Had he attracted a fifth vote for that view, it would have rendered all the care he took in the Windsor decision moot, because the Court would have had to address directly the broad question of state authority to ban same-sex marriage. The statesmanship of the two decisions, then, comes not from any one justice, but from the collective action of the Court as a whole. There’s a reason we have nine justices.
As for the future, Chief Justice Roberts wrote a separate dissent in Windsor for the sole purpose of underscoring that Kennedy’s majority opinion did not resolve the issue of state authority to restrict marriage. But notwithstanding its carefully limited reasoning, it is difficult to read Justice Kennedy’s opinion in Windsor without sensing, as Justice Scalia warned in his angry dissenting opinion, that the “other shoe” will drop eventually, and the Court will ultimately recognize that denying same-sex couples the right to marry violates the Constitution in the same way that denying mixed-race couples the right to marry does. (Significantly, in his opinion for the Court, Justice Kennedy cited Loving v. Virginia, the Court’s 1967 decision on interracial marriage, for the proposition that the state’s otherwise broad authority to define marriage is subject to constitutional limits.)
That would be the right outcome, both morally and constitutionally. The justifications for denying a “dignity and status of immense import” to gay and lesbian couples are unpersuasive, whether at the federal or the state level. Same-sex couples, like opposite-sex couples, can and do make long-term commitments to live together as a family unit. They can and do raise children, pay taxes, care for dependent family members, and the like. The real reason so many states have denied marital status to same-sex couples is a sense, founded on tradition and moral disapproval, that these couples do not deserve it, simply because they are of the same sex. But the Court has already held, in Lawrence v. Texas, its 2003 decision invalidating state sodomy laws, that tradition and moral disapproval are insufficient grounds for differential treatment of gay and straight couples.
We will have to wait for recognition of a full-fledged constitutional right of same-sex couples to marry, but it is hard to imagine that it will not come.
Now, the bad news. African-Americans, the original beneficiaries of the Equal Protection Clause, fared poorly this term. Most disastrously, in Shelby County v. Holder, the Court struck down the Voting Rights Act’s requirement that states with histories of discriminatory voting practices must obtain advance approval, or “preclearance,” from the federal government before changing their voting rules. This mechanism, which requires the states to show that their rule changes will not dilute minority voting rights, has been the statute’s single most effective provision. It provides an efficient administrative tool to prevent discriminatory practices from taking effect.
By a 5–4 vote, the Court’s conservatives found that the formula used to select which states are subject to the preclearance process, first developed when the law was enacted in 1965, was outdated. Times have changed, Chief Justice Roberts wrote, and Congress’s effort to protect minority voters no longer justifies this intrusion on states’ rights. But as Justice Ginsburg pointed out in dissent, application of the preclearance requirement is in fact determined not just by the initial formula (tied to historic discriminatory voting practices), but also by “bail-out” and “bail-in” provisions that effectively update the law’s coverage on an ongoing basis.
Those provisions allow states to free themselves from the obligations if they abide by the law for ten years, and empower courts to impose preclearance obligations as a remedy on new states and localities that have violated the law. Thus, Congress started with the states with the worst records, allowed those who avoid problems to opt out, and allowed new transgressors to be added. The Court had upheld this scheme four times previously. Moreover, Congress found in 2006, after many months of hearings and 15,000 pages of evidence, that discrimination remained a problem in the covered jurisdictions.
What was really going on in Shelby County? The Court’s five conservatives resent the Voting Rights Act because, by requiring states to ensure that their voting rule changes don’t harm minority voters, it effectively requires them to take account of race. The Court’s conservatives, committed to color-blindness, find this practice objectionable—even though it is designed to help, not harm, minorities. But that ideological objection should not carry any weight. The Fifteenth Amendment, which guarantees the right to vote, also vests in Congress the authority to protect voting rights by “appropriate legislation.” The Court has previously said that as long as Congress adopts rational means for doing so, the Court should defer to its judgment.
