The Constitution in 2013: Gains or losses on rights?

National Constitution Center

The Supreme Court–the place in America where the Constitution most often gets new meaning–moves into 2013 after a momentous year of re-examining the core constitutional structure of the U.S. government. As the New Year unfolds, the court switches its center of attention from constitutional architecture to constitutional rights.

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Many other public actors, of course, contribute to constitutional development every year, but often that merely sets the stage for the court to have the final word.

In a series of decisions in 2012, the court did some alterations on the constitutional division of power between national and state governments.

It gave Congress power to move toward nationwide health insurance even while giving states more veto power over some federal spending. It narrowed somewhat the authority of states to limit the rights of undocumented immigrants living within their borders. It reminded federal judges not to go too far to second-guess the states’ legislative redistricting process. And it restricted the power of states to curb heavy political campaign spending by corporations.

The net effect of that was twofold: the court’s own powers were enhanced, along with those of the other two federal branches, and the long-term trend of shifting power toward Washington and away from state capitals was not significantly interrupted.

What comes next for the court–partly by its own choice, partly by the actions of other public actors–is a heavy concentration on individual rights. But there is no certainty that, when the final decisions emerge by next summer, the results will expand rather than narrow those rights.

The justices will be deciding two major cases dealing with race relations. They will decide whether public colleges and universities may continue to use race as a factor