Court term in review: The court affects all of us
all, October term 2012 powerfully shows that U.S. Supreme Court decisions
affect each of us, often in the most important and intimate aspects of our
lives. On Wednesday, June 26, the Supreme Court dismissed on jurisdictional
grounds the case involving California’s Proposition 8 and two days later same-sex
couples began marrying in California. The decisions of this term will affect
who gets into college, when the government can take our DNA, what federal benefits
married same-sex couples can receive, what voting systems are used and thus who
gets elected, what medical tests cost and whether injured individuals can successfully
more, it was the Anthony Kennedy court. Justice Kennedy was in the majority
more than any other justice: 91 percent of the time. But it is the 5-4
decisions where Kennedy’s influence is best seen. Out of 73 cases decided after
briefing and oral argument, 23 were decided 5-4. Kennedy was in the majority in
20 of the 23. Antonin Scalia was second most often in the majority in 5-4
cases, but in only 13 of them.
therefore is possible to get the clearest overall sense of the ideology of the
term by focusing on the 16 5-4 cases that were ideologically divided along
familiar lines, with John G. Roberts, Scalia, Clarence Thomas and Samuel Alito
on one side and Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan
on the other. Kennedy was with the conservatives in 10 and with the liberals in
six of these cases.
were some of the more important cases of the term and what will they mean?
v. University of Texas, Austin, the court remanded for further
consideration a challenge to a University of Texas affirmative action plan.
Texas used race as one of many factors in admissions decisions to benefit
minorities and enhance diversity. The court, in a 7-1 decision with Justice
Kennedy writing for the majority, held that the lower courts had not adequately
considered whether Texas had shown that race was necessary in order to achieve
diversity. The court remanded the case to the Fifth Circuit and said, “The
reviewing court must ultimately be satisfied that no workable race neutral
alternatives would produce the educational benefits of diversity.”
greatest significance of the case is in what the court did not do: The court did
not reconsider Grutter v. Bollinger, which held that colleges and
universities have a compelling interest in having a diverse student body and
may use race as one factor in admissions decisions to benefit minorities. The
result is that affirmative action programs at colleges and universities across
the country can continue, but the court made clear that if challenged, they
must show that no race-neutral alternative can achieve diversity.
a big year for the Fourth Amendment in the court, with five decisions. Likely
the most important was Maryland v. King. The court held, 5-4 with
Justice Kennedy writing for the majority, that it did not violate the Fourth
Amendment for the police to routinely take DNA from those arrested for serious
crimes to help solve other crimes for which the individual is not a suspect. The
court stressed that the police action was reasonable because the benefits to
law enforcement outweighed the invasion of privacy and likened this to taking
fingerprints from those arrested. Justice Scalia wrote a vehement dissent,
joined by Justices Ginsburg, Sotomayor and Kagan, in which he argued that it
was unprecedented for the court to allow taking evidence from a person to
investigate a crime for which he or she was not a suspect. The dissent was
deeply concerned about what can be learned about a person from DNA as compared
States v. Windsor, the Supreme Court declared unconstitutional Section 3 of
the Defense of Marriage Act, which provided that for purposes of federal law
marriage must be between a man and a woman. Justice Kennedy, writing for a 5-4
majority, explained that marriage has traditionally been defined by states and
that it violated equal protection for the federal government to refuse to
recognize a same-sex marriage that New York allowed. There are more than 1,000
federal laws that provide benefits to married couples; now same sex couples who
are married in states that permit this will receive all of these benefits.
v. Perry, the court dismissed a defense of California’s Proposition 8 on
standing grounds. California’s Proposition 8, adopted by the voters in November
2008, amended the California Constitution to say that marriage must be between
a man and a woman. Two same-sex couples brought a challenge to Proposition 8.
In 2010, a federal district court in San Francisco declared Proposition 8
unconstitutional as denying equal protection and violating the right to marry
for gays and lesbians. The district court enjoined the defendant state
officials, including the governor and attorney general, from enforcing it. The
defendants chose not to appeal, but the supporters of the initiative sought to
appeal to defend the initiative.
Ninth Circuit certified to the California Supreme Court the question of whether
the supporters of an initiative could represent the interests of the state in
defending an initiative when the elected government officials refused to do so.
After the California Supreme Court answered that question in favor of the
supporters of the initiative, the Ninth Circuit ruled that the supporters of
the initiative had standing, but then declared Proposition 8 unconstitutional.
Supreme Court, in a 5-4 decision with Chief Justice Roberts writing for the court,
held that the supporters of an initiative lack standing to appeal if the
defendant government officials choose not to do so. Standing in federal court
requires an injury and the supporters of an initiative are not injured by its
being enjoined; their only harm is ideological and that never is enough for
standing. The result is that the federal district court ruling declaring
Proposition 8 unconstitutional stands and same-sex couples can now marry in
the next step in marriage equality litigation will be challenges to state laws
around the country that prohibit same-sex marriage. In a vehement dissent in Windsor,
Justice Scalia said that it is only a matter of time before these laws are
declared unconstitutional. In this prediction, he is almost surely correct.
Voting Rights Act of 1965 is one of the most important federal laws adopted in
my lifetime. Section 2 prohibits state and local governments from having
election practices or systems that discriminate against minority voters.
Lawsuits can be brought to enforce it. But Congress believed that this was not
sufficient to stop discrimination in voting. Congress knew that litigation is
expensive and time-consuming. Congress also knew that especially Southern
states had the practice of continually changing their voting systems to
disenfranchise minority voters.
