WASHINGTON — The Supreme Court returns to the bench Monday to confront not only a docket studded with momentous issues but also a new dynamic among the justices.
The coming term is expected to include major decisions on affirmative action in higher-education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965.
The theme this term is the nature of equality, and it will play out over issues that have bedeviled the nation for decades.
“Last term will be remembered for one case,” said Kannon Shanmugam, a lawyer with Williams & Connolly. “This term will be remembered for several.”
The term will also provide signals about the repercussions of Chief Justice John Roberts’ surprise decision in June to join the court’s four more liberal members and supply the decisive fifth vote in the landmark decision to uphold President Barack Obama’s health-care law. Every decision of the new term will be scrutinized for signs of whether Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court.
“The salient question is: Is it a little bit, or is it a lot?” said Paul Clement, a lawyer for the 26 states on the losing side of the core of the healthcare decision.
The term could clarify whether the health-care ruling will come to be seen as the case that helped Roberts protect the authority of his court against charges of partisanship. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign-finance restrictions and on procedural protections for people accused of crimes.
The health-care ruling could presage “some shift in his tenure as chief justice,” said Steve Shapiro, the American Civil Liberties Union’s national legal director. “Or does it give him cover to continue to pursue a conservative agenda?”
The chief justice could also join Justice Anthony Kennedy as a swing vote at the court’s center. There is already some early evidence of this trend: In each of the last three terms, only Roberts and Kennedy were in the majority more than 90 percent of the time.
Steven Teles, a political scientist at Johns Hopkins University, said the unique nature of the health-care case makes it hard to draw greater lessons about Roberts.
Roberts’ decision reveals more of how he views his role as chief justice, Teles said. “Roberts wanted to limit or cripple the ACA [Patient Protection and Affordable Care Act] as much as possible consistent with preserving the legitimacy of the court. And I think he did that.”
“We all start with the conventional wisdom that Justice Kennedy is going to decide the close cases,” said Clement, who served as U.S. solicitor general under former President George W. Bush. “We’ve all been reminded that that’s not always the case.” The texture of the new term will be different, as the court’s attention shifts from federalism and the economy to questions involving race and sexual orientation. The new issues before the court are concrete and consequential: Who gets to go to college? To get married? To vote?
On Oct. 10, the court will hear Fisher v. University of Texas, No. 11-345, a major challenge to affirmative action in higher education. The case was brought by Abigail Fisher, a white woman who says she was denied admission to the University of Texas based on her race. The university selects part of its class by taking race into account, as one factor among many, in an effort to ensure educational diversity.
Just nine years ago, the Supreme Court endorsed that approach in a 5-4 vote. The majority opinion in the case, Grutter v. Bollinger, was written by Justice Sandra Day O’Connor, who said she expected it to last for a quartercentury.
But O’Connor retired in 2006. She was replaced by Justice Samuel A. Alito Jr., who was appointed by Bush and who has consistently voted to limit raceconscious decision making by the government. Roberts, another Bush appointee, has made no secret of his distaste for what he has called “a sordid business, this divvying us up by race.”
“I think this is an issue the chief justice really and desperately cares about,” said Pamela Harris, who worked in the Justice Department in the Obama administration and is now a visiting professor at Georgetown.
“In the health-care case, the chief justice — and I’m not saying this was intentional or anything like that — he built up some kind of legitimacy capital for the court,” she said. “My hunch would be that where he would want to invest it is in the race cases.” Justices Antonin Scalia, Clarence Thomas and Kennedy all dissented in the Grutter case, and simple math suggests that there may now be five votes to limit or overturn it.
The reach of such a decision could be limited by the idiosyncrasies of the admissions system in Texas. The university provides automatic admission to students in Texas who graduate in roughly the top 10 percent of their high school classes. That approach generates substantial diversity, partly because many Texas high schools remain racially homogeneous.
Fisher narrowly missed the cutoff at a high school whose students have above-average test scores for the state. She was rejected for one of the remaining spots under the part of the admissions program that considers applicants’ race.
SAME-SEX MARRIAGE
The court is also expected to take on same-sex marriage.
“I think it’s most likely that we will have that issue before the court toward the end of the current term,” Justice Ruth Bader Ginsburg said at the University of Colorado on Sept. 19.
She was referring to challenges to an aspect of the federal Defense of Marriage Act, which bars the federal government from providing benefits to same-sex couples married in states that allow such unions. The federal appeals court in Boston struck down that part of the law, and both sides have urged the court to hear the case. More than 1,000 federal laws deny tax advantages, medical coverage and burial services, among other benefits, to spouses in samesex marriages.
The justices will also soon decide whether to hear a more ambitious marriage case filed in California by Theodore Olson and David Boies. It seeks to establish a federal constitutional right to same-sex marriage. The case concerns California’s Proposition 8, the amendment to the state constitution that outlawed gay marriage. Federal courts in California have struck down the amendment.
Roberts has not yet voted in a major gay-rights case. Kennedy wrote the majority opinions in both Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting homosexuals. Most observers see him as the decisive vote in same-sex marriage cases.
VOTING RIGHTS ACT
The justices are also quite likely to take another look at the constitutionality of the Voting Rights Act of 1965. In 2009, the court signaled that it had reservations about the part of the law that requires federal review of changes in election procedures in parts of the country with a history of discrimination, mostly the South.
“We are now a very different nation” than the one that first enacted the Voting Rights Act, Roberts wrote for himself and seven other justices. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”
The chief justice seemed to invite Congress to revise the law, but lawmakers have taken no action. Challenges to the law have arisen in several lawsuits in the current election season, including ones concerning redistricting and voter identification requirements.
“It will be interesting to see if the justices worry half as much about the emerging restrictions on voting as they worried about restrictions on political spending,” said Pamela Karlan, a law professor at Stanford.
On Monday, the new term starts with a case of great interest to business groups, Kiobel v. Royal Dutch Petroleum Co., No. 10-1491. The case was brought by 12 Nigerian plaintiffs who said the defendants, foreign oil companies, had been complicit in humanrights violations committed against them by the Abacha dictatorship in Nigeria.
The question in the case is whether U.S. courts have jurisdiction over such suits, and business groups are hoping the answer is no.
WILL THE UMPIRE STRIKE BACK?
Introducing himself to the nation at his confirmation hearings in 2005, Roberts said that “judges are like umpires” in that they do not make the rules but merely apply them.
“Nobody ever went to a ballgame to see the umpire,” he said.
But the calls Roberts made in the health-care case were surprising enough that it will be hard to look away. He voted with the court’s conservatives to say that the law was not authorized by Congress’ power to regulate interstate commerce and then joined the court’s liberals to say it was authorized by Congress’ power to levy taxes. No other justice joined every part of his controlling opinion.
Charles Fried, who served as solicitor general in President Ronald Reagan’s administration and filed a brief in support of the law, said the reasoning in the healthcare decision was mystifying enough to foreclose predictions about the future of the Roberts court.
“This is a court that under Chief Justice Roberts called a ball a strike, a strike a ball, but got the batter to base where he belonged,” said Fried, who teaches at Harvard Law School. “So who knows what to expect.”
Information for this article was contributed by Adam Liptak of The New York Times; by Robert Barnes of The Washington Post; and by Mark Sherman of The Associated Press.
Front Section, Pages 1 on 09/30/2012