Monday Morning Quarterbacking the Supreme Court

01 July 2013
Published in Blog

 By Seema Iyer, Esq.

July 1, 2013

DOMA lost. Love won. Holy matrimony – it’s been one hell of a Supreme Court post-season!

The last month has certainly felt like a January. Every week with playoff games (decision days) that left us with some crushing defeats (Shelby v. Holder), hollow victories (Fisher v. University of TX), an out of pocket play that rewrote history (Hollingsworth v. Perry) and the mother of all games between the undefeated champions, the United States of America, and the underdogs, Windsor – a Superbowl for the books.

In full post-rainbow parade hangover haze, no analogy here folks; there were actually several parades yesterday (think Edith Windsor as the Gay Pride version of Peyton Manning)….. here are your SCOTUS Superbowl 2013 highlights:

A struggling offense led the Supremes to punt Fisher v. University of TX back to the 5th Circuit Court which will likely punt down to the lower district Court. The reasoning, in this affirmative action case, was that the lower court didn’t apply the correct formula, the strict scrutiny test. The test is whether the University demonstrated that there was no other way to achieve diversity unless they use race as a factor in admissions.

So why the punt? Because the lower court didn’t find enough facts to support a decision either way. The good news is that SCOTUS did not overturn prior cases (Grutter v. Bollinger, Regents of the University of California v. Bakke) that upheld affirmative action in college admissions. Bottom line, diversity in education remains a compelling state interest and affirmative action lives to fight another day.

Next up, a rivalry as storied as the Giants and the Cowboys. Shelby v. Holder reconsidered the constitutionality of the Voting Rights Act of 1965, specifically Section 5 and pit Southern conservatives against the NAACP. Section 5 gives the feds the right to “preclear” any proposed changes to voting procedure, practice or location. The Act only applies to certain states and municipalities, mostly, but not exclusively, in the South. Its purpose was to get rid of discrimination at the polls. Think back to Jim Crow South when qualified black voters were turned away for not passing literacy tests.

So what did the Supremes do? In the most unpredicted move since Tim Tebow signed with the Jets, SCOTUS doesn’t rule on Section 5 at all. Instead they rule that Section 4, the formula that decides which jurisdictions are subject to Section 5, is unconstitutional. When Section 4 falls it knocks down Section 5; our safeguard that protects voting equality has been tackled.

By the time final decision day of the term rolls around my tailgating ritual is tight. Beginning with a few dozen cups of coffee, I pre-game with Amy Howe heads the show giving color commentary better than Terry Bradshaw and Jimmy Johnson combined. Rapid fire analysis and projections on which way what Justice will go from inside the high Court. Kickoff is 10am; the offensive line, CJ Roberts, Alito, Thomas, Scalia on the right and the defensive line, Kagan, Sotomayor, Breyer, Ginsburg on the left of the line of scrimmage…….we wait…….hoping for one of the Supremes to go offsides. The one to watch is Kennedy, a la Michael Vick, will he pass right or run the ball left?

At 10:02am the decision in U.S. v. Windsor is out. The 1996 Defense of Marriage Act (DOMA) has been ruled unconstitutional. A touchdown right out of the gate! Same-sex marriages will be entitled to the same federal benefits that heterosexual marriages have; however, this only pertains to states where same-sex marriage is legal.  

If a same-sex couple gets married in a state where the union is legal, then move to a state where it is not, what happens to their benefits? That question remains unresolved and the Supreme Court did not rule on whether there is a federal constitutional right to gay marriage. Clearly a reminder that we are still in the first quarter of the game.

The other big play of the day was Hollingsworth v. Perry which considered Proposition 8, an initiative that would withdraw California’s right to gay marriage. The Court, in fascinating only-for-us-law-geeks language, found that the party who brought the case did so improperly. So, the ruling from the lower court stands. No Prop 8. Fire up the Cher playlist and let the wedding bells resume.

By 11:35AM the game is over. Time to pack up the foam finger and wash off the face-paint. An historic triumph brings hope for next season. Will the champions hold onto their title? Expect more bench-gripping action in the fall…….on the field and in the Court.


Seema Iyer is an attorney in New York City with her own practice that specializes in Criminal Defense, Civil Rights and Constitutional Law. Seema is also a Legal Contributor at Arise News and frequent guest on MSNBC. Follow her on Twitter @seemaiyeresq