Judicial Sketches: Supreme Court Frustrates, Inspires With Verdicts This Week

This article was originally published in The Daily Pulp on June 26, 2013.

Note: This article was rushed to print, so I apologize for any problems with citations. For reference purposes, I consulted Reuters, Forbes, the New York Times, Bloomberg News, MSNBC, Fox News, CNN, NPR, Huffington Post, and SCOTUS Blog. A particular shout-out goes to SCOTUS Blog – you guys got the court rulings on gay marriage posted and analyzed before CNN. Well done.

This is a big week for the Supreme Court. In some ways, the SCOTUS is advancing the rights of individuals, yet the Court might also be taking us backward. A great sense of ambiguity accompanies this week’s rulings, and it remains to be seen just what effects these rulings will have on American society. Let’s walk through this week’s legal news.


The gay marriage rulings will certainly get the most press, for the cases have been hyped by the media and gay rights activists alike for several months now. The cases also affect millions of American adults, as well as millions of young LGBT individuals who want to get married someday. Certainly, social media websites, particularly Twitter and Facebook, have been absolutely consumed today by postings both in support of and in opposition to gay marriage. While somepolitical scientists don’t believe that American society is deeply polarized on most issues, gay marriage is one of those issues that make you wonder if those scholars are correct.

The downfall of the Defense of Marriage Act (DOMA) in United States v. Windsor is a tremendous event for several reasons. First, gay couples can now receive federal benefits. Of particular interest (to me, at least) is the fact that gay military officers will be able to give their partners benefits. This development ends the uncomfortable hypocrisy that we will send men and women to possibly die for America, but won’t give them spousal benefits. Second, according toMSNBC, gay individuals with foreign partners can now request spouse visas, for the federal government will now recognize them as being legally married.

Third, although the Supreme Court did get rid of DOMA, the Court did not assert that gay marriage must be implemented in every state. This stands in contrast to the past precedent ofBrown v. Board of Education, which took a regional case and used the court ruling to change the entire country. Personally, I wish the court had ruled 9-0 in favor of national gay marriage, but I understand the massive backlash a ruling like that would inspire in many states. Something tells me that the Court also considered the potential backlash when writing their decision, hence the decision not to pass a sweeping ruling.

As for Hollingsworth v. Perry, the SCOTUS punted on a true moral assessment regarding Proposition 8. The SCOTUS decision is a convoluted one. The justices, 5-4, ruled that supporters of Prop 8 were wrong to file suit against a CA judge’s decision invalidating Prop 8. In other words – judge declares Prop 8 unconstitutional, traditional marriage supporters get upset and go to the SCOTUS, and the SCOTUS tells the traditionalists their case is invalid. This is a disappointing ruling, as the Court shied away from a moral defense of gay marriage and a true denunciation of the Prop 8 supporters. There was a real opportunity here for a historic statement on the equality of all men and women. Still, despite the Court failing to write such a ruling, the Perry ruling will let gay marriage resume in CA, and since many families will become happier as a result of this ruling, let us celebrate what victories we can.

There’s another notable implication of these gay marriage rulings (and, frankly, most of the rulings the Court has published this week). Gone are the days when Supreme Court justices could set aside any personal misgivings and take a unified, 9-0 moral stand, as in Brown v. Board of Education. Instead, all too often we see a 5-4 split in the SCOTUS justices’ rulings. Now, many rulings done on a 5-4 basis feature represent good legal reasoning, but the constant barrage of 5-4 rulings reported in today’s landscape cheapens the national reputation of the SCOTUS. The institution seems just as polarized as Congress and many state legislatures. If America’s highest court, which is meant to produce wise council and good scholarship, can no longer produce nonpartisan legal analysis, then how is the Judicial Branch superior to our polarized Congress?


Fisher v. University of Texas at Austin makes the already complex issue of affirmative action even more complex. On the one hand, the Court stressed that affirmative action can backfire and cause discrimination, but on the other hand, the Court (to quote CNN.com) “threw the case back to the lower courts for further review.” In other words, the Supreme Court said that there is something wrong with the system of preferential college admissions on the basis of race, but stopped short of actual legal sanctions. Once again, it seems as though the Supreme Court punted on a serious issue, rather than diving into the complexities of the issue and forging an intricate, nonpartisan solution. Still, it was refreshing to see a 7-1 decision that rested on a coalition of both liberal and conservative judges.

Should we keep affirmative action? Honestly, I’m not sure. There continues to be disparities in racial equality in this country, as well as historical grievances worth addressing. However, a truly equal society would logically have race-blind admissions, emphasizing merit over ethnicity (or gender or economic class, for that matter). Moreover, with changing birth and death rates (more white Americans now die than are born), there will soon come a time when affirmative action won’t be necessary anymore, for the minorities will become the majority.

I haven’t made my mind up on this ruling, and I encourage readers to discuss the ruling with their peers. For further reading on Fisher (and a far more detailed analysis that I can give), I recommend checking out the above link to CNN and this link to SCOTUS Blog.


What about the Voting Rights Act case, Shelby County, Alabama v. Holder, Attorney General? I am honestly not sure what to make of this particular ruling. The Court upheld the Voting Rights Act as a whole, but decided that the government cannot put additional monitoring upon certain, mostly Southern states. In a way, the decision makes sense. We have come a long way since the days when KKK violence, police brutality, and unjust laws directed against non-white voters. The South of 2013 is not the South of 1963. There has been racial progress.

