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Supreme Court term in review: The court affects all of us

By Erwin Chemerinsky

Erwin ChemerinskyAbove 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 sue businesses.

Once 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.

It 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.

So what were some of the more important cases of the term and what will they mean?

Affirmative action

In Fisher 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.”

The 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.

Fourth Amendment

This was 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 to fingerprints.

Marriage equality

In United 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.

In Hollingsworth 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.

The 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.

The 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 California.

Undoubtedly, 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

The 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.

Section 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.

Each 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.

In Shelby 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 jurisdictions.

In 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.

Patenting genes

In Association 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.

Business litigation

In a 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.

According 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.

In two 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.

In Vance, 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.

In University 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 action.

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.

Finally, 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.

Italian 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.

—Erwin 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 Law.