Supreme Court Weighs Cases Redefining Legal Equality

Abigail Fisher

With approximately two weeks remaining in its current term, the Supreme Court is set to hand down several high-stakes rulings in coming days. The high court is first expected to rule in Fisher v. University of Texas, the case challenging the college's use of race in its admissions criteria. The court heard oral arguments in the case last October, during which several justices sharply questioned affirmative action's constitutionality.

This from the New York Times:

Edith Windsor is challenging the federal Defense of Marriage Act, which defines marriage as between a man and a woman. 

The extraordinary run of blockbuster rulings due in the space of a single week will also reshape the meaning of legal equality and help define for decades to come one of the Constitution’s grandest commands: “the equal protection of the laws.” 

If those words require only equal treatment from the government, the rulings are likely to be a mixed bag that will delight and disappoint liberals and conservatives in equal measure. Under that approach, same-sex couples who want to marry would be better off at the end of the term, while blacks and Hispanics could find it harder to get into college and to vote. 

But a tension runs through the cases, one based on different conceptions of equality. Some justices are committed to formal equality. Others say the Constitution requires a more dynamic kind of equality, one that takes account of the weight of history and of modern disparities. 

The four major cases yet to be decided concern same-sex marriage, affirmative action in higher education and the fate of the Voting Rights Act of 1965, which places special burdens on states with a history of racial discrimination.

Formal equality would require that gay couples be treated just like straight couples when it comes to marriage, white students just like black students when it comes to admissions decisions and Southern states just like Northern ones when it comes to federal oversight of voting. The effect would be to help gay couples, and hurt blacks and Latinos. 

But such rulings — “liberal” when it comes to gay rights, “conservative” when it comes to race — are hard to reconcile with the historical meaning of the 14th Amendment’s equal protection clause, adopted in the wake of the Civil War and meant to protect the newly freed black slaves. It would be odd, said David A. Strauss, a law professor at the University of Chicago, for that amendment to help gays but not blacks...

Consider the case of Abigail Fisher, a white woman who was denied admission to the University of Texas. She says the university, an arm of the state government, should not classify people on the basis of race because that violates a colorblind conception of the Constitution’s equal protection clause.

Defenders of the university’s affirmative action program say the purpose of the classification must figure in the equal protection analysis. “What we’re really trying to do is try to make sure there aren’t castes in our society, and we will try to lift up castes,” Professor Yoshino said. 

A formal conception of equality helps Ms. Fisher in her case, Fisher v. University of Texas, No. 11-345. A dynamic [conception of equality] helps the university. 

Whichever side loses a major Supreme Court case is likely to say the decision was an example of judicial activism. That term can be an empty insult, but political scientists try to give it meaning. They say a court is activist when it strikes down a law as unconstitutional. There is a chance the court will be activist in that sense twice this week.