Predict SCOTUS in the big 4 decisions coming soon

[UltraVires]

And I mean:

Perry–CA SSM case
Windsor—DOMA
Fisher—University of TX Affirmative Action
Shelby County—Voting Rights Act pre-clearance.
My Predictions:

Perry—6-3 Roberts writing the majority. No right to SSM in the constitution, but CA Prop 8 motivated by animus. SSM legal in CA, other states may retain bans. Scalia & Thomas dissents/concurs reaffirming his opinion in Lawrence. 4 would concur/dissent and hold right to SSM in Constitution. 3 would uphold Prop 8/hold no right to SSM in Constitution/no problem with any bans.

Windsor–5-4 Roberts writing majority. Constitutional in that states which don’t recognize SSM do not have to, however provision that the feds won’t recognize it in states that allow it violates federalism principles. Scalia and Thomas dissents/concurs reaffirming his opinion in Lawrence. 4 liberals concur/dissent in that they would strike down all of DOMA

Fisher—5-4 Kennedy writing. UT policy unconstitutional, but not foreclosing the possibility that SOME race based policy might work in the future, but good luck finding one. The 4 horseman say that ALL race based policies unconstitutional in concurrence. 4 in dissent.

Shelby County–5-4 Kennedy. Federalism concerns. Things have changed since the 1960s. Preclearance provisions struck down. Dissent 4 go crazier than Scalia at a gay orgy.

Thoughts?

[Hari_Seldon]

I have already predicted elsewhere on the boards that Prop 8 will be upheld and DOMA struck down with respect to states where SSM is legal. I expect both on states’ rights grounds. As for DOMA I cannot guess which way they will go on same sex couple legally married in one state and residing in another. It may depend on whether their state of residence actually has a constitutional provision banning SSM.

Affirmative action and voting rights are dead letters. And Clarence Thomas will write one or both opinions. I always considered him as an example of what can go wrong with affirmative action.

[Honesty]

@jtgain

Fisher—5-4 Kennedy writing. UT policy unconstitutional, but not foreclosing the possibility that SOME race based policy might work in the future, but good luck finding one. The 4 horseman say that ALL race based policies unconstitutional in concurrence. 4 in dissent.

You’re prediction is much rosy that I envision it. I think it’ll be 5-4 with Affirmative Action being shut down completely. Think of this way: O’Connor already put some arbitrary 25 year time limit on the Michigan case, suggesting the Court thinks that the policy should be temporary.

@jtgain

Shelby County–5-4 Kennedy. Federalism concerns. Things have changed since the 1960s. Preclearance provisions struck down. Dissent 4 go crazier than Scalia at a gay orgy.

I 100% agree with this one.

What’s interesting about these two cases that it shows you that the country was never serious about the Civil Rights Movement. White people didn’t allow MLK to be dead a decade before they start rolling back the gains of the Civil Rights Movement.

1600 - 1776 - Unequal
1776 - 1865 - Unequal
1866 - 1964 - Unequal
1964 - 2013 - “Equal”
2013 - — - Unequal

• Honesty

[Billdo]

When the two Same Sex Marriage cases, Perry and Windsor were argued, I started a thread Predict how the Supreme Court will Decide the Same Sex Marriage.

Here’s my reply, and please see the thread for other people’s answers (and the predictable debate about the subject itself):

I think that the the Supreme Court won’t go so far as to find prohibiting SSM unconstitutional, but will cautiously come down with split decisions favoring SSM to be adopted on a state-by-state basis.

As to the Perry case, I think that it will be a 6-3 decision that upholds SSM in California, but with a split decision on the legal reason. In Perry, the District Court found that the opponents to SSM could not demonstrate any rational basis for the government to prohibit SSM, so the ban was unconstitutional. The Court of Appeals, on the other hand, found more narrowly that the ballot initiative taking away the right to SSM improperly removed an existing right from a minority group in violation of the 1996 Supreme Court decision in Romer v. Evans. The Court of Appeals decision was narrowly crafted so it would only apply to the unusual situation in California, where the state courts had authorized SSM and many SSMs had been entered into under that decision, but a ballot initiative had blocked any further SSMs.

