Guessing The Supreme Court

by Paul Siciliano


Since no one reads this blog anyway, and plenty of people like to guess what the Supreme Court is going to decide in the upcoming week with respect to four major cases, I figured I will throw my ideas out there.:

DOMA  - The Defense of Marriage Act will be struck down as unconstitutional.  There are definitely four justices who find it a violation of equal protection (even under a rational basis review).  I think Justice Kennedy may be convinced of the equal protection reasoning if the Court just does a rational review basis.  Honestly, other than moral disapproval, there is no reason why the Federal Government is treating the two marriages differently, and moral disapproval, as Justice Kennedy even noted, cannot serve as rational basis.

Prop 8  - Which brings us to the Prop 8 case.  Justice Kennedy may be more leery of the equal protection route in the DOMA matter because Prop 8 would require a thorough determination, under the equal protection clause, which level of scrutiny applies to laws that discriminate on the basis of sexual orientation.  Despite more recent victories for the LGBT community, I still believe that such a determination would lead to applying strict scrutiny which there is an unwillingness to do.  To side step that, the Court will punt and use a Romer style analysis to strike down Prop 8 which then would only affect California.  The Court is not going to like that the voters so easily overturned a state constitutional right in a majority-vote election, especially the vote was stripping a minority of a constitutional right.

Affirmative Action  - The scheme Texas uses in determining who gets into state colleges and universities - top 10% of students from every school in Texas - will stand even if an African American only got into such a school because he or she attended a lower performing school. Any racial anomalies based on this system is a result and legacy of segregation and to strike down the Texas scheme basically rewards such segregation.

Voting Rights Act - Section 5 of the Voting Rights Act requires certain counties to pre-clear with the Department of Justice anytime they change or alter their voting procedures and electoral process because of a history of using such changes to diminish the votes of racial minorities.  I would be deeply disturbed if the Supreme Court strikes this provision down only because the Supreme Court is the institution least competent, institutionally, to determine whether discrimination still exists and to what extent.  My gut says it will not be struck down but there will be another admonishment not to just reaffirm the Act without at least altering some of the counties effected.  If they do strike it down, the reasoning will be very convoluted and controversial.

If I was on the Court (and that will never happen), this is how I would rule: 

  1. DOMA is unconstitutional under a rational review basis of the equal protection clause.
  2. The Texas affirmative action scheme for university admission is constitutional. 
  3. Re-authorization of Section 5 of the Voting Rights Act is still valid under Section 5 of the 14th Amendment, and, thus, constitutional. 
  4. Prop 8 is the toughest for me.  I am more inclined to accept the equal protection argument on marriage equality but only because States have spent the last 20 years changing their laws to purposely exclude gay marriages (gays can still marry, just not a partner of the same sex).  At this point, I would just be like, fuck it, laws banning gay marriage are unconstitutional.