rights Act, decimating its effectiveness (Shelby County v. Holder, 133 S.Ct. 2612 (2013))? Continue to favor corporations (Mutual Pharm. Co., Inc. v. Bartlett, 133 S.Ct. 2466 (2013) (holding that makers of generic drugs could not be sued for defects in product design))? And isn't the Court now so profoundly divided that civility has succumbed to the delivery of apocalyptic dissents and the eye-rolling of Justice Samuel Alito?

No, no, no; not really; and don't be silly.

Now I am not understating the significance of United States v. Windsor. The Court held that it was constitutional error for Congress to enact section 3 of the Defense of Marriage Act (DOMA) (1 U.S.C. § 7) depriving the states and the people of authority to define when "two become one." Yet understanding how the equal protection clause protects all of us against the arbitrary denial of a government benefit merely follows the Court's precedent in Romer v. Evans (517 U.S. 620 (1996)). The opinion in Windsor breaks no new ground, and appropriately restated the principles announced in Romer; indeed, Justice Anthony Kennedy authored the majority opinion in both cases. The Court did not establish same-sex marriage in Windsor or a constitutional right to same, for to do so would assert knowledge the justices do not possess and displace the democratic means historically exercised by every state over matters of marriage and family law.

The decision overturning the Ninth Circuit in the Proposition 8 case (Hollingsworth v. Perry, 133 S.Ct. 2652 (2013)) was a similarly narrow, yet powerful, restatement of the Court's adherence to justiciability principles, especially the requirement of tangible, personalized standing. After the trial court (per District Judge Vaughn R. Walker) had enjoined Prop. 8, which limited marriage to a man and a woman, the governor and attorney general of California declined to appeal. Although California law allows the proponents of a ballot initiative to step up when officials decline the law's defense (see Perry v. Brown, 52 Cal. 4th 1116 (2011)), Chief Justice John Roberts, writing for a majority that spanned the Court's full ideological spectrum (including Justices Elena Kagan, Stephen Breyer, Ruth Bader Ginsburg, and Antonin Scalia) resolved that the California practice failed to satisfy the personal stake and adversity demanded by Article III.

Many substantive temptations were laid before the justices in the Perry case. The opposing briefs debated the procreative purposes of marriage and other claims for the institution that are of unquestioned importance to the larger culture and the proper manifestation of human love. These questions have many implications, and many are in turn deeply rooted in differing faith traditions. The Court astutely said next to nothing about how reconciliation might be achieved among such disparate views. That is not the Court's job, as umpire Roberts has repeatedly made plain. Indeed, as John G. Roberts Jr. sees it, the Chief's duty is to keep the Court from opining about difficult and controversial policy questions, and like Chief Justice William H. Rehnquist before him, Roberts deploys the separation of powers - and most notably standing - to stay inside the foul lines. Again, very little is new here, although the Court issued a polite reminder that however noble a principled declination to defend a law perceived to be hurtful to the body politic may be, such refusals by the California and federal executive "complicate" and strain the constitutional balance. The federal executive has the express responsibility to "take Care that the Laws be faithfully executed" (U.S. Const., Art. II, § 3, cl. 5), so indulging selective enforcement too readily will weaken respect for the law in general and obviously invite a greater likelihood of unequal treatment.

There is little question but that section 5 of the Voting Rights Act of 1965 (42 U.S.C. § 1973c) has been a powerful tool for addressing the exclusion of minority voters. Because it was enacted almost 50 years ago, the predominance of states and local jurisdictions obligated to preclear electoral changes were southern. The mere occasion for that review meant practices allowed elsewhere were routinely rejected by the Justice Department or a three-judge panel. A voter identification law, for example, took effect without preclearance review in Indiana (see Crawford v. Marion Cnty. Election Bd., 553 U.S. 181 (2008)), while a similar law is summarily turned away under section 5 in the covered jurisdictions of Texas and South Carolina (see State of Texas v. Holder, 888 F. Supp. 2d 113 (D.D.C. 2012)). Congress is being urged to revise the coverage formulas, but that won't be easy. No state wants its sovereign authority over the "time, place and manner of elections" diminished, and crucially some of the northern states have registration rates among minority voters that are significantly lower than the previously covered areas of the South that now are freed from specialized scrutiny.

Whatever one makes of the Shelby County decision, the fact is, this outcome was foreshadowed by the Court itself four years ago in a Texas case that challenged the validity of section 5's preclearance strictures. (See Northwest Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193, 203 (2009).)

If there was a nail biter it was Fisher, implicating the continued use of race in a university setting to achieve diversity. In the end, however, the outcome fit the ho-hum pattern for the Court's term. The University of Texas argued that it merited deference on its conscious use of race as one of many factors to fill out its entering class. The University of Michigan had been given this deference by Justice Sandra Day O'Connor's ruling in Grutter v. Bollinger (539 U.S. 306 (2003)), which kept the door open for race-based admissions designed to assure a critical mass of diverse students. Beyond the retirement of Justice O'Connor, nothing much has changed since 2003. Despite predictions that the Fisher case would indeed move the needle, the case was remanded to the Fifth Circuit with a reminder that all nonracial efforts to achieve diversity must be exhausted first, and even then, any reliance on race must be narrowly tailored. My first-year students could have told the Texans as much in about one-third the time.

It is claimed by my friend UC Irvine law school Dean Erwin Chemerinsky that the Roberts Court slants probusiness, and he cites a number of decisions that do in fact make it somewhat more difficult to sue corporations, especially the makers of generic drugs. But the U.S. Chamber of Commerce is hardly running the place. Upwards of 50 percent of what can be called business cases were unanimous, and even when the Court was closely divided, the usual conservatives weren't invariably writing for the majority. These cases are mostly statutory in nature and thus fully vulnerable to congressional reversal, as Justice Ginsburg invited by reading her dissents aloud. Hypersensitive Court watchers got all atwitter over Justice Alito's responding eye rolls, but any objective observer would find their criticism to be as hyperbolic as labeling the term a blockbuster.

A blockbuster term it was not, yet the fidelity of the Court to the rule of law was consistent and praiseworthy. The Roberts Court answered legal complaint by adhering closely to its judicial vocation. When other nations try to persuade an anxious world that the way to advance democracy is by military intervention, it is a notable and wise achievement for the high bench to reaffirm how law already decided invites "we, the people" to discern the full scope of human equality.

It is up to us - and not the justices - to determine whether the command for equality enshrined in our Constitution actually adds up to a living reality.

U.S. Ambassador (ret.) Douglas W. Kmiec holds the Caruso Family Chair in Constitutional Law & Human Rights at Pepperdine University.

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