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Changing Times—A Commentary by Linda Greenhouse ’78 MSL

The following commentary as posted on newyorktimes.com on November 14, 2012.

Changing Times
By Linda Greenhouse ’78 MSL

When people talked during the presidential campaign about the potential impact of the election on the Supreme Court, most meant the impact on the court’s membership: whether Barack Obama or Mitt Romney would get to fill any vacancies during the next four years. The vote on Nov. 6 settled that question, obviously, but it also raised another tantalizing one: what impact will other developments during this election season, beyond the presidential vote itself, have on the nine justices?

I have two developments in mind: the vote in four states in support of same-sex marriage, and the run-up to Election Day that saw both Democrats and federal judges pushing back against Republican strategies devised to selectively minimize voter turnout. Both are directly relevant to cases on the Supreme Court’s current docket, and it’s worth at least considering whether either or both are potential game changers. If so, it wouldn’t be the first time in Supreme Court history that timing turned out to be everything.

Last week, the court agreed to decide the constitutionality of Section 5 of the Voting Rights Act, the provision that requires states across the old South, plus Texas and smaller jurisdictions around the country, to get federal permission before making any changes to their voting procedures. It was totally predictable that the court would take this case, and in making thatprediction back in the spring, I described this latest challenge to the Voting Rights Act as “catnip” to the Roberts court, given the majority’s skepticism toward government policies that acknowledge the country’s racially fraught history by taking race into account today.

Stripped of its doctrinal framing, which I’ll discuss in a future column, the argument at the heart of this case, Shelby County v. Holder, isthat Section 5, reauthorized by Congress in 2006 for another 25 years, is an anachronism, a continuing insult to states that have long since cleaned up their act and have put behind them the racist vote suppression that led to the enactment of the Voting Rights Act in the first place.

In the abstract, against the background of the election of an African-American president, that argument has indisputable force. “Things have changed in the South,” Chief Justice John G. Roberts Jr. wrote in 2009, when the court took an inconclusive swipe at the law in an earlier case. The court had serious doubts, he wrote then, about whether the “current burdens” imposed by Section 5’s “pre-clearance requirement” were “justified by current needs.”

Then came the 2012 election, with voter identification laws suddenly popping up in Republican-dominated states, along with cutbacks on voting hours and restrictions on registration. The Obama administration pre-cleared Georgia’s law, under which every county will provide freeidentification cards to voters who present any of a wide range of documents. But the administration invoked Section 5 to block new voter ID requirements in South Carolina and Texas, arguing that neither state had met the law’s requirement to show that any new procedure “neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race” or “membership in a language minority group.”

Two separate panels of federal judges in Washington rejected the states’ challenges to the administration’s action. In the South Carolina case, the court said that while the state’s voter ID plan was acceptable on paper and could be used in future elections, it couldn’t be used in 2012 because the state hadn’t satisfied doubts about how the system would actually work and had failed to give voters enough time to get the required identification. “The long march for equality for African-Americans is not finished,” Judge Brett M. Kavanaugh wrote for the panel (quite a contrast to Chief Justice Roberts’ “things have changed in the South,” from a conservative judge who surely would have been on a Romney administration’s Supreme Court short list).

The panel in the Texas case, noting that the state’s identification requirements were the most stringent in the country and would place a disproportionate burden on poor people and minorities, said the evidence provided by Texas to show otherwise was “unpersuasive, invalid, or both.” Greg Abbott, the Texas attorney general, denounced the ruling and said the state would appeal to the Supreme Court.

The Section 5 case the court accepted last week, which is from a county in Alabama, will be argued this winter, with a decision by the end of the current term in June. Given the open cynicism of the Republican-driven efforts at vote suppression this year, and the withering scrutiny of federal judges across the ideological spectrum, the question coming out of the 2012election season is whether the optics of the voting rights issue have changed sufficiently to bring the Roberts court back from the brink to which it wassurely headed. When the subject of voting rights felt like yesterday’s news, a quaint page from a fading history, using the Shelby County case to eviscerate Section 5 looked easy. With voting rights the stuff of today’s headlines, I’m no longer so sure.

