The trio of deeply important rulings handed down by the US Supreme Court last week were remarkable in how simultaneously symbolic and functional they were. Or, to put it another way, the rulings weren’t nearly as consequential as they first seemed, but were tremendously important in terms of what they represented. But then again, the magnitude of what they represented also allowed them to become more consequential by the sheer weight of what they symbolized.
Here, let me explain.
Ruling number one involved affirmative action, the 1960s-era idea that the historic socioeconomic disadvantages faced by poor minorities can be best overcome by giving them preferential treatment in job hirings and school enrollment. The case in question was entitled Fisher v. University of Texas, and as I noted in an earlier cartoon on the subject, it centered around a white kid (Fisher) who had her application at the U of T rejected because the school evaluates the desirability of new students partially on the basis of their race, with whites being considered less desirable than minorities for reasons of, you guessed it, affirmative action.
In the past, the Supreme Court has ruled with a fairly skeptical eye towards the constitutionality of the racial discrimination such affirmative action policies obviously require, with the emerging consensus holding any publicly-financed school that uses race as a factor in enrollment must have a very strong moral justification for doing so. Merely allowing blacks and Hispanics to attend classes is not justification enough, but creating a “diverse” campus population is.
Last Monday’s ruling further consolidated this conclusion. The Supremes voted 7-1 to delegate the responsibility for resolving the Fisher dilemma to the Fifth Circuit Court of Appeals, which had heard earlier arguments in the case. And in considering the Fisher arguments a second time, instructed Justice Anthony Kennedy on behalf of the majority, the lower court “must ultimately be satisfied that no workable race-neutral alternatives would produce the educational benefits of diversity” before deciding if U of T’s affirmative action program deserves to survive. The school, he added, bears “the ultimate burden of demonstrating, before turning to racial classifications, that available, workable race-neutral alternatives do not suffice.”
It was, in short, a decision that seemed weirdly technical and inconclusive on first glance (“Lacking Definitive Ruling on Affirmative Action, Both Sides Claim Victory” said the New York Times) but in practice consolidated a status quo that makes incremental hostility to affirmative-action-as-usual the new normal. Even the liberal-minded justices on the Court agreed that so-called “strict scrutiny” must be used in evaluating any program of racial prioritizing by a public institution. Hard evidence must be produced to justify why diversity matters, what diversity even means, and how institutions can seek the benefits of diversity through multiple techniques, with reverse-racism being the least desirable. The days of race-quota affirmative action being an unquestioned good unto itself are irreversibly over, and depending how critical the 5th Circuit winds up being, may soon be even more over yet.
But if the affirmative action debate seems to be flowing one way, the discussion over gay marriage is certainly headed in the opposite. In a 5-4 ruling last Friday, the court voted to scrap the Defense of Marriage Act (DOMA), the landmark 1996 piece of legislation in which the federal government defined “marriage” as merely “one man and one woman.”
This ruling was also complicated and technical. Marriage is not, technically speaking, a federal jurisdiction under the US Constitution, and to the extent the DOMA actually did anything, it merely denied various federal benefits, particularly tax breaks, to gay couples that had been married in a state where that’s legal. Overturning DOMA thus does not make same-sex marriage legal in any individual state — who still hold that ultimate power — but it does create an unsettling and powerful dichotomy in which the feds now recognize the legitimacy of a right the states do not.
Once again writing for the majority, Justice Kennedy ruled that DOMA’s “principal purpose is to impose inequality” and “identify a subset of state-sanctioned marriages and make them unequal.” There was no compelling reason, he held, for the government of the United States to care one way or another about who’s marrying whom, and the harm inflicted upon the “dignity and status” of gay couples through such arbitrary lawmaking was in fundamental conflict with the Constitution’s promises of equal protection for all citizens.
