Justice Kennedy expected to play crucial role in spate of upcoming Supreme Court decisions

The Takeaway

By the end of this month we could be living in a very different United States.

That’s because the Supreme Court is expected to hand down decisions in landmark cases sometime in June. The cases speak not only to our rights as Americans, but also to the values we hold. At stake: affirmative action, voting rights, gene patenting and same-sex marriage.

Jeffrey Rosen, a professor of law at George Washington University and president of the National Constitution Center in Philadelphia, said all four cases will likely hinge on the views of Justice Anthony Kennedy, perceived to be the swing vote and likely decider in perhaps all of these cases.

"For him, the tie always goes to liberty," Rosen said. "And if that's the way these cases end up, we'll have affirmative action and voting rights significantly narrowed, on the grounds there's an individual right not to be treated on the basis of race, but gay marriage may well be recognized in some form, and human genes, on that basis, might not be patented."

But that's a simple way of looking at things, Rosen admits, suggesting there very well may be surprises and twists that make the final verdicts much less cut-and-dry.

He says the next couple weeks should be exciting not just for court-watchers, but for average Americans as well.

On the matter of affirmative action, Kennedy has a history of sharply limiting race-based admissions, but leaving the door open in certain, narrow circumstances.

"What may happen here is he may say this particular plan at the University of Texas, which engaged in race-conscious affirmative action after having admitted the top ten percent of all students at Texas high schools, can't stand because it's not very effective in producing minorities," Rosen said. "But it will hold forward the distant possibility that some other program might be constitutional in the future, without telling us precisely what that would be."

On the question of the Voting Rights Act, the justices find themselves in a bit of a quandary. Several years ago, Rosen says, the justices let the law stand, but called on Congress to revise the criteria about how special scrutiny is applied. Now, with no action in Congress, the justices may feel pressure to act.

"The conventional wisdom is that the Voting Rights Act, if not struck down, will be sufficiently narrowed and the ability of the federal government to oversee changes in voting procedures on the grounds of racial discrimination will be significantly cut back," he said. 

On gene patenting, the case seems to hinge on whether isolating a gene is as simple as cutting something out of a chromosome, or more complex, requiring human ingenuity.

Rosen said the justices may choose a middle ground, saying you can't patent a human gene, broadly, but you may be able to patent a particular use.

On gay marriage, Rosen said, there are several ways the court could choose to go: adopting the rationale that this is the same as interracial marriage, which a court previously found must be allowed, or it could choose to view this as a states-rights issue, where the federal government has no business meddling. That would essentially allow individuals in same-sex relationships to receive benefits, or not, based on the laws in their state of residence.

"The challengers of Prop 8 have tried to turn the table, saying it's actually a violation of federalism for the federal government to treat validly married couples differently if they're gay than if they're straight," Rosen said.

Supreme Court decisions are typically handed down every Monday. This past Monday, the court ruled it was permissible for law enforcement to take a DNA sample of someone who has been arrested, but not yet convicted or perhaps even charged, on the basis that they can fingerprint someone who is placed under arrest.

Kennedy was the key vote in that 5-4 decision.

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