Supreme Court Begins - Affirmative Action in Jeopardy
The new term of the U.S. Court began on Monday. The docket covers issues from affirmative action to criminal justice and deportation to voting rights. Marriage equality may be added before the term ends. Arguments began with a case involving Nigerians who want to hold an oil company liable for the deaths of activists killed while protesting environmental harm to their land. Over hundred cases are accepted for Supreme Court review out of thousands.
The Court may decide race has no place in college admissions. The affirmative action program at University of Texas-Austin was challenged by Abigail Fisher, a White female applicant. The University of Texas admits the top ten percent of each high school class to the University of Texas. An applicant who fails to enter can apply again through a second procedure that takes race into account as one aspect of admissions. Ms. Fisher was not admitted under either process and claimed her race was used against her.
There may not be enough votes to support affirmative action. Justice Elena Kagen recused herself from hearing the case because she supported Texas’ argument as Solicitor General. That leaves only three liberal votes to possibly sustain affirmative action. That would be Justices Sonia Sotomayor, Stephen Breyer, and Ruth Bader Ginsberg. The conservative justices who voted against affirmative action in past cases include Justices Clarence Thomas, Antonin Scalia, Samuel Alito, and Chief Justice John Roberts. Justice Anthony Kennedy remains a swing or undecided vote. Although retired Justice Sandra Day O’Connor opined in 2003 that affirmative action would be needed for another twenty-five years, Fisher v. Texas will be argued on October 10.
The Court will decide two Florida cases involving the Fourth Amendment’s protection against illegal governmental searches and seizures. In one case, the question is whether police with drug sniffing dogs must obtain a warrant even after the dog sounds an alarm that contraband was found. The other case involves whether police can stand right outside the door while waiting for a search warrant to enter a marijuana grow house filled with thousands of marijuana plants.
In the deportation case of Chaidez v. United States, a grand-mother who entered the country illegally from Mexico, participated in insurance fraud. She pled guilty without being informed by her attorney that a guilty plea to a felony meant automatic deportation. In a prior case, the Supreme Court ruled that failing to advise a client of deportation consequences to ineffective assistance of counsel. The current question is whether that ruling should be applied retroactively to set aside the deportation of Ms. Chaidez.
The Court may hear a case challenging the Voting Rights Act. One year after the Civil Rights Act of 1964 was passed to protection against race, nationality, color, and gender discrimination, the Voting Rights Act was passed. The Voting Rights Act was meant to protect Black voters against suppression of the Black vote. Literacy tests and poll taxes were prohibited under the Twenty-fourth Amendment to the U.S. Constitution. The Supreme Court had ruled against unconstitutional voting districts which dissected Black communities thereby diluting their vote. However, lingering legal questions surround whether protection of Black voting districts is still necessary.
In the 1960s, intimidation was rampant. Fannie Lou Hamer, a voting activist, was beaten for registering to vote. Medgar Evers was assassinated for leading the NAACP’s voter registration drive in Mississippi. Now, as politics change in the South, Blacks gain power and Latino voters emerge, the Court is being asked to determine how redistricting policies should be addressed. Civil rights organizations see voter identification laws as a vestige of earlier years. However, a divided Supreme Court upheld photo identification laws in previous cases. Key provisions of the Voting Rights Act may be in jeopardy.
The Defense of Marriage Act (DOMA) may be heard by the Court in the spring along with a case seeking a federal constitutional right for same-sex marriage. Although States may extend marriage rights to same-sex couples there are many federal rights that are not extended to them. One such example is federal tax relief which is provided to heterosexual couples only.
Last term, the Court upheld the Affordable Care Act based on a pivotal vote by Chief Justice John Roberts. Arizona’s immigration law was defeated except for a crucial provision giving local police authority to request proof of legal status once a person is stopped for some other reason. The Court ruled a New Jersey man could be strip searched once in the general jail population. Fourteen year olds could not serve life without possibility of parole and babies born by IVF from a deceased parent could not receive survivor’s benefits. Each year, decisions of this Court affect millions of lives. The cases this term will have an even greater impact.
Gloria J. Browne-Marshall, an Associate Professor of Constitutional Law at John Jay College in New York City, is author of “Race, Law, and American Society: 1607 to Present” and journalist covering the U.S. Supreme Court. Her forthcoming book is “Black Women and the Law.”