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Supreme Court ControversiesHas Chief Justice Roberts led an activist court?

The Supreme Court opens a new term on Oct. 1 with

a major affirmative action case from the University

of Texas set for argument the next week. Chief

Justice John G. Roberts Jr. is starting his eighth year

on a court that is divided on many issues between five generally

conservative Republican appointees and four liberal Democratic

appointees. Court watchers are still debating the implications of

Roberts’ surprising vote in late June to join the liberal bloc in

upholding President Obama’s controversial health care law. Despite

that decision, liberal critics continue to accuse the Roberts Court

of political decision making, judicial activism and a pro-business

orientation. The court’s defenders say the justices are acting without

regard to politics and following judicial restraint. Besides the affir-

mative action case, the justices may also tackle marriage equality

and voting rights cases before the term ends next June.

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THE ISSUES ....................815

BACKGROUND ................824

CHRONOLOGY ................825

CURRENT SITUATION ........831

AT ISSUE........................833

OUTLOOK ......................835

BIBLIOGRAPHY ................838

THE NEXT STEP ..............839

THISREPORT

Supporters and opponents of the Affordable Care Actdemonstrate at the Supreme Court on March 26, 2012.The court’s surprise decision to uphold the health care

law on June 28 — with Chief Justice Roberts voting with the court’s liberal bloc — focused

new attention on the high court.

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THE ISSUES

815 • Has the Roberts Courtbased decisions on thejustices’ political views?• Is the Roberts Court biased in favor of businessinterests?• Has the Roberts Courtengaged in judicial activism?

BACKGROUND

824 Political TargetSlavery and social and economic reforms roiled the court in the 19th century.

828 Partisan FightsBitter confirmation battleswere frequent in the late20th century.

829 Roberts’ Court?Conservatives and liberalshave traded victories.

CURRENT SITUATION

831 ‘Hefty’ DocketThe new term begins withseveral important cases.

832 Vanishing Issue?The court is getting littleattention on the campaigntrail.

OUTLOOK

835 Watershed Term?Scholars doubt the courtwill temper its conservativeinstincts on the upcomingaffirmative action case andother major issues.

SIDEBARS AND GRAPHICS

816 Meet the Roberts CourtJustices share Ivy League credentials but are ideologi-cally divided.

818 Key Roberts Court DecisionsIssues range from gun controlto campaign spending toGuantánamo.

820 Major Cases Before theSupreme CourtThirty-one cases are scheduledfor oral arguments in October,November and December,including a major affirmativeaction case.

823 Key Decisions Sway Views of High CourtThe public’s assessmentshave hit peaks and valleyssince 1985.

825 ChronologyKey events since 2000.

826 Use of Race Challenged in University AdmissionsJustice Kennedy could holdkey to Texas decision.

833 At IssueShould the Supreme Courtprohibit racial preferences inuniversity admissions?

FOR FURTHER RESEARCH

837 For More InformationOrganizations to contact.

838 BibliographySelected sources used.

839 The Next StepAdditional articles.

839 Citing CQ ResearcherSample bibliography formats.

SUPREME COURT CONTROVERSIES

Cover: Getty Images/Chip Somodevilla

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Supreme Court Controversies

THE ISSUESA bby Fisher graduated

from Louisiana StateUniversity in May with

a business degree and landeda job as a financial analyst inAustin in her home state ofTexas. But LSU was not Fish-er’s first choice for college.

Back in 2008, Fisher hadhoped to enroll at the Uni-versity of Texas’ flagship Austincampus but was turned down— just like more than three-fourths of the 30,000 applicantsthat year. Fisher’s rank in herhigh school class in Sugar Land,an affluent Houston area sub-urb, was too low to qualify forautomatic admission to UTunder a state law guarantee-ing slots to all students in thetop 10 percent of their class.And her grades and test scoreswere significantly below the3.5 “academic index” level need-ed for admission under theuniversity’s scoring system.

Unlike other unsuccessful applicants,Fisher turned her rejection into a fed-eral court case that has now reachedthe U.S. Supreme Court. Supported bya longtime opponent of racial prefer-ences, Fisher, who is white, filed a suitin April 2008 challenging UT’s use ofrace as a factor in admissions deci-sions. Two lower courts rejected herchallenge, but the high court agreedon Feb. 21, 2012, to hear the suit. Theaction set up a showdown on a legalissue that has divided the justices andthe nation for more than 40 years. 1

(See sidebar, p. 826; “At Issue,” p.833.)

Fisher’s case, to be argued Oct. 10,will help provide a high-profile open-ing for the Supreme Court’s new term,which begins on Oct. 1 — the tradi-tional First Monday in October. When

the justices convene that day, it will bethe first time for the nine to be togetherin public since the dramatic end-of-termdecision to uphold President Obama’shealth care reform plan. 2

The June 28 ruling to uphold the Af-fordable Care Act, National Federationof Independent Business v. Sebelius, camewith Americans focused on the SupremeCourt more intensely than at any timesince the court effectively decided the2000 presidential election in the still con-troversial decision Bush v. Gore. It alsocame as President George W. Bush’schoice to lead the court, John G. RobertsJr., ended his seventh year as chief jus-tice of the United States.

The Roberts Court has made itsshare of waves in legal and politicalwaters since Roberts assumed the court’scenter seat on Oct. 3, 2005 — at age

50, the youngest chief justicein more than 200 years.* Sevenyears later, Roberts appearsto have aged hardly at all.All but invariably, Roberts en-ters the courtroom with a half-smile on his face and an ac-tive glint in his eyes. Hepresides with a light touch,cracks jokes occasionally andadmonishes lawyers or hiscolleagues without ever rais-ing his voice. 3

Yet Roberts is merely thefirst among equals on a courtthat is sharply divided on legaland judicial philosophies.Roberts joins four other jus-tices appointed by Republicanpresidents to form a conserv-ative majority on some of themost closely divided issues.Four justices appointed byDemocratic presidents — in-cluding Obama’s two ap-pointees, Sonia Sotomayorand Elena Kagan — form aliberal bloc that winds up indissent in most of the court’s5-4 decisions. The balance of

power often rests with Justice AnthonyM. Kennedy, the moderate conservativeappointed by President Ronald Reaganin 1987 after the Democratic-controlledSenate rejected Reagan’s first choice forthe vacancy: the doggedly conservativeRobert Bork. (See justices’ biographies,p. 816.)

Until the health care ruling, conser-vatives had mostly warm feelings aboutthe Roberts Court’s general course. “It’sbeen largely positive,” says Curt Levey,president of the Committee for Justice,a conservative court-watching advoca-cy group. Levey cites decisions strikingdown campaign finance laws on FirstAmendment grounds, limiting use ofrace in pupil assignments and cutting

BY KENNETH JOST

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Barack Obama takes the oath of office as president fromChief Justice John G. Roberts Jr. at the Capitol on Jan. 20,2009. Roberts presides over a Supreme Court that is

sharply divided on legal and judicial philosophies. Thecourt has handed down several controversial rulings,including upholding the Affordable Care Act andstriking down campaign finance laws, during his seven years leading the court. A major affirmativeaction case tops the list of issues facing the justices

in the new term beginning Oct. 1.

* John Marshall was 45 years old when hebecame chief justice on Jan. 31, 1801.

816 CQ Researcher

back on criminal procedure protectionsfor defendants and suspects.

Offsetting those positives, Leveysays, are two trends viewed critical-ly by conservatives. The court hasstood still on federalism issues afterfavorable rulings for states underRoberts’ predecessor, Chief JusticeWilliam H. Rehnquist. And the courthas imposed new limits on criminalsentencing, typically with Roberts in

dissent. Levey also acknowledges thatthe favorable trend has been “over-shadowed” by the ruling to leave theAffordable Care Act almost completelyintact.

Liberal groups find much to panand little to praise. Nan Aron, presi-dent of the progressive Alliance forJustice, criticizes the court for favoring“a limited role for the federal govern-ment,” adopting “conservative views

on social issues” and “tilting the courtin a pro-corporate direction.”

“We have seen him shift the court ina pro-corporate direction at the expenseof everyday people,” says Aron, after not-ing that the alliance opposed Roberts’confirmation. “There is a consistent themein his opinions, a predisposition to rulein favor of large corporations.”

Academic experts differ along ide-ological lines in assessing the Roberts


T he Roberts Court consists of five justices appointed by Re-publican presidents and four by Democrats. Eight werefederal appeals courts judges at the time of their ap-

pointments; Elena Kagan was solicitor general of the UnitedStates. All are graduates of Ivy League law schools. Here arebrief biographies of the justices showing their dates and placesof birth, education, Senate confirmation dates and votes andselected major opinions since September 2005.

John G. Roberts Jr., chiefjustice: born Jan. 27, 1955, Buf-falo, N.Y.; Harvard, Harvard LawSchool; appointed by PresidentGeorge W. Bush; confirmedSept. 29, 2005 (78-22). Major opin-ions: Parents Involved in Com-munity Schools v. Seattle SchoolDistrict (school integration); Ari-zona Free Enterprise v. Bennett(campaign finance); National Fed-eration of Independent Businessv. Sebelius (Affordable Care Act).

Antonin Scalia, associate jus-tice born March 11, 1936, Tren-ton, N.J.; Georgetown, HarvardLaw School; appointed by Pres-ident Ronald Reagan; confirmedSept. 17, 1986 (98-0). Major opin-ions: Wal-Mart Stores v. Dukes(class actions); Boumediene v.Bush (dissent, Guantánamo); Dis-trict of Columbia v. Heller (gunrights); Arizona v. United States(dissent, immigration).

Anthony McLeod Kennedy,associate justice: born July 23,1936, Sacramento, Calif.; Stan-ford, Harvard Law School; ap-pointed by President Ronald Rea-gan; confirmed Feb. 3, 1988(97-0). Major opinions: Gonzalesv. Carhart (abortion); Boumedienev. Bush (Guantánamo); CitizensUnited v. Federal Election Com-mission (campaign finance); Ari-zona v. United States (immigration).

Clarence Thomas, associatejustice: born June 23, 1948, PinPoint, Ga.; Holy Cross, Yale LawSchool; appointed by PresidentGeorge H. W. Bush; confirmedOct. 15, 1991 (52-48). Majoropinions: Hamdan v. Rumsfeld(dissent, Guantánamo); McDon-ald v. Chicago (concurrence, gunrights).

Ruth Joan Bader Ginsburg,associate justice: born March 15,1933, Brooklyn, N.Y.; Cornell, Co-lumbia Law School; appointed byPresident Bill Clinton; confirmedAug. 3, 1993 (96-3). Major opin-ions: Gonzales v. Carhart (dissent,abortion); Ledbetter v. GoodyearTire & Rubber Co. (dissent, jobdiscrimination); Wal-Mart Stores v.Dukes (dissent, class actions).

Meet the Roberts CourtJustices share Ivy League credentials but are ideological opposites.

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Court’s decisions even if they agree indescribing the court’s general orienta-tion. “Overall, the Roberts Court hasbeen what we expected,” says ErwinChemerinsky, dean of the Universityof California-Irvine Law School and anoutspoken liberal critic of many of thecourt’s decisions. “When the court’sideologically divided, the conservativeposition prevails much more than theliberal position.”

Jonathan Adler, a professor at CaseWestern Reserve University School ofLaw in Cleveland who has been affil-iated with conservative organizations,agrees. “It is a moderately conservativecourt,” Adler says. “On most issues, thecourt is going to lean in a conserva-tive direction.” (See decisions, p. 818.)

To some extent, however, the termthat ended on June 28 belied that pat-tern. 4 In addition to upholding Obama’s

health care law, the court also cheeredliberal groups with a decision to strikedown several provisions of Arizona’swidely copied crackdown on undocu-mented immigrants. Kennedy wrote themajority opinion in the case, Arizona v.United States, joined by Roberts andthree liberal justices. Immigrant-rightsgroups were disappointed, however, thatthe court unanimously left standing themost controversial provision in the Ari-zona law: the so-called “show me yourpapers” section. That provision instructsstate and local police to conduct immi-gration status checks during an arrest orstop if they suspect the individual is inthe country illegally. 5

Civil liberties and criminal defensegroups also counted several victoriesduring the term, including a final-week decision written by Kagan tobar mandatory life-without-parole sen-

tences for juvenile murderers. Earlier,Kennedy had written companion de-cisions that allow defendants to chal-lenge criminal convictions if they re-ject a favorable plea bargain based onbad or inadequate advice from theirlawyers. Kennedy also wrote a deci-sion striking down a federal law, theStolen Valor Act, making it a crime tolie about having received militarymedals. The ruling continued theRoberts Court’s general pattern of pro-free speech decisions.

Business groups fared well duringthe term, but the victories came in rel-atively minor cases. A year earlier, how-ever, the headline decision of the termwas the 5-4 ruling, split along ideo-logical lines, that threw out a broadsex discrimination suit against Walmart,the nation’s largest private employer.The ruling established new require-

Stephen Gerald Breyer, as-sociate justice: born Aug. 15, 1938,San Francisco; Stanford, MagdalenCollege (Oxford), Harvard LawSchool; appointed by PresidentBill Clinton; confirmed July 29,1994 (87-9). Major opinions: Par-ents Involved in CommunitySchools v. Seattle School District(dissent, school integration); Mc-Donald v. Chicago (dissent, gunrights).

Samuel Anthony Alito, Jr.,associate justice: born April 1,1950, Trenton, N.J.; Princeton,Yale Law School; appointed byPresident George W. Bush; con-firmed Jan. 31, 2006 (58-42). Majoropinions: Ledbetter v. GoodyearTire & Rubber Co. (job discrim-ination); McDonald v. Chicago(plurality, gun rights); Miller v.Alabama (dissent, criminal sen-tencing).

Sonia Maria Sotomayor,associate justice: born June 25,1954, Bronx, N.Y.; Princeton,Yale Law School; appointed byPresident Barack Obama; con-firmed Aug. 6, 2009 (68-31). Majoropinion: Southern Union Co. v.United States (criminal fines).

