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The Fire Next Term—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on May 30, 2012.

The Fire Next Term
By Linda Greenhouse ’78 MSL

Nerves are jangling across the ideological spectrum as the end of the Supreme Court term approaches. So confident just weeks ago, conservatives now appear oddly rattled, beset with sudden worries over the prospect that Chief Justice John G. Roberts Jr. may fail to do their bidding and could actually vote to uphold the health care law. Leading conservative columnists have devoted their energy during the past week to bucking up the chief justice.

We’ll find out soon enough, most likely within the month, whose faith and whose fears have been misplaced. Meanwhile, the next Supreme Court term is a mere four months away. It is shaping up as equally momentous and sadly, from my point of view, as a good deal more predictable.

The focus of the current term is, of course, federal authority: immigration as well as health care. We don’t really know yet where the chief justice, now completing his seventh term, or Justice Samuel A. Alito Jr., his frequent ally, stand on questions of Congressional power. But we do know where they, along with Justices Antonin Scalia, Clarence Thomas, and Anthony M. Kennedy, stand on the subject that is likely to be the focus of the next Supreme Court term. That subject is race.

Race is the project of the Roberts court – more than enhancing corporate welfare, more than lowering the barrier between church and state, more than redefining the boundary between state and federal authority.

What do I mean by project? As a young lawyer in the Reagan administration, John Roberts opposed robust enforcement of federal civil rights laws. His opposition to broadening the reach of the Voting Rights Act, as disclosed in the Reagan Library papers released as part of his 2005 Supreme Court confirmation process, briefly became an issue at his Senate Judiciary Committee hearing. But the senators, evidently persuaded that as chief justice he would just be an umpire calling balls and strikes, moved on.

I don’t generally believe in tagging middle-aged people with the deeds of their youth, but there has been remarkable consistency between young lawyer Roberts and Chief Justice Roberts. A prime example: In late 2005, while Justice Sandra Day O’Connor was still on the court awaiting her successor’s confirmation, the court decided against hearing a challenge to a Massachusetts school district’s plan for maintaining integration by means of racially conscious assignment of students to individual schools. The plan had been upheld by the federal appeals court in Boston. Since there was no conflict among the lower courts on the question of the constitutionality of voluntary plans of this sort, the appeal didn’t meet the Supreme Court’s normal criteria for review.

Justice Alito was confirmed to Justice O’Connor’s seat a month later, and lo and behold: the court promptly accepted two similar challenges, to voluntary integration plans in Louisville and Seattle. The plans had been upheld in the lower courts, meaning there was still no conflict and the appeals still didn’t meet the justices’ normal criteria. These were the two cases that, decided together, became Parents Involved in Community Schools v. Seattle School District No. 1. In his opinion invalidating the plans, Chief Justice Roberts said that taking race into account, even for the purpose of preserving the hard-won gains of school integration in districts with a history of entrenched segregation, was unconstitutional. “The way to stop discrimination on the basis of race,” he famously declared, “is to stop discriminating on the basis of race.” (The line was not, it turned out, original; the chief justice borrowed it without attribution from Judge Carlos Bea, a dissenter on the appeals court in the Seattle case.)

Although the chief justice’s Parents Involved opinion didn’t take direct aim at the court’s affirmative action precedents, it was unmistakably incompatible with the 2003 precedent that upheld affirmative action in admission to the University of Michigan’s law school. Justice O’Connor was the author of the 5-to-4 majority opinion in that case, Grutter v. Bollinger. Had her successor, Justice Alito, been on the court, he almost certainly would have voted the other way and the case would have come out differently.

So it should have come as no surprise three months ago when the court announced that next term it would hear a challenge to the most recent iteration of the University of Texas plan for affirmation action in admissions. (Although I have to confess that the court surprised me – only nine years after the majority in Grutter indicated that the court wouldn’t revisit the question for 25 years, I naïvely didn’t expect this bold show of activism this soon.)

At issue is not the well-known Texas 10 percent plan, which achieves a fair measure of diversity at the flagship campus at Austin by admitting the top 10 percent of every graduating high school class in the state. Rather, the case challenges what the university has done since the Grutter decision, tweaking the 10 percent plan to achieve more targeted diversity by taking race, among other factors, into account to fill a small portion of each entering class.

