Friday, October 04, 2013

Ho-Hum: Professor Kmiec Found the 2012-2013 US Supreme Court Term to be Pleasantly Uneventful

Pepperdine Law Professor Douglas Kmiec ["Eyeballing Eqality," California Lawyer, Sept. 2013] views the recently concluded term of the Supreme Court to have been decidedly and delightfully uneventful.  His  imaginary interlocutor objects:

Wait a minute, you say. Didn't the Court endorse same-sex marriage (United States v. Windsor, 133 S.Ct. 2675 (2013))? Limit the use of race to achieve diversity in admissions (Fisher v. Univ. of Texas at Austin, 133 S.Ct. 2411 (2013))? Overturn the preclearance portion of the Voting Rights Act, decimating its effectiveness (Shelby County v. Holder, 133 S.Ct. 2612 (2013))? Continue to favor corporations (Mutual Pharm. Co., Inc. v. Bartlett, 133 S.Ct. 2466 (2013) (holding that makers of generic drugs could not be sued for defects in product design))? And isn't the Court now so profoundly divided that civility has succumbed to the delivery of apocalyptic dissents and the eye-rolling of Justice Samuel Alito?

Professor Kmiec responds, "No, no, no; not really; and don't be silly."

He goes on to describe how the Court's holdings, even in the so-called headliner cases, carefully adhered to Supreme Court precedent and, more importantly, to the duty of the Court, as perceived by Chief Justice Roberts and Chief Justice Rehnquist before him, "to keep the Court from opining about difficult and controversial policy questions."  For the details of his analysis, please read the article.  But lawyers and non-lawyers would be well-served to mull over Professor Kmiec's conclusion:

A blockbuster term it was not, yet the fidelity of the Court to the rule of law was consistent and praiseworthy. The Roberts Court answered legal complaint by adhering closely to its judicial vocation. When other nations try to persuade an anxious world that the way to advance democracy is by military intervention, it is a notable and wise achievement for the high bench to reaffirm how law already decided invites "we, the people" to discern the full scope of human equality. 
It is up to us - and not the justices - to determine whether the command for equality enshrined in our Constitution actually adds up to a living reality.
Gee, I wish I had written that.

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