Same-sex marriage may be chief justice’s real legacy
WASHINGTON — A Supreme Court term that is starting with a lack of headline-grabbing cases may end with a blockbuster that helps define the legacy of the court under Chief Justice John Roberts.
While same-sex marriage is not yet on their agenda, the justices appear likely to take on the issue and decide once and for all on gay and lesbian couples’ constitutional right to marry.
When the justices formally open their new term Monday, Roberts will be beginning his 10th year at the head of the court, and the fifth with the same lineup of justices. He has been part of a five-justice conservative majority that has rolled back campaign finance limits, upheld abortion restrictions and generally been skeptical of the consideration of race in public life.
But his court has taken a different path in cases involving gays and lesbians, despite his opposition most of the time.
The court’s record on gay rights is comparable to its embrace of civil rights for African Americans in the 1950s and 1960s under Chief Justice Earl Warren, said University of Chicago law professor David Strauss. “The court will go down in history as one that was on the frontiers of establishing rights for gays and lesbians,” Strauss said.
The justices passed up their first opportunity last week to add gay marriage cases to their calendar. But they will have several more chances in the coming weeks to accept appeals from officials in Indiana, Oklahoma, Utah, Virginia and Wisconsin who are trying to preserve their state bans on samesex marriage.
Those prohibitions fell one after the other after the high court’s June 2013 decision striking struck down part of a federal law that defined marriage as between a man and a woman.
On the court’s plate in the new term are cases involving: 1 Religious, employment and housing discrimination; 1 The drawing of political districts in Alabama and Arizona; 1A dispute between Congress and the president over passports that is heavy with Middle East politics; 1A faulty traffic stop over a car’s broken brake light in North Carolina; 1 The use of a law to prevent document shredding against a fisherman accused of throwing undersized red grouper overboard; and 1 The prosecution of a self-styled rapper whose Facebook postings threatened his estranged wife, an FBI agent and area schools.
Beyond individual cases on the docket, court observers across the political spectrum are using the milestone 10th year to offer assessments of Roberts and the court he leads.
The liberal Constitutional Accountability Center has embarked on a yearlong study of the chief justice, noting that he said at his confirmation hearings he would pursue restraint and unanimity on the bench.
Some conservatives are dismayed by what they see as Roberts’ unwillingness to take big steps on key issues, and they have yet to forgive his vote to uphold Obama’s health care law in 2012.
With the court closely divided on key issues, a change on the bench can mean the difference between victory and defeat. That was indeed the case with the replacement of Justice Sandra Day O’Connor with Justice Samuel Alito, affecting outcomes in cases on abortion, race and campaign finance.