Like last year’s Supreme Court term, which began with only a handful of high-profile cases on the Court’s calendar and concluded with major attempts to invalidate decades of immigration law and nearly two centuries of unambiguous precedents establishing that the Affordable Care Act is constitutional, many of the blockbuster issues the justices are likely to hear this term have not yet been added to the Court’s docket. They include at least one major gay rights case, a challenge to DNA collection by law enforcement, and an effort to gut the most important voting rights law in American history:
- Marriage Equality
As a matter of legal doctrine, same-sex marriage is one of the easiest questions the justices will likely face this year. Forty years ago, the Court held that minorities who are “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process” are entitled to the most robust constitutional protection against discrimination. Clearly, these words describe LGBT Americans. It is unclear, however, that five justices will be as ready to bring marriage equality to Alabama as they will be to restore it in California.
When the Ninth Circuit struck down the anti-gay Proposition 8 last February, it relied on a rationale that seemed tailor-made to avoid this Alabama problem. According to the Ninth Circuit, states that once provided marriage equality may not take it away, but the question of whether equality is mandated nationwide remains open. This rationale may avoid the political morass of a broader recognition of what the Constitution provides to gay couples, although it is unlikely to last as more than the stopgap that it was obviously intended to be.
The cases challenging the Defense of Marriage Act present a different problem. That law denies federal marriage benefits to gay couples, but still allows states to provide gay couples with their full constitutional rights under state law. The First Circuit struck down DOMA in an opinion written by a very prominent conservative judge, but it also relied in part on an argument that bears a disturbing resemblance to arguments conservatives used in the Affordable Care Act case to attack Medicaid. As ThinkProgress explained when this decision came down, “America should not have to choose between the blessings of equality and the certainty that our national leaders can adequately address national problems such as the deficiencies in our health care system,” but conservative justices like Kennedy and Thomas could attempt to use marriage equality as a vehicle to drastically undermine federal power — and escape the baneful eye of progressives because their decision would also usher in equal rights for many same-sex couples.
The cleanest solution remains simply declaring that the Constitution’s guarantee of “equal protection of the laws” applies universally in all fifty states, but it is not clear that there are five justices prepared to do so.
- DNA Collection
The justices are also likely to consider a Maryland law that allows police to collect DNA samples from people arrested but not yet charged for violent felonies. Maryland’s highest court held that the DNA collections could constitute warrantless searches in violation of the Fourth Amendment, but Chief Justice Roberts temporarily reversed that ruling and allowed Maryland to keep using the law while the Supreme Court decides whether to hear the case. In granting a stay, Roberts said there was a “reasonable probability” the court would hear the case, pointing to the split among federal appeals courts on the constitutionality of these laws.
As the Maryland high court pointed out in its opinion, only 16 percent of people arrested for some felonies are eventually convicted, and more than one in four people charged with crimes that are much easier to prosecute still are not convicted. The state court worried that subjecting those who are later cleared of their crime to a forcible seizure of “their entire genetic history and make-up” is much more invasive than fingerprinting.
Maryland and several other states implemented more expansive DNA collection laws purportedly to address the spate of wrongful convictions, and to contribute to both statewide and nationwide databases that help to resolve unsolved crimes. But even one of the strongest proponents of DNA evidence to address wrongful convictions, law professor Brandon Garrett, warns that these databases can create more problems than they fix when they include people who have not been convicted. According to Garrett, “[a] DNA databank is not strengthened, but becomes diluted, as more marginal criminals — or even innocent people — are included in it. There are more opportunities for error; the larger the database gets, the greater the chances are of partial matches with innocent people.” In spite of these concerns, Chief Justice Roberts hinted at a willingness to uphold expansive DNA collection, calling Maryland’s law a “valuable tool for investigating unsolved crimes.”
- Voting Rights
In a year when the proliferation and impact of discriminatory voting laws could not be more evident, justices are likely to take up at least one of several constitutional challenges to the landmark Voting Rights Act. A core provision of the act, Section 5, requires many parts of the country to “preclear” changes to their voting law with the Justice Department or a federal court, in order to ensure that the law does not discriminate on the basis of race. Earlier this year, Section 5 effectively enabled DOJ moves to block voter suppression laws including some voter ID laws.
In May, the influential U.S. Court of Appeals for the D.C. Circuit rejected a challenge to the law 2–1, noting the persistence of “overt racial discrimination” in jurisdictions covered by Section 5, and called such discrimination “one of the gravest evils that Congress can seek to redress.” In a 2006 opinion, Chief Justice Roberts also showed unusual restraint, writing that “[t]he Fifteenth Amendment empowers ‘Congress,’ not the Court, to determine in the first instance what legislation is needed to enforce it.” These assertions allow some hope, however slight, that the Roberts Court will depart from its recent tradition of judicial activism, and defer to the very recent determination of Congress in reauthorizing the Voting Rights Act that overt racial discrimination in voting is still alive and well.