Civil and Human Rights

Civil Rights Rules in High Court’s Sights as Term Nears Finale

By Greg Stohr


A year ago it was health care. Now the U.S. Supreme Court is poised to rewrite the nation’s civil rights rules.


With cases on gay marriage, affirmative action and voting rights still to be decided in the next two weeks, the court is set to produce another blockbuster June. Chief Justice John Roberts and the court today will release the first wave of the 19 rulings they have yet to issue.


The civil rights cases give the court an almost countless list of options, from procedural to incremental to landmark. Each offers the justices a chance — should they want it — to make a major statement about the meaning of the constitutional guarantee of equality in a changing American society.


“The coming weeks will be a defining moment for the Roberts court,” said Doug Kendall, president of the Washington-based Constitutional Accountability Center, which backs gay marriage and legal protections for minorities. “These rulings will tell us a great deal about the court’s understanding of equality.”


The court also will rule on two disputes of importance to the pharmaceutical industry. In one case, the question is whether drugmakers can be sued over patent settlements that allegedly delay the introduction of generic competition to popular medicines. The second case will reset the limits on patient lawsuits over drugs that have harmful side effects.


New Limits

The affirmative action dispute is the court’s longest-pending case of this term. Arguments on Oct. 10 suggested the Republican-appointed majority, including likely swing vote Anthony Kennedy, was preparing to put new limits on universities’ use of race in choosing which students to admit.


The dispute involves the University of Texas, which has a unique admissions system that admits three-quarters of the freshman class solely on the basis of high school class rank. Because many Texas high schools are either heavily Hispanic or heavily black, that system all but guarantees a significant minority presence at the university.


The issue for the Supreme Court is whether the university may consider race in admitting the rest of its class.


The case offers at least the prospect of a narrow ruling that would let other institutions continue to consider race for the sake of diversity.


The court could go further and require universities around the country to look harder at race-neutral methods of fostering racial diversity — such as socio-economic affirmative action.


‘Critical Mass’

The justices also could overrule all or part of the 2003 Supreme Court ruling that said universities may consider race in admissions to ensure a “critical mass” of minorities on campus.


The court is also weighing the fate of the Voting Rights Act, the landmark 1965 law that opened the polls to millions of Southern black people. The justices will rule on the law’s requirement that all or parts of 15 states get federal “preclearance” before making any change to their voting rules.


As with affirmative action, the court’s conservative majority cast doubt on the preclearance requirement during arguments in February, questioning whether it was still necessary to protect minority voters.


The same justices were similarly skeptical four years ago, when the court scrutinized the law and ultimately reached a compromise ruling that spared the preclearance requirement.


The affirmative action and Voting Rights Act cases are part of a push by activists to cut back what they see as unwarranted legal protections for racial minorities.


‘Color-Blind Principle’

“Both represent cases that may begin the restoration of the original color-blind principle to our nation’s civil rights law,” said Edward Blum, director of the Project on Fair Representation in Alexandria, Virginia. He organized the challenges to the Voting Rights Act and the Texas admissions policy.


The two gay-marriage cases mark the first time the court has considered the issue. The justices are reviewing California’s Proposition 8, the 2008 ballot initiative that banned same-sex marriage after a state court decision had permitted it for five months. The court could limit its ruling to California or issue a nationwide decision.


The second case tests the U.S. Defense of Marriage Act, which defines marriage as a heterosexual institution and denies federal benefits to legally married same-sex couples. Gay marriage is legal in 12 states and the District of Columbia.


Both clashes offer the justices procedural options that would let them avoid ruling on a whether the Constitution requires equal treatment for gay men and lesbians. In the California case, the justices spent much of the March 26 argument debating whether the defenders of Proposition 8 had the legal right to appeal.


The answers in all likelihood will come by the end of next week. The court’s last scheduled day for issuing opinions is June 24, though the justices typically add additional sessions.


Until then, there is “a great deal of anxiety, anticipation and excitement building up,” Blum said.

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