Ahead of Supreme Court Roundup, Howard Looks Back on Major Decisions of 2012-13 Term

A. E. Dick Howard

UVA Law Professor A. E. Dick Howard will host the annual Supreme Court Roundup on Thursday.

September 9, 2013

University of Virginia law professors will analyze the most important Supreme Court decisions of the past term — including cases involving same-sex marriage, the Voting Rights Act and affirmative action in higher education — at the annual Supreme Court Roundup at 5 p.m. on Thursday, Sept. 12 in Caplin Pavilion.

The panel discussion will be hosted by Professor A. E. Dick Howard, who will talk about the Roberts Court's 2012-13 term. The program will also feature Professor Kerry Abrams, who will speak on the same-sex marriage decisions; Professor Kim Forde-Mazrui, who will discuss affirmative action; and Professor Risa Goluboff, who will address Shelby County v. Holder and the Voting Rights Act.

Howard, an expert in constitutional law and the Supreme Court, recently spoke about the court's most recent term, offering a preview of the upcoming roundup.

The 2012-13 Supreme Court term had a number of high-profile cases, dealing with topics including same-sex marriage, the Voting Rights Act and affirmative action in higher education. Were you surprised by how the court ruled in any of these major cases?

In United States v. Windsor, the court struck down the Defense of Marriage Act. The most arresting feature of Justice [Anthony] Kennedy's majority opinion was how he rested his reasoning on two pillars. One was federalism — that Congress has legislated in an area traditionally reserved to the states. The other pillar was equal protection — Kennedy's finding that Congress had acted to disadvantage individuals who had entered into same-sex marriages in states where they were legal and that Congress' action reflected animus against such people. Kennedy's earlier opinions (such as Lawrence v. Texas, invalidating a Texas anti-sodomy law) reflect a strong libertarian impulse and a concern for human dignity. Kennedy's opinion is also of particular interest because the passages concerning affected individuals and couples could (with the federalism language stripped away) easily support arguments for finding a constitutional right to gay marriage — a finding the court carefully avoided in Windsor.

In Shelby County v. Holder, the court invalidated the coverage section of the Voting Rights Act of 1965 as reenacted in 2006. Chief Justice John Roberts' opinion in Holder was not surprising when one recalls his opinion in a 2009 case, Northwest Austin Municipal Utility District v. Holder. In that case, Roberts decided the case on statutory grounds, thus avoiding ruling on the act's constitutionality. But in dictum in the 2009 case Roberts clearly foreshadowed the holding he penned in 2013.

In Fisher v. University of Texas, some observers thought that the court would use the case to overrule its 2003 decision in Grutter v. Bollinger, which upheld the University of Michigan Law School's affirmative action. With Justice [Samuel] Alito having replaced Justice [Sandra Day] O'Connor after Grutter, opponents of affirmative action perhaps thought that their day had come. But the court remanded Fisherto the lower courts, mandating a stricter standard of review, and leaving affirmative action standing, at least for now. Only Justice [Ruth Bader] Ginsburg dissented. Thus the battle continues.

Were there any cases that flew under the radar, but that you think are particularly important?

I think the term's business cases were especially noteworthy. Commentators have debated whether the Roberts Court ought to be characterized as "pro-business." The business world certainly had a lot to be pleased about in the most recent term. The court's conservative justices made it more difficult for individuals to bring Title VII discrimination suits against employers, the court placed additional limits on class action suits and the justices showed a marked preference for arbitration over litigation.

Can you point to any overarching themes that could help explain the court's decisions during this past term?

The Roberts Court in the most recent term proved that it is no stranger to activism. In particular, unlike the Warren Court of yesteryear, the present court showed no instinct this past term for deference to Congress. Whether the result was conservative (as in Shelby County) or liberal (as in Windsor), the justices displayed a willingness to disregard Congress' findings and decide the matter for themselves. This was especially remarkable in Shelby County, where there were more than 15,000 pages of testimony and reports and where it's hard to avoid the text and purpose of the Reconstruction Amendments — to empower Congress to legislate on behalf of civil rights. The Roberts Court is nothing if not self-confident.

We've now seen eight years of the court under Chief Justice Roberts. Did this term change your view of the Roberts Court in any way?

The Roberts Court seems to be settling in after eight years. Chief Justice Roberts takes the long view, as Shelby County demonstrates. Justice Kennedy remains the justice on whom major cases tend to turn (of 23 cases decided by a 5-4 vote this term, Kennedy was in the majority in 20 of them). Justices [Antonin] Scalia and [Clarence] Thomas continue to hammer away at themes like originalism — reading the Constitution's provisions as they would have been understood at the time they were adopted. Justice Ginsburg has no intention of retiring and, after Justice [John Paul] Stevens' departure, is providing forceful dissents for the more liberal wing of the court. Justices [Sonia] Sotomayor and [Elena] Kagan are finding their voices.

Ideology is in the air in the Roberts Court. But ideology doesn't explain everything. For example, in criminal cases, unexpected groupings sometimes appear. This is especially true in Fourth Amendment cases, where Justice Scalia's emphasis on principles of common law property can lead to him to vote with the more liberal justices, while Justice [Stephen] Breyer's fondness for balancing can lead him to side with the government.

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