History will remember June 26’s U.S. Supreme Court decisions as the landmark cases supporting same-sex marriage, a coupling that will become commonplace in a decade or two. But these decisions and the affirmative action, Title VII of the Civil Rights Act of 1964, and voting rights cases that preceded them the same week tell more nuanced stories about the Supreme Court—a veritable legal casebook of important lessons about the high court.
One man’s opinion
The decision striking down the federal Defense of Marriage Act (DOMA) contains some stirring language about the Equal Protection Clause of the U.S. Constitution—language that civil rights advocates will quote for as long as there is an America. But it was a 5-4 opinion. Ultimately, this significant rule governing 300 million Americans is that of Justice Anthony Kennedy alone. If he had a different view or a formative antigay experience or was feeling exceptionally cranky the day the case was decided, DOMA could have gone the other way.
In fact, earlier this week, Kennedy stood with the Court’s conservative wing, ruling on an important question in discrimination cases filed under Title VII: Who is a “supervisor” for the purposes of creating vicarious employer liability? The four dissenting justices, led by Ruth Bader Ginsburg, said it was anybody who had the power to direct the employee’s conduct, like a shift supervisor. The five-justice majority, which included Kennedy, limited the definition to people empowered to “hire, fire, demote, promote, transfer or discipline.” Justice Kennedy giveth, and Justice Kennedy taketh away.
The beauty of our system is not in the way we decide cases—these nine justices wrote four opinions in the DOMA case that are all over the map and could have gone in any direction. No, our system is great because however the high court rules, we are willing to live within the system and accept it.
Standing? Duck!
The decision on California’s Proposition 8 illustrated one of the first doctrines I learned in law school: The Supreme Court will duck an issue whenever it can. Many of us anticipated that DOMA would be stricken but that Proposition 8 wouldn’t be declared unconstitutional, and we wondered exactly how the Court would do it.
The answer was in the doctrine of “standing”—having an actual controversy that affects a party. Courts don’t give advisory opinions, so if you don’t have a dog in the fight, you can’t bring the fight to court. In this case, after San Francisco Federal District Judge Vaughn Walker ruled Proposition 8 to be unconstitutional, his ruling was appealed by local county clerks, who argued that the ruling made them issue marriage licenses that California law forbade. The Supreme Court said that the clerks had no “standing” to raise the issue, so the appeal was invalid, Judge Walker’s decision survives, and Proposition 8 is unconstitutional.
“Standing” is how the Supreme Court avoided an inconsistency between its DOMA ruling and its Proposition 8 decision. The system works just like I learned in law school.
No change in affirmative action
The Court also ducked the substantive issue in the University of Texas affirmative action case, sending it back to the lower court for further analysis. It reaffirmed the standard established the last three times the issue arose—racial engineering is a disfavored remedy that will be upheld only if “strict scrutiny” shows it is necessary, there is no other way to accomplish its goal, and it is being applied in as limited and scientific a way as possible.
Notably, there was no majority that could be cobbled together to develop any new substantive doctrine, and only Clarence Thomas (the sole African-American justice) would have stricken affirmative action altogether. The rule established 35 years ago in Bakke v. University of California still stands.
A states’ rights court
On June 25, the Supreme Court granted the petition of Shelby County, Alabama, to be relieved of the strictures of the Voting Rights Act of 1965, ruling that the federal government had an insufficient basis to ride herd on and demand preapproval of the voting rules of specified local jurisdictions (including Monterey County, California!). Like so many other recent decisions of this Court, this is a victory for states’ rights.
The Court’s protection of states’ rights is one reason I was so sure that DOMA—a federal restriction on the states’ traditional power over marriage—would be invalidated. Sometimes the consistency behind Supreme Court cases is hard to find, but if you dig deeply enough, it’s generally there.
The season finale
This term’s Court docket had many interesting issues. Like most long-running 
shows, the Supreme Court waited for the last day of its term to trot out its biggest surprises. These recent decisions give us a lot to digest this summer as we wait until the new season starts on the first Monday in October.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco and editor of California Employment Law Letter. You can reach him at 415-541-0200 or schickman@freelandlaw.com.