Supreme Tension as Big Cases Loom for Top Court

Gay Marriage and Affirmative Action Hang in Balance

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By Reuters

Published June 21, 2013.

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“Over the last two weeks, I’ve gone through four cans of Right Guard (deodorant), between waiting for the court and the temperatures in Austin in the 90s,” joked Edward Blum, a conservative advocate who spearheaded legal challenges to the Voting Rights Act and to the University of Texas affirmative action policy that represent two of the cases yet to be decided.

Of the four pending cases, the delay in the affirmative action case, Fisher v. University of Texas, is most perplexing.

During oral arguments, a narrow majority appeared poised to reject the admissions policy that considers the race of some applicants. The program supplements a state policy guaranteeing admission to the flagship campus in Austin for high school graduates scoring in the top 10 percent of their individual schools.

Behind the scenes, the justices may be having trouble crafting a rationale that does not undercut the court’s 2003 decision permitting an applicant’s race to be considered to ensure campus diversity. That 5-4 decision was written by Justice Sandra Day O’Connor, who was succeeded in January 2006 by Justice Samuel Alito, who is far more skeptical about affirmative action.

The 83-year-old, retired O’Connor also was in the courtroom on Thursday. That did not necessarily indicate she expected a major ruling.

Even as June always brings anxiety about the remaining major cases, lawyers and longtime court observers say this term feels different because every single one of the four marquee cases, all involving major social dilemmas, remain undecided as the last week looms.

The gay-rights questions this time, one of which revolves around a possible constitutional right to same-sex marriage, could have more consequence than the 2003 gay-rights case that ended lingering state sodomy bans. The other gay-rights case now pending tests a provision of the 1996 federal Defense of Marriage Act that denies U.S. benefits for same-sex married couples that are given to opposite-sex couples.

More could be at stake compared to past terms, too, in the disputes over racial policies.

In 2009, for example, the majority sidestepped a question on the constitutionality of a key part of the Voting Rights Act requiring states with a history of discrimination, mainly in the South, to obtain federal approval before changing their election laws. But Chief Justice Roberts warned that the court might be ready to strike it down.

“Things have changed in the South,” he wrote at the time. He has long been critical of racial policies, dating to his time in President Ronald Reagan’s administration in the 1980s, and it would not be a surprise if he was writing the decision in the current case of Shelby County v. Holder.

The court has yet to announce what days the justices will be sitting next week beyond Monday. Based on past practice, it will likely be in, at least, on Thursday, too. Not since 1996 has a term been extended into July, when the justices usually go on vacation.



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