SCOTUS Watch: Affirmative Action, Gay Marriage, and Property Rights Decisions Coming Soon


On Monday morning at 10 a.m. ET, the U.S. Supreme Court is scheduled to release one or more opinions in argued cases from its current term. By month's end, the Court is expected to release all such remaining opinions. That means that within the next two weeks we should have major rulings on issues including the use of race in undergraduate admissions at public universities (Fisher v. University of Texas at Austin), California's Proposition 8 initiative banning gay marriage (Hollingsworth v. Perry), the Defense of Marriage Act (U.S. v. Windsor), and whether state officials violated the Takings Clause of the 5th Amendment by imposing certain conditions on a property owner seeking a building permit (Koontz v. St. Johns River Water Management District).

At The Huffington Post, Josh Dzieza surveys the issues at stake in several of these cases in a piece titled "Supreme Court Rulings This June: Everything You Need to Know." Despite that ambitious headline, however, there are a few missing pieces of information that interested readers might want to have on hand. In the affirmative action case, for example, Dzieza notes that Justice Sandra Day O'Connor, the author of the Court's 2003 ruling upholding affirmative action at the University of Michigan Law School, "is gone, replaced by Samuel Alito, who is far more critical of racial criteria. Furthermore, Elena Kagan is sitting this case out because she worked on it as solicitor general."

All true. But unmentioned is the fact that perennial swing-vote Justice Anthony Kennedy, who is still around, vigorously dissented in the Michigan case and is likely to maintain that critical stance against UT. Moreover, Kennedy has long opposed racial classifications by the government, voting not only against affirmative action by public universities but also against racial preferences more broadly. In his dissent in Metro Broadcasting v. F.C.C. (1990), for instance, where he voted against preferential treatment for the licensing of minority-owned stations, Kennedy wrote, "Once the Government takes the step, which itself should be forbidden, of enacting into law the stereotypical assumption that the race of owners is linked to broadcast content, it follows a path that becomes ever more torturous."

And while Dzieza did not include it in his round-up of important cases, many readers will surely be interested in the outcome of what may be this term's most significant property rights decision, Koontz v. St. Johns River Water Management District.

That case arose when a Florida regulatory agency refused to grant a permit for commercial development unless the property owner first agreed to several conditions, including funding improvements to state-owned lands located several miles away from his lot. As the government admitted in a pretrial stipulation, had the owner agreed to this uncompensated activity, "the exact project [he] proposed would have been permitted." The question before the Court is whether such conditions violate the 5th Amendment's requirement that just compensation be paid when private property is taken for a public use. In addition, the Court is also considering whether the Takings Clause covers only physical property, or whether it also applies to government takings of "money, services, labor, or any other type of personal property."

This is not a minor dispute. Depending on the outcome, Koontz may have significant ramifications for millions of property owners around the country, not to mention for the state officials who currently impose such conditions when issuing or denying permits.

For more on Koontz v. St. Johns River Water Management District, see here and here. To read the friend of the court brief submitted in Koontz by the Reason Foundation (the nonprofit that publishes this website), click here. To read the Reason Foundation friend of the court brief in Fisher v. University of Texas at Austin, click here.