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Supreme Court wrap up: Constitutional expert explains why the Court ‘got the law right’

by | Posted on Monday, Jul. 1, 2013 — 12:26 PM

The Supreme Court made a series of sweeping decisions in its latest term. Of the Court’s 54 rulings, the justices’ decisions impacted affirmative action, voting rights, same-sex marriage, business practices and more.

One of the nation’s top scholars on constitutional law, Vanderbilt law school professor Suzanna Sherry, the Herman O. Loewenstein Professor of Law, explains why she thinks the Supreme Court successfully followed the law.

The Supreme Court Got the Law Right

By Suzanna Sherry

Suzanna Sherry portrait

Suzanna Sherry, Herman O. Loewenstein Professor of Law, Vanderbilt Law School

It was a blockbuster final week at the Supreme Court and everybody is unhappy about something. Conservatives are complaining about the same-sex marriage cases and defending the Voting Rights Act and affirmative action cases, and liberals are doing exactly the reverse. And some people think the Court didn’t go far enough in one case or another.

But amid all the political commentary, no one seems to recognize the most important fact: In every one of four cases, the Court got the law right. It did its job, straightforwardly applying established precedent to difficult controversies (vehement dissents notwithstanding). Despite the broad practical implications of the cases, and despite all the talk of a Roberts Court agenda, in fact the Court made no new law and changed no legal doctrines in these four cases.

Affirmative Action Case

Start with the narrowest and most technical rulings. In Fisher, the affirmative action case, the trial judge had granted summary judgment to the University of Texas. That means that the university won without ever giving Fisher a chance to prove her case at trial. And the Court of Appeals agreed, deferring to the university’s claims that Fisher’s case was a loser without actually examining the case carefully.

The law doesn’t usually let defendants win so easily, especially when the plaintiff alleges race discrimination, and so the Supreme Court sent the case back for the Court of Appeals to determine whether summary judgment is really appropriate or whether Fisher should get her day in court.

Proposition 8 Case

The Prop 8 case, Perry, was also a narrow technical ruling. When the plaintiffs won their case at trial and the judge invalidated Prop 8, the California governor and attorney general decided not to appeal. So the proponents of Prop 8 appealed the ruling, and the question was whether they had standing to do so.

The Supreme Court has consistently held that in order to have standing, a party has to have a concrete, personal injury. A generalized injury, held in common with many other citizens, is not enough. You can’t sue if the government hasn’t hurt you personally, no matter how outraged you may be by the government’s actions.

The Prop 8 proponents were outraged by the lower court decision, but they weren’t injured any more (or any more personally and specifically) than any other citizen of California. The court was on solid ground in dismissing the appeal for lack of standing.

Voting Rights Act Case

Shelby County, striking down part of the Voting Rights Act, was also a straightforward application of precedent. When Congress renewed the Voting Rights Act in 2006, it had to decide which states had the worst records of voting discrimination and therefore should be required to get permission, or preclearance, before making any changes to their electoral systems.

Instead of relying on data from the 2004 elections, Congress punted, using the same 1972 data that it had used almost 25 years earlier. It turns out that the states with the worst records in 1972 had some of the best records by 2004. That meant that under the 2006 VRA, some states with high African-American voter registration and turn-out (sometimes higher than white turn-out) had to get preclearance before they could move a polling place by a block, while many states with low African-American registration or turn-out could enact voter ID laws or gerrymander their districts with no problem.

Indeed, Indiana, Texas and North Carolina all enacted similar voter ID laws at about the same time. Indiana didn’t need preclearance, but its law was challenged in court and ultimately upheld by the Supreme Court. But because Texas and North Carolina were covered jurisdictions – based on their 1972 behavior, not their 2004 behavior – their voter ID laws were blocked by the Attorney General or a federal court. Is that rational? No, it’s arbitrary, and that’s why the Supreme Court told Congress that it could require preclearance but only under a formula based on recent, not outdated, data.

Defense of Marriage Act Case

And then there’s Windsor, invalidating DOMA. For all that the dissent tried to portray the decision as broad and radical, Windsor actually made no new law. The principle announced in Windsor is as old as the Fourteenth Amendment, and has been explicitly part of Equal Protection law since the 1996 case of Romer v. Evans. It’s a principle that underlies all of the Equal Protection cases before and since: The government cannot brand any group of people as pariahs or outcasts, or make second-class citizens out of them. That principle drives all the legal niceties of tiers of scrutiny and other Equal Protection doctrines.

As the majority put it in Windsor, quoting earlier cases, “the Constitution’s guarantee of equality ‘must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot’ justify disparate treatment of that group.”

Congress – and by extension the states – cannot purposely and deliberately brand any group with the stigma of inferiority, purely out of animus or disapproval. It cannot make pariahs out of law-abiding citizens for no other reason than to demean them. That is what DOMA did, and that is why DOMA is unconstitutional.

We may disagree with some of the precedents. We may think that it should be easier for defendants to win without a trial (although I suspect that the liberals opposed to Fisher don’t think so), or that any outraged citizen should have standing (although I suspect that the conservatives opposed to Perry don’t think so). It’s harder to imagine that anyone thinks Congress should be allowed to act irrationally or arbitrarily, or that governments should be able to assign second-class citizenship status to whole groups of people. But even if we disagree with the precedents, we shouldn’t fault the court for following them – that’s what courts are supposed to do.

So if we stop looking at the Supreme Court from a political perspective and instead view it as the legal institution it is, the court did a pretty good job last week. If a student in my class came up with the answers – and the reasoning – the cCourt did in all four of the cases, I’d give her an A.

Contact:
Amy Wolf, (615) 322-NEWS
amy.wolf@vanderbilt.edu


  • Pjs8200

    I don’t understand how the court could look at 41 year old voting information and base a ruling on it, particularly given the expeditious enacting of extremely discriminatory voter ID laws. When it was suggested by those leaning center-left that the same type of ID laws ALEC and the right were trying to force on everyone should be applied for purchasing guns….all of a sudden, the laws were over restrictive.