Elena Kagan, associatejustice: born April 28, 1960, NewYork, N.Y.; Princeton, Oxford,Harvard Law School; appoint-ed by President Barack Obama;confirmed Aug. 5, 2010 (63-37).Major opinions: Arizona FreeEnterprise v. Bennett (dissent,campaign finance); Miller v. Al-abama (criminal sentencing).

— Kenneth Jost

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ments for class actions — mass lawsuitsfavored by lawyers representing con-sumers and workers but feared by at-torneys representing big companies. Asecond ruling that year allowed compa-nies to enforce arbitration agreements toprevent customers from transforming in-dividual complaints into class actions. 6

The dramatic ruling in the healthcare case on June 28 was followed byan extraordinary leaked account frominside the court that Roberts had ini-tially voted to strike down the law butchanged his mind midway through theopinion-writing process. CBS’s chieflegal correspondent Jan Crawford,who has good sources in Republicanand conservative circles, attributed her

July 1 scoop to “two sources with spe-cific knowledge of the deliberations.”Kennedy conducted a “relentless” effortto bring Roberts back around, accord-ing to Crawford. The dissent jointly au-thored by Kennedy and three otherconservatives — Antonin Scalia, ClarenceThomas and Samuel A. Alito Jr. — re-flected their anger with Roberts overhis decision, Crawford reported. 7

The University of Texas affirmativeaction case is now being eyed as a like-ly headline-grabber for the court’s newterm. “Universities all over the nationare looking at this case,” says Dean Spar-lin, a lawyer representing the Associa-tion for Affirmative Action, which fileda brief supporting the university. Roger

Clegg, president and general counselof the Center for Equal Opportunity,which filed a brief supporting Fisher’sposition, says he is “cautiously opti-mistic” that the court will rule flatly thatracial preferences in college and uni-versity admissions are unconstitutional.(See “At Issue,” p. 833.)

The court’s calendar includes sev-eral other closely watched cases, in-cluding one to be argued on the open-ing day that tests federal courts’jurisdiction over suits for human rightsviolations committed in other coun-tries. And two other major issues arewaiting in the wings: gay marriage andthe federal Voting Rights Act. (See cal-endar, p. 820.)


Key Roberts Court DecisionsIssues range from gun rights to campaign spending to Guantánamo. Most of these decisions came on 5-4 votes reflecting the court’s conservative-liberal split.

Name of Case Vote HoldingHudson v. Michigan 5-4 Violation of knock-and-announce rule does not require suppressing evidenceHamdan v. Rumsfeld 5-3 Military tribunals for Guantánamo detainees violate military law, Geneva ConventionsGonzales v. Carhart 5-4 Upholds federal “partial-birth” abortion banLedbetter v. Goodyear 5-4 Requires employees to file pay bias complaint within statutory deadline Tire & Rubber Co. after last intentional act of discrimination; rejects “paycheck accrual rule”

FEC v. Wisconsin Right to Life 5-4 Eases law limiting pre-election “issue-advertising” by unions, corporationsParents Involved in 5-4 Limits use of race to assign students to promote racial diversity; Community Schools v. permits some other “general policies”Seattle School Dist. No. 1Boumediene v. Bush 5-4 Strikes down Military Commissions Act; extends habeas corpus to Guantánamo detainees

Kennedy v. Louisiana 5-4 Bars death penalty for child rapeDavis v. FEC 5-4 Throws out “Millionaire’s Amendment” in campaign finance reform lawDistrict of Columbia v. Heller 5-4 Strikes down D.C. gun ban

Ricci v. DeStefano 5-4 Requires employers to have a “substantial basis” to fear disparate-impact liability before adopting race-conscious policies to avoid liabilityUnited States v. Herring 5-4 Limits use of exclusionary rule to reckless/intentional mistakes by policeNorthwest Austin Municipal 8-1 Expands eligibility for municipalities to “bail out” of preclearance Utility District No. 1 v. Holder requirement in Voting Rights Act; constitutional challenge left unresolved

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On gay marriage, the justices arebeing asked to review decisions thatstrike down on equal protectiongrounds the federal Defense of Mar-riage Act, which bars marriage-like ben-efits under federal law to same-sexcouples even if they are legally mar-ried in their states. Separately, oppo-nents of gay marriage are seeking toreinstate California’s Proposition 8 thatbarred recognition of same-sex couples.The federal appeals court for Califor-nia ruled the 2008 initiative unconsti-tutional earlier this year. 8

The challenges to the VotingRights Act focus on section 5 of the1965 law. It requires states and lo-calities with a history of discrimina-tion in voting to “preclear” any changein election procedure with the U.S.Department of Justice or a federalcourt in Washington. Two munici-palities — Kinston, N.C., and Shelby

County (suburban Birmingham), Ala.— have appeals pending at theSupreme Court challenging the pro-vision as an improper intrusion onstate sovereignty. 9

As the justices prepare to convenefor the new term, here are some ofthe competing assessments of theRoberts Court being heard:

Has the Roberts Court based de-cisions on the justices’ politicalviews?

The Supreme Court split the dif-ference on the hot-button issue of im-migration on June 25 by striking downparts of the Arizona law while up-holding the “show me your papers”provisions. But in a sharply wordeddissent that he emphasized by sum-marizing it from the bench, Justice An-tonin Scalia single-mindedly defendedthe state’s right to control its own bor-

ders. For good measure, he added atart criticism of Obama’s decision 10days earlier to grant temporary statusto immigrants under age 30 broughtto the United States as children.

Critics denounced Scalia’s commentson Obama’s actions as political. Jef-frey Rosen, a professor at George Wash-ington University Law School in Wash-ington, said Scalia “is sounding morelike a conservative blogger or Fox Newspundit than a justice.” Scalia, in tele-vision interviews, dismissed the criti-cism. Appearing on “Fox News Sun-day” a month later, Scalia said he wasmerely making the point that “Arizonais being prevented from enforcing fed-eral immigration law.” 10

Scalia’s dissenting bench slap atObama came after a succession ofother high-profile rulings in which thecourt had rejected the administration’s

Source: Kenneth Jost, Supreme Court Yearbook (annual series)

Name of Case Vote HoldingCitizens United v. FEC 5-4 Permits corporations to spend own money on political campaigns

Berghuis v. Thompkins 5-4 Requires suspect to claim right of silence to suppress later incriminatory statementMcDonald v. Chicago 5-4 Applies Second Amendment gun rights to state and local governmentsBrown v. Plata 5-4 Orders California prisons to reduce overcrowding to improve health services

Wal-Mart Stores, Inc. v. Dukes 5-4 Rejects class action sex discrimination suit against Wal-MartArizona Free Enterprise 5-4 Strikes down “matching-fund” provision in Arizona public Club v. Bennett campaign financing lawUnited States v. Jones 9-0 Defines extended GPS tracking of suspect’s vehicle as search for Fourth Amendment purposesFCC v. Fox Television 8-0 Sets aside FCC order against TV networks for fleeting Stations, Inc. expletives, adult nudity

Southern Union Co. v. 6-3 Requires jury finding beyond reasonable doubt to find facts to United States raise criminal fineMiller v. Alabama 5-4 Bars mandatory life-without-parole sentence for juvenile murderersArizona v. United States 5-3 Strikes three parts of state immigration law; allows immigration status checks (8-0)National Federation of 5-4 Upholds Affordable Care Act; narrows enforcement of Medicaid Independent Business v. expansion (7-2)Sebelius

2010

2011

2012

Continued on p. 821

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Major Cases Before the Supreme CourtThe Supreme Court opens the 2012-2013 term with 31 cases scheduled for oral arguments during three two-week sessions that begin on Oct. 1, Oct. 29 and Nov. 26. Here are some of the major upcoming cases:

Date of OralCase Arguments Issue

Kiobel v. Royal Dutch Oct. 1 Federal court jurisdiction over suits for human rights violations Petroleum Co. abroad

Ryan v. Gonzales; Oct. 9 Right to mental competency for death row inmates in habeas Tibbals v. Carter corpus proceedings

Fisher v. University of Texas Oct. 10 Constitutionality of University of Texas’ use of race in at Austin undergraduate admissions

Clapper v. Amnesty Oct. 29 Standing for plaintiffs challenging global terrorism wiretapping International USA program

Florida v. Jardines Oct. 31 Use of drug-sniffing dog at front door of house to justify search

Florida v. Harris Oct. 31 Use of drug-sniffing dogs’ “alerts” for probable cause for vehicle search

Comcast v. Behrend Nov. 5 Evidence required for availability of class-wide damages to certify class action

Amgen Inc. v. Connecticut Nov. 5 Evidence required to certify securities fraud class action based Retirement Plans and Trust on “fraud-on-the-market” theoryFunds

Vance v. Ball State University Nov. 26 Supervisory liability in hostile work environment suits

Decker v. Northwest Environ- Dec. 3 Environmental Protection Agency jurisdiction over channeled mental Defense Center, runoff from forest logging roadsGeorgia-Pacific West v. Northwest Environmental Defense Center

Major cases awaiting the justices’ decisions whether to grant review:

Case Issue

National Organization for Marriage, Inc. v. Constitutionality of campaign finance regulations on nonprofitMcKee organizations participating in ballot measure campaigns

Mount Holly v. Mt. Holly Gardens Citizens Liability under Fair Housing Act for unintentional (“disparate in Action impact”) discrimination

Bipartisan Legal Advisory Group of the United Constitutionality of section 3 of federal Defense of Marriage Act States House of Representatives v. Gill; (DOMA)Department of Health and Human Services v. Massachusetts; Office of Personnel Management v. Golinski; Windsor v. United States

Nix v. Holder; Shelby County v. Holder Constitutionality of 2006 reauthorization of section 5 of federal Voting Rights Act (preclearance provision)

Hollingsworth v. Perry Constitutionality of California’s Proposition 8 defining marriage as union between a man and a woman.

Maryland v. King Constitutionality of state law allowing collection of DNA samples from arrestees

Compiled by Rob Silverblatt, Niccolo Barber


legal position. In the most dramaticinstance, the court in the Citizens Unit-ed decision in January 2010 struckdown a major provision of a federalcampaign finance law defended by thethen solicitor general, Kagan. The rul-ing opened the door to unlimited cam-paign spending by corporations andunions. Six days afterward, Obamacriticized the decision in his State ofthe Union speech, with six of the jus-tices seated below him in the Housechamber. Obama said the ruling wouldopen the door to unlimited politicalspending by foreign corporations. Inthe television coverage, Justice SamuelA. Alito Jr. could be seen at that pointshaking his head and mouthing thewords “not true.” 11

Citizens United is one in a seriesof Roberts Court decisions strikingdown or narrowing campaign financelaws. The rulings — with Republicanappointees Roberts, Scalia, Kennedy,Thomas and Alito in the majority —are widely seen as favoring Republi-cans to Democrats’ disadvantage. Cit-izens United “ensures that corpora-tions can give unlimited amounts ofmoney,” says Alliance for Justice pres-ident Aron. The dissenters in the 5-4ruling included three Democratic ap-pointees — Ruth Bader Ginsburg,Stephen G. Breyer and Sotomayor —and the liberal Republican-appointedjustice, John Paul Stevens. Kagan wasnominated to succeed the retiringStevens four months later.

Case Western’s Adler is one ofmany experts who defend the cam-paign finance decisions at the sametime that they minimize their impact.“A lot of people overstate the impli-cations,” Adler says. He goes on todeny any partisan motivation on thejustices’ part. “There are easier waysto explain the pattern of the court’sdecisions that don’t require impugn-ing motivations or suggesting any-thing other than fealty to their judi-cial oaths,” he says.

Others on the political right agree.“It’s not being political to say that dif-ferent theories of constitutional inter-pretation correlate to the party of thepresident who appoints the justices,”says Ilya Shapiro, a senior fellow inconstitutional studies at the libertarianCato Institute and editor in chief ofCato Supreme Court Review. Levey withthe Committee for Justice also main-tains that the criticism is unfair be-cause the same groups that praise otherrights-expanding decisions criticizerulings in the opposite direction. “Whenconservatives try to rein that in, it’spolitical,” Levey says. “I think it’s avery, very one-sided term.”

Some critics of the Roberts Courtalso reject the description of the courtas political. “I’m very hesitant to as-sume that the court acts out of parti-san political motives,” says StevenShapiro, national legal director of theAmerican Civil Liberties Union (ACLU).“The majority is conservative, and thatideology more often lines up withRepublicans than with Democrats. ButI don’t think of the court as overtlypolitical in the way others might.”

Chemerinsky of UC-Irvine echoes thatview. “The court’s not political at all inthe sense of lobbying, trading votes orresponding to pressure,” he says. Headds that the court has always been“ideological,” dating to its earliest days.But he says the Roberts Court differsfrom those of previous years in one re-spect: “The ideology [of the justices] ex-actly corresponds to the political partyof the president who appointed them.”

In fact, until recently presidents ofboth parties have appointed ideologi-cally diverse justices to the court. Re-publican Dwight D. Eisenhower ap-pointed liberal justices Earl Warren andWilliam J. Brennan Jr. as well as themoderate conservatives John MarshallHarlan and Potter Stewart. DemocratJohn F. Kennedy named Byron R. White,who took conservative positions onmany issues, as well as the solidly lib-eral Arthur J. Goldberg.

For his part, however, Scalia, a Rea-gan appointee, finds actions by today’scourt completely unsurprising. “I don’tthink the court is political at all,” hesaid on the “Fox News Sunday” broad-cast. The current alignment, he contin-ued, “doesn’t show they are voting pol-itics. It shows that they had been selectedbecause of their judicial philosophy.

“The Republicans have been look-ing for, you know, originalist and tex-tualist and restrained judges for 50 years.And the Democrats have been look-ing for the opposite, for people whobelieve in Roe v. Wade. Why shouldit be a surprise that after, you know,assiduously trying to get people withthese philosophies, they end up with[these] philosophies?” 12

Is the Roberts Court biased infavor of business interests?

