Supreme Court

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.

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  1. Speaking of the Supreme Court:…..37075.html

  2. I expect ALL of these to go the wrong way.

  3. My SCOTUS Oscar Night predictions:

    Affirmative Action: The Supremes will acknowledge that blanket Affirmative Action is outdated and bad, but discrimination still exists, so they may maintain policies where school officials see a need or clear disparity, but must apply it politely and with a smile.

    Gay Marriage: Everyone will be able to get gay married.

    Property Rights: You don’t have any.

    1. Since butt-fucking is the only liberty worth having, this sounds like a win for libertarians!!

      1. The Nazgul have been butt-fucking the Constitution for quite some time now.

    2. Everyone in America will have not property rights unless the government says they can, will have the absolute right to be discriminated against because of their race, but they will have the right to a life sodomy if they wish. What is not to love?

  4. Due to the massive sequestration cuts, the ruling will have to be combined into one

    Homosexual blacks will be allowed to marry but only if they own forty acres and a mule and agree to fund new playgruond equipment in a government owned park.

    1. Deep-dish pizza for all!

      1. Washed down with a crisp, cool Bud Light.

        1. Washed down with a crisp, cool Bud Light Lime.

          It’s the official drink of Reason!

          1. It’s the official drink of Reason!

            I might have to reconsider my association with this publication.

            1. Did you donate? Cuz if you did, you can get Bud Light Platinum

      2. Deep-dish pizza is an oxymoron.

        1. Deep dish pizza is manna from heaven!

          1. This so called “Deep dish pizza” is casserole.

            1. Look, I understand that some of you grew up in squalor and could not afford a pizza crust more than 2mm thick. When you’re older and richer you’ll discover there is more to life than powdered milk, collard greens, mac & cheese, and thin crust “pizza.”

              1. …and thin crust “pizza.”

                Otherwise known as “pizza”.

                Deep-dish is not pizza. It is a mess of crap baked in dough in a casserole dish. I feel bad for people lacking the culinary sophistication to grasp this.

                1. Exactly. If you don’t like pizza, that’s fine, but don’t start calling some other food product “pizza”.

                  “Let’s get some pizza for the game! And by pizza I mean a roasted chicken!”

  5. Predictions:

    AA: “Discrimination” is bad but “holistic” admissions criteria is a-ok.

    Same-sex marriage: DOMA overturned on grounds that federal employee’s spouses have a God-given constitutional right to their pensions, dammit. Equal civil unions/domestic partnerships nationwide.

    Property rights: Hahaha, is that some kind of joke?

    1. I agree they’ll manage to split the baby on AA, I don’t think anyone is expecting a sweeping ruling on SSM, they’ll probably let the last ruling stand on 8 and overturn the specific portion of DOMA that bars the fedgov from treating married couples in states where gay marriage is already legal like they are legally married. And I agree wholeheartedly that anything to do with property rights will go the wrong way.

  6. I’m sure to be in the minority here, but I’d bet that they get the AA case right, especially with Kagan sitting the case out. There’s no way that they get one of the 4 conservative judges to vote FOR AA, especially since they’ve already voted against it.

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