I think that of the six justices that vote to affirm the Court of Appeals decision upholding SSM in California, Chief Justice Roberts and Justice Kennedy and Ginsburg (in a decision by Kennedy), will opine that the ballot initiative improperly removed an existing right for essentially the reasons given by the Court of Appeals. Three others justices, Justices Breyer, Kagan and Sotomayor (in a decision by Breyer) will write an opinion finding that the District Court’s finding that there was no rational basis for the California ban by ballot initiative should be affirmed.

Justices Scalia will write a full-throated dissent, joined in by Justices Thomas and Alito, based on history and tradition.

As to Windsor, I think it will be a 7-2 decision, again on a split basis. Chief Justice Roberts and Justice Alito (in an opinion by Roberts) will find that section 3 of DOMA, which bars the federal government from extending any federal benefits to state-recognized SSMs, improperly intrudes on an area of law reserved to the states under the Tenth Amendment. Justices Kennedy, Ginsberg, and Sotomayor(in an opinion by Ginsberg) will find that DOMA’s section 3 is sex-based discrimination fails that intermediate scrutiny and is thus unconstitutional. Justices Breyer and Kagan (in an opinion by Breyer) will find that section 3 of DOMA fails rational basis review and is thus unconstitutional.

Scalia will once more angrily dissent, joined by Justice Thomas.

[Really_Not_All_That_Bright]

I quite like Billdo’s SSM analyses. On Shelby County, I don’t see any way the preclearance provisions of the VRA are struck down. One or two of the requirements to be released, perhaps. Don’t know enough about Fisher but I’d be surprised if the Court receded from Gratz and Grutter.

[UltraVires]

@Really_Not_All_That_Bright

I quite like Billdo’s SSM analyses. On Shelby County, I don’t see any way the preclearance provisions of the VRA are struck down. One or two of the requirements to be released, perhaps. Don’t know enough about Fisher but I’d be surprised if the Court receded from Gratz and Grutter.

The only thing keeping Grutter alive is the distinction that existed only in the mind of Sandra Day O’Connor. The whole “it’s constitutional now, but may be unconstitutional in 25 years” was the highlight of the ridiculous road she went down in her later years. She struck down the AA program in Gratz, but upheld the one in Grutter for a reason that after reading it a few times, I gave up trying to figure it out.

But she’s been replaced by Alito who will likely bring some sanity to it.

On the SSM cases, I tend to agree with Billdo, but I also wouldn’t be surprised if Kennedy came along and said, “You know, guys, all of my opinions on homosexuality had to do with live and let live in the privacy of the home. I never said that society had to give the stamp of approval” and uphold Prop 8 on a 5-4 vote.

As far as DOMA, section 3, today’s opinion in the Arizona voting case (striking down the AZ law requiring proof of citizenship to register to vote) is instructive. Scalia wrote the opinion that the federal law prescribing voter forms trumped state laws to the contrary.

That’s surprising for him. Maybe he had to be consistent with the opinion he joined upholding DOMA section 3??? Just a WAG on my part, but couldn’t the same analogy be applied: The federal government has prescribed its own definition of marriage. As a dual sovereign, it may recognize/not recognize SSM just as the states are free to recognize/not recognize.

[Simplicio]

@jtgain

As far as DOMA, section 3, today’s opinion in the Arizona voting case (striking down the AZ law requiring proof of citizenship to register to vote) is instructive. Scalia wrote the opinion that the federal law prescribing voter forms trumped state laws to the contrary.

That’s surprising for him. Maybe he had to be consistent with the opinion he joined upholding DOMA section 3??? Just a WAG on my part, but couldn’t the same analogy be applied: The federal government has prescribed its own definition of marriage. As a dual sovereign, it may recognize/not recognize SSM just as the states are free to recognize/not recognize.

Maybe, but the Constitution explicitly gives the Congress the power to protect voting rights (which is why I think your wrong regarding how they’ll find on Shelby as well). Marriage isn’t really an equivalent case.