Business groups cheered when theSupreme Court blocked a major sex-discrimination suit against Walmart laterthat month. But when the term endedin late June, the U.S. Chamber of Com-merce counted up only 12 wins in the21 cases in which it participated. RobinConrad, executive director of the Na-tional Chamber Litigation Center, saidthe middling record disproved whatshe called “the silly myth” of a pro-business Supreme Court.

A year later, the Chamber had abetter record: eight wins and no out-right defeats. Neil Weare, senior coun-sel of the consumer-oriented Constitu-tional Accountability Center, said therecord demonstrated “the roaring suc-cess” that the Chamber has enjoyedthroughout the Roberts Court period:60 wins out of 88 cases, according tothe center’s count. But Conrad was stillpoor-mouthing the record. She stressedthat the justices had skirted rulings onsome of the business group’s issues. 13

Liberal court watchers agree in la-beling the Roberts Court pro-business.“This is the most pro-business courtsince the 1930s,” says Chemerinsky, re-ferring to the court that struck down

Continued from p. 819

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several major laws enacted as part ofPresident Franklin D. Roosevelt’s NewDeal program. In its compilation, theConstitutional Accountability Center saysthe Chamber’s 68 percent success ratewith the Roberts Court is higher thanits win-loss records in the final yearsof either the Burger Court (43 per-cent) or Rehnquist Court (56 percent).

The Roberts Court “has been a friendto big business,” says the ACLU’sShapiro. “The court is sympathetic tothe anti-regulatory claims that businessbrings to the court.”

Conservativecourt watchers areunconvinced. “I thinkthe court is pretty bal-anced on this,” saysLevy with the Com-mittee on Justice. “Forthe crowd that seesthe court’s job asstanding up for thelittle guy, the courtis failing. That’s notwhat I see as thecourt’s role.”

Adler acknowl-edges that the courthas taken up some-what more business-related cases than inthe past. Roberts wasa successful SupremeCourt advocate witha big corporate lawfirm in Washingtonfor more than adecade before being appointed to thefederal appeals court in 2003, and hecheered business groups by hinting inhis confirmation hearing that he fa-vored the court’s increasing the num-ber of cases it agreed to decide. ButAdler thinks business groups’ win-lossrecord is mixed. “Business has gottenvery little from this court,” Adler says.

The Chamber essentially sat out thepast term’s two highest-profile cases. Ittook no position on Arizona’s immigra-tion law and argued in the health care

case only for striking down the entirelaw if any parts were ruled invalid. Theeight victories came in non-headline cases,but several reflected general themes seenin past Roberts Court rulings.

In two separate rulings, for example,the court favored business interests byinvoking the federal preemption doc-trine, which blocks states from overrid-ing or interfering with federal regulato-ry schemes. One decision struck downa California law regulating slaughter-houses as conflicting with federal law;the other barred asbestos-exposure

suits in state courts against locomotivemanufacturers because of a 1915 fed-eral law. The court’s record in previouspreemption cases is mixed, but businesswon several of the more important, in-cluding a 5-4 decision in 2011 block-ing state court product liability suitsagainst generic drug manufacturers.

The court this year made it some-what harder for shareholders to sue cor-porate insiders for profits improperlymade on stock trades shortly after newstock offerings. The ruling was in line

with other rulings limiting securities lit-igation, including a 5-3 decision in 2008that made it harder to sue a company’ssuppliers or customers for helping it toperpetrate securities fraud.

Employers have fared well in manyRoberts Court decisions, including a5-4 ruling this year that spared drugcompanies from paying overtime to theirsales representatives. Earlier, the courtin 2009 had raised the burden of prooffor plaintiffs in federal age discrimina-tion suits. And in 2007 the court inthe so-called Ledbetter case had made

it harder for workers toobtain back pay for long-standing equal pay vio-lations. Those two deci-sions also came on 5-4votes. Congress effec-tively overruled the Led-better decision in the firstweeks of Obama’s ad-ministration. 14

Business interests alsowon an important crim-inal law decision this yearwith a 6-3 ruling callingfor juries, not judges, tomake any factual findingsneeded to raise criminalfines. The ruling, whichset aside an $18 millionfine for a federal environ-mental violation, follows aline of other decisionsgenerally strengtheningjuries’ fact-finding roles incriminal cases.

Among the various pro-business rul-ings, defeats have come mostly in less-er cases. The most significant setbackcame in 2007 when Kennedy joined theliberal bloc in backing the EnvironmentalProtection Agency’s power to regulateso-called greenhouse gases.

Adler acknowledges the court leansagainst plaintiffs’ interests in civil litiga-tion. “The court is less willing to rub-ber stamp or green light new, creativeplaintiffs’ theories,” he says. But he saysthe court has not issued any broad


Lily Ledbetter, a supervisor at a Goodyear tire plant in Gadsden, Ala.,sued the firm for paying her less than her male counterparts. In 2006the Supreme Court rejected her claim, making it harder for workers toobtain back pay for long-standing equal-pay violations. The court’s

5-4 decision — one of many Roberts Court rulings seen as pro-business— was effectively overruled by Congress in the first weeks

of the Obama administration.

Getty Images/Chip Somodevilla


ruling limiting punitive damages, a majorissue for business groups. “This is nota court that is altering the law in a pro-business direction,” he says. “It’s muchmore a status-quo court on business is-sues than anything else.”

Has the Roberts Court engagedin judicial activism?

Early in the days of federal antitrustlaw, the Supreme Court issued a de-cision in 1911 that flatly prohibited amanufacturer from dictating the pricethat retailers could set for its products.The per se rule against “resale pricemaintenance” stood for nearly a cen-tury, untouched by Congress, until 2007when the Roberts Court voted 5-4 tooverrule it.

For the majority, Kennedy said theearlier ruling was poorly reasoned,had come under criticism from econ-omists and others and actually hurtrather than helped competition. Writ-ing for four liberal dissenters, Breyerargued for keeping the precedent. “Ido not believe,” Breyer wrote, “thatthe majority has shown new or changedconditions to warrant overruling a de-cision of such long standing.” 15

Reversals of prior rulings are onepractice cited by legal experts as an ex-ample of judicial activism. Another aredecisions to overturn federal, state orlocal laws as unconstitutional. Some legalexperts also label rulings as activist ifa court reaches out to decide an issuedespite procedural hurdles or decidesa case more broadly than necessary.

Legal experts offer these types ofcourt actions to try to give objectivesubstance to a politically charged termthat many insist is simply a pejorativelabel people use for decisions withwhich they disagree. “I’ve long believedthat judicial activism is the label we usefor the decisions that we don’t like,”says UC-Irvine’s Chemerinsky. The CatoInstitute’s Shapiro says activism is “anempty term without any meaning.”

As Chemerinsky notes, the RobertsCourt’s decision in Citizens United fits

the attempt at an objective definition ofjudicial activism. The court could havedecided the case on a narrower groundthan it did; in fact, a recent account bylegal journalist Jeffrey Toobin of CNNand The New Yorker says Roberts fa-

vored a narrow ruling but went alongwith a broader decision favored by theother four conservatives. The decisioninvalidated a major provision of the Bi-partisan Campaign Reform Act, enactedonly seven years earlier, and had to

Key Decisions Sway Views of High Court

The public’s view of the Supreme Court has hit peaks and valleys over the past three decades (top). Favorability ratings dipped in 2005 after the court allowed local governments to take property and transfer it to another owner for redevelopment. Ratings dipped again amid a slew of conservative decisions in 2007 involving abortion, campaign finance and school integration, and again this summer after the court upheld President Obama’s health care law. Favorability was highest in summer 1994, after the court ended its term with no “blockbuster” rulings. Overall, Americans believe the Supreme Court’s ideology is “middle of the road,” but a significant number of Republicans believe the court is liberal while many Democrats view it as conservative (chart at bottom).

Source: “Obama Holds Lead; Romney Trails on Most Issues,” Pew Research Center, July 2012, www.people-press.org/2012/07/12/obama-holds-lead-romney-trails-on-most-issues/

Americans’ View of the Supreme Court, 1985-2012

Americans’ Perception of theSupreme Court’s Ideology, 2012

FavorableUnfavorable

010203040506070

80%

2012201020092008200720062005200119971994199319911990198819871985

Ideology Total Republicans Democrats Independents

Conservative 24% 9% 39% 21%Middle of the 41 45 39 41 roadLiberal 23 36 12 24Don’t know 12 9 10 13

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overrule two recent Supreme Court prece-dents to do so. 16

The Citizens United decision is ex-hibit No. 1 for Roberts Court critics touse in describing the court as activist.In a critical law review article, Geof-frey Stone, a prominent liberal lawprofessor at the University of Chica-go, says the decision represents “anaggressively activist approach.” 17

Chemerinsky points to two other high-profile rulings, in 2008 and 2010, thatrecognized a personal right under theSecond Amendment to possess firearmsfor self-defense in the home. The rul-ings struck down handgun bans inWashington, D.C., and Chicago. 18

The ACLU’s Shapiro says the activistlabel applies. “This is an activist courtin the sense that it has shown itselfwilling, ready and able to give lessdeference to legislative enactments thana version of conservatism would other-wise apply,” he says.

Adler, the Case Western professor,insists, however, that the Roberts Court’soverall record is less, not more, ac-tivist than previous courts as measuredby reversals of rulings and laws heldunconstitutional. He cites statistics com-piled by Supreme Court expert LeeEpstein in 2010 — at the end of theRoberts Court’s fifth tem — showingfewer such decisions than the rate forthe court during Rehnquist’s 19 yearsas chief justice.

Epstein counted eight reversals ofprecedents in the Roberts Court’s first fiveyears, for an average of about one-and-a-half per year; the Rehnquist Court had45 reversals in 19 years — more thantwo per year. Epstein counted 15 RobertsCourt rulings declaring laws unconsti-tutional, or three per year; the Rehn-quist Court averaged more than six peryear: 120 rulings in 19 years. 19

“If you’re going to label the courtas activist, you can’t just look at onedecision,” Adler says today. “You haveto look at the overall trend. And ifyou look at the overall trend, it’s doingthis less often than its predecessors.”

Levey with the Committee for Jus-tice again argues that liberals use thelabel unfairly in criticizing the RobertsCourt. “For years, liberals were viewedas the activists because they were theone who thought that the court shouldhelp the Constitution evolve,” Levey says.“I think they’ve tried to change the de-finition to mean not giving enough def-erence to the federal government. Con-servatives generally favor deference, butconservatives also say it is very muchthe province of the court to strike downlaws that are unconstitutional.”

The liberal critique is also undercutby the number of Roberts Court deci-sions striking down laws that liberalgroups called unconstitutional. Adlercites as the strongest example theBoumediene decision in 2008 that guar-anteed Guantánamo prisoners the rightto use federal habeas corpus to chal-lenge their detention. “Boumediene isthe single most aggressive use of judi-cial review of a national security mea-sure endorsed by both political branch-es that we have seen,” Adler says. 20

The court also invalidated statesentencing laws when it barred life-without-parole for juvenile murders thisyear and outlawed the death penaltyfor child rape in 2008. And in a se-ries of First Amendment decisions, thecourt has struck down a California lawbanning violent video games for mi-nors (2011), a federal statute prohibitingdepictions of animal cruelty (2010)and another federal law this year mak-ing it a crime to lie about having re-ceived military medals.

Adler also says Roberts “likes to savestatutes when possible.” He notes thatRoberts in 2009 helped skirt a consti-tutional challenge to the federal VotingRights Act. 21 Roberts’ role in uphold-ing the health care law fits that pat-tern, but the ACLU’s Shapiro says it istoo soon to know what the ruling sig-nifies for the future. “Whether we areentering a phase two of the RobertsCourt, I don’t know the answer to that,”he says. “Only time will tell.”

BACKGROUNDPolitical Target

T he Supreme Court was formed in1789 with its powers undefined

and no cases to hear. Through the 19thcentury the court gained in influence,most significantly by supporting a broadview of federal powers and its ownpower under Chief Justice John Mar-shall. The court also became the tar-get of political attacks — notably fromabolitionists over the slavery issue be-fore the Civil War and from progres-sives and organized labor over socialand economic reforms at the turn ofthe 20th century. The court’s influenceincreased through the century alongwith political attacks, which peaked inresponse to the mid-century explosionof judicial activism under Chief JusticeEarl Warren (1953-1969). 22

The Constitution listed the kinds ofcases federal courts could hear butdid not specify the powers they couldexercise. The Supreme Court openedits first session in New York City onFeb. 1, 1790, with only three of thesix justices present and nothing on thedocket. Over the next decade, the courthad so little stature that Chief JusticeJohn Jay resigned in 1795 to be gov-ernor of New York and refused Presi-dent John Adams’ reappointment in1800. The post went instead to Mar-shall, who established the court as apowerful institution during his record34-year tenure (1801-1835). The Mar-shall Court’s precedent-setting deci-sions established the court’s power todeclare an act of Congress unconsti-tutional and to reverse state court de-cisions; other rulings supported a broadview of Congress’ powers vis-à-vis thestates. Several of the rulings drew strongcriticism from advocates of states’ pre-rogatives.

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ChronologySupreme Court scholars use the term “natural court” to define the time period

with no personnel changes on the court. The Roberts Court has had four “natural courts” so far.

Rehnquist Court (1986-2006) Chief JusticeWilliam H. Rehnquist leadsconservative court; Sandra DayO’Connor and Anthony M.Kennedy are swing votes.

2004Rehnquist operated on for thyroidcancer (Oct. 23).

2005Bush nominates John G. RobertsJr. to succeed retiring O’Connor(July 19). . . . Rehnquist dies(Sept. 3) . . . . Bush nominatesRoberts for post (Sept. 5). . . .Senate confirms Roberts (Sept. 29).

