Supreme Court Faces Affirmative Action and Gay Marriage

WASHINGTON, Sept. 28, 2012 -- For anyone fearing that this Supreme Court term might lack the drama of the last one: fear not.

On Monday, for the first time since delivering the explosive health care decision last spring, the justices will take the bench and officially begin a new term. On the docket is a major case regarding affirmative action to be argued in early October, and later in the fall the justices could also vote to hear cases on gay marriage and voting rights.

The justices have had the summer to recover from the grueling schedule of last spring, and the biting dissent from four of the conservative justices aimed at Chief Justice John Roberts, who voted to uphold the health care law as a tax the government has a constitutional power to levy.

Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and Clarence Thomas did not mince their words, writing that the majority's decision "amounts to vast judicial overreaching."

Over the summer, Scalia and Thomas refuted suggestions that their jurisprudential disagreements would lead to any personal rifts on the court.

"There are legal clashes on legal questions, but not personally," Scalia told CNN. "The press likes to paint us as, you know, nine scorpions in a bottle we're all in. That's just not the case at all."

During a talk at the National Archives, Thomas spoke more generally about the court and praised his colleagues. "I've been there now through a number of members of the court," he said, "and in the years I have been there I honestly come away thinking that every member really wants to make it work."

Here is a look at some of the issues they could decide this term:

Affirmative Action:

On Oct. 10, the court will take on an affirmative action case that could curtail or further restrict race-conscious admission policies at public universities.

It was only in 2003 that the Supreme Court heard a similar case. Justice Sandra Day O'Connor authored the 5-4 decision, known as Grutter, that narrowly upheld the limited use of race as a factor in law school admissions to increase diversity. But O'Connor has since been replaced by Justice Samuel Alito, who is more skeptical of racial classifications and preferences.

Now, in Fisher v. University of Texas, a white student named Abigail Fisher is suing the University of Texas challenging the constitutionality of the school's use of race in undergraduate admissions decisions.

In 1997, the Texas legislature passed the "Top 10 Percent Law," which mandates that Texas high school seniors in the top 10 percent of their classes be automatically admitted to any Texas state university. After the Grutter decision came down, the university added another policy to its admissions program, allowing schools to consider race along with several other factors for admission. Fisher did not have high enough grades to qualify for automatic admission, so she had to compete with other applicants, some of whom were entitled to preference on the basis of race. She was denied admission.

In court papers, her lawyers say in part that that the "Top 10 Percent Law" produced a race-neutral policy that made the University of Texas one of the most diverse public universities in the nation, and that the university should not have combined that policy with one that considers race.

Lawyers for the University of Texas counter that race is only one modest factor among many others that are weighed during the admissions process.

"UT, like many of the Nation's top universities, seeks to assemble a class that is diverse in the innumerable ways -- including race -- that advance its mission of educating students and preparing them to be the leaders of tomorrow," they argue in briefs filed with the court.

Justice Elena Kagan is recused, having dealt with the case in her previous job as Solicitor General.

Gay Marriage

Later in the term the Court will consider two cases dealing with gay marriage. One concerns the Defense of Marriage Act (DOMA), a federal law that defines marriage as between a man and a woman. The second concerns Proposition 8, the controversial California ballot initiative that defined marriage as being between a man and a woman.

Defense of Marriage: There are several parties challenging DOMA. The cases do not concern whether there is a fundamental right to gay marriage, as most of the couples involved are already legally married in their states. Instead, at issue is whether legally married same-sex couples can be denied federal benefits -- such as Social Security survivor benefits and federal health care -- available to opposite-sex married couples.

In 2011 the Obama administration decided it would no longer defend DOMA in court, arguing that it was unconstitutional. In response, Republican Speaker John Boehner moved to intervene and appointed the U.S House of Representatives Bipartisan Legal Advisory Group (BLAG) to do the job. Paul D. Clement, who argued against President Obama's health care law last term, is the lead counsel for BLAG.

Prop 8 Challenge: Separately, supporters of Prop 8 -- who are opposed to gay marriage -- are asking the court to reverse a federal appeals court ruling last February that struck down the ballot initiative on narrow grounds.

If the Supreme Court "denies cert" or declines to take up the Prop 8 case, gay marriages in California would almost immediately be allowed to go forward.

It is almost certain that the Court will take up one of the DOMA challenges, not only because one appeals court has struck down an act of Congress, but also because of the extraordinary circumstances. It is rare for an administration to decide not defend a law that it is also obliged to enforce.

Some legal experts believe the court may be less likely to take up the Prop 8 case because the lower court's decision was narrowly drawn around facts specific to California.