Now, as the court heads into the final two weeks of this year’s term, the justices may be about to close one chapter of that long story even as they open a new one.
The court is set to decide whether to pull back on 1960s-era remedies for racial discrimination that critics say have outlived their need. One case tests a race-based affirmative action policy at the University of Texas that gives an advantage to black and Latino students at the expense of some white applicants. Another case could end part of the Voting Rights Act of 1965 that puts the South under special scrutiny for its laws on voting and elections.
At the same time, the court will decide for the first time whether to extend equal rights to gay couples who are married and to gays and lesbians who wish to marry.
In both sets of cases, the justices will consider what the Constitution means when it says the government may not deny to any person “the equal protection of the laws.”
That simple command drove the decisions that struck down racial segregation, integrated classrooms and colleges, and encouraged the adoption of affirmative action policies. And the Voting Rights Act finally gave blacks an equal right to cast ballots and to elect their favored candidates across the South.
More recently, however, conservatives have pushed back, arguing that race-based policies are suspect and discriminatory, even if their aim is to benefit racial minorities. And Chief Justice John G. Roberts Jr. has said the Voting Rights Act is less about voting these days and more about what he called the “sordid business (of) divvying us up by race” when drawing electoral districts.
Meanwhile, gay rights advocates have been sounding the call for equality before the law. They have been winning in state courts, state legislatures, at the ballot box and in polls of public opinion. Twelve states now authorize same-sex marriage, twice as many as last year. But they have yet to win a true declaration of equal rights under the Constitution.
That could come soon. The court will decide whether to strike down the Defense of Marriage Act and rule that legally married gay couples deserve equal benefits under federal law.