•

Roberts 1 (2005-2006)A new chief justice.

2005-2006Roberts presides as new term opens(Oct. 3). . . . Bush nominatesSamuel A. Alito Jr. for O’Connor’sseat (Oct. 31). . . . Alito confirmedby Senate (Jan. 31).

•

Roberts 2 (2006-2009)Alito solidifies conservative bloc.

2006Alito provides crucial vote, aftercase reargued, in decision to limitexclusionary rule (June 15). . . .With Roberts recused, court rebuffs

Bush, Congress on military tribunalsfor Guantánamo prisoners (June 29).

2006-2007Court hardens conservative positionsin 5-4 decisions on major issues:upholds federal ban on “partialbirth” abortions (April 18, 2007). . . .eases rules on campaign-seasonissue advertising by corporations(June 25) . . . limits use of race inK-12 pupil assignments (June 28).

2007-2008Conservatives, liberals count winsin close cases: Court guaranteeshabeas corpus right for Guantánamoprisoners (June 12) . . . bars deathpenalty for child rape ( June 25). . . recognizes gun rights for self-defense in home (June 26).

2008-2009Barack Obama elected president(Nov. 4). . . . Roberts flubs oath atinauguration (Jan. 20, 2009). . . .Obama nominates Sonia Sotomayorto succeed David H. Souter (May 26).. . . Court skirts ruling on VotingRights Act despite doubts from con-servatives (June 22). . . . Sotomayorconfirmed (Aug. 6).

•

Roberts 3 (2009-2010)Sotomayor joins liberal bloc.

2009-2010Court recognizes First Amendmentright for corporations, unions tospend unlimited amounts on politi-cal campaigns (Jan. 21, 2010);Obama criticizes ruling in State ofthe Union speech (Jan. 27). . . .Obama nominates Elena Kagan tosucceed John Paul Stevens (May 10).. . . Court extends gun rights ruling

to limit state, local laws (June 28).. . . Kagan confirmed (Aug. 5).

•

Roberts 4 (2010-Present)Kagan seated; three women oncourt.

2010-2011Court convenes with three femalejustices for first time in history(Oct. 4). . . . Court requires Cali-fornia to reduce prison overcrowd-ing (May 23, 2011). . . . rejectsmajor sex-discrimination suitagainst Walmart (June 20).

2011-2012Appeals on Obama’s health carelaw granted (Nov. 14), argued(March 26-28, 2012). . . . Courtbars life-without-parole sentencesfor juvenile murderers (June 25);strikes parts of Arizona immigrationlaw but upholds provision for statuschecks at arrests, stops (June 25);upholds individual insurance man-date as tax, narrows penalty forstates rejecting Medicaid expansion(June 28). . . . Court’s approval rat-ing falls in polls (May, July). . . .Ginsburg, Scalia squelch any talk ofretirement (August).

2012-2013Court to convene on First Mondayin October (Oct. 1). . . . Challengeto University of Texas-Austin affir-mative action plan to be argued(Oct. 10). . . . Marriage equality,Voting Rights Act cases awaiting.Presidential, congressional elections(Nov. 6). . . . Justices end oral ar-guments for term (April 24). . . .Term will end in late June 2013;final decisions due.

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The court under Chief Justice RogerTaney (1836-1864) drew political firefrom a different source: abolitionists

opposed to the court’s condoning ofslavery. Despite the Taney Court’s def-erence to states’ rights, the court is-sued two controversial rulings (in 1842

and 1859) that enforced the federalFugitive Slave Act in the face of statelaws seeking to shield escaped slaves.And the court in the infamous Dred


T he Supreme Court is returning to the hot-button issueof affirmative action just 10 years after it issued a close-ly divided decision upholding the limited use of race in

university admissions.The justices will take on the issue in a case from the Uni-

versity of Texas (UT), which has been in and out of the courtsover the past 20 years defending and refining its efforts to in-crease enrollment of African-American and Hispanic studentsat its flagship Austin campus. 1

Opponents of affirmative action hope, and supporters fear,that the Supreme Court will use the UT case to narrow or pos-sibly prohibit altogether consideration of race in university ad-missions. The reason: Justice Sandra Day O’Connor, who wrotethe 5-4 decision upholding affirmative action in a case fromthe University of Michigan, has been replaced by Samuel A.Alito Jr., who has voted against race-conscious policies in sev-eral cases since joining the court in 2006.

UT tweaked its admission policies in 2004, the year afterthe University of Michigan case. Most of the slots in UT’s in-coming freshman class — about 75 percent today — are filledunder a 1997 law that guarantees a seat to anyone who grad-uates from a Texas high school in the top 10 percent of theclass. The remaining slots are filled through an admissionsprocess, as revised in 2004, that evaluates applicants on thebasis of grades and test scores as well as personal backgroundand characteristics, including race or ethnicity.

UT’s current system represents the evolution of legal devel-opments dating from 1992, when unsuccessful white applicantschallenged the admissions policies then being used. As the uni-versity now acknowledges, race was directly considered at thattime and was often a controlling factor in admissions decisions.

The federal appeals court for Texas in 1996 ruled the pro-cedures unconstitutional as a violation of equal protection. Theruling by the Fifth U.S. Circuit Court of Appeals in Hopwoodv. Texas was the first federal court decision striking down useof racial preferences in college or university admissions. TheSupreme Court declined to hear Texas’ appeal after the uni-versity changed the system. 2

UT says its previous admissions policy helped boost mi-nority enrollment at the Austin campus to about 4.1 percentfor African-Americans and 14.5 percent for Hispanics. After Hop-wood, the number of African-Americans admitted for the en-tering class in 1997 dropped sharply by 40 percent; the num-ber of Hispanics fell slightly, by 5 percent.

The university sought to increase recruiting of African-American

and Hispanic students, but it also urged the legislature to passthe “Top Ten Percent” law as an ostensibly race-neutral policythat could pass muster under Hopwood. The law — signed bythen-Gov. George W. Bush — was explicitly aimed at increas-ing minority enrollment by admitting top students from pre-dominantly African-American and Hispanic schools without re-gard to other admissions criteria.

The policy had only limited effect, the university says today.In fall 2002, African-American and Hispanic enrollment remainedbelow the 1996 levels; in 2004, the numbers were slightly higher:4.5 percent African-American enrollment, 16.9 percent Hispanicenrollment. The increase in Hispanic enrollment was far less thanthe overall increase in the state’s Hispanic population.

The Supreme Court’s decision in the Michigan case, Grutterv. Bollinger (2003), gave UT officials the opening to reintro-duce some consideration of race in its admissions policies. Theruling allowed colleges and universities to use an applicant’srace or ethnicity as a factor in admissions decisions as long asit was part of a “holistic” evaluation of the applicant and nottied to a specific racial or ethnic quota. The ruling explicitlyrecognized racial and ethnic diversity as a “compelling interest”for public colleges and universities. The four dissenters includ-ed three justices still on the court: Antonin Scalia, Anthony M.Kennedy and Clarence Thomas. 3

UT contends its current policies conform precisely to the “holis-tic” consideration of applicants allowed by Grutter. Race or eth-nicity is one of many personal factors, along with grades and testscores, that go into a “personal achievement index” (PAI) used forfinal admissions decisions. Race is, as the university describes it,“a factor of a factor of a factor of a factor.” Today, in UT’s in-coming freshman class of 8,092 students, Hispanics account forabout 18.4 percent of the class, African-Americans 4.5 percent. 4

The challenge to the UT policies comes from Abigail Fisher, anunsuccessful white applicant in 2008 from the affluent Houstonsuburb of Sugar Land. Fisher’s father is a longtime friend of Ed-ward Blum, a UT graduate who created the Project on Fair Rep-resentation to challenge race-conscious public policies. Through theproject, Blum is funding Fisher’s lawsuit and also supporting pend-ing constitutional challenges to the federal Voting Rights Act.

Fisher, who has not given interviews during the litigation, didnot qualify for admission to UT under either of the available routes.With a 3.65 GPA, she ranked at the 12th percentile in her grad-uating class of 674 students at Stephen F. Austin High School inSugar Land. Her “academic index” score, based on grades and testscores alone, was 3.1 — below the 3.5 level needed to qualify.

Use of Race Challenged in University AdmissionsJustice Kennedy could hold key to Texas decision.



Scott decision (1857) emphatically de-clared slaves ineligible for citizenshipand barred Congress from limitingslavery in territories or newly admit-

ted states. The future president Abra-ham Lincoln criticized the ruling as“erroneous” and vowed to do what hecould to overrule it. The decision was

overturned after the Civil War by the14th Amendment, which extended citi-zenship to “all persons born or natural-ized” in the United States.

And her PAI was below six — thelevel that might have qualified her foradmission, according to the university.(The exact score is sealed.) But shecontends that the use of race allowedless qualified minority applicants to beadmitted to UT ahead of her.

Two lower courts rejected Fish-er’s suit. U.S. District Court Judge SamSparks ruled in August 2009 that theadmissions policy satisfied the crite-ria in Grutter that it be “narrowly tai-lored to further a compelling gov-ernment interest.” A three-judge FifthCircuit panel affirmed that decisionin January 2011, but in a splinteredopinion. The Supreme Court agreedto hear Fisher’s appeal on Feb. 21,2012, in time for the case to be ar-gued early in the court’s next term.By the end of August, 92 friend-of-the-court briefs had been filed with the court: 17 on Fisher’sside from conservative groups and individuals opposed to racialpreferences and 73 supporting UT from national organizationssuch as the American Bar Association, more than a dozen For-tune 500 companies and a host of education and traditionalcivil rights groups.

The Obama administration is also supporting the universi-ty. In its brief, the government argues that the United States“has a critical interest in ensuring that educational institutionsare able to provide the educational benefits of diversity.” Thegovernment’s involvement in the case is affecting the compo-sition of the court that will decide it. Liberal Justice Elena Kaganhas recused herself, presumably because she participated in thecase as U.S. solicitor general before joining the court in 2010.

Two other friend-of-the-court briefs take no direct positionon the case. In one, the Equal Employment Advisory Council,an employers group, cautions the court against any decisionthat would make it harder for government contractors to com-ply with affirmative action guidelines on hiring and promo-tions. In the other, UCLA law professor Richard Sander andlawyer-journalist Stuart Taylor Jr. argue, in a statistics-laden brief,that racial preferences in university admissions actually hurt theminority students the policies are intended to benefit. A groupof social scientists filed an opposing brief sharply disputing

Sanders’ and Taylor’s so-called “mismatch”thesis.

As a result of Kagan’s recusal, thecourt will hear the case with eight jus-tices. Based on their previous votes inrace-related cases, liberal justices RuthBader Ginsburg, Stephen G. Breyer andSonia Sotomayor are seen as likely votesto uphold UT’s admissions policies, whileChief Justice John G. Roberts Jr., Scalia,Thomas and Alito are thought likely torule for Fisher. In an earlier case thatlimited the use of race in pupil assign-ments in K-12 education, Roberts endedthe main opinion in the 5-4 decision bywriting, “The way to stop discriminationon the basis of race is to stop discrim-inating on the basis of race.” Scalia,Thomas, and Alito joined the opinion,but not Kennedy. 5

Based on that history, all eyes willbe on Kennedy in the UT case. “What happens depends onpsychoanalyzing Anthony Kennedy,” says Louis Michael Seid-man, a professor at Georgetown University Law Center in Wash-ington. Kennedy could join the other conservatives in limitingrace-conscious admissions policies. If he joins the liberal bloc,a 4-4 vote would affirm the Fifth Circuit’s decision and leaveUT’s policies intact. The decision would be due by the end ofJune 2013.

— Kenneth Jost

1 Background is drawn from legal materials in the Supreme Court case,Fisher v. University of Texas, 11-345, which are compiled on the websitesfor the organization representing the plaintiff, the Project on Fair Representa-tion (www.projectonfairrepresentation.org/current-litigation) and the university(www.utexas.edu/vp/irla/Fisher-V-Texas.html).2 The citation is 78 F.3d 932 (5th Cir. 1996). See Linda Greenhouse, “JusticesDecline Affirmative-Action Case,” The New York Times, July 2, 1996, p. A12.3 The citation is 539 U.S. 306 (2003). In a companion decision, the courtstruck down, by a 6-3 vote, the admissions policies for University of Michi-gan graduates because race played a greater role in decisions. Gratz v.Bollinger, 539 U.S. 244 (2003). For a comprehensive account of the cases,see Kenneth Jost, Supreme Court Yearbook 2002-2003.4 “The University of Texas at Austin Releases Preliminary Enrollment Data,”Sept. 19, 2012, www.utexas.edu/news/2012/09/19/2012-preliminary-enrollment-data/.5 The decision is Parents Involved in Community Schools v. Seattle SchoolDistrict No. 1, 551 U.S. 701 (2007). For a full account, see Kenneth Jost,Supreme Court Yearbook 2006-2007.

Abigail Fisher contends that the use ofrace allowed less qualified minorityapplicants to be admitted to theUniversity of Texas ahead of her.

www.praag.org

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With the Civil War over, the courtentered a 70-year-long conservativeera marked by a generally pro-busi-ness orientation even as progressiveforces and organized labor gained po-litical influence. The court’s solicitudefor business can be seen in a trio ofrulings in 1895 that limited the stillnew Sherman Antitrust Act, barred afederal income tax and authorized fed-eral judges to block strikes. A yearlater, the court in the infamous deci-sion Plessy v. Ferguson upheld legallyenforced racial segregation in publicaccommodations. The court shiftedsomewhat in 1917 by ruling racial seg-regation ordinances unconstitutional,but its pro-business orientation con-tinued — exemplified by two deci-sions striking down federal laws toprohibit child labor. Political opposi-tion to the court’s rulings promptedthe successful drive to ratify the 16thAmendment authorizing a federal in-come tax and unsuccessful efforts toadopt amendments overturning thechild labor decisions or limiting theSupreme Court’s power to nullify con-gressional statutes.

