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Archis Parasharami: Follow up on the Supreme Court Panel

June 26, 2013

It was an honor to moderate the Supreme Court panel at this year’s NASABA convention, in our panelists Pratik Shah and Kannon Shanmugam (both with 13 Supreme Court arguments to their credit) reviewed the Court’s decisions from this term. The Supreme Court did its best not to cooperate with our panel by leaving three major issues until the last week in the term. That said, Kannon and Pratik did a great job of prognostication—many of their predictions turned out to be spot on. As an update, here’s a short summary of what the Court held in the key cases this week.

(1) Affirmative action: The Court rules, 7-1, that UT-Austin’s admissions program (which takes account of race) is subject to strict scrutiny, and that the university must show in further proceedings that its interest in diversity cannot be met using race-neutral alternatives.

(2) Voting rights: By a 5-4 vote, the Supreme Court struck down the “coverage” formula of the Voting Rights Act as unconstitutional. While it left standing Section 5 of the Act—which requires covered jurisdictions to obtain DOJ preclearance before changing voting laws/procedures—the practical effect is to put preclearance on hold unless Congress enacts a new coverage formula that passes constitutional muster. Most observers believe that Congress is unlikely to act anytime soon.

(3) Same-sex marriage: The Court decided both the federal Defense of Marriage Act case and the California Proposition 8 case by 5-4 margins (with different Justices in the majority and dissent for each case). In the DOMA case, the Court held (in an opinion by Justice Kennedy) that DOMA’s definition of marriage as between a man and a woman violates the Constitution’s equal protection guarantee. In the Prop. 8 case, the Court held (in an opinion by Chief Justice Roberts, with Justice Kennedy in dissent) that the proponents of the ballot initiative lacked standing (under Article III of the Constitution) to appeal the district court’s order enjoining Prop 8. The state of California had declined to appeal, and the Court concluded that the supporters of the ballot initiative lacked sufficient particularized injury to pursue the appeal on the state’s behalf.

These decisions, like other major Supreme Court decisions, may have a major impact on the nation and its citizens—including NASABA members and their clients.

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