To the dismay of court watchers everywhere, the Supreme Court did not hand down decisions in the four biggest pending cases on Thursday, leaving their simultaneous release for the final, frantic week of the court's term.
Opinions that could drastically expand the rights of gays and lesbians in society, sharply curtail the use of race in college admissions and strike down civil rights legislation protecting minorities at the ballot box could all be released at the same time on Monday, unless the court adds more decision days to its schedule for later that week.
Though undoubtedly every case the nine justices decide has important effects on the legal system, each term a handful of controversial cases particularly captures the public's attention. This year, the court decided to wade into the gay marriage debate for the first time in its history, and it also took up two landmark cases involving race. One of the cases, a challenge to the University of Texas' affirmative-action program, was argued in front of the court all the way back in October, and many legal experts are stumped as to why the justices have taken such an unusually long time to release an opinion.
It's common for the court to delay releasing its biggest decisions until the very last day. Last year, the court did just that, releasing its bombshell decision upholding the health care law on June 28. This is often because the controversial cases are the most difficult and require more back-and-forth between the justices' dissents and the main opinion and concurrences.
Two highly anticipated gay marriage cases—Perry v. Hollingsworth and Windsor v. United States—are sure to have attracted just this sort of judicial shuffling.
In the Perry case, the court is expected decide whether California voters discriminated against gay people when they voted "yes" to Proposition 8, which bans same-sex marriage, in 2008. In Windsor, the court is weighing whether the federal Defense of Marriage Act—which limits all federal marriage benefits to opposite sex couples—violates the constitutional rights of same-sex couples.
Justice Anthony Kennedy, a conservative-leaning swing vote on the court with a history of backing gay rights, is expected to decide the fate of both cases.
But it's possible that the justices could dodge the legal heart of those two cases—whether gays and lesbians have a fundamental right to marriage—and instead rule narrowly on procedural or standing grounds.
David Boies, an attorney representing same-sex couples in California in the Perry case, has said he believes the justices will rule that the proponents of Proposition 8 do not have the legal standing to challenge the lower court's ruling striking down the ban. (In the Proposition 8 case, California's elected officials opted not to appeal the lower court's ruling, and it's unclear if an unelected coalition of Proposition 8 supporters have the legal right to appeal on behalf of California voters.) If the court rules on these narrow grounds, it would make same-sex marriage legal again in California without having any implications for the dozens of states that currently ban same-sex marriage. This would punt the fundamental gay marriage question down the road for the court to decide later.
In the DOMA case, the justices may decide to strike it down based on the federalist argument that states should be allowed to define marriage for themselves. It's also possible that the justices will decide that Congress doesn't have the standing to defend the law, after the Obama administration's Justice Department declined to defend it in court. Either possibility would result in a narrow decision without much legal implications for the gay rights movement's larger argument that same-sex couples should be allowed to wed.
The two cases involving race, Shelby County v. Holder and Fisher v. University of Texas, will also most likely be released on Monday or another decision day next week.
In Shelby, the justices could significantly scale back the federal government's right to supervise states with a history of voting discrimination against minorities. If the justices decide to strike down this key part of the Voting Rights Act—a cornerstone of the civil rights movement that helped dismantle decades of discriminatory voting restrictions—states would have more leeway to pass laws the Obama administration considers to be discriminatory. These include laws that tighten identification requirements and limit early voting hours at the ballot box, which have passed in dozens of states in the past few years.
In Fisher, the court will decide whether universities can use race as a factor in undergraduate admissions. The Supreme Court established in 2003 in Grutter v. Bollinger that universities could use race as a factor in admissions as long as they did not use quotas (for example, that 10 percent of the class must be black). The justices said affirmative action was still necessary to counteract the effects of institutionalized racism that had prevented minorities from attending college in the past. The majority wrote that they believed that in 25 years, affirmative action would no longer be necessary and should be stopped.
It's possible that the justices will use Abigail Fisher's complaint that she was rejected from UT because she is white to step up the timeline set out in the 2003 decision, and reject the college's use of affirmative action as unconstitutional. The college argues that Fisher's grade point average and standardized test scores made her inadmissible regardless of her race, and that using race as one factor in admission helps it maintain a diverse student body.
The justices also have the option of not deciding some of the cases at all, which would mean they would have to be reargued in October. But that's rare. A hectic Monday full of four legal landscape-changing decisions is much more likely.