The ideological storm over thecourt intensified in the 1930s as a con-servative majority struck down sever-al major parts of President Franklin D.Roosevelt’s New Deal program. Roo-sevelt railed against the “nine old men”and crafted a proposal after his land-slide re-election in 1936 to “pack” thecourt by appointing new justices foreach member of the court past theage of 70. Faced with strong publicopposition to Roosevelt’s power grab,the Senate rejected the plan. But Roo-sevelt got his chance to remake thecourt in a more liberal image witheight appointments over the next fouryears. Even earlier, however, the courthad moved toward a more assertiverole in protecting individual rights withdecisions applying provisions of theBill of Rights to the states and re-viewing some criminal law convictionsfor constitutional violations — most

notably, the notorious rape case againstthe so-called Scottsboro Boys, blackyouths wrongly accused in Alabamaof assaulting a white girl.

The Warren Court expanded on theseprecursors of judicial activism with rul-ings that brought more sustained po-litical attacks on the court than everbefore or since. The landmark schooldesegregation ruling in Brown v. Boardof Education (1954) prompted adecade of “massive resistance” in theSouth and opposition to what criticscalled “forced integration” that contin-ues to this day. The court’s rulings inthe 1950s limiting anti-subversive lawsprompted an unsuccessful effort in theSenate to strip the court of jurisdictionover internal-security cases. Opponentsof the court’s decisions in the early1960s to bar government-sponsoredprayer in public schools tried for decadesto overturn them by constitutionalamendment. State officials mobilizedagainst the court’s “one-man, one-vote”reapportionment rulings. And the War-ren Court’s so-called criminal law rev-olution — exemplified in the famousMiranda decision in 1966 establishingguidelines for police interrogation —became a major issue in Richard M.Nixon’s successful presidential campaignin 1968. As president, Nixon followedthrough on his campaign promises byappointing four justices, including a newchief justice, Warren E. Burger, ex-pected to steer the court to the right.

Partisan Fights

T he Supreme Court was lastinglyshifted to the right from the 1970s

on thanks to appointments of conser-vative justices by three Republican pres-idents: Nixon, Ronald Reagan andGeorge H. W. Bush. With the court’sbalance of power at stake, Democratsand liberal advocacy groups mountedefforts to block Senate confirmation ofsome of the nominees; they succeed-ed three times and fell only four votes

short in one other fight. In early rul-ings, the Burger Court broke newground on abortion rights and thedeath penalty, but in later decisionsboth the Burger and Rehnquist courtsgenerally staked out conservative po-sitions on those and other issues, in-cluding affirmative action.

Partisan confirmation fights becamefrequent occurrences in the late 1900s.Senate Republicans had flexed their mus-cles in 1968 by blocking a vote on Pres-ident Lyndon B. Johnson’s lame-ducknomination of Justice Abe Fortas to suc-ceed Warren as chief justice. Burger’sappointment as chief justice sailedthrough the Senate, but Democrats de-feated Nixon’s two choices for the nextvacancy (Clement Haynsworth and G.Harrold Carswell) before the presidentsettled on Harry A. Blackmun. Rehn-quist was confirmed in 1971, but with26 votes cast against him; 15 years later,he won confirmation as chief justicewith 33 no votes — the most ever castagainst a chief justice. Two more tu-multuous confirmation fights followed:the 58-42 rejection of the hard-line con-servative Bork in 1987 — that seat wentto Kennedy instead — and the narrow52-48 confirmation of Clarence Thomasin 1991 after the dramatic airing of stillunresolved accusations of sexual ha-rassment.

With Warren Court holdovers stillin the majority, the early Burger Courtissued liberal rulings on three majorissues: upholding the use of busing inschool desegregation cases (1970), in-validating existing death sentences(1972) and recognizing a qualifiedright to abortion (1973). The courtbacked away from those rulings as theconservative bloc gelled. On the deathpenalty, the court in 1976 allowed statesto adopt capital punishment if the deathpenalty was limited to well-definedcrimes, and juries had full discretionto consider aggravating and mitigatingcircumstances. In later rulings, thecourt barred the death penalty forsome offenses — notably, rape —



but it rejected the broadest attacksagainst capital punishment.

On reproductive rights, the 7-2 rul-ing in Roe v. Wade provoked thestrongest backlash against a court de-cision since Brown v. Board of Edu-cation. Anti-abortion groups mountedefforts to overrule the decision by con-stitutional amendment or limit it bylegislative action in Washington or instate capitals. The court sustained manyof the newly enact-ed restrictions, typi-cally in closely di-vided decisions.Most significantly,the court upheldlaws prohibiting theuse of Medicaidfunds to pay forabortions for poorwomen. By the late1980s, anti-abortionforces thought theywere close to a ma-jority of justiceswilling to overruleRoe v. Wade outright.But in 1992 the courtlargely reaffirmedRoe in a pivotal opin-ion jointly authoredby three Republicanappointees: SandraDay O ’Connor,Kennedy and DavidH. Souter.

On racial issues,the court began re-treating on schooldesegregation within a few years ofthe busing decision and adopted askeptical position toward affirmativeaction in the first cases to reach thejustices. The significant milestones in-cluded a 1974 ruling that blocked courtsfrom combining urban and suburbanschool districts in desegregation or-ders. Four years later, in the Bakkedecision — Regents of the Universityof California v. Bakke — the courtgave only a limited green light to racial

preferences in university admissions.In later rulings, the Burger and Rehn-quist courts set limits on affirmativeaction policies by government em-ployers and minority preferences ingovernment contracting. In the 1990s,the Rehnquist Court issued a seriesof decisions significantly limiting fed-eral courts’ role in desegregation suits.Most of the rulings were closely di-vided, often by 5-4 votes.

The Rehnquist Court staked out newconservative positions in two othermajor areas: federalism and church-state issues. On federalism, the courtlimited Congress’ ability to pass lawsintruding on states’ prerogatives andprotected states from private damagesuits for violating federal laws. Onchurch-state issues, the justices relaxedrestrictions on display of religious mes-sages in public sites and moved toallow use of public funds for pupils

at church-affiliated schools. Those de-cisions culminated in a 2002 ruling up-holding a broad tuition-voucher pro-gram for pupils at parochial and otherprivate schools. Major decisions againcame on 5-4 votes.

None of the Rehnquist Court’s 5-4decisions had more impact or stirredmore partisan criticism than the rulingin December 2000 that effectively cinchedthe presidential election for George W.

Bush. The ruling in Bushv. Gore ended a ballotrecount in Florida thatDemocrat Al Gore hadasked for in hopes of re-versing Bush’s apparentedge for the state’s cru-cial 27 electoral votes.The conservative major-ity said Florida courts hadfailed to establish con-sistent rules for recount-ing votes; the liberal dis-senters said the recountshould have been allowedto continue. Critics saidthe ruling conflicted withthe majority’s customarydeference to state courts;supporters said the courthad to step in to settlethe issue. In the yearssince, Justice Scalia hasrepeatedly defended theruling in public com-ments. To critics, Scaliahas a blunt answer: “Getover it.” 23

Roberts’ Court?

T wo presidents — the RepublicanBush and the Democrat Obama

— filled vacancies on the SupremeCourt with like-minded justices whofirst fortified the court’s conservativebloc and then re-energized the liber-al wing. All four of the new justices— Roberts, Alito, Sotomayor and Kagan— first had to survive partisan con-

The parents of these and other black children filed the suits thateventually led to the Supreme Court’s 1954 Brown v. Board of

Education ruling overturning public school segregation. The landmarkdecision prompted a decade of massive resistance in the South and

opposition to what critics called “forced integration” that continues to this day.

Getty Images/Tim

e Life Pictures/Carl Iw

asaki

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firmation fights in theSenate that emphasizedthe polarized atmos-phere surrounding thecourt. Roberts andAlito made their marksin their first two termswith a burst of con-servative rulings at oddswith prior decisions.Over the next five terms,the conservative and lib-eral blocs traded victo-ries, with Kennedymost often casting thedecisive vote untilRoberts played that rolein the dramatic show-down over Obama’shealth care law. 24

Bush nominatedRoberts initially to suc-ceed O’Connor as anassociate justice andthen picked him to suc-ceed Rehnquist as chiefjustice just two daysafter Rehnquist died ofcancer on Sept. 3, 2005.Roberts made an im-pressive appearance inhis confirmation hear-ing but still drew 22Democratic votes againsthis confirmation laterthat month. Amongthose voting againstRoberts was Obama,then the junior senator from Illinois,who said he thought Roberts “has farmore often used his formidable skillson behalf of the strong in oppositionto the weak.” 25

O’Connor agreed to stay on until asuccessor was confirmed; Alito wonconfirmation, by a narrower 58-42margin, in late January 2006, with bothObama and his future vice president,Joe Biden, voting no. Alito made anidentifiable impact by casting decisivevotes in three cases that were rearguedafter O’Connor’s departure — pre-

sumably because the remaining eightjustices were evenly divided. In oneof the reargued cases, the court voted5-4 to limit application of the exclu-sionary rule — the doctrine that barsthe use of illegally obtained evidencein criminal trials.

The conservatives flexed their mus-cles more dramatically in the first fullterm with Roberts and Alito on thecourt. In rulings that either overturnedor diverged from prior decisions, thecourt in 2007 upheld a federal ban onso-called partial-birth abortions, limited

taxpayer suits challenginggovernment spending onchurch-state grounds andeased campaign finance re-strictions on issue-orientedadvertising. Other decisionslimited punitive damagesand — in the Ledbetter case— made it harder for em-ployees to win back pay injob discrimination suits. Theterm ended with a rulingoverturning a century-oldantitrust doctrine and a finaldecision, announced byRoberts, limiting the use ofrace in pupil assignmentsin K-12 public education.Except for the punitive dam-ages case, the rulings cameon 5-4 votes with Kennedyand the other conserva-tives in the majority. “Con-servatives got everythingthey could reasonably havehoped for,” remarkedThomas Goldstein, a fre-quent Supreme Court ad-vocate and publisher ofSCOTUSBlog, a compre-hensive compendium ofcourt-related materials. 26

Conservatives claimedmany more victories overthe next four terms, butthey were offset by somesignificant liberal rulings.Among the most dramatic

decisions were 5-4 rulings in 2008 and2010 by the conservative majority thatestablished a Second Amendment rightto possess firearms in the home forself-defense. The rulings struck downhandgun bans first in a case from Wash-ington, D.C., and then in a case fromChicago that applied to state and localgovernments nationwide. The conser-vative bloc showed its distaste for cam-paign finance laws not only with theCitizens United decision but with rul-ings in 2008 and 2011 that struckdown a federal provision and an Ari-


The Supreme Court under Chief Justice Roger Taney (1836-1864)drew fire from abolitionists opposed to the court’s condoning ofslavery. The court issued two controversial rulings, in 1842 and1859, that enforced the federal Fugitive Slave Act in the face ofstate laws seeking to shield escaped slaves. And in the infamousDred Scott decision (1857), the court emphatically declared Scott (above) and other slaves ineligible for citizenship and

barred Congress from limiting slavery in territories or newly admitted states.

Digital image ©1998 M

issouri Historical Society, St. Louis


zona law intended to help candidatesfacing high-spending, privately financedopponents. But Roberts apparentlyhelped divert conservatives in 2009from a clear ruling on the constitu-tionality of the Voting Rights Act; in-stead, he led an 8-1 decision favoringthe challenger on a narrow groundand voicing doubts about the law’scontinuing validity without resolvingthe question.

The liberal wing won its most im-portant victories thanks to pivotal sup-port from Kennedy. Kennedy wrote the5-4 decision in 2008 that guaranteedGuantánamo prisoners the right tochallenge their detention in federal courts— the third rebuff to Bush’s handlingof suspected enemy combatants. In thesame year, Kennedy wrote the rulingthat barred the death penalty for childrape as a violation of the EighthAmendment’s Cruel and Unusual Pun-ishment Clause. Three years later,Kennedy again relied on the EighthAmendment in a 5-4 decision requir-ing California to reduce severe over-crowding in its prison system.

The court opened its new term inOctober 2011 with the politically con-tentious challenges to the AffordableCare Act and the Arizona immigrationlaw at its doorstep. The justices agreedto hear both controversial cases, settingaside three full mornings in late Marchfor arguments in the health care case.By then, the court had cheered priva-cy advocates with a unanimous rulingsetting some, but unspecified, limits onlaw enforcement use of global posi-tioning systems (GPS) to track criminalsuspects. Liberals won other significantvictories, including decisions in two com-panion cases strengthening the right tocounsel for defendants in plea bar-gaining. The ruling to strike down someparts of Arizona’s immigration law cameon June 25 as the court began its finalweek; on the same day Kennedy alsoprovided the crucial vote to bar manda-tory life-without-parole sentences forjuvenile murderers.

The ruling on the Affordable CareAct three days later ended the term indramatic and unexpected fashion. Sum-marizing an opinion that no other jus-tice joined in toto, Roberts began by re-jecting the administration’s main rationalefor the law’s individual mandate requiringmost people to have health insuranceor pay a financial penalty, but he thenended by upholding the provision as atax measure. Kennedy followed with astern delivery of the joint dissent by fourconservatives arguing that the law shouldbe struck down in its entirety. Ginsburgconcluded the session by summarizingher opinion defending both the man-date and the law’s Medicaid-expansionprovision, which the majority upheldbut narrowed somewhat.

Obama hailed the ruling, while hisRepublican opponent, Mitt Romney,stressed that the court had upheld thelaw without endorsing it; he promisedto work to repeal it if elected. Forcourt watchers, however, the big storywas the chief justice. “Roberts StraddlesIdeological Divide,” a Wall Street Jour-nal headline declared. A New York Timesheadline said Roberts had emerged asthe “court’s fulcrum.” To SCOTUSBlog’sGoldstein, the decision was Roberts’“signature statement that he is not apartisan.” 27

CURRENTSITUATION‘Hefty’ Docket

T he Supreme Court is starting anew term with a major affirma-

tive action case set for early argumentand high-profile cases on voting rightsand gay marriage expected to begranted review by the end of the year.

