High Court Set to Rule on Gay Marriage, Affirmative Action, Voting Rights

Tuesday, 28 May 2013 06:18 AM

By Greg Richter

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If there's anything a divided populace can agree on, it's that divided government is terrible.

As it turns out, when no one was looking one branch of government – judicial – decided to get along. The U.S. Supreme Court has issued more than half of its decisions this session in complete agreement.

That's not likely to hold. With decisions such as California's same-sex marriage ban, voting rights and affirmative action still awaiting action, there should be opportunity for some of those headline-making 5-4's.
  • The same-sex marriage ban in California, popularly known as Proposition 8, is not only unlikely to be a 9-0 ruling, it might not even be ruled on at all. Lawyers fighting to overturn the ban have told California elected officials to be prepared for it to be dismissed on a technicality. Opinions vary on what the law's fate would be if that happens.
  • The voting rights case stems from Shelby County, Alabama, which argues it should be exempted from the federal Voting Rights Act because discrimination is no longer an issue there. The county argues that it is overly burdensome for it to submit changes in district voting boundaries for federal approval.
  • The affirmative action case was brought by Abigail Fisher, who was denied entry into the University of Texas at Austin. Fisher says the school's admissions policy kept her out because she is white. The school says race is only one of many factors it uses, including test scores, community service, leadership and work experience and is intended to give it a more diverse student body.
Those 9-0 rulings don't grab the headlines of controversial 5-4's, but they've occurred 56 percent of the time since the court began hearing cases in October. That's a big deal because last year at this time the court had issued unanimous rulings just 48 percent of the time.

Another interesting fact: They really are unanimous. The New York Times points out that typical 9-0 decisions aren't written with a single voice. Although one justice will write the majority opinion, others will tack on caveats, other interpretations or different rationales for reaching the opinion.

Chief Justice John Roberts' court has become famous for such "unanimous" rulings. But this year it's legit – five of the last six 9-0 decisions had no addendums.

If fact, one of the reasons the unanimous decisions typically come earlier in the session is because they aren't as complicated and aren't as political, so they find their way through the system much faster.

There are some exceptions to that rule. Two of this year's 9-0 decisions were on major cases, one involving Monsanto keeping a patent of genetically modified soybeans and one letting U.S. companies get a tax credit for some of the taxes they pay in other countries.

The Times predicts the final rate for unanimous decisions will end up being 40 percent this year – the same as previous terms. The recent high was 48 percent in 2010. The lowest in the past seven years was 30 percent in 2007, according to Scotusblog.com.

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