by Robert Barnes
October 6, 2013
The Supreme Court on Monday resumes its role as the uneasy arbiter of America’s intractable social conflicts with a new docket that features battles over affirmative action, campaign finance and abortion, among other divisive issues.
No single case may thrust the court into the national spotlight as did its cliffhanger ruling on the constitutionality of President Obama’s signature health-care law in 2012 or June’s victories for advocates of same-sex marriage.
But taken together, the upcoming term “is actually deeper in important cases than either of the last two terms,” Irv Gornstein, executive director of the Georgetown University Law Center’s Supreme Court Institute, said at a recent forum.
The workload in the ninth term of Chief Justice John G. Roberts Jr.’s tenure also sounds familiar. “It is the year of the sequel,” said Kannon Shanmugam, a Washington lawyer who frequently argues before the court.
The court will again examine the use of race in university admissions and will almost certainly revisit the health-care law, called the Affordable Care Act, this time to rule on its requirement that insurance plans offered by private employers cover contraceptives. The court majority that decided the landmark Citizens United campaign finance case will also have a new opportunity to further loosen the restrictions on funding political campaigns.
And the term will offer a chance for the conservative majority that has moved the court incrementally to the right to pick up the pace.
At least a half-dozen court precedents are being challenged, including rulings regarding abortion protesters and the role of religion in public life.
The Supreme Court’s pivotal role in the nation’s political conversation is not particularly welcomed by the justices, even the one whose decision is crucial to almost every important ruling. Justice Anthony M. Kennedy said last week that it is political gridlock that has thrust the court into such a key role.
“Any society that relies on nine unelected judges to resolve the most serious issues of the day is not a functioning democracy
,” Kennedy said at a speech at the University of Pennsylvania. “I just don’t think that a democracy is responsible if it doesn’t have a political, rational, respectful discourse so it can solve these problems before they come to the court.”
That said, Kennedy — a Reagan nominee who most often sides with conservatives but is usually the defector when liberals claim a victory at the court — was the only justice in the majority in both of last term’s major decisions striking down acts of Congress.
He sided with the court’s four most consistent conservatives in throwing out a key provision of the Voting Rights Act, first passed in 1965 to protect minority voters and renewed by Congress in 2006, and he sided with the four liberals to declare unconstitutional the 1996 Defense of Marriage Act, which denied federal recognition of same-sex marriages and denied benefits to gay couples wed in the 13 states, plus the District of Columbia, where same-sex marriages are legal.