Proponents and advocates of the various cases before the Supreme Court during this recent session experienced the extremes of the court.
In their final session of the term, the Supreme Court justices, leaving the fate of affirmative action in the hands of a lower court on Monday and eviscerating the Voting Rights Act on Tuesday, did the right thing on Wednesday–they struck down a provision of a law denying federal benefits to married gay couples and, at the same time, made it possible for same-sex marriage to resume in California.
While the court’s rulings on the first two major issues were clearly along ideological lines, the final decisions were not. Pundits are now busy trying to take the measure of the chief Justice John Roberts’ court and its political and philosophical impulse.
In one way, it swings decisively to the right, and then there’s the surprising leftward tendency. Even so, for the most part, despite the momentary perturbations of unpredictability, it is a conservative court that tends to play fast and furious with issues pertaining to race. In effect, particularly in the affirmative action and the Voting Rights cases, the court has left the dirty work to someone else, though the conservative members made the troubling issues for them a larger target for others.
If the gays are jubilant, the civil rights activists are dismayed and probably realize that there’s no solace or relief from them in a spineless Congress or a lower court at the mercy of their Supreme overseers.
A recent New York Times op-ed piece by Richard L. Hasen, professor at the University of California at Irvine, summarized the Roberts’ court very well.
“The court pretends it is not striking down the [Voting Rights Act], but merely sending the law back to Congress for tweaking,” he wrote. “It imagines that Congress forced its hand; and it fantasizes that voting discrimination in the South is a thing of the past. None of that is true.”
What is apparently true for Roberts and his conservative cohorts, including Justice Clarence Thomas, himself a beneficiary of the same affirmative action measure he now rebukes, is their tendency to believe we are now in a post-racial society, that “things have changed,” and pointing to the two-term President Barack Obama as the unimpeachable evidence.
“The chief justice,” Hasen continued, “is a patient man playing a long game. He was content to wait four years to strike down a key provision of the Voting Rights Act. Apparently he likes to say I told you so.”
We might also conclude that the court finds it easier to favor gay rights than issues that center on race or that the liberal swings of the court are nothing more than an aberration–a way to throw the hounds of righteousness off the trail.
The Roberts’ court gives and then takes away, and we now wait to see how it will balance its rightward drift as it did in wrecking campaign finance laws in Citizens United with minor decisions of little consequence.