SCOTUS watching down the final stretch

Posted by AzBlueMeanie:

According to the stats kept by Scotusblog.com, the U.S. Supreme Court has heard 74 merit cases this term, and issued opinions in 39 of those cases.

This leaves 35 opinions to be announced over the next six weeks before the end of June. Mondays are orders and opinions days, with the exception of Tuesday, May 28, because of the Memorial Day holiday.

There are several cases I am following for decisions expected to be issued late in the term on June 17 or June 24, but one never knows.

There are two voting rights cases. The first is Arizona v. The Inter Tribal Council of Arizona, Inc., (12-71), which involves the question whether the National Voter Registration Act preempts Arizona's Prop. 200 (2004) that requires persons who are registering to vote to show proof of citizenship to register to vote. The federal law requires only an attestation of citizenship, subject to prosecution for false attestation. This is a federal preemption issue.

The "big one" that everyone is waiting for is Shelby County v. Holder, (12-96), which involves the question whether Congress’ decision in 2006 to reauthorize Section 5 of
the Voting Rights Act under the pre-existing coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority.

This is the "preclearance" provision of the Voting Rights Act with which covered states, such as Arizona, must comply because of past history of voter discrimination. Arizona has yet to qualify for the "bail out" provision of the Voting Rights Act because Arizona has not had a record of non-discrimination for more than 10 years.

If Section 5 is struck down, it will be a conservative activist court substituting its judgment for the judgment of Congress, which reauthorized the Voting Rights Act with overwhelming bipartisan support. That would set off a firestorm of protest, and justifiably so.

There is the affirmative action case of Fischer v. University of Texas at Austin, (11-345), which involves the question whether the Court’s decisions interpreting the Equal Protection
Clause of the Fourteenth Amendment, including Grutter
v. Bollinger
,
permit the University of Texas at Austin’s
use of race in undergraduate admissions decisions.

There are the two marriage equality cases that could be either a landmark civil rights decision on the magnitude of Brown v. Board of Education overturning the "separate but equal doctrine" of state-sanctioned racial segregration, or the court could opt for a more limited application of its decisions.

There is a growing sense that the Court is likely to strike down the federal Defense of Marriage Act (DOMA) in United States V. Windsor, (12-307), which involves the question whether Section 3 of DOMA violates the Fifth Amendment's guarantee of equal protection of the laws as applied to persons of the same sex who are legally married under the laws of their State. The case arises out of the application of the inheritance tax to a legally married surviving spouse.

There is a separate jurisdictional issue on the question whether the DOJ's agreement with the
court below that DOMA is unconstitutional deprives the Court of
jurisdiction to decide this case; and whether the Bipartisan
Legal Advisory Group of the United States House of
Representatives has Article III standing to be a party in this case.

The other marriage equality case is Hollingsworth v. Perry, (12-144) which involves the question whether the Equal Protection Clause of the Fourteenth Amendment prohibits the State of California from defining marriage as the union of a man
and a woman. Because of procedural questions involving proper parties and
jurisdiction, the court has a way to punt this case without rendering
a decision on the merits.

If the court does rule on the merits, the emerging sense is that the court's holding will be limited to the state of California, rather than a landmark decision on the magnitude of Brown v. Board of Education.

However, in the past month the states of Rhode Island, Delaware and Minnesota have enacted marriage equality statutes, bringing the number to 13 states. The State of Illinois is debating a marriage equality bill that could be voted on before the court issues its opinion in June.

Supreme Court Justices are keenly aware of political trends and the momentum behind marriage equality, and they want to be on the right side of history. They do not want to be remembered as the court which adopted the "separate but equal" doctrine justifying state-sanctioned racial segregation in Plessy v. Ferguson. There is still a chance that this could be a landmark decision.

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