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Faculty Commentary: Supreme Court Opinions on Marriage Equality, the Voting Rights Act, and Affirmative Action

During the final week of June, the U.S. Supreme Court issued rulings on a number of highly watched cases. Fisher v. University of Texas at Austin (a challenge to the school’s use of race in its undergraduate admissions process) was decided on June 24. A day later, the Court issued its opinion in Shelby County v. Holder, striking down Section 4 of the Voting Rights Act. And on June 26, the Supreme Court ruled on both US v. Windsor (invalidating the Defense of Marriage Act) and Hollingsworth v. Perry (dismissing a case brought by those who sought to defend California’s ban on gay marriage).

Yale Law School faculty members and lecturers have been quoted about the decisions in various media outlets. See below for some of the latest postings.

Defense of Marriage Act, Proposition 8  (Windsor, Perry)

Professor William Eskridge '78, John A. Garver Professor of Jurisprudence


Voting Rights Act (Shelby)

Professor Heather Gerken, J. Skelly Wright Professor of Law

  • Slate: Goodbye to the Crown Jewel of the Civil Rights Movement, June 25, 2013
    A commentary by Heather Gerken. "People fought and died for this one. It made a difference—a huge difference—in the lives of a lot of people. That’s reason enough to mourn its passing."
  • NPR: Supreme Court: Congress Has To Fix Broken Voting Rights Act, June 25, 2013
    As a political matter, it's "a nonstarter," says Yale Law professor and voting specialist Heather Gerken. Experts note that while civil rights groups may be able to challenge some new laws in the courts, the laws will go into effect while the legal battle is fought out. "The sword of Damocles is no longer hanging over them," says Gerken, referring to Southern jurisdictions.
  • MPRadio: Supreme Court guts the key gain of civil rights, scholars say, June 25, 2013
    Heather Gerken, a professor at Yale Law School, called the Voting Rights Act "the crown jewel of the civil rights movement. There was nothing more effective than Section 5 in terms of remedying discrimination." Gerken called Section 5 "probably was the most important act passed by Congress during the civil rights movement. And it's gone."
  • Huffington Post: Supreme Court Voting Rights Decision: The Civil War Is Over, And A New War Begins, June 25, 2013
    “The court is essential saying that the South is no longer the South, the North is no longer the North, and the whole country has to consider how to go forward,” Yale Law School professor Heather Gerken told The Huffington Post.

Sterling Professor Akhil Reed Amar '84

  • MSNBC: Chin Up! How to fight for voting rights in 4 steps, June 25, 2013
    As Yale Law Professor Akhil Reed Amar argues, the 14th Amendment provides a model, embedded in our constitution, for treating states differently when they show a history of egregious violations against humanity and democracy. Amar points out, “states with abysmal track records of rights-enforcement and democratically deficient voting rules were not allowed back into Congress to sit alongside states with minimally acceptable track records, and these same democratically deficient states were also not allowed to resume full powers of state self-governance enjoyed by their nondeficient sister states.”


Affirmative Action (Fisher)

Jack Balkin, Knight Professor of Constitutional Law and the First Amendment

  • Balkinization: Why Fisher is Important, June 24, 2013
    "Fisher v. University of Texas is a torso of an opinion, a seven-Justice compromise that strongly suggests that a longer opinion either would not write or could not command five votes. Nevertheless, the opinion we have does have several interesting features...Fisher distinguishes between two questions. The first is whether diversity is a compelling interest for a state university; the second is whether an admissions program that uses race to achieve educational diversity is narrowly tailored."

Drew Days III '66 LLM, Alfred M. Rankin Professor Emeritus of Law at Yale Law School

 Reva Siegel '86, Nicholas deB. Katzenbach Professor of Law at Yale Law School

  • Oxford Human Rights Hub: A Restriction of the Status Quo: Fisher v. University of Texas, June 25, 2013
    "The Supreme Court remanded for the lower court to consider whether the University had offered sufficient evidence that it needed to consider race to achieve diversity in admissions, or might have instead relied on the Ten Percent Plan alone. It is this aspect of the judgment which will be at issue on remand, and in other cases. It remains to be seen what kinds of evidence schools may be expected to provide, and how exacting review will be. Justice Ginsburg’s dissent focused on this feature of the Court’s ruling, objecting that it failed to accord appropriate deference to the judgments of educational administrators."

General Commentary

Linda Greenhouse ’78 MSL, Joseph Goldstein Lecturer in Law

  •  NYTimes: Current Conditions, June 26, 2013
    "These have been a remarkable three days, as the Supreme Court finished its term by delivering the only four decisions that most people were waiting for. The 5-to-4 decisions striking down the coverage formula of the Voting Rights Act and the Defense of Marriage Act will go far toward defining the Roberts court, which has concluded its eighth year. Monday’s place-holding ruling on affirmative action in higher education, although it decided very little, is also definitional, for reasons I’ll explain."
  • NYTimes: The Real John Roberts Emerges, June 29, 2013
    "This time a year ago, the conservative chief justice whose vote saved President Obama’s health care law was a figure of mystery. In fact, “The Mystery of John Roberts” was the title I gave to one of my Opinionator columns for The New York Times last summer. The right-wing blogosphere had turned on him venomously. Liberals didn’t know what to make of his crucial vote, or of him. What was his game? Was he for real? What a difference a Supreme Court term makes."

Stephen L. Carter ’79, William Nelson Cromwell Profess of Law

  • Bloomberg: The Supreme Court matters less than you think, June 26, 2013
    "To be sure, the Supreme Court is important. But it’s possible to exaggerate its ability to effect the vast social changes for which it is either celebrated or derided, depending on one’s persuasion. Indeed, the courts can fix a lot less than we like to pretend. Consider two contemporary issues that should have more salience than they do."