5 of the Voting Rights Act provides that jurisdictions with a history of race
discrimination in voting may change their election systems only if they get
“preclearance” from the Attorney General or a three-judge federal district
court. Section 4(B) of the act defines those jurisdictions which must get
preclearance, nine states and many local governments with a history of race
discrimination in voting.
time the law was about to expire, Congress extended it. Most recently, the law
was set to expire in 2007, and Congress held 12 hearings over an 11-month
period and produced a record of 15,000 pages. The Senate voted 98-0 to extend
the law for another 25 years and there were only 33 no votes in the House of
Representatives. President George W. Bush signed the extension into law.
County, Alabama v. Holder, the court, 5-4, held Section 4(B)
unconstitutional and thereby also effectively nullified Section 5 because it
applies only to jurisdictions covered under Section 4(B). Chief Justice Roberts
wrote for the court and stressed that the formula in Section 4(B) rests on data
from the 1960s and the 1970s. He said that it was an intrusion of state and
local sovereignty to require that they “beseech” the attorney general to
approve their election systems. It thus exceeded Congress’s powers and violated
the Tenth Amendment for Congress to require preclearance from these
theory, Congress can enact a new version of Section 4(B) based on contemporary
data. In reality, it is hard to imagine Congress being able to ever agree on a
new formula. The effect likely will be a significant increase in litigation
under Section 2 and also many election systems going into place that otherwise
would have been rejected because of their impact on minority voters.
for Molecular Pathology v. Myriad Genetics, the court ruled unanimously
that a naturally occurring DNA segment is a product of nature and not patent-eligible
merely because it has been isolated, but complementary DNA (cDNA) is patent-eligible
because it is not naturally occurring. The case involved a company patenting
the test for a genetic factor which significantly increases the risk of breast
and ovarian cancer. The Supreme Court’s holding that such naturally occurring
genes cannot be patented will substantially decrease the costs for this and
other similar tests and products made from DNA.
number of important decisions, the Supreme Court ruled in favor of businesses
and made it more difficult for those injured to sue. In Mutual
Pharmaceuticals Co. v. Bartlett, the court ruled, 5-4, that makers of
generic drugs could not be sued for design defects. Two years ago, in Pliva
v. Mensing, the court ruled that makers of generic drugs cannot be sued on
a failure-to-warn theory. In these two cases, the court said that under federal
law, generic drugs can be sold if they are identical to the brand name drugs
and if they have the warning label approved for the brand name drug. The court said
this precludes the generic drug company from changing the chemical compound or
the warning label, so no lawsuits can be brought for failure to do so.
to the Food and Drug Administration, almost 80 percent of all prescriptions are
filled with generic drugs. If there is a generic equivalent to the brand name
drug, more than 90 percent of prescriptions are filled with the generic drug.
Those injured by generic drugs, even severely, likely are without remedy.
employment discrimination cases, both 5-4, the court made it much more
difficult for employees who are bringing such claims. In Vance v. Ball State
University, the court made it harder for employees suing for workplace
harassment. Earlier, the court held that an employer could be held liable for
harassment by a fellow employee only if the employer was proven to be negligent
in controlling the workplace. But an employer is strictly liable for harassment
by a supervisor, though in some cases an affirmative defense may be available.
the court adopted a narrow definition of who is a supervisor, limiting it to
those employees who have
been empowered by their employer to take an adverse employment action, such as the
power to “hire, fire, demote, promote, transfer, or discipline” the employee.
This will mean that in many more cases an employee can recover for harassment
only by proving negligence by the employer.
of Texas Southwestern Medical Center v. Nassar, the court made it more
difficult for employees to successfully sue for claims that they were
retaliated against for complaining of discrimination. Generally, a plaintiff in
an employment discrimination suit need only show that the prohibited grounds,
such as race or gender, were a motivating factor for the adverse employment
But in Nassar,
the court ruled that the retaliation provision of Title VII of the Civil Rights
Act of 1964, and similarly worded statutes, requires a plaintiff to prove that
an employer would not have taken the adverse employment action but for the desire to retaliate. This requirement for “but-for causation” likely will
mean that many more of such claims will be resolved in favor of employers at
the summary judgment stage.
in American Express v. Italian Colors Restaurant, the court said that an
arbitration clause in a contract must be enforced even if it means that the antitrust
suit realistically would not go forward. Italian Colors Restaurant, a small
business, wanted to bring a class action against American Express for alleged
antitrust violations. American Express sought to prevent this litigation by
invoking a clause in its agreement with Italian Colors requiring individual and
not class-wide arbitration.
Colors said that the suit simply could not go forward except as a class action.
Successfully suing for an antitrust violation costs hundreds of thousands if
not millions of dollars. Recovery for a claim under the antitrust law, though,
is limited to $39,000. The court, 5-4, in an opinion by Justice Scalia, said
that the Federal Arbitration Act required that the arbitration clause be
strictly enforced, even if it meant that the antitrust claims otherwise would
not be brought.
October term 2012 was filled with blockbuster cases and the next term promises to be
more of the same. The court already has cases on the docket concerning abortion
rights, affirmative action, campaign finance, separation of church and state,
separation of powers and freedom of speech. It is an amazing time in the
United States Supreme Court.
Chemerinsky is a distinguished professor of law, a Raymond Pryke Professor of
First Amendment Law and dean at the University of California, Irvine School of