However, the GOP in the last several years has ramped up gerrymandering and voter suppression to seriously disconcerting levels. To be fair, the Democratic Party bears much of the historical responsibility for preventing African Americans from voting, and the GOP once led the charge on civil & voting rights.[i] But in 2013, the GOP is working in many states to systematically deny non-white voters (as well as college students) the right to vote. Hence, with such legal flimflam underway across the country, there may yet be a need for special government monitoring of voting in certain states. Would such oversight even be possible now, in the wake of the SCOTUS ruling? There is legal ambiguity here that makes me worry.

Additionally, Rick Ungar over at Forbes describes a disturbing implication of the Voting Rights Act ruling:

In other words, it is the opinion of the Court’s majority that the enforcement provisions of the Voting Rights Act worked so well that to continue enforcement under the existing scheme is unconstitutional. The logic of the majority represents a tragic irony given that the ruling comes at a time when minority voting rights are, once again, under severe attack as state governments under GOP control seek to rig the game in an effort to overcome the demographic and racial shifts in the electorate. These changes dramatically improve the opportunities for Democrats to gain elected office—particularly when it comes to the presidency.

Think about it – a law worked so well that not only should it be deactivated, but it should also berendered unconstitutional? Doesn’t that seem a bit like procedural overkill? Now, I don’t agree with Mr. Ungar that GOP voting tricks will necessarily help the Democrats win elections. After all, if the voting suppression tactics work, the GOP could be substantially strengthened at the polls. However, I agree with Mr. Ungar that the attempt by various GOP factions to limit voting rights could easily backfire and give the Democrats more support.

Of course, we must not assume that all Republicans support voter suppression. There has been a mixed response from the GOP hierarchy regarding this SCOTUS ruling. Eric Cantor, who has undercut John Boehner at every opportunity and helped to strengthen the Tea Party in Congress, went on the record as having mixed emotions about the ruling:

My experience with [Congressman] John Lewis in Selma earlier this year was a profound experience that demonstrated the fortitude it took to advance civil rights and ensure equal protection for all…. I’m hopeful Congress will put politics aside, as we did on that trip, and find a responsible path forward that ensures that the sacred obligation of voting in this country remains protected.

Cantor is vague, but he does signal a willingness to modify the Voting Rights Act somehow, so that the bill works for the 21st century. Hopefully he recognizes the uncomfortable implications of the Court’s ruling, and will take steps with his Democratic colleagues to prevent Shelby Countyfrom enabling voter suppression to occur.


It’s worth mentioning that two rulings announced on Monday, Vance v. Ball State University andUniversity of Texas Southwest Medical Center v. Nassar, made it harder for employees to sue on matters regarding: (a) sexual & racial discrimination in the workplace; and (b) retaliation by employers against employees for protesting discrimination. I haven’t conducted as much research as I’d like on these two SCOTUS decisions. However, I think there is reason to be concerned about the rulings.

Thanks to Citizens United and the 2011 ruling against female Wal-Mart employees, who had filed a class action lawsuit about corporate sexism, the Court has helped to weaken labor and strengthen the corporations in this country. Both of those decisions are widely regarded as regressive legal opinions. As such, we should be wary about rulings making it harder to challenge a superior over racial & sexual harassment, or to point out a supervisor’s retaliation against an outraged employee. Labor does not deserve to be gutted entirely, and certainly not when it comes to the issue of fighting institutionalized discrimination.

So the implications of this week’s SCOTUS rulings for personal liberty and for fighting oppressionare clearly mixed. We shall have to watch to see just how the workplace, the voting booth, and secular marriage rights are altered by these decisions.


For those of you who want to read the two rulings on the subject of gay marriage, here are the links to Hollingsworth v. Perry and United States v. Windsor. Additionally, here are the links for the Vance v. Ball State University, University of Texas Southwest Medical Center v. Nassar,Fisher v. University of Texas at Austin, and Shelby County, Alabama v. Holder, Attorney General rulings.


And while we’re on the subject of politics….

State Senator Wendy Davis made headlines Tuesday night for her brave filibuster against the Texas Senate GOP’s restrictive abortion bill. Davis is a true heroine for standing up to a bill that seems suspiciously like a cover for Christian-inspired theocracy.

Furthermore, the fact that hundreds of pro-choice protesters interrupted the Texas legislature session contradicts the reductionist media portrayal of Texas as a wholly conservative, fundamentalist Christian state. Clearly, progressive politics have gained a substantial foothold in the region. Moreover, the raucous protests should remind us that no state remain red or blue forever. Things change.

Finally, the Texas GOP senators were proven to have altered the time stamps for the night’s proceedings. The vote passing the abortion bill took place after midnight, which marked the end of the legislative session, but some tricky people altered the time stamps so that the bill appeared to happen before midnight. Think about this: A bill failed due to a legitimate case of invalid procedure, but the majority party simply decided that procedure (and time) did not matter, and revised the time log. Any political party that would resort to such tricks must be monitored very carefully, because said party is walking dangerously close toward undemocratic territory.

[i] For more information on the historical role of the major parties in the fight for civil rights, I recommend consulting When Affirmative Action Was White by Ira Katznelson, Cold War Civil Rights by Mary L. Dudziak, and Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party, From Eisenhower to the Tea Party by Geoffrey Kabaservice.

The cover photo is archived from the original web layout. Source:


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