The 2013 Term at the Supreme Court May Prove the Last Gasp of Sandra Day O’Connor’s Legacy

The law, lawyers, and the court.
Oct. 3 2013 7:22 AM

The End of the Reasonable Observer

The 2013 term at the Supreme Court may prove the last gasp of Sandra Day O’Connor’s legacy.

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AFFIRMATIVE ACTION

Last term, the court made the decision to punt on what could have been a significant challenge to affirmative action in higher education. This term, the court gets another look at affirmative action, now looking at a Michigan ballot initiative that bars so-called racial “preferences” in public universities, government contracting, and public employment. The question in Schuette v. Coalition to Defend Affirmative Action is whether a state can forbid the boards of regents of state universities from using any race-based considerations in admissions. The U.S. Court of Appeals for the 6th Circuit, based in Cincinnati, has ruled that Michigan’s law violated the Constitution’s guarantee of equal protection because it relegates questions of race to a different political hurdle than all other questions—so when someone who wants the university’s preference for legacies to be altered, for instance, she can petition the Board of Regents directly, whereas those who think the state should do more to remedy racial injustice, or increase racial diversity, have no choice but to try to repeal the constitutional provision. It was O’Connor, in a pair of cases out of the University of Michigan from 2003, who provided the fifth vote for upholding the law school’s race-based admissions policy because it fostered diversity in higher education. She wrote then that she hoped that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” The Roberts Court didn’t wait 25 years. It started pulling up the stakes just four years later in a pair of cases about the need for race-based efforts to integrate public schools. Affirmative action was another one of those areas in which O’Connor’s general concern about race preferences was trumped by a real-world solicitude for the students, deans, educators, and national leaders who might benefit from it, at least for a time. It was a classic O’Connor compromise; an effort to avoid extreme positions that may collapse before her 25-year experiment in human progress is allowed to run.

CHURCH/STATE SEPARATION

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Since 1999, the town of Greece, N.Y., has opened its town hall meetings with a prayer offered by a “Chaplain of the Month.” After two citizens of the town challenged the prayer sessions, the U.S. Court of Appeals for the 2nd Circuit found that because almost two-thirds of the prayers contained sectarian references to “Jesus Christ” and “Your Son” and the “Holy Spirit” the town had crossed the First Amendment line on government establishment of religion. Greece v. Galloway gives the court an important opportunity to revisit its 30-year-old decision, in Marsh v. Chambers, allowing for legislative prayers so long as they could not be “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” As Christopher Lund has argued here, the court needs to clarify the boundaries of Marsh and this may be the case to do it. It’s not at all clear what the court will do about the prayers in the Town of Greece. What is clear is that O’Connor’s special solicitude for reasonable onlookers and outsiders, confronted with what they viewed as government “endorsement” of sectarian religious messages, may no longer have a vocal champion at the court. And if the court decides to take on a second religious liberty case—the question of whether, under the Affordable Care Act, for-profit employers can refuse to provide contraception to their workers on religious grounds—we may be in for a truly rollicking ride on the religious freedom front. Indeed, as a case that involves abortion, religious freedom, and corporate personhood, Hobby Lobby v. Sebelius could well have been the final exam question on a “Sandra Day O’Connor’s World” law exam.

There are a whole lot of other critically important cases on the docket this term, and more will be added as we bump along this autumn. The court will decide whether some of President’s Obama’s recess appointments exceeded his executive powers, an important question of whether unintended racial discrimination is illegal under the Fair Housing Act, several cases about the limits of police searches, and whether victims of child pornography must show a causal link between viewing child pornography and their injuries to be entitled to restitution. There is challenge to the EPA’s regulatory authority, another patent dispute, and a dispute over Congress’ authority—confirmed by the court in 1920—to implement U.S. treaty obligations (in this case, regarding a criminal law implementing the chemical weapons convention).

“What’s perhaps most remarkable about the next Term is the sheer number of cases in which advocates are making aggressive arguments that the Court should overturn or dramatically constrict one of its longstanding precedents,” Georgetown’s Lederman says. Although it’s unlikely the court will accept the invitation in every one of those cases—several of which reflect the dying embers of O’Connor’s once defining legacy—the prospect for very dramatic change is clear. And the absence of the court’s last true compromiser/dealmaker and horse trader may be only fully appreciated by the close of the 2013 term.

Buckle in.