Decisions to test chief justice's approach
By David G. Savage
Published: Sunday, June 23, 2013, 6:12 p.m.
WASHINGTON — The leadership of Chief Justice John G. Roberts Jr. will be put to a major test this week when the Supreme Court hands down its decisions on college affirmative action, voting rights and gay marriage.
The conventional view has been that the court will fracture 5 to 4 along ideological lines in all three areas. But that presents Roberts with a difficult choice. He could join his fellow conservatives to win at least some of the major cases and preside over a deeply divided court. Or he could use his authority to seek a narrow middle ground.
The conservatives, Roberts among them, have been steadily critical of government policies that put an emphasis on race. They have questioned whether race-based admission at state universities and federal scrutiny of Southern voting laws are still justified.
But the court's four liberals would surely dissent angrily if the court were to strike down the historic Voting Rights Act of 1965 and prohibit all college affirmative action.
At the same time, the liberals, joined by Justice Anthony M. Kennedy, have been viewed as likely to support same-sex marriage. The conservatives, however, would dissent loudly if the majority were to make gay marriage a constitutional right.
Increasingly in recent years, Roberts has taken the more moderate course. In speeches and interviews, the chief justice has spoken of his devotion to the rule of law and of his aim to preserve the court as a legal forum, not a political tribunal.
Last year, Roberts surprised the conservatives in the health care and immigration cases. He joined with Kennedy and the liberals to rule that the federal government, not the states, controls the enforcement of the immigration laws, a decision that blocked most of Arizona's immigration law.
And, acting on his own, he found a narrow way to uphold President Obama's health care law. He agreed with conservatives that Congress could not mandate that people buy health insurance, but he said it could impose a tax on those who refused to do so.
This year's cases could be resolved through narrow decisions, but doing so may depend on whether the chief justice can find a majority for a middle-ground option.
In the affirmative action case, the University of Texas was sued by a rejected white applicant who argued that the use of race as an admissions factor was unconstitutional. The university said it needed affirmative action to ensure the student body at the Austin campus was diverse.
But in recent years, the Austin campus has seen an influx of Latino and black students, thanks to the state's so-called Top 10 law that promises admission to top graduates from every high school in the state. This leaves the court an option to rule that while diversity on campus is vitally important, Texas did not need an affirmative action policy to achieve it, preserving the possibility of college affirmative action programs in other states.
The voting rights case is a challenge to one part of the 1965 law that requires most Southern states and municipalities to obtain “pre-clearance” from Washington before making changes in their election or voting laws. Critics say this special scrutiny for the South is outdated and not needed because blacks register and vote at the same rates as whites. Civil rights veterans say the law is needed to deter schemes in small towns that can deprive black voters of all political power.
Four years ago, the law appeared doomed in the Supreme Court, but Roberts wrote a surprise opinion that allowed a Texas water district to escape the law. This narrow option put off a constitutional ruling.
This year, the law appeared doomed again during an oral argument in February. But Roberts could once again avoid a broad ruling by giving states and counties the right to escape the law if they have had no violations for a decade.
In the same-sex marriage case from California, the court's liberals said they were wary of ruling broadly in a way that would force all states to authorize same-sex marriage. Roberts questioned whether the sponsors of Proposition 8 had the legal standing to appeal after a federal judge struck down the ballot measure as unconstitutional and state officials refused to appeal.
This has led to speculation the court will hand down a procedural ruling that might clear the way for same-sex marriage in California, but that avoids a constitutional ruling with nationwide impact.
David G. Savage covers the Supreme Court for the Los Angeles Times.
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