If time is on the side of preserving the Voting Rights Act, it’s also on the side of recognizing the right to, and federal recognition of, same-sex marriage.

Note that this observation is something well short of a prediction that the Supreme Court will declare a constitutional right to marriage equality during its current term. A vehicle for doing so, the Proposition 8 case from California (Hollingsworth v. Perry) is sitting on the court’s docket, awaiting the justices’ decision on whether to take it. It’s an appeal by opponents of same-sex marriage, the backers of the 2008 California initiative known as Proposition 8, from a federal appeals court decision last February that declared the proposition unconstitutional. The court has indicated that the justices will take up this case, along with eight cases on the constitutionality of the federal Defense of Marriage Act, at their regularly scheduled closed-door conference on Nov. 30.

The most likely scenario to emerge from the conference is a grant of review in one of the DOMA cases, most likely Windsor v. United States, decided last month by the federal appeals court in New York. Along with thefederal appeals court in Boston, in another case also now pending before the Supreme Court, the New York-based United States Court of Appeals for the Second Circuit declared unconstitutional the statute that withholds the many benefits of marriage available under federal law from same-sex couples who are legally married in their state of residence. The Obama administration, agreeing with the plaintiffs that the law violates the Constitution’s guarantee of equal protection, is not defending it. The pending petitions have been filed by agroup of members of the House of Representatives, who have hired Paul Clement, solicitor general during the Bush administration, to press the case for upholding the statute.

Assuming the court grants one of the DOMA cases, I think the justices are likely to put the Proposition 8 case on hold until the DOMA issue is decided. That could push any further development on the constitutionality of same-sex marriage – as opposed to the constitutionality of refusing to recognize those marriages that individual states have legalized – until next summer. It’s entirely possible that the court could just turn down the Proposition 8 appeal, which would allow same-sex marriage to resume in California without the Supreme Court’s involvement. Or it could decide the case, as the appeals court did, in a California-specific way that would notbind the rest of the country. The moment of reckoning, in other words, has not necessarily arrived yet.

I think there’s an excellent chance that the Supreme Court will overturn DOMA. The states-rights argument could appeal to those justices whom the equal protection argument leaves cold. There is obviously less reason for confidence – some would say little reason or none – on the deeper question, either in the pending case or in the near future.

But consider this: Proposition 8 was adopted by California voters four years ago by the narrow margin of 52.3 percent, after major mobilization by the religious right. If that referendum had been held not in 2008 but last week – on the day the religious right failed to work its will in Maine, Maryland, Minnesota or Washington – there is no chance it would have succeeded in the state of California. With nine states plus the District of Columbia now recognizing same-sex marriage, the intervening four years have made an enormous difference. Without the Supreme Court’s saying a word, the popular understanding of equality has evolved with near lightning speed and invested the constitutional guarantee of equal protection with new meaning.

The question of how social movements create constitutional meaning outside the courts is deeply intriguing and crucially important, and is currently producing a rich academic literature that’s well beyond my scope here. My colleague Reva Siegel has done pathbreaking work on this question, tracing, for example, how the Second Amendment argument for private gun ownership as a constitutional right evolved far outside the Supreme Court and won the day there in 2008 against odds that not long before had seemed insurmountable.

When the history of how same-sex marriage became the law of the land is eventually written, as it will be in the not too distant future, there will be many turning points to mark. The Supreme Court’s 2003 decision in Lawrence v. Texas, which held that gay relationships could not be criminalized, will certainly be one landmark. But last week’s election results, when voters in four states had the choice to say yes or no to marriage equality and said yes in all four, will stand, I think, as the more important development. Itdidn’t necessarily tell the justices how to decide the cases now on their docket. But in showing them that times are changing, it told them a lot.