The justices will open the term onOct. 1 with a case testing whether fed-

eral courts can hear suits by foreign na-tionals against a foreign-headquarteredmultinational company with U.S. oper-ations for human rights violations com-mitted abroad. A month later, the courtwill hear arguments on whether humanrights groups, journalists and lawyerscan challenge the constitutionality ofthe foreign electronic surveillance pro-gram crafted by Congress and the GeorgeW. Bush administration in Bush’s lastfull year in the White House.

Other issues already teed up for thejustices include use of drug-sniffing dogsby police and rules for high-impact classaction suits against corporations. In all,the court has accepted 39 cases for re-view during the term, including six addedon Sept. 25 after an all-day conferencethe previous day to review appeals thathad accumulated over the summer.

The court will likely add 30 to 40more cases by early January to be ar-gued next year and to be decided bylate June, continuing the Roberts Court’soutput of 75 or fewer decisions per term.The docket “is sparse but not withoutheft,” says the Cato Institute’s Shapiro. 28

The affirmative action case, Fisherv. University of Texas, revives an issuethe court last dealt with in 2003, whenit upheld the use of race as one ofseveral factors in admissions at theUniversity of Michigan School of Law.Lawyers representing unsuccessful UTapplicant Fisher argue that the school’suse of race goes beyond what wasauthorized in the Michigan decision,Grutter v. Bollinger; alternatively, theyurge that Grutter be overruled.Lawyers for UT, backed by the Obamaadministration, defend both the ad-missions system and the court’s priorruling. The case has drawn more than90 friend-of-the-court briefs: 17 on Fish-er’s side, 73 for the school and twoothers ostensibly filed on behalf ofneither side. The Oct. 10 argument fea-tures prominent Washington attorneyBert Rein for Fisher and former U.S.solicitor general Gregory Garre for theuniversity.

832 CQ Researcher


The human rights case, Kiobel v.Royal Dutch Petroleum Co., stems fromallegations by 12 Nigerian nationals nowliving in the United States that the multi-national oil company aided Nigeria’s mil-itary government in a brutal campaignin the 1990s to put down oppositionto oil drilling in the country’s Ogoniregion. The court initially heard argu-ments in the case on Feb. 28 on thequestion whether a corporation couldbe sued under the federal Alien TortStatute. But the jus-tices asked for a sec-ond round of argu-ments on the broaderquestion whether fed-eral courts have anyjurisdiction over suchsuits, whether againstan individual or cor-poration. The actionwas an ominous signfor human rightslawyers, who haveused the 220-year-oldlaw to try to bringhuman rights viola-tors to justice in U.S.courts.

The foreign intel-ligence surveillancecase, Clapper v.Amnesty Internation-al USA, to be arguedOct. 29, is before thejustices on the preliminary questionwhether opponents of the super-secretprogram have legal standing just to getinto court with their challenge. The gov-ernment keeps tight wraps on the pro-gram, which Congress authorized in2008 to replace the warrantless terror-ism surveillance the Bush administrationinstituted as part of its war on terrorismin 2001. The various plaintiffs say theyfear their conversations with individualsor groups overseas may be subject tosurveillance, but the government saysthey have failed to show the kind of ac-tual injury needed to have standing fora federal court suit.

Two cases from Florida test the rulesfor using trained dogs to sniff for evi-dence of drugs. In Florida v. Jardines,the justices have to decide whether po-lice can use a dog at the front door ofa private house to try to detect drugsinside. In Florida v. Harris, the issue iswhat police have to show about a dog’straining to use the dog’s reaction — aso-called “alert” — as the evidence need-ed to get a search warrant. Both casesare to be argued on Oct. 31.

The class action cases both representefforts by corporate defendants to tight-en the rules for plaintiffs to get a suit cer-tified for treatment as collective litigation.In Amgen v. Connecticut Retirement Plansand Trust Fund, the big biotech compa-ny argues that investors in a securitiesfraud suit must first prove that allegedmisstatements about the safety of its prod-ucts actually influenced the investors tobuy or hold the company’s stock. In Com-cast v. Behrend, the big cable companyis seeking to prevent class certification ofan antitrust suit over rate increases to upto 2 million subscribers. The two casesare to be argued on Nov. 5.

The gay marriage issue all but cer-tain to be taken up by the justices isthe constitutionality of the provision inthe Defense of Marriage Act (DOMA),section 3, that denies federal benefits tosame-sex couples even if legally mar-ried in their states. Judges in three sep-arate cases have ruled the law uncon-stitutional on equal-protection grounds.Also pending is the appeal by support-ers of California’s Proposition 8 seekingto reinstate the ban on gay marriage that

was invalidated by thefederal appeals court forCalifornia on Feb. 7.Manycourt watchers expectthe justices to defer ac-tion on the Prop. 8 caseuntil after ruling on oneor more of the DOMAchallenges.

The justices are alsowidely expected to agreeto review the constitu-tionality of the federalVoting Rights Act afterdiverting a challenge tothe act in 2009. The mostlikely vehicle is a broadattack on the law filedin 2010 by ShelbyCounty, Ala., contend-ing that the formula en-acted in 1965 to deter-mine the states andlocal jurisdictions that

have to get “preclearance” for any elec-tion law change is now out of date.The federal appeals court for the Dis-trict of Columbia rejected the challengein a 2-1 decision on May 18.

Vanishing Issue?

O bama and Romney are cam-paigning on party platforms with

sharply divergent views on legal is-sues, but the Supreme Court itself isgetting virtually no attention so far outon the campaign trail.

Continued on p. 834

The Supreme Court’s Boumediene decision in 2008 gave the court’sliberal wing one of its most important victories. The 5-4 vote, with

pivotal support from Justice Anthony M. Kennedy, guaranteed terroristsbeing held at the Guantánamo Bay prison in Cuba the right to

challenge their detention in federal court.

Getty Images/M

ario Tam

a

no


At Issue:Should the Supreme Court prohibit racial preferences inuniversity admissions?yes

yesROGER CLEGGPRESIDENT AND GENERAL COUNSEL, CENTER FOR EQUAL OPPORTUNITY

WRITTEN FOR CQ RESEARCHER, SEPTEMBER 2012

t he Supreme Court should prohibit racial preferences in uni-versity admissions because the Constitution and federalstatutes say so. The Constitution says, “No State” — and that

includes state universities — “. . . shall abridge the privileges orimmunities of citizens of the United States . . . nor deny to anyperson . . . the equal protection of the laws,” and foremost in theFramers’ minds at that time (1868) was racial discrimination.

Congress said, more recently and even more clearly, that inany institution receiving federal funding (and, again, that in-cludes the University of Texas), “No person in the United Statesshall, on the ground of race, color, or national origin, . . . besubjected to discrimination. . . .” Congress has also said, “Allpersons within the jurisdiction of the United States shall havethe same right . . . to make and enforce contracts” withoutregard to race, and the Supreme Court has expressly held thatthis includes school admissions and tuition.

The only justification offered by universities for ignoring allthis is that some academics say there are “educational bene-fits” to interracial campus conversations. Seriously — that’s it.Role-model and historical and societal discrimination argumentshave, rightly, been rejected by the Court already.

This shaky benefit doesn’t justify ignoring federal law, nordoes it outweigh the many costs of admissions discrimination:

It’s personally unfair, passes over better qualified studentsand sets a disturbing legal and moral precedent in allowingracial discrimination;

It creates resentment;It stigmatizes the supposed beneficiaries in the eyes of their

classmates, teachers and themselves, as well as future employers,clients and coworkers;

It mismatches African-Americans and Latinos with institutions,setting them up for failure;

It fosters a victim mentality, removes the incentive for acad-emic excellence and encourages separatism;

It compromises the academic mission of the university andlowers the academic quality of the student body;

It creates pressure to discriminate in grading and graduation;It breeds hypocrisy among college officials;It obscures the real problem of why so many African-Americans

and Latinos are academically uncompetitive; andIt involves states and schools in unsavory activities such as

deciding which minorities will be favored and which ones(e.g., Asians) not, and how much blood is needed to establishgroup membership — an untenable legal regime as Americabecomes increasingly multiracial and multiethnic.no

SHIRLEY J. WILCHEREXECUTIVE DIRECTOR, AMERICANASSOCIATION FOR AFFIRMATIVE ACTION

WRITTEN FOR CQ RESEARCHER, SEPTEMBER 2012

i f the term “racial preferences” means equal opportunitythrough diversity programs, the answer is an unequivocal“no.” The Supreme Court, which will decide the Fisher v.

University of Texas at Austin case this year, should agree if itfollows its own cases.

In Regents of the University of California v. Bakke (1978)and Grutter v. Bollinger (2003), the court made clear that“student body diversity is a compelling state interest that canjustify the use of race in university admissions.” The benefitsthat flow from racial and ethnic diversity as well as other fac-tors, including grades and scores, study abroad, fluency inseveral languages, the ability to overcome personal hardshipand other considerations contribute to achieving a studentbody that is varied, rich and intellectually challenging.

To minimize the burden on nonminority applicants, the lawrequires that diversity admissions programs be narrowly tailoredand that the university consider race-neutral alternatives toachieve the same goal.

In Grutter, the court embraced a “holistic,” individualizedview of the student. Use of quotas, set asides or other numeri-cal factors was prohibited. At the University of Michigan as wellas the University of Texas, nonminority students with lowergrades and test scores than those of under-represented minorityapplicants were admitted as part of an individualized review.

The Grutter Court believed that including diverse perspec-tives improved the quality of the educational process. Studentbody diversity also better prepared students as professionalsbecause it helped to remove stereotypes and promoted betterunderstanding of individuals of different races.

According to the U.S. Census Bureau, racial and ethnic mi-norities constituted the majority of babies born in 2011. Somestates, including Texas, have already become “majority minority.”Diversity is not only desirable, it is essential if, in the SupremeCourt’s words, the “dream of one Nation, indivisible, is to berealized.”

In a recent survey 11 percent of admissions directors saidthey admit male applicants (presumably nonminority) withbelow-average credentials because women are becoming themajority of college students. Prohibiting diversity could affectthe aspirations of men as well.

It would be unfortunate to close the educational gatewayto the intended beneficiaries of the 14th Amendment’s EqualProtection Clause by prohibiting race and ethnicity as factorsin higher education admissions. This nation’s future dependson keeping that gateway open — for everyone.

834 CQ Researcher

“It’s quite remarkable to me that thetalk about the Supreme Court has beenentirely absent from the presidential cam-paign as compared to past years,” saysthe ACLU’s Shapiro. “I have literally notheard it mentioned, not even once.”

The Democratic platform citesObama’s appointments of “two distin-guished jurists,” Sotomayor and Kagan,to the Supreme Court and promises tocontinue appointment of “men andwomen of unquestionable talent andcharacter” to the federal bench. The Re-publican platform calls for appointmentof “constitutionalist jurists, who will in-terpret the law as itwas originally in-tended rather thanmake it.” It goes onto praise GOP sena-tors for opposingObama’s nominationof “activist judges.” 29

Both party docu-ments emphasize eco-nomic issues, butthey also lay out cleardifferences on issuesthat have been andare likely to return tothe court’s docket.Democrats say theparty “strongly and un-equivocally supportsRoe v. Wade and awoman’s right to makedecisions regardingher pregnancy”; Re-publicans say they op-pose abortion because it “endangers thehealth and well-being of women.” TheDemocratic platform notes that the Af-fordable Care Act guarantees insurancecoverage of contraception; the GOP plat-form says the law “has promoted the no-tion of abortion as health care.”

The Republican platform promises toprotect “traditional marriage,” while theDemocrats say they support “marriageequality” and “the movement to securetreatment under law for same-sex cou-

ples.” The GOP platform says a Republi-can administration “will fulfill its respon-sibility to defend all federal laws in court,including the Defense of Marriage Act.”

The Democrats say the party “willpreserve Americans’ Second Amend-ment right to own and use firearms,”but add that the right “is subject to rea-sonable regulation.” The GOP platformcalls the Second Amendment right “fun-damental” and implicitly criticizes theDistrict of Columbia for enacting anoverly restrictive gun law after theSupreme Court rejected its handgun ban.

The parties also differ on immigra-tion. The Democrats call for “compre-

hensive immigration reform,” while theRepublicans say Obama’s approach “hasundermined the rule of law.” On an-other issue, Democrats say they favorcampaign finance reform “by constitu-tional amendment if necessary,” whileRepublicans “oppose any restrictions orconditions that would discourage Amer-icans from exercising their constitutionalright to enter the political fray.”

Despite the limited discussion ofthe court so far, it is likely though not

certain that the winning candidate inNovember will have the opportunityto name one new justice during hispresidency. Three justices — Ginsburg,Scalia and Kennedy — will reach age80 by the end of the next president’sterm in January 2017. 30

Of the three, Ginsburg is the oldestat 79 and the only one to have set atarget date for her retirement. Ginsburghas said several times, most recently inan interview with Reuters’ JoanBiskupic, that she wants to serve at leastuntil she reaches 82 — the age at whichher judicial hero, Louis Brandeis, retiredfrom the Supreme Court. 31

Scalia and Kennedyare both 76. Scalia bat-ted away any talk of re-tirement in an interviewthis summer. “My wifedoesn’t want me hang-ing around the house, Iknow that,” Scalia saidon “Fox News Sunday.”Kennedy is not knownto have addressed thesubject publicly. 32

Ginsburg, a two-timecancer survivor, crackedtwo ribs in a fall at herhome in June but saysshe is in good health.Scalia and Kennedy arenot known to have anyhealth problems. Of theother justices, Breyer is74, Thomas and Alito arein their early 60s, andRoberts, Sotomayor and

Kagan are in their 50s.At least since 1970, justices have

timed their retirements to coincide witha like-minded president in the WhiteHouse unless forced to step down byhealth issues. The Democrat-appointedWhite and the liberal Republican ap-pointee Blackmun retired in good healthwith Democrat Clinton in the WhiteHouse. O’Connor stepped down afterGeorge W. Bush’s re-election. Stevens andSouter, liberals on the court despite their



Anti-abortion advocates protest on Capitol Hill on July 13, 2009, beforethe start of Senate confirmation hearings for President Obama’s firstSupreme Court nominee, Sonia Sotomayor. She was confirmed along

party lines, 68-31. Sotomayor and another Obama appointee, Elena Kagan, join Clinton appointees Ruth Bader Ginsburg and

Stephen Breyer to form a liberal bloc that dissents in most of the court’s 5-4 decisions.