The chance that this portion of the Texas admissions process will survive the Supreme Court’s scrutiny seems slight. The challengers argue that whatever interest the University of Texas has in diversity – the interest that the Grutter decision found compelling – was already being met by the 10 percent plan, meaning that there was no compelling need for the Grutter add-on. If that’s as far as the court goes, the decision would be unique to Texas. The real question is whether the court will use this case, Fisher v. University of Texas, as a vehicle to overturn or sharply narrow the Grutter decision itself. That’s what the plaintiff is seeking, and it’s hard to imagine another reason for the justices to have accepted the case. Public and private universities, many of which employ Grutter-style affirmative action at least to some extent, are watching this case with great anxiety.

In predicting that the story next term will be about race, I have more than the Texas case in mind. Two weeks ago, the United States Court of Appeals for the District of Columbia Circuit, with opinions totaling 100 pages, rejected the latest constitutional challenge to the Voting Rights Act of 1965, as extended six years ago by Congress for 25 more years. The vote was 2 to 1. The dissenting judge, Stephen F. Williams, provided a road map for the Supreme Court to cut the heart out of the section of the law (Section 5) that requires nine Southern states and portions of others to “pre-clear” any changes in voting procedures by persuading either the Justice Department or a federal court that the change won’t have an adverse impact on the ability of black voters “to elect their preferred candidates of choice.”

This case, Shelby County, Ala. v. Holder, has received surprisingly little attention during its inexorable course to the Supreme Court. It raises a complex and fascinating set of issues that I’ll explore more fully in future columns. Some categories of voting rights cases require the Supreme Court to grant review. While this isn’t one of them, my assumption is that Supreme Court review is a foregone conclusion. I’ll go further. To the Roberts court majority, this case is catnip.

Recall that three years ago, in a case called Northwest Austin Municipal Utility District No. One v. Holder, a case name usually abbreviated as Namudno, the court appeared on the verge of invalidating Section 5 before pulling back at the last minute.

In his majority opinion, Chief Justice Roberts said the court had serious doubts about the section’s constitutionality on two grounds: whether the “current burdens” the pre-clearance requirement imposes are “justified by current needs” and whether the formula that applies the requirement to some states and not others “is sufficiently related to the problem that it targets.” In other words, has Section 5 of the Voting Rights Act, four times re-enacted by Congress and twice upheld by the Supreme Court, outlived its usefulness in a supposedly post-racial society? That’s the question the Namudno decision saved for another day.

That day is now here, even if a post-racial society isn’t. The extension of Section 5 in 2006 passed the Senate by a vote of 98 to 0 and the pre-Tea Party House of Representatives by a vote of 390 to 33. It was signed into law by President George W. Bush, whose administration, on the eve of President Obama’s inauguration, urged the Supreme Court to uphold it. Congress compiled a legislative record of more than 15,000 pages, documenting numerous instances since the section’s last renewal in 1982 of efforts by jurisdictions covered by the law to deter black voters.

Late last year, the Obama administration invoked Section 5 to block South Carolina’s new voter-ID law. In his majority opinion for the appeals court upholding the law, Judge David S. Tatel said that Congress had ample evidence from which to conclude that “Section 5’s work is not done,” a legislative judgment to which he said the court owed deference.

In his dissenting opinion, Judge Williams argued that in imposing the pre-clearance requirement on some parts of the country but not on others, Section 5 had become an anachronism, “as obsolete in practice as one would expect in a dynamic society.” He noted that in 2008, the Supreme Court upheld Indiana’s voter-ID law against the argument that it would place an unequal burden on the elderly, poor, and members of racial minorities. Why, Judge Williams asked, should South Carolina, which outranks Indiana by several measures of black voting participation and success, face an additional hurdle to sustain its law?

Judge Williams offered his dissent as a minimalist approach: no need to invalidate the whole of Section 5 if the formula for determining which jurisdictions to cover, unchanged for decades, was simply struck down and left for Congress to rework. Such an approach would have great appeal to Chief Justice Roberts, who has shown a preference for an oblique approach to a radical result. Of course, Congress’s predictable inability to agree on a new list of covered states would leave Section 5 in terminal abeyance. But that wouldn’t be the court’s fault, would it?