The U.S. Supreme Court made four critical decisions this week, one of them abominable, one of them tolerable and the other two excellent. All but one were decided on 5-4 votes.
On Wednesday, the court struck down the woeful Defense of Marriage Act, a 1996 law supported by those trying to stem the tide of history and acquiesced to by others – including then-President Bill Clinton – who were fearful of supporting same-sex marriage.
Even then, it was clear that the law violated the constitutional guarantee of equal protection, which is promised to all Americans, not just heterosexuals. It is fortunate, perhaps, that the case only now came to the Supreme Court – where it mustered only a 5-4 majority – after the turning of the tide on gay rights, when increasing numbers of Americans merely shrug at same-sex marriage.
That ruling was just one of two on Wednesday that brought gays closer to equality. In the second 5-4 decision, the court declined to block a lower court ruling that cleared the way for same-sex marriage in California. The high court vote was on a technicality – it ruled that the plaintiffs lacked standing to bring the case to the Supreme Court – but the result nonetheless affirmed the concept of equality.
Same-sex marriage is a bitter pill for some Americans, but in previous generations so were interracial marriage, desegregation of schools and votes for women. Times change and, in this case, the court was not simply on the side of history, but of justice.
Voting Rights Act
As a theoretical matter, it is possible to view the Supreme Court’s cynical decision on the Voting Rights Act as at least plausible. The law was passed 48 years ago and, as the majority observed, things have changed since then.
It’s true, but that bit of judicial legerdemain misses the point. States are openly and actively looking for ways to diminish the voting power of minorities. By invalidating the mechanism for deciding which states must preclear voting changes with the Justice Department, the court has declared open season on minority voters. Yes, the court ruled that Congress could update that mechanism, but Congress can’t do anything these days.
Within minutes of the ruling, Texas and Mississippi announced they would implement controversial voter ID laws without Justice Department approval. However state officials there dress up these laws, they are meant to disenfranchise voters without accepted forms of identification, and they will be largely poor and minority.
Justices read the papers, too. They know what states like Texas and Mississippi are up to. And they know that enough elements in Congress will be only too happy to block the re-evaluation the court requires.
What is more, the conservatives on this court – justices who decry “legislating from the bench” – did exactly that by substituting their beliefs for those of Congress, which renewed the law by large bipartisan majorities in 2006. Things haven’t changed that much since then. What has happened is that the court has made clear its willingness to engage in politics.
There may be other ways for those who care about equality to litigate the changes that Texas and Mississippi have in mind, but those people also should be prepared for a massive effort to ensure that as many voters as possible have the identification that those states will demand. Just as a previous civil rights era needed volunteers to register voters, this one will need ID posses, devoted to ensuring that these laws do not achieve their nefarious goals.
Voting 7-1, the court sent back for further review the race-based admissions criteria used by the University of Texas at Austin. In doing so, the court kept the policy in place, but its instructions suggest the policy may come undone. Even still, it was an acceptable decision that anticipates – if prematurely – the day when race won’t need to play any role in these decisions.
In its ruling, the justices heightened scrutiny of affirmative action programs in public colleges. At the University of Texas at Austin, three-quarters of in-state applicants are automatically admitted under a program that ensures admission to the top students in each of the state’s high schools. That, alone, has helped to increase the enrollment of minorities.
The remaining admissions are based on a range of factors that include race and ethnicity. It is that use of race that the court focused on. In remanding the case, it required the lower court to reconsider whether the university’s use of race was necessary to meet the judicially accepted goal of achieving educational diversity.
Going forward, that means that universities and likely other public institutions will have to be prepared to defend affirmative action cases more rigorously. As long as the goal of achieving appropriate educational diversity is achieved, that may not be a bad approach.
As former Justice Sandra Day O’Connor observed when she was on the bench, there will be a day when it will no longer be necessary to use race in deciding college admissions. If we haven’t achieved that day yet, the University of Texas experience shows that it is possible to move toward it.