Kennedy’s logic represented a continued consolidation of his gay rights advocacy on the Supreme Court over the years. As a moderate conservative on a bench of ideologically divided justices, his unique (some say eccentric) interest in gay equality has single-handedly helped push the court to narrow majorities on gay questions three times now, first by throwing out a discriminatory amendment to the Colorado state constitution then by decriminalizing same-sex “sodomy,” and now by substantially retooling the federal definition of marriage.
In the aftermath of the DOMA ruling, some have suggested the Obama administration can now make moves to impose a watered-down sort of national gay marriage through the backdoor. At present, the various agencies and departments of the federal executive branch employ a patchwork of different standards in determining whether or not a marriage is valid for the purposes of doling out benefits. Sometimes it depends on where you were married originally, sometimes it depends on where you live presently. In a post-DOMA world, it’s therefore in a gay marriage-friendly administration’s interests to promote whatever criteria allows the feds to “recognize” the most same-sex couples, which would probably mean employing a universal “where you were married counts” standard. Since 14 non-gay marriage states border the 13 states where same-sex marriage is legal, a plan to promote out-of-state “marriage tourism” among gay couples would have the net effect of de facto legalizing same-sex weddings for well over half of the US population.
Or they could just wait around a while. With the Court’s other seminal gay marriage case this season, the so-called “Prop 8″ case in California that was supposed to settle whether or not it was constitutional for a state to ban same-sex marriage, getting thrown out on a technicality, there’s nothing to stop the Supreme Court from eventually issuing a ruling on that clearer, broader question. And so long as Kennedy remains on the court, it’s pretty clear what their answer will be.
Lastly, the Supremes ruled 5-4 last Thursday to considerably retool the corrective measures of the 1965 Voting Rights Act, which seeks to bar racial discrimination at the polls. “Retool,” is, of course, a charitable verb. Most critics of the ruling have dubbed it a “gutting.”
Passed as part of President Lyndon B. Johnson’s sweeping anti-racism initiatives, the VRA explicitly seeks to prevent any state government from embarking upon initiatives that would “deny or abridge the right of any citizen of the United States to vote on account of race or color.” In practice, the cornerstone of implementing this goal was the act’s powerful Section 5, which placed the onus on certain… well, let’s just call a spade a spade and say “historically racist” states from running their own elections without first getting clearance from the federal Department of Justice. In other words, in nine southern states (and a few scattered counties in the north) virtually every administrative decision involving elections, from where to place voting stations to how long they stay open to who hires the vote counters, had to gain prior consent from the US Attorney General before happening.
But are those states still racist enough to justify this kind of federal paternalism? Chief Justice John Roberts, in his majority opinion (backed by good ol’ Anthony Kennedy) said no. The original act was good, he wrote, but “nearly 50 years later, things have changed dramatically.” As proof, he included a chart on page 15 of his ruling showing the comparative rates of race-based voter participation in six former “Jim Crow” states between 1965 and 2004. In every single one, black voter participation was now basically at par with white turnout — in fact, in Georgia and Mississippi blacks actually voted more than whites. So why continue to reject the federalist principle of equal treatment of 50 equal states in the name of “decades-old data and eradicated practices?”
But the majority decision did not abolish Section 5, it merely called for Congress to create new standards for supervising the administration of elections in racist states using contemporary data and current practices. The New York Times, for instance, has a number of clever maps illustrating ways to measure racism in the 21st century that might get the ball rolling.
But really, let’s not kid ourselves here. The idea that Congress, particularly the House of Representatives with its Republican — which is to say, largely southern — majority would ever come to some sort of bipartisan consensus over what racism means and what states have the most of it seems like the ultimate pipe-dream. The era of Section 5 oversight has probably been de facto abolished for the time being, which helps explain the giddy reaction of states like Texas, who are now happily planning to move forward with their controversial voter ID laws.
So three massively important rulings, yet each supremely legalistic and incremental. None go as far as critics feared, but all go far enough to provoke considerable delight among supporters.
If there was a single expression to summarize the spirit of all three decisions, it would be “we saw this coming.” As the repercussions of the rulings begin to be felt, one imagines we’ll be hearing that line a lot more.