Affirmative Action

Fisher v. University of Texas at Austin

For the first time in a decade, the Supreme Court will take up affirmative action in public universities. At the center of the case is Abigail Fisher, a white woman who was denied admission to the University of Texas at Austin in 2008. She sued the school, with the help of conservative activist Edward Blum, claiming that the university had violated the equal-protection clause of the 14th Amendment by considering race in Fisher’s application. The university says that in the interest of fostering a diverse student body, it should be free to look at race as one factor in a “holistic” admissions process, citing the Supreme Court’s 2003 ruling. The school also says that even had Fisher not been white, she still wouldn’t have gotten in.

The prospects don’t look good for affirmative action. In 2003 Sandra Day O’Connor, writing for the majority, said the University of Michigan Law School had an interest in promoting student diversity and could consider race as one factor among many when admitting students. But now O’Connor is gone, replaced by Samuel Alito, who is far more critical of racial criteria. Furthermore, Elena Kagan is sitting this case out because she worked on it as solicitor general.

Even if the court rules in favor of Fisher, however, Texas’s unique admissions system might limit the impact of the ruling. Public universities in Texas automatically admit the top 10 percent of students from each high school in the state, resulting in a fairly diverse student body before race is taken into account. Only the remaining 15 to 20 percent or so of students have their race considered, as one factor among many. Furthermore, with Kagan recused, a tie is possible. If there is a tie, the case would be decided in favor of the university, but wouldn’t set a precedent. That the court took the unusual step of agreeing to hear another affirmative-action case—whether Michigan’s ban on affirmative action in public schools is constitutional—indicates that the court might rule narrowly.

Amy Howe, editor of SCOTUSblog, points out that justices have taken nine months to hand down a ruling, indicating they might be having trouble coming to a decision. “There is a real chance, in fact, that no one opinion will command a majority of five votes, with the Justices divided essentially into three separate camps,” she writes. In that case, “a strong conservative faction that would all but ban affirmative action, a liberal wing that would freely permit it, and the court’s center, led by Justice Kennedy, voting to limit programs like Texas’ but not forbid them outright. If that is how the case turns out, then under the court’s procedures Kennedy’s position becomes the law.”

Same-Sex Marriage

The court is ruling on two same-sex marriage cases. One, Hollingsworth v. Perry, takes up California’s ban on same-sex marriage, Proposition 8, and the question of whether defining marriage as between a man and a woman violates equal protection under the 14th Amendment. In 2008 California voters passed a ban on same-sex marriage, reversing a decision by California’s Supreme Court, but that ban was then struck down by the Ninth Circuit Court of Appeals.

The conventional wisdom among court watchers is that a broad ruling by the Supreme Court—that same-sex marriage is or is not a constitutionally protected right—seems unlikely. Other possibilities include a ruling that civil unions are no different from marriage, which would effectively legalize same-sex marriage in the eight states that don’t have it but do have domestic-partnership laws. Or the court could dismiss the case, an option several justices hinted at during March arguments, when they wondered aloud whether they’d taken the case too soon.

The other same-sex marriage case before the court concerns the Defense of Marriage Act, the Clinton-era law that prohibits the federal government from recognizing gay marriage. Section 3 of the law denies federal benefits to same-sex couples, including health insurance for government employees, Social Security benefits, and the ability to file joint tax returns. The current case is brought by Edith Windsor, an 83-year-old widow who was forced to pay $363,000 in estate taxes when her wife passed away. The Windsor case seems like the best chance for a same-sex-marriage victory. In oral arguments, a majority of justices sounded skeptical of DOMA, with Justice Anthony Kennedy wondering whether it was an overreach of federal power and liberal justices criticizing it for denying equal protection. Justice Ruth Bader Ginsburg said DOMA puts states that allow same-sex marriage in the position of offering “two kinds of marriage: the full marriage and then this sort of skim-milk marriage.”

There are odd questions of legal standing that could result in the Windsor case being dismissed, however. The Obama administration has refused to defend the law in court, leaving House Republicans in charge of making the case for DOMA. During arguments, Chief Justice John Roberts and Kennedy both wondered how the Obama administration could continue to enforce DOMA while refusing to defend it in court. “I don’t see why he doesn’t have the courage of his convictions,” said Roberts of Obama.

