US supreme court to confront civil rights challenges on return to work

Justices to consider several cases brought by Republican-led states aimed at overturning laws on affirmative action and voting

By Chris McGreal

The US supreme court resumes work on Monday, confronting a caseload that could prove every bit as contentious as the legal battle over healthcare reform.


Among the most bitterly fought cases are expected to be a number aimed at overturning longstanding civil rights laws by a clutch of Republican-run states who claim they are outdated and unjustly discriminatory against white people.


The cases have the potential to strike at the heart of more than half a century of civil rights legislation by potentially abolishing central government oversight of elections in states with a history of systematic racism and dealing a fatal blow to affirmative action in higher education.


The supreme court is also likely to take up a more recent human rights issue with equally strong political overtones – gay marriage.


Some Republican state leaders are optimistic that the time is now ripe to take on civil rights legislation because of the supreme court’s ideological tilt to the right and clear signals from the chief justice, John Roberts, that he is deeply sceptical about racially based legislation.


But Roberts’ decision earlier this year to side with the liberal justices in upholding the constitutionality of Barack Obama’s healthcare reforms has added a further degree of uncertainty to the perilous game of attempting to predict supreme court decisions.


Next week, the justices will consider a challenge to affirmative action in higher education involving a white woman, Abigail Fisher, who says she was the victim of unfair discrimination in favour of minorities when she was refused a place at the University of Texas in Austin.


In 2003, a divided supreme court upheld the use of affirmative action in universities to ensure a diverse student body but as only an influencing, not a decisive, factor in admissions.


Since then the court has shifted to the right. Samuel Alito joined the bench and persistently challenged policies and legislation based on race. Roberts has also made his scepticism on racially influenced laws known. With that, the court’s conservatives would appear to be decisive on the issue.


David Gans, civil rights director of the Constitutional Accountability Center, which is a party to the legal action in defence of affirmative action, said the ruling could prove groundbreaking if the court overturns its earlier rulings.


“Is the court going to go back on those precedents? Are the conservatives going to backtrack on these previous decisions?” Gans asked. “If it does, that could force a reassessment of affirmative action throughout the education system.”


Gans said that if the court does strike down affirmative action at the University of Texas, the broader impact will depend on how the justices write the judgment. They could reach a narrowly honed decision that deals solely with Texas, which has an unusual, although not unique, parallel system of ensuring diversity by guaranteeing the top 10% of pupils in every state school a place at the University of Texas. Or the judges could finally kill off affirmative action in education altogether.


The supreme court is also expected to hear at least one of several challenges to the 1965 Voting Rights Act by state governments unhappy at Washington’s power to oversee their conduct of their elections because of a past history of racial discrimination and disenfranchisement.


The Obama administration has won a series of federal court cases in recent months over attempts by Republican-led states to require voters to produce photo identification in order to cast their ballots and to redraw constituency boundaries.


Courts in Washington DC have struck down attempts by Texas to redraw constituencies because the move diminished the impact of a rapidly growing Latino vote and to require photo identification at the polls, which the court said would discourage minorities from voting. The federal courts effectively accused Texas’s Republican-controlled legislature of racial discrimination and attempting to manipulate elections.


The justice department has won similar victories over changes to election laws and procedures in other states, including Alabama and Florida, and is awaiting a ruling in a South Carolina case.


The supreme court has previously upheld the section of the Voting Rights Act that requires nine states – Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas and Virginia – to seek approval from the justice department for changes to voting laws or procedures. But in 2009, Roberts invited a challenge to the clause in the law giving Washington oversight, known as Section 5, by saying that “the south has changed”.


“The evil that Section 5 is meant to address may no longer be concentrated in the jurisdictions singled out for pre-clearance. The statute’s coverage formula is based on data that is now more than 35 years old, and there is considerable evidence that it fails to account for current political conditions,” Roberts wrote.


It is a Section 5 case in Shelby, Alabama that appears likely to end up before the court first. Shelby county’s legal bills are being paid by the Project on Fair Representation, which describes itself as a legal defence fund against the “outdated” Section 5.


Its director, Edward Blum, said: “Section 5 was a draconian yet completely necessary provision in 1965 when mostly southern jurisdictions we purposely shutting out blacks from the ballot box”.


But he added that times have changes and that “African Americans and Hispanics no longer live in barrios and ghettos”, and that they now wield considerable political power which negates the need for special protection for minority voters.


Defenders of civil rights, including the National Association for the Advancement of Coloured People, say that the flood of voter ID laws and other the manipulation of election boundaries is evidence of the continued need for legal protections.


Gay marriage is also likely to land before the court this term, although it’s not immediately clear in what form. One possible route is through challenges to the Defence of Marriage Act (Doma), which requires the federal government to only recognise heterosexual weddings. The effect is to limit benefits, such as tax breaks, and some rights for same-sex couples.


A federal appeals court in Boston has overturned that aspect of the law on the grounds that it is for individual state governments to decide who can marry, not Congress.


There are also challenges to Doma in the legal pipeline from gay couples demanding full recognition of their marriages by the federal government.


There is considerable uncertainty about how the court might decide the issue. Justice Anthony Kennedy is regarded as a decisive vote. He has previously voted to strike down a Texas law criminalising sex between men, as well as an attempt by the Colorado legislature to amend the state constitution to bar laws preventing discrimination against gays.


But finding a right for same-sex couples to marry is a much larger step.


The first case the justices will hear is over Shell oil’s relationship with the Nigerian military. Twelve Nigerians are attempting to sue Shell in the US for allegedly using the army during the dictatorship of General Sani Abacha in the 1990s to brutally suppress protest against oil drilling in the Niger Delta. The supreme court is being asked if US courts have jurisdiction in the case.