It’s hard enough to know what the Justices of the Supreme Court are talking about when they write opinions, which tend to be dense, convoluted, and laden with coded references that are decipherable only to a few. But, on Monday, the Court presented an even greater interpretive challenge: determining what it meant when it said nothing at all. Without comment, the Court let stand successful challenges to the bans on same-sex marriage in five states. Those lower-court rulings had been stayed while the parties waited to hear from the Justices. Now that they won’t be saying anything, same-sex weddings can go forward in those states and, soon, in others in their circuits. Clerks in Utah and Virginia were already issuing marriage licenses on Monday afternoon.
What was behind the Court’s action? Several theories make sense. The conservatives wanted to kick the can down the road until President Ted Cruz could replace Justice Ruth Bader Ginsburg. The liberals wanted to kick the can down the road until same-sex marriage was boring and routine in most of the country. Chief Justice John Roberts didn’t want to be on the wrong side of history but couldn’t bring himself to vote with the liberals. Justice Ginsburg didn’t want to repeat the trauma of Roe v. Wade and let the Court get too far in front of the country. All are plausible.
Ultimately, at the Supreme Court, what matters is the result, not the motives. So, because of Monday’s non-decision decision, gay people in thirty states, representing well more than half the country, will now enjoy the right to marry. A decade ago, marriage equality existed only in Massachusetts. It is a remarkable legal and social transformation—an astonishing victory for progressive legal thought and action.
On the occasion of this extraordinary victory, which happens also to be on the first Monday in October, it’s worth looking at the rest of the Supreme Court’s term, in which the prospects for progressive victories look slim indeed.
The great project of the Roberts Court seems, at this point, to be the dismantling of the civil-rights revolution in law. Roberts has a visceral distaste for the sorts of race-based preferences reflected in affirmative action in education or employment. He is joined in this view by Justices Antonin Scalia, Clarence Thomas, Samuel Alito, and (in most cases) Anthony Kennedy. The conservative quintet will have the chance to demolish the concept of “disparate impact” (the idea that discriminatory action can be proved by statistical means) in Texas Department of Housing and Community Affairs v. The Inclusive Communities Project.
Voting rights are also a major target of the Roberts Court, and the conservative majority will have two chances this term to limit what’s left of the Voting Rights Act: African-American voters in Alabama are challenging a gerrymander that compressed black voting power in the state into a handful of districts, and the conservative Arizona State Legislature is contesting the constitutionality of an independent redistricting commission.
As this year’s midterm elections approach, the Court is sure to hear more challenges to the voter-suppression initiatives that were passed by some of the states that came under Republican control following the 2010 elections. So far, the Court has rubber-stamped all the initiatives to have come before it, and there is every reason to believe that this pattern will continue.
It is a day to note and to celebrate a civil-rights revolution that is nearing a complete victory. But it is also a moment when other progressive causes are losing ground in the Supreme Court. On race and voting rights, the Roberts Court’s likely direction is all too clear.