Voting Rights Act

The Supreme Court also is set to rule on a key provision in one of the most important civil-rights laws in the country. Passed in 1965, the Voting Rights Act outlawed discriminatory voting practices, such as literacy tests and poll taxes, designed to disenfranchise African-Americans. Section 5 of the law established federal oversight for states and jurisdictions with a history of racial discrimination, requiring them to run any changes in their voting laws by the Justice Department or the D.C. federal court. When Congress renewed the law for another 25 years in 2006, counties in North Carolina and Alabama filed suit, saying special oversight was no longer needed. “The South is not the same South it was in 1964,” said Frank Ellis, a Shelby County, Alabama, lawyer at the center of the case.

Supporters of Section 5 point out that just last year it was used to invalidate potentially discriminatory voter-ID laws, and so is still necessary. Even if the areas singled out by the Voting Rights Act have made progress, supporters say, they still have problems, and in any case, it’s Congress’s prerogative to decide which regions the law should apply to. “The formula seems to be working pretty well in terms of going after the actual violations on the ground and who’s committing them,” said Kagan.

During arguments, the majority of justices seemed critical of Section 5, with Kennedy, likely the deciding vote, suggesting that Congress exceeded its authority in treating some sections of the country more harshly than others. “Is it the government’s submission that the citizens in the South are more racist than the citizens in the North?” asked Roberts.

If Section 5 is struck down, civil-rights groups could still challenge election changes on a case-by-case basis, but doing so would be far more difficult without the requirement of preapproval, and as Solicitor General Donald Verrilli said, election officials could cause “great mischief” by, for example, changing polling locations shortly before elections.

Genetic Patents

Association for Molecular Pathology v. Myriad Genetics

Last month the court ruled that companies can patent genetic modifications like herbicide-resistant seeds, but what about unmodified genes? Myriad Genetics, a Utah-based biotech company, holds the patents for genes BRCA-1 and BRCA-2, mutations of which are linked to breast cancer and ovarian cancer. The company claims that extracting and isolating the genes counted as an invention. By “snipping” the relevant portion of DNA, Myriad’s lawyer argued, the company had created something new.

Those patents mean that Myriad has a monopoly on the cancer test that relies on them, a test that now costs more than $3,000. Incidentally, it was a Myriad test that determined Angelina Jolie’s high chance of getting breast cancer, prompting her to undergo a double mastectomy. The patents also let Myriad control all research on the genes. Proponents of gene patents argue that such intellectual-property protection is necessary to create an incentive for companies to conduct genetic research.

Critics say the patents allow Myriad Genetics to set the price of cancer tests artificially high. They also say Myriad is blocking research that could save lives, sending cease-and-desist letters to laboratories that try to analyze BRCA genes, and stifling innovation. The legal argument hinges on whether isolated genes count as an invention or as “natural phenomena,” which can’t be patented. The American Civil Liberties Union and the Public Patent Foundation are representing a collection of doctors, patients, researchers, and breast-cancer-advocacy groups in arguing that isolated genes are natural material, not intellectual property. “What exactly did Myriad invent?” asked the lawyer for the ACLU. “The answer is nothing.”

In arguments, the justices seemed skeptical of Myriad’s claim that merely isolating a gene should count as an invention, though Justice Antonin Scalia and Kennedy wondered whether striking down gene patents would dampen investment in the industry. Kagan asked whether that logic could result in someone patenting, for example, the human liver. Alito asked whether you can patent the discovery of a plant in the Amazon that can treat breast cancer.

The ruling could have far-reaching consequences. Myriad has been particularly aggressive about enforcing its intellectual-property claims, but there are thousands of other gene patents in the U.S. Studies show that between 20 and 40 percent of the human genome is patented by one company or another. A ruling in favor of Myriad could spur more aggressive genetic patenting, as companies try to grab legally sanctioned monopolies on genetic tests. A ruling against Myriad, on the other hand, could give scientific and medical researchers greater freedom and potentially drive down the cost of cancer tests.