U.S. Braces for Historic Supreme Court Decisions
This column by ACRU Senior Legal Analyst Ken Klukowski was published June 23, 2013 on Breitbart.com.
This week the Supreme Court will hand down four decisions that will mark a turning point for the United States, and some possible outcomes could even change the course of this country for the rest of our national existence.
The High Court heard 75 cases this year. As this week begins, 64 have been decided, meaning the final 11 will come down this week as the Court concludes its 2012 Term. Seven are run-of-the-mill cases, but the other four are as big as they get.
In terms of turning points, there are two major cases involving race. It’s also noteworthy that both cases were argued by the constitutional law firm Wiley Rein, specifically two of that firm’s partners: Burt Rein and Will Consovoy.
The first is Fisher v. University of Texas. [Full disclosure: at the request of one of the parties, I authored a brief in this case for economists and statisticians.] The petitioners argued that racial preferences in the admissions process at the University of Texas violate the Fourteenth Amendment of the Constitution. The Court could narrowly rule in their favor, or it could go so far as to overrule prior cases, especially the 2003 case Grutter v. Bollinger, and rule that racial preferences are always unconstitutional. That is the original meaning of the Fourteenth Amendment and, for me, it is the correct view.
The second is Shelby County v. Holder. Section 5 of the Voting Rights Act of 1965 (VRA) requires certain states and localities–mostly in the South–to receive permission from a federal court or the U.S. Justice Department before redrawing legislative districts after each census, or changing their voting laws or procedures. In 1966, the Supreme Court held in Katzenbach v. McClung that Section 5’s intrusion into state sovereignty is authorized by the Fifteenth Amendment because of egregious voter suppression in the 1960s. Now that America is a very different place, the justices are considering whether VRA Section 5 is no longer justified by the Constitution.
The last two major cases are the marriage cases. [Full disclosure: at the request of one of the parties, I also coauthored a brief in this litigation for social scientists.]
In both of these cases, there are a couple significant questions of whether they were brought in a fashion that satisfies all the requirements of Article III of the Constitution for the federal courts to properly have jurisdiction over those cases. Thus, there is a very real possibility that one or both cases could be dismissed without any decision on the merits of the case.
However, if the Court does reach the merits, the consequences of the decisions could be extraordinary.
One is U.S. v. Windsor. Section 3 of the Defense of Marriage Act of 1996 (DOMA) defines marriage for purposes of federal law (such as federal taxes, immigration, and Social Security benefits) as the union of one man and one woman. In Windsor, the Court is considering whether Section 3 violates the Fifth Amendment of the Constitution. If it does, then all federal marriage benefits can now be obtained by homosexual couples and likely polygamous families as well (both native to the U.S., and those seeking to immigrate to this country from Muslim nations where polygamy is legal).
The final big case is nothing short of historic. In Hollingsworth v. Perry, the Supreme Court will decide whether the Fourteenth Amendment of the U.S. Constitution confers the right for any consenting adults to marry. If so, then traditional-marriage laws will be struck down nationwide in the 38 states where they currently exist, and all persons in every state will be able to enter into either homosexual or polygamous marriages. The case directly involved homosexual couples, but if the right is declared to be any union of consenting adults, then if three or more adults all consented to marry each other they would likely have the right to do so.
The Fifth, Fourteenth, and Fifteenth Amendments to the U.S. Constitution are center-stage this week. Given that the Constitution is the Supreme Law of the Land, school children for generations to come in America will read in their history books about what the Supreme Court does this week, one way or the other.