That deference is now gone, it appears, in the interest of an abstract commitment to color-blindness that is in fact blind to the reality that race continues to play a pervasive role in voting regulation. Times have changed, but a strong and legitimate concern about racial gerrymandering remains. The crude barriers to voting that states once erected out of pure racism have been eliminated, largely because of the act. But because of the persistence of “racially polarized voting,” in which racial groups predictably divide in whom they support, politicians are often tempted to deny or dilute the votes of those groups that favor their challengers. The Republican efforts to suppress voting through “voter-identification” laws in 2012 illustrate the point. Race matters, and simply saying it shouldn’t won’t solve the problem.
The same color-blind approach frames the Court’s skeptical attitude toward affirmative action. In Fisher v. University of Texas, Abigail Fisher, a white student denied admission, argued that the university’s modest consideration of race, as a “factor of a factor of a factor,” in assessing applicants violated her right to equal treatment. The Court has long ruled that affirmative action plans must satisfy “strict scrutiny,” the same standard it applies to laws that discriminate against blacks. But it has also acknowledged that the educational benefits of diversity may under some circumstances permit admissions officers to consider race, as one of many factors, to ensure a diverse student body.
When the Court agreed to decide Fisher, observers feared it might end affirmative action. The practice’s survival in 2003, the last time the Court addressed it, had hinged on Justice Sandra Day O’Connor’s vote, and she has been replace by Justice Samuel Alito, no friend of affirmative action. The case was clearly the subject of a lengthy internal fight; the Court took longer to decide the Fisher case than any case this term. The final result, however, was a compromise, joined by seven of the Court’s eight justices. (Justice Kagan recused herself; only Justice Ginsburg dissented.) The Court essentially maintained the status quo. It vacated the lower court’s decision upholding the Texas plan, but only because the lower court did not apply sufficiently rigorous review. Specifically, the Court reaffirmed that universities may not take race into account unless they can show that no reasonably available race-neutral alternatives could achieve sufficient diversity.
This ruling will change admissions policies only if universities are currently using race even where there are available race-neutral alternatives that could work just as well. That seems highly unlikely. No one likes to consider race; if universities already do so only as a last resort, their plans should be sustained. Moreover, where a race-neutral option would work, it is certainly preferable. Some have suggested, for example, in view of the large numbers of poor black and Latino students, that considering socioeconomic class in admission might have the effect of achieving significant racial diversity. But the Court in Fisher also reaffirmed that courts should defer to universities on the diversity they need, as courts are ill-equipped to second-guess such academic judgments. As a result, universities should still have substantial leeway in using race where necessary to achieve diversity.
In both the voting rights and affirmative action settings, the Court has in essence turned the Equal Protection Clause on its head. It has interpreted the clause, designed to assist newly freed slaves, as an affirmative obstacle to federal and state officials’ efforts to improve the position of African-Americans and other disadvantaged minorities through race-conscious measures.
In the end, then, the Court took an important step forward on equality for married gays and lesbians, a disturbing step backward on voting rights, and largely marched in place on affirmative action. A majority of the justices seem poised to recognize the rights of gays and lesbians to marry even in states that do not afford such recognition; but they will evidently wait until more progress has been made politically on that issue before taking it on directly. As for racial equality, however, the Court remains steadfastly blindered in its commitment to color-blindness. As a result, most of its constitutional race discrimination decisions in recent years have ruled for white plaintiffs, or states, challenging laws designed to protect the initial intended beneficiaries of the Equal Protection Clause.
Our ongoing constitutional commitment to equality requires us to recognize that groups previously excluded from protection—such as women and gays and lesbians—should be included. But it also requires a more nuanced understanding of how pervasive and insidious certain forms of discrimination remain. This term, as in prior years, the Court proved much better at extending the scope of equal protection to new groups than at providing, or even permitting the political branches to provide, a meaningful measure of equality to those for whom the clause was written in the first place.