(CNN) — Four weeks. Four major legal rulings. What the Supreme Court decides by the end of June could fundamentally change lives and legacies on a range of politically explosive issues.
The justices will meet in at least five public sessions to release opinions in its remaining 30 cases, among them some the most strongly-contested legal and social issues they have confronted in decades:
– Same-sex marriage: A pair of appeals testing whether gays and lesbian couples have a fundamental constitutional right to wed.
– Affirmative action: May race continue to be used as a factor in college admissions, to achieve classroom diversity?
– Voting rights: The future of the Voting Rights Act, and continued federal oversight of elections in states with a past history of discrimination.
– Gene patents: Can “products of nature” like isolated parts of the human genome be held as the exclusive intellectual property of individuals and companies, through government-issued patents?
“It’s almost unimaginable the number of things that the Supreme Court is going to decide that will affect all Americans in the next month,” said Thomas Goldstein, a top Washington attorney and publisher of SCOTUSblog.com.
“What would surprise me this term is if the court upheld use of affirmative action or the (enforcement tool behind the) Voting Rights Act. And I think it would be a big surprise if the court did anything radical when it came to same-sex marriage — either saying there was a constitutional right to it, or rejecting that claim outright and forever. I think that’s something they’re going to try and tread that middle ground path.”
The court will not say precisely when these hot-button opinions will be released, but the last scheduled public session of the term is set for June 24. Depending on how long it takes the justices to finish up, that deadline could easily slip a few days.
Oral arguments have ended for the term, and the justices have already secretly voted on these and about two dozen other pending cases. Individual justices have been assigned to write the one or more opinions, as well as separate dissents. Only they and their law clerks know how this will end.
And no one is talking– an unbroken tradition of discretion rare in leak-loving Washington.
“At the Supreme Court, those who know, don’t talk. And those who talk, don’t know,” Justice Ruth Bader Ginsburg has said, echoing similar comments from her colleagues.
The high court holds fast to an unofficial but self-imposed deadline to have all draft opinions finished by June 1. They are circulated to colleagues, and subsequent dissents and concurrencies must be submitted by June 15. Nothing is final until the decision is released to the public. Votes can and do change at the last minute.
The last four weeks beginning Tuesday will be the busiest, most chaotic time. Justices and their law clerks are holed up in chambers, furiously working to frame and craft the final opinions, making sure every fact, every footnote, every legal theory is fully checked and articulated.
Ginsburg calls it the “flood season.” She and her eight colleagues know they are writing their legacies with these four issues. The outcome may be disputed, but the constitutional reasoning — at least in the justice’s own minds — must be sound.
“Getting themselves organized, identifying the different majorities, getting opinions written and circulated in dissents and concurrencies will really test their capabilities in the final days,” Goldstein said.
The opinion-writing exercise is little-known, and the court likes it that way. Consistently predicting the outcome is a time-honored Washington parlor game, but rarely successful.
There has been particularly intense focus on the same-sex marriage cases. Thousands of activists rallied at the court when the case was argued in March. At issue:
– Federal benefits. The Defense of Marriage Act, or DOMA, is a 1996 law that says for federal purposes, marriage is defined as only between one man and one woman. That means federal tax, Social Security, pension, and bankruptcy benefits, family medical leave protections — and a thousand more such provisions — do not apply to gay and lesbian couples, such as Edie Windsor. The 84-year-old New York woman is the key plaintiff in the DOMA fight. She was forced to pay more than $363,000 in extra estate taxes when her longtime spouse, Thea Spyer, died.
– State referendums. The California high court had earlier concluded same-sex marriage was legal, but the 2008 voter-approved Proposition 8 abolished it. The high court is being asked to establish same-sex marriage as a constitutional right, but could also decide a more narrow question: whether a state can revoke that right through referendum once it has already been recognized.
The political, social, and legal stakes of this long-simmering debate will once again put the high court at the center of national attention, as it was in last summer’s ruling upholding the massive health care reform law championed by President Barack Obama.
Ten states now allow gays and lesbians to legally wed: Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island, Vermont, and Washington, as well as the District of Columbia. Delaware and Minnesota’s recently passed laws take effect this summer.
It is estimated about 120,000 legally married homosexual couples live in the United States.
There is division within the ranks of both sides about whether the court will — and should — issue a sweeping ruling on the constitutional “equal protection” question. Some activists and politicians — even some justices themselves — think the elected branches may be in a better position to drive the same-sex marriage issue, not the courts.
Voters in three states last November approved same-sex marriage, marking the first time the ballot was used to approve such unions. California is the only state to allow, then revoke same-sex marriage.
“This is a conservative court — conservative ideologically and conservative in the sense that they like to take baby steps, and it seems very unlikely that they would make some big radical move requiring all states to recognize same-sex marriages,” Goldstein said. “They are much more likely to do something a little more modest. The other thing about them is that they don’t want to be on the wrong side of history. It seems pretty clear where this is going with a much broader recognition of same-sex marriage, and so the justices don’t want to call that into question when the country is headed in that direction.”
In fact, the court has set itself up to “punt” on both Proposition 8 and DOMA, avoiding for now consideration of the constitutional questions.
This “legal letdown” could turn on “standing,” or the legal authority or eligibility to make the case. California’s governor has refused to defend Proposition 8 in court, leaving a coalition of private groups to step in. Can they satisfy court scrutiny by establishing there would be legitimate “harm” to themselves if the lower court ruling stands?
The justices could also “DIG” it — or have the case “dismissed as improvidently granted.” Basically the justices would be saying they should not have taken the Proposition 8 appeal in the first place.
Justice Sonia Sotomayor at the March oral argument suggested as much: “If the issue is letting the states experiment and letting the society have more time to figure out its direction, why is taking a case now the answer?” Some of her conservative colleagues seemed to agree as well.
The differences between rejecting the case on standing or DIG grounds would be important. A DIG would likely mean lower court rulings striking down Proposition 8 would hold, allowing California gay and lesbian couples to marry if they chose. How quickly that would happen would be unclear if further legal challenges were filed.
But a “standing” ruling would likely nullify everything, perhaps forcing both sides to start all over again in the lower courts, and limiting the reach of gay marriage to perhaps only a few California counties. Another likely statewide referendum next year could finally settle the matter. Recent polls show growing support for same-sex marriage in California, reflecting a trend nationwide.
DOMA has its own sticky procedural questions. Obama now supports gay marriage, and has refused to defend the 1996 federal law. That has left House Republicans as the official parties in support of DOMA.
So the court could also dismiss that case on standing grounds, but most legal analysts see a more substantive ruling on DOMA’s merits.
Picking winners and losers at this stage is a subjective, even partisan, exercise. The court itself will be both cheered and vilified however it rules. But as an institution, it has survived similar crises of confidence over its discretionary authority in rulings involving slavery, racial integration, corporate power, abortion — even Bush v. Gore.
Rapid-fire reaction to these big cases will be swift and furious from the professional punditry and halls of government. Some individual Americans stand to gain from the decisions, others could be hurt financially, emotionally, and physically.
So why entrust all this in the hands of nine judges?
The Supreme Court usually gets the last word in these matters, regardless of whether one agrees with the decisions. That is true even in matters of life and death, which many argue are the stakes in this health care debate.
Justice Robert Jackson, on the court from 1941 to 1954, may have put it best: “We are not final because we are infallible, but we are infallible only because we are final.”