Abigail Fisher, center, plaintiff in Fisher v University of Texas and Edward Blum, left, director of the Project on Fair Representation outside the U.S. Supreme Court. (Photo: Diego M. Radzinschi / NLJ)
One year after a landmark constitutional decision on the nation’s new federal health care law, the U.S. Supreme Court in 2013 took historic steps in two civil rights cases that will define the Roberts Court for some time to come.
Believing that national opinion on gay marriage was moving in their direction, civil rights groups optimistically awaited the justices’ rulings in two same-sex marriage cases on the October 2012 docket. However, they viewed a major challenge to the Voting Rights Act with considerable anxiety because of the Roberts Court’s existing precedents on race and voting rights. Their feelings were justified on both counts.
In United States v. Windsor, a 5-4 majority led by Justice Anthony Ken­nedy struck down the definition of marriage as between a man and a woman in the federal Defense of Marriage Act. That definition, Kennedy said, injected inequality into every aspect of the U.S. Code. The definition, which affected rights and benefits in more than 1,000 federal laws, violated the equal protection guaranteed to legally married same-sex couples.
The Obama administration, in a remarkable turnaround, had refused to defend the federal law and then joined with the law’s opponents to urge its demise.
Legally married same-sex couples almost immediately saw changes in a broad swath of areas, from health benefits to taxation.
In Hollingsworth v. Perry, a different 5-4 majority led by Chief Justice John Roberts Jr. held that supporters of California’s ban on same-sex marriage lacked standing to defend it against a challenge brought by Theodore Olson of Gibson, Dunn & Crutcher and David Boies of Boies, Schiller & Flexner. The ruling ultimately led to the resumption of previously legal same-sex marriages in that state.
In August, Justice Ruth Bader Ginsburg became the first U.S. Supreme Court justice to officiate over a same-sex marriage. And in October, retired Justice Sandra Day O’Connor officiated at the first gay wedding within the court’s own halls.
The day before the same-sex marriage rulings, Roberts led a 5-4 majority in Shelby County, Ala. v. Holder to strike down the Voting Rights Act’s formula for determining which jurisdictions with a history of voting discrimination were required to have changes in voting practices approved by a federal court or the U.S. Department of Justice.
The formula, Roberts said, was unconstitutional because it was based on out-dated information and repudiated practices. The decision dealt the most serious defeat to civil rights groups in decades because they lost their most powerful legal tool against voting discrimination.
The following are other highlights of 2013 in the Supreme Court.
After 22 years as clerk of the Supreme Court, William Suter retired in August. Suter modernized court procedures and technology, also adopting a friendly personal approach that put lawyers at ease as they prepared for argument. On Sept. 1, Scott Harris, who had been the court’s legal counsel, replaced Suter and became the 20th clerk in the court’s history.
Following oral arguments in Fisher v. University of Texas, the outcome looked grim for the university’s continued use of race as a factor in its admissions policy. But the university and the challenger, Abigail Fisher, lived to fight another day when the justices, voting 7-1, sent the case back to the lower federal appellate court with directions to put teeth into its application of strict scrutiny. The justices, however, were not done with racial preferences. In October, they heard Schuette v. Coalition to Defend Affirmative Action, Michigan’s defense of a state constitutional amendment banning race preferences in education. Stay tuned.
GAY RIGHTS MILESTONE
On Jan. 22, 30 members of the National LGBT Bar Association were sworn into the Supreme Court bar — the first time, apparently, that a group of openly identified gay lawyers had done so. “A lot of us wanted to applaud,” association executive director D’Arcy Kemnitz said. Gay lawyers have argued at the court and been admitted to the bar individually for years, but this was believed to be the first time a group whose name identified them as such was sworn in.
DNA AND DOGS
Justice Elena Kagan has described the high court’s Fourth Amendment docket as a “growth industry,” and cases in 2013 fed that hungry beast with a combination of high-tech and low-tech search-and-seizure controversies. In Maryland v. King, a 5-4 court upheld Maryland’s law permitting police to take a DNA swab of the cheek of someone arrested, but not convicted, of a serious crime. And in two cases, involving drug-sniffing dogs called Franky and Aldo, the court ruled, 5-4, in Florida v. Jardines that a dog alert at the front door of a house where police suspected drugs were being grown constituted a search for the purposes of the Fourth Amendment, but it held unanimously in Florida v. Harris that a dog alert at a truck’s door can provide probable cause to search the vehicle.
For the first time in nearly seven years, Justice Clarence Thomas spoke during an oral argument on Jan. 14. It was a brief aside during arguments in Boyer v. Louisiana regarding the competence of appointed counsel. His remark was difficult to hear, but appeared to be a light-hearted jab at his alma mater Yale Law School. When it was mentioned that one of the lawyers in the case had attended Yale, Thomas said, jokingly, “See — he did not provide good counsel.”
In a pair of 5-4 job discrimination decisions issued on the same day in June, the court’s conservative majority continued a general trend of narrowly interpreting federal protections against job bias. In Vance v. Ball State University, the majority said a “supervisor” for purposes of Title VII liability is someone with power to take “tangible employment actions,” such as hiring and firing, not someone who just directs another employee’s day-to-day activities. And in University of Southwestern Texas Medical Center v. Nassar, the same majority imposed “but for” causation as the standard of proof in retaliation cases, a stricter standard of proof than for other Title VII claims.
The justices have been closely examining the requirements for certification of class actions and the role of class actions in arbitrations. In Comcast v. Behrend, a 5-4 majority held that plaintiffs must show at the class-certification stage whether damages could be decided on a classwide basis. And a 5-3 majority in American Express v. Italian Colors Restaurant said that waivers of class action arbitrations in arbitration agreements are strictly enforced under the Federal Arbitration Act.
U.S. District Judge Beryl Howell on June 11 struck down the federal law banning demonstrations on the grounds of the court, finding the statute “unreasonable, substantially overbroad, and irreconcilable with the First Amendment.” Days later, Supreme Court Marshall Pamela Talkin promulgated a new regulation that invoked a different law to prohibit demonstrations on court grounds. Meanwhile, as the court’s renovation project neared completion, the popular “scrim” that covered the front of the court with a fabric replica of the façade came down just before the beginning of the fall term.
WOMEN OF THE COURT
The National Portrait Gallery in Wash­ington unveiled a portrait on Oct. 28 by famed portraitist Nelson Shanks of justices Sandra Day O’Connor (retired), Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Armchair critics on social media gave the painting mixed reviews, with one former law clerk noting that, although in real life O’Connor is taller than Ginsburg, they are portrayed as the same size.
The justices continued their fascination with patents in Association for Molecular Biology v. Myriad Genetics. A unanimous court, in a case involving gene mutations associated with breast cancer, said Myriad could not patent genes that it isolated in the bloodstream because natural occurring phenomena are not patentable, but a synthetic form of DNA was patent-eligible.