A ‘Blockbuster’ Year? Panel Analyzes 2012 Supreme Court Term

From gay marriage to voting rights, college admissions policies, and international human rights, the U.S. Supreme Court’s 2012 term had something to disturb or please virtually everyone, as three faculty members and one alumnus explained at a panel discussion in recognition of Constitution Day. The event was co-sponsored by the law school’s American Constitution Society and Public Interest Law Society and the university’s Gephardt Institute for Public Service.  

Karen Tokarz, the Charles Nagel Professor of Public Interest Law & Public Service, moderated the event, which featured Susan Appleton, the Lemma Barkeloo and Phoebe Couzins Professor of Law; Bill Freivogel, JD ’01, director of the Southern Illinois University School of Journalism and writer for the St. Louis Beacon; Greg Magarian, professor of law and Israel Treiman Faculty Fellow for 2013–14; and Leila Nadya Sadat, the Henry H. Oberschelp Professor of Law and director of the Whitney R. Harris World Law Institute. 

“The last Supreme Court term has been called ‘a blockbuster,’ ‘monumental,’ ‘amazing,’” Tokarz said. “Others say it was ‘just business as usual,’ with one-third of the cases decided by a 5-4 split, along an ideological left-right divide, with Justice Kennedy as the swing vote in almost all of those cases.” 

Either way, Tokarz said, “The decisions of the past term touched our lives.” 

The court’s ruling in The United States v. Windsor is a perfect example. The decision struck down a key part of the 1996 Defense of Marriage Act (DOMA), opening the door to federal recognition of gay marriage. 

“I’m thrilled to discuss this particular case because it brings together two areas in which I’m intensely interested—family law and conflict of laws,” Appleton said. 

The case involved a woman seeking a refund of federal estate taxes that she had paid because DOMA contained sex-based definitions of marriage that prevented her from being classified as a “surviving spouse” when her wife died. The couple had been married in Canada and lived in New York, a state that recognized their marriage as valid. 

“The particular section of DOMA that Windsor challenged affected thousands of federal statutes that turn on marital status,” Appleton said. “The majority decision lectures Congress on the local character of family law in our federal system, especially the tradition of marriage definition and regulation as exclusively state prerogatives.” 

However, Appleton says the most interesting part of the decision is what is said—or rather not said—in its conclusion. 

“The court says that the class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriage made lawful by the state—but it never says which state—the state where the couple married, or the state where the couple lives?” she said. “The court is purposely silent on that issue,” leaving the door open for an expansive federal response. 

Another case involving a contentious issue is Fisher v. The University of Texas, which addressed affirmative action in college admissions. Freivogel noted that the court’s position on affirmative action has not changed much since the 1978 case Regents of the University of California v. Bakke. 

In that case, the court ruled that universities can consider racial criteria in a competitive admission process, but “fixed quotas” can’t be used. Two cases involving the University of Michigan—Grutter v. Bollinger and Gratz v. Bollinger—essentially reaffirmed that position in 2003. 

“Universities can give a ‘plus’ to students based on race, as long as it is one of many other possible ‘pluses,’ and students are considered as individuals rather than a class,” Freivogel said.  

The current case, Fisher v. The University of Texas, involved a university admissions policy that took six factors into account, including “diversity.” In a 7-1 decision, the court remanded the case for “careful judicial inquiry into whether or not the university could achieve diversity without using racial classifications,” Freivogel said. “If a non-racial approach can promote the university’s substantial interest of diversity, then the university can’t consider race in its admissions policy.” 

Freivogel continued, “When I asked Greg Magarian about it, he said the ruling was a ‘recipe for litigation’ and that affirmative action had become a ‘cat and mouse game where you could consider race in admissions if you could hide it well enough, but the court’s job is to look for it.’ I think he’s right about that.” 

Magarian then discussed Shelby County v. The United States, the ruling that “eviscerated” a critical part of the 1965 Voting Rights Act (VRA). 

“I think of all the cases we’re talking about, Shelby is the one that will lead to the most change,” Magarian said. “It could be a game-changer for the political process.” 

The VRA was one of several of civil rights laws passed in the 1960s. Its most significant component was Section 5, which requires certain jurisdictions to obtain “pre-clearance” from the Attorney General before they can make changes in voting procedures. 

“If the Attorney General denies pre-clearance, the dispute goes to a three-judge panel. If they agree you have a case, it goes straight to the Supreme Court, which has the ultimate say over what the 13th, 14th, and 15th Amendments mean,” Magarian said. “This is the way that most racial discrimination in voting has been rooted out.”  

However, in Shelby the court did not strike down Section 5 but rather Section 4, which contains the “coverage formula” used to determine whether a jurisdiction needs pre-clearance or not. The court ruled that conditions had changed so much in those jurisdictions—most of them in the south—that the formula was no longer applicable and exceeded Congress’s power. 

“The practical consequence is that the VRA has been dramatically cut back,” Magarian said. “Not surprisingly, formerly covered jurisdictions have been falling all over themselves to enact new voting changes and new voting restrictions since the decision.” 

The last case discussed, Kiobel v. Royal Dutch Petroleum, also “eviscerated” a long-standing law, the Alien Tort Statute, Sadat said. 

Kiobel involved Nigerians living in the U.S. who claimed that in their native country, Royal Dutch Petroleum had colluded with the government to drive them out of their villages because they had protested the “environmental degradation” caused by the company’s oil exploration efforts. In the process, they were subjected to rape, looting, arbitrary arrest, disappearance, and crimes against humanity, Sadat explained. 

Because the Nigerians were not U.S. citizens and the crimes had taken place abroad, they sought redress under the Alien Tort Statute. Since 1789, it has allowed aliens to sue for violation of the “law of nations.” 

However, the 2nd Circuit Court of Appeals issued a decision that “sent seismic waves around the international human rights community,” Sadat said. The ruling said corporations are incapable of committing human rights abuses under customary international law. But when the case came before the Supreme Court, it saw the case not to be about corporate liability, but instead about extraterritoriality—the fact the crimes had not taken place on American soil. 

“Extraterritoriality had a simplicity to it that was strategically to the court’s advantage,” Sadat said. “Unless Congress passes a new law saying we want federal courts to be a forum for international human rights cases that don’t have a clear connection to the U.S.,” those cases no longer belong in U.S. courts, she added. 

“Now we have a state of confusion in the federal courts,” Sadat continued, “But one thing is clear: this ruling presents a significant obstacle for bringing human right claims in the U.S.” 

View the full video of the Constitution Day Panel Discussion, click here. 

By Timothy J. Fox