Getty Images/M

ark W

ilson


Republican backgrounds, waited untilObama was in the White House.

If that practice continues, Ginsburgmight be considered likely to retire in2015 if Obama is re-elected but to tryto extend her tenure if Romney is pres-ident. Scalia and Kennedy could bethought of as potential retirees if Rom-ney wins but unlikely to step down ifObama is still in the White House.

OUTLOOKWatershed Term?

E very time a new justice is appointed,“it’s a different court,” Byron White

famously remarked. 33 By that stan-dard, John Roberts is now presidingover his fourth court in only sevenyears — a dizzying series of transfor-mations after nearly 11 years with nochanges in court personnel before hisappointment in September 2005.

Roberts presided first over a tran-sitional court with O’Connor in herfinal half-term in a swing justice’s seatand then over a court with his fellowReagan administration alumnus Alitohelping to fortify a general conserva-tive majority. Roberts’ third and fourthcourts came with the appointment ofSotomayor, as the first Hispanic jus-tice, and Kagan’s selection to bring thenumber of women on the court tothree for the only time in history.

Each of the new justices changedthe court, just as White suggested.Roberts brought a younger face andlighter touch to the center chair thanhis predecessor, Rehnquist. Alito is cred-ited with asking penetrating questionsfrom a conservative perspective, lessargumentative than those from the lo-quacious Scalia. Sotomayor, who grewup in a housing project in the Bronx,sometimes injects a real world per-spective into oral arguments, while

Kagan, a former Harvard Law Schooldean, is winning praise for insightfulquestions from the bench and clearyet forceful writing in her opinions.

With Roberts’ surprising vote in thehealth care case, some court watchersquestion whether the new term will seethe emergence of Roberts 4.1 — a courtthat further tempers its conservative in-stincts to try to lower its political profilein a politically polarized country. But theanswer from many appears to be no.

“Liberals should have no illusion thatRoberts is in the midst of an ideologi-cal conversion,” Newsweek special cor-respondent and former managing editorDaniel Klaidman writes. “In the comingyear, the safe bet is that he will sidewith conservatives on affirmative action,gay marriage and voting rights.” 34

Rosen, the George Washington Uni-versity Law School professor and legalaffairs editor for The New Republic, sug-gests that Roberts’ vote in the healthcare case may encourage him to hard-en his conservative stance on issues.“His health care votes may emboldenhim to join the conservatives in strik-ing down only affirmative action andthe Voting Rights Act next year, but inenforcing other limits on federal powerin the future,” Rosen wrote. 35

Largely in agreement, Adam Winkler,a professor at UCLA Law School, saysKennedy, not Roberts, remains the court’smost essential justice. “My own view isthat things have not changed radically onthe ground on who the swing justice is,”Winkler says. “It’s still Justice Kennedy.”

Still, the Cato Institute’s Shapiro con-tends — counter to the court’s liberalcritics — that Roberts has guided thecourt toward “minimalist” decisions. “Thecourt is very deliberate,” he says. “Theydon’t go out of their way to reach is-sues or pronounce sweeping opinionsthat aren’t called for.”

Based on that view, Shapiro isamong several court watchers who pre-dict a narrow, Texas-specific decisionin the new term’s affirmative action casethat will leave the precedent in the

Michigan case largely untouched. Courtwatchers are less certain about whatthe court will do with the Voting RightsAct case. The justices could decline tohear the case, leaving the law unchanged;if they accept the case, they could keepa low profile by upholding the law orcrafting a narrow decision or, more per-ilously, expose the court to sharp po-litical attack by invalidating the pre-clearance provision in whole or in part.

As for gay marriage, many court watch-ers on the left confidently predict thatKennedy will join the liberal bloc in rul-ing DOMA unconstitutional. But severalexperts from across the ideological spec-trum see the Proposition 8 case as like-ly to be resolved narrowly or deferredin some way. With gay marriage recog-nized in only six states and the Districtof Columbia, the court is seen as nowherenear establishing a constitutional rule onthe subject. “We’re not going to get adecision where the Supreme Court saysthe state of Mississippi has to recognizesame-sex marriage,” says Georgetownlaw professor Louis Michael Seidman.

The court’s role will re-emerge as anational issue when the next vacancyarises. Levey with the Committee forJustice forecasts another partisan con-firmation fight, no matter who is pres-ident or which party controls the Sen-ate. “It’s now become a very acrimoniousissue on both sides,” he says. “I don’tknow how to get out of it.”

For Roberts, the political attentionmay be unwelcome, but Case Westernprofessor Adler suggests it is inevitable.“He wanted to extricate the court fromthese political fights, but that’s reallyhard to do.”

Notes1 The case is Fisher v. University of Texas,11-345. For comprehensive coverage and com-pilation of materials, see SCOTUSBlog,www.scotusblog.com/case-files/cases/fisher-v-university-of-texas-at-austin/?wpmp_switcher=desktop. Some additional materials on thewebsite of the Project for Fair Representa-

836 CQ Researcher

tion: www.projectonfairrepresentation.org/current-litigation/. For coverage, see AdamLiptak, “Justices Take Up Race as a Factor inCollege Entry,” The New York Times, Feb. 22,2012, p. A1; Ralph K. M. Haurwitz, “High courtto hear race case,” The Austin American-Statesman, Feb. 22, 2012, p. A1 (includestimeline). For background, see Peter Katel,“Affirmative Action,” CQ Researcher, Oct. 17,2008, updated June 19, 2012.2 See Kenneth Jost, “Health Law Upheld inFractured Ruling,” CQ Researcher Blog, June 28,2012, http://cqresearcherblog.blogspot.com/2012_06_01_archive.html. See also Marcia Clem-mitt, “Assessing the New Health Care Law,”CQ Researcher, Sept. 21, 2012, pp. 789-812.3 For profiles, see Daniel Klaidman, “How ChiefJustice John Roberts Will Handle Obamacare,”The Daily Beast, Sept. 10, 2012, www.thedailybeast.com/newsweek/2012/09/09/how-chief-justice-john-roberts-will-handle-obamacare.html;Jeffrey Rosen, “Big Chief: How to understandJohn Roberts,” The New Republic, Aug. 3, 2012,pp. 13-14.4 See Kenneth Jost, “Supreme Court BlurredIdeological Lines in Momentous Term,” CQResearcher Blog, July 2, 2012, http://cqresearcherblog.blogspot.com/2012/07/scotus-2011-12-wrap-up.html.5 For background, see Kenneth Jost, “Immi-gration Conflict,” CQ Researcher, March 9, 2012,pp. 229-252.6 See “CQ Press Major Cases,” in KennethJost, Supreme Court Yearbook 2010-2011;and Kenneth Jost, “Class Action Lawsuits,” CQResearcher, May 13, 2011, pp. 433-456.7 Jan Crawford, “Roberts switched views touphold health care law,” CBS News, July 1,2012, www.cbsnews.com/8301-3460_162-57464549/roberts-switched-views-to-uphold-health-care-law/.8 See Lyle Denniston, “Same-sex marriage

cases: made simple,” SCOTUSBlog, Sept. 13,2012, www.scotusblog.com/2012/09/same-sex-marriage-cases-made-simple/; Kenneth Jost,“Anti-Gay Marriage Measure Struck Down,”CQ Researcher Blog, Feb. 7, 2012, http://cqresearcherblog.blogspot.com/2012/02/anti-gay-marriage-measure-struck-down.html.9 See Lyle Denniston, “Voting Rights Act cases:made simple,” SCOTUSBlog, Sept. 7, 2012, www.scotusblog.com/2012/09/voting-rights-cases-made-simple/.10 Rosen quoted in David G. Savage, “Did Jus-tice Scalia go too far this time?,” Los AngelesTimes, June 27, 2012, p. A13; Scalia interviewtranscript, “Fox News Sunday,” July 29, 2012,www.foxnews.com/on-air/fox-news-sunday/2012/07/29/justice-antonin-scalia-issues-facing-scotus-and-country?page=4#ixzz26jXrEcqc.11 The decision is Citizens United v. FederalElection Commission, 558 U.S. 50 (2010). SeeAdam Liptak, “A Rare Rebuke, in Front of theNation,” The New York Times, Jan. 29, 2010, p.A12. For a full account of the case, see SupremeCourt Yearbook 2009-2010, op. cit. See also,Kenneth Jost, “Campaign Finance Debates,” CQResearcher, May 28, 2010, pp. 457-480.12 “Fox News Sunday,” op. cit.13 See “2011 Term — Cases of Interest toBusiness,” National Chamber Litigation Center,www.chamberlitigation.com/scotus/2011%20Term (undated, June 2012, before comple-tion of term); Neil Weare, “U.S. Chamber Qui-etly Completes Undefeated 7-0 Term,” Con-stitutional Accountability Center, June 29, 2012,http://theusconstitution.org/text-history/1503/us-chamber-quietly-completes-undefeated-7-0-term-success-versus-solicitor-general. The cen-ter’s 7-0 count does not include the court’ssummary reversal of the Montana SupremeCourt’s decision to uphold a state law ban-ning independent political spending by cor-porations. Quotes from pertinent editions of

Supreme Court Yearbook, op. cit. Descriptionsof cases discussed also drawn from SupremeCourt Yearbook.14 The decision is Ledbetter v. Goodyear Tire &Rubber Co., 550 U.S. 618 (2007). For a full ac-count, see Supreme Court Yearbook 2006-2007.For legislation, see Robert Pear, “Congress Re-laxes Rules on Suits Over Pay Inequality,” TheNew York Times, Jan. 29, 2009, p. A14, www.nytimes.com/2009/01/28/us/politics/28rights.html. See also Thomas J. Billitteri, “Gender Pay Gap,”CQ Researcher, March 14, 2008, pp. 241-264.15 The decision is Leegin’s Creative LeatherProducts v. PSKS, 551 U.S. 887 (2007). For afull account, see Supreme Court Yearbook2006-2007, op. cit.16 For Toobin’s account, see “Money Unlimited:How John Roberts orchestrated the CitizensUnited decision,” The New Yorker, May 21, 2012,www.newyorker.com/reporting/2012/05/21/120521fa_fact_toobin, excerpted from his bookThe Oath: The Supreme Court and the ObamaWhite House (2012).17 Geoffrey R. Stone, “Citizens United andConservative Judicial Activism,” University ofIllinois Law Review (2012), p. 486, http://illinoislawreview.org/wp-content/ilr-content/articles/2012/2/Stone.pdf.18 The decisions are Heller v. District of Co-lumbia, 554 U.S. 570 (2008), and McDonaldv. Chicago, 561 U.S. — (2010). For accounts,see the pertinent editions of Supreme CourtYearbook.19 Epstein, now a professor at the Universi-ty of Southern California in Los Angeles, pro-vided the statistics to The New York Times foruse in an article by Adam Liptak, “The RobertsCourt: The Most Conservative Court in Decades,”July 25, 2010, p. A1, www.nytimes.com/2010/07/25/us/25roberts.html?pagewanted=all. Adlercommented on the figures on the legal blogThe Volokh Conspiracy. See Jonathan H. Adler,“Roberts Court Is Most Restrained in Decades,”The Volokh Conspiracy, Aug. 1, 2010, www.volokh.com/2010/08/01/court-under-roberts-is-most-restrained-in-decades/.20 The decision is Boumediene v. Bush, 553U.S. 723 (2008). For a full account, see SupremeCourt Yearbook 2007-2008, op. cit. For back-ground, see Kenneth Jost, “Closing Guantánamo,”CQ Researcher, Feb. 27, 2009, pp. 177-200.21 The decision is Northwest Austin MunicipalUtility District No. 1 v. Holder, 557 U.S. 193(2009). For an account, see Supreme CourtYearbook 2008-2009.22 For a compact historical overview, seeDavid G. Savage, Guide to the U.S. Supreme


About the AuthorAssociate Editor Kenneth Jost graduated from HarvardCollege and Georgetown University Law Center. He is theauthor of the Supreme Court Yearbook and The SupremeCourt from A to Z (both CQ Press). He was a member of theCQ Researcher team that won the American Bar Association’s2002 Silver Gavel Award. His previous reports include “Re-examining the Constitution” and “States and Federalism.”He is also author of the blog Jost on Justice (http://jostonjustice.blogspot.com). Research assisstants Rob Silverblattand Niccolo Barber contributed to this report.


Court (5th ed., 2010), pp. 3-84. See also “His-toric Milestones” in Kenneth Jost, SupremeCourt A to Z (5th ed., 2012), pp. 591-593.23 See, e.g., “60 Minutes,” CBS News, April 24,2008.24 Account drawn from ongoing reporting forSupreme Court Yearbook, op. cit.25 Quoted in Toobin, The Oath, op. cit., p. 36.26 Quoted in Supreme Court Yearbook 2006-2007, op. cit. See also Linda Greenhouse, “InSteps Big and Small, Supreme Court MovedRight,” The New York Times, July 1, 2007, p. A1.Scalia and Thomas joined Ginsburg and JohnPaul Stevens in dissent in the punitive damagescase, Philip Morris Co. v. Williams.27 See Ashby Jones and Brent Kendall, “RobertsStraddles Ideological Divide,” The Wall StreetJournal, June 29, 2012, p. A1, http://online.wsj.com/article/SB10001424052702303561504577494723149538572.html; Adam Liptak,“Roberts’s Delicate Twist: Surprise From Con-servative Chief Justice Marks His Emergenceas Court’s Fulcrum,” The New York Times,June 29, 2012, p. A1; Goldstein was quotedon “CBS Evening News,” June 29, 2012.28 For an overview, see Kannon K. Shan-mugam and James M. McDonald, “LookingAhead: October Term 2012,” in Cato SupremeCourt Review, September 2012, pp. 393-417.Exposition drawn from SCOTUSBlog andSupreme Court preview briefings conductedby, among others, Georgetown UniversityLaw Center, Cato Institute, American Civil Lib-erties Union, American Constitution Society,Washington Legal Foundation, American BarAssociation and National Chamber LitigationCenter. Videos of all but the ACLU sessionare available on the respective websites.29 The Democratic platform is here: www.democrats.org/democratic-national-platform;the Republican platform, here: www.gop.com/news/press-releases/rnc-releases-2012-republican-party-platform/.30 See Mark Sherman, “Why It Matters: 1 NewJustice Could Change a Lot,” The AssociatedPress, Sept. 20, 2012, www.google.com/hostednews/ap/article/ALeqM5jqfEtAAtj2Fgtu8--P38X-yJbDlg?docId=5c8c9b4dd2c448efaafcc65f38c2eaaa.31 Joan Biskupic, “Exclusive: Justice Ginsburgshrugs off rib injury,” Reuters, Aug. 8, 2012,www.reuters.com/article/2012/08/09/us-usa-court-ginsburg-idUSBRE87801920120809.32 “Justice Scalia on issues facing SCOTUS andthe country,” “Fox News Sunday,” July 29, 2012,www.foxnews.com/on-air/fox-news-sunday/2012/07/29/justice-antonin-scalia-issues-facing-scotus-and-country.

33 See Linda Greenhouse, “Every Justice Createsa New Court,” The New York Times, May 26,2009, p. A27, www.nytimes.com/2009/05/27/

opinion/27greenhouse.html?pagewanted=all.34 Klaidman, op. cit.35 Rosen, op. cit.

FOR MORE INFORMATIONAlliance for Justice, 11 Dupont Circle, N.W., Suite 200, Washington, DC 20036;202-822-6070; www.afj.org. Works to ensure that the federal judiciary advances coreconstitutional values and administers justice fairly.

American Association for Affirmative Action, 888 16th St., N.W., Suite 800,Washington, DC 20006; 202-349-9855; www.affirmativeaction.org. Promotes affirma-tive action to achieve equal opportunity.

American Civil Liberties Union, 125 Broad St., 18th Floor, New York, NY 10004;212-549-2500; www.aclu.org. Works to protect rights and liberties guaranteed bythe Constitution.

American Constitution Society, 1333 H St., N.W., 11th Floor, Washington, DC20005; 202-393-6181; www.acslaw.org. Liberal-leaning organization promoting con-stitutional values of individual rights and liberties, equality and access to justice.

Cato Institute, 1000 Massachusetts Ave., N.W., Washington, DC 20001; 202-842-0200;www.cato.org. Libertarian think tank supporting limited government and free markets.

Center for Equal Opportunity, 7700 Leesburg Pike, Falls Church, VA 22043;703-442-0066; www.ceousa.org. Conservative think tank focusing on issues relatedto affirmative action and immigration.

Committee for Justice, 722 12th St., N.W., Fourth Floor, Washington, DC 20005;202-270-7748; www.committeeforjustice.org. Promotes a neutral interpretation ofestablished law and opposes the creation of new laws through judicial activism.

Constitutional Accountability Center, 1200 18th St., N.W., Suite 501, Washington,DC 20036; 202-296-6889; theusconstitution.org. Think tank, law firm and actioncenter opposing the influence of politics and special interests in the judiciary.

Criminal Justice Legal Foundation, 2131 L St., Sacramento, CA 95816; 916-446-0345; www.cjlf.org. Public interest law organization supporting a balance of rightsbetween crime victims and the criminally accused.

Federalist Society, 1015 18th St., N.W., Suite 425, Washington, DC 20036; 202-822-8138; www.fed-soc.org. Conservatives and libertarians seeking to reform the Amer-ican legal system in accordance with an originalist interpretation of the Constitution.

Freedom to Marry, 155 W. 19th St., Second Floor, New York, NY 10011; 212-851-8418; www.freedomtomarry.org. Coalition campaigning for same-sex marriage rights.

National Association of Criminal Defense Lawyers, 1660 L St., N.W., 12th Floor,Washington, DC 20036; 202-872-8600; www.nacdl.org. Criminal defense organizationpromoting a fair and proper administration of criminal justice.

National Organization for Marriage, 2029 K St., N.W., Suite 300, Washington, DC20006; 1-888-894-3604; www.nationformarriage.org. Nonprofit political organizationopposing the legalization of same-sex marriage.

U.S. Chamber of Commerce, 1615 H St., N.W., Washington, DC 20062; 202-659-6000;www.uschamber.com. Lobbying group representing the interests of businesses andtrade associations.

FOR MORE INFORMATION

838 CQ Researcher

Selected Sources

BibliographyBooks

Biskupic, Joan, American Original: The Life and Con-stitution of Supreme Court Justice Antonin Scalia,Sarah Crichton Books, 2009.The veteran Supreme Court correspondent, now with Thom-

son Reuters, provides a comprehensive account of Scalia’slife with insightful analysis of his judicial philosophy.

Breyer, Stephen, Active Liberty: Interpreting Our Demo-cratic Constitution, Knopf, 2005.The Supreme Court justice argues that courts should re-

solve issues of constitutional and statutory interpretation withan eye to encouraging popular participation in democraticgovernment. Includes notes.

Colucci, Frank J., Justice Kennedy’s Jurisprudence: TheFull and Necessary Meaning of Liberty, University Pressof Kansas, 2009.An associate professor of political science at Purdue

University identifies Justice Anthony Kennedy’s “core be-lief” in liberty as essential to understanding his role, votesand opinions on the Supreme Court. For a somewhat par-allel evaluation, see Helen Knowles, The Tie Goes to Free-dom: Justice Anthony M. Kennedy on Liberty (Rowman& Littlefield, 2009).

Greenburg, Jan Crawford, Supreme Conflict: The InsideStory of the Struggle for Control of the United StatesSupreme Court, Penguin, 2007.The CBS News correspondent — now reporting as Jan

Crawford — provides a well-sourced account of PresidentGeorge W. Bush’s nominations and the Senate confirmationsof John Roberts and Samuel Alito to the Supreme Court.

Scalia, Antonin, and Bryan A. Garner, Reading Law: TheInterpretation of Legal Texts, West, 2012.The Supreme Court justice coauthors with the noted legal

lexicographer a book detailing and demonstrating the phi-losophy of “textualism” in statutory construction. Includesglossary, bibliography.

Toobin, Jeffrey, The Oath: The Obama White House andthe Supreme Court, Doubleday, 2012.The CNN legal analyst and New Yorker writer weaves to-

gether the stories of the Roberts Court and the Obama WhiteHouse up through the court’s upholding of Obama’s healthcare law in June. Toobin’s earlier work is The Nine: Insidethe Secret World of the Supreme Court (Anchor, 2007).

Articles

Klaidman, Daniel, “How Chief Justice John Roberts WillHandle Obamacare,” The Daily Beast, Sept. 10, 2012,

www.thedailybeast.com/newsweek/2012/09/09/how-chief-justice-john-roberts-will-handle-obamacare.html.The veteran Newsweek correspondent depicts Roberts’ piv-

otal vote to uphold President Obama’s health care law asthe culmination of his struggle between “his staunch con-servatism” and “his attachment to predictability, social har-mony, decorum, and propriety.”

Liptak, Adam, “Supreme Court Moving Beyond Its OldDivides,” The New York Times, July 1, 2012, p. A1.The Times’ Supreme Court correspondent saw “good evi-

dence” in the 2011-2012 term’s decisions that Chief JusticeRoberts had “worked hard to insulate his institution from thecharge that it has political motivations.”

Rosen, Jeffrey, “Big Chief: How to understand JohnRoberts,” The New Republic, Aug. 3, 2012, pp. 13-14.The George Washington University law professor and NewRepublic legal affairs editor views Roberts’ “deft performance”in the health care case as a possible prelude to taking boldconservative stands in “decades” to come.

Shanmugam, Kannon K., and James M. McDonald,“Looking Ahead: October Term 2012,” Cato SupremeCourt Review, September 2012.The article previews the major cases on the Supreme Court’s

calendar and those awaiting the justices’ decisions whetherto grant review.

On the WebThe Supreme Court’s website provides access to docket in-

formation, schedules, argument transcripts and decisions(www.supremecourt.gov/). The site also includes a link tothe American Bar Association’s Preview website for links tobriefs filed in Supreme Court cases from the 2003-2004 termto the present (www.americanbar.org/publications/preview_home/alphabetical.html).SCOTUSBlog, sponsored by Bloomberg Law, compiles cov-

erage and materials on Supreme Court cases (www.scotusblog.com). The Legal Information Institute at Cornell Uni-versity Law School is another online resource for SupremeCourt materials (www.law.cornell.edu/supct/).

From CQ PressCQ Press has an extensive catalogue of print and on-

line resources about the Supreme Court. Titles includeThe Supreme Court Yearbook, an online annual series;The Supreme Court A to Z (5th ed., 2012); the two-volumeGuide to the U.S. Supreme Court (5th ed., 2010);Supreme Court Compendium: Data, Decisions, andDevelopments (5th ed., 2011); and The Supreme CourtJustices: Illustrated Biographies, 1789-2012 (3d ed.,forthcoming 2012).


Affirmative Action

Browne-Marshall, Gloria, “America’s Affirmative ActionDilemma,”Bay State Banner (Mass.), April 12, 2012, p. 16,www.baystatebanner.com/natl15-2012-04-12.The Supreme Court will perpetuate inequality if it decides

that affirmative action in higher education is unconstitutional,says a constitutional law expert.

Schmidt, Peter, “Texas Lawsuit Complicates PresidentialRace,” The Chronicle of Higher Education, July 30, 2012,chronicle.com/article/U-of-Texas-Admissions-Case/133203/.A lawsuit questioning a Texas undergraduate admissions

policy has landed in the Supreme Court, likely adding thepolitics of affirmative action to the presidential race.

Ware, Leland, “Affirmative Action’s Future May Rest WithJustice Kennedy,” News Journal (Del.), March 19, 2012.The outcome of Fisher v. University of Texas will likely rest

with the vote of Justice Anthony Kennedy.

Business Interests

Liptak, Adam, “Court Declines to Revisit Its Citizens Unit-ed Decision,” The New York Times, June 26, 2012, p. A14,www.nytimes.com/2012/06/26/us/supreme-court-declines-to-revisit-citizens-united.html?_r=0.Critics of the Supreme Court’s campaign finance rulings say

they have led to unprecedented levels of corporate moneypouring into presidential and congressional campaigns.

Savage, David G., “Chief Justice Roberts Signals ThatSupreme Court Remains Independent,”Los Angeles Times,June 30, 2012, articles.latimes.com/2012/jun/30/nation/la-na-roberts-20120630.Chief Justice John G. Roberts considers it an insult when

he hears that the Supreme Court is playing politics or pan-dering to business interests.

Weiner, Rachel, “Supreme Court’s Montana DecisionStrengthens Citizens United,”The Washington Post, June25, 2012, www.washingtonpost.com/blogs/the-fix/post/supreme-courts-montana-decision-strengthens-citizens-united/2012/06/25/gJQA8Vln1V_blog.html.The high court has struck down a Montana law regulat-

ing corporate political spending, ruling that Citizens Unitedapplies to state and local elections.

Judicial Activism

Hays, Michael, “Judicial Activism By Professedly Conserv-ative Jurists,” Las Cruces (N.M.) Sun-News, April 21, 2012.Republicans and Democrats often accuse courts of judicial

activism when they dislike a decision.

Knight, Robert, “Obama’s Bullying Pulpit,” The Washing-ton Times, April 9, 2012, p. B3, www.washingtontimes.com/news/2012/apr/6/obamas-bullying-pulpit/?page=all.President Obama’s positions on several Supreme Court de-

cisions undermine his opposition to judicial activism.

Steiden, Bill, “Faulting Judges Is Hardly New,” AtlantaJournal-Constitution, April 8, 2012, p. A4.Conservatives have long complained about judicial activism,

but now a Democratic president is voicing similar concerns.

Politics

Clyne, Reginald J., “The Importance of a Free-ThinkingCourt,” The Miami Times, July 4, 2012, p. A3, miamitimesonline.com/the-importance-of-a-free-thinking-court/.The Supreme Court is not an impartial arbiter of the law

but rather a group of Democratic and Republican appointeesvoting along party lines, says a legal columnist.

Greenhouse, Linda, “What We Think About When WeThink About the Court,” The New York Times, Dec. 28,2011, opinionator.blogs.nytimes.com/2011/12/28/what-we-think-about-when-we-think-about-the-court/.Judging at the Supreme Court level involves a complicat-

ed blend of considerations, says a columnist.

Rodricks, Dan, “What’s Broccoli Got to Do With It?” TheBaltimore Sun, April 1, 2012, p. A23, articles.baltimoresun.com/2012-04-02/news/bs-ed-rodricks-obamacare-20120331_1_justice-scalia-justice-breyer-obamacare.The Supreme Court’s legitimacy would be enhanced if Ameri-

cans could believe that ideology hasn’t played a role in the court’sdeliberations over the Affordable Care Act, says a columnist.

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CHICAGO STYLEJost, Kenneth. “Remembering 9/11.” CQ Researcher, September

2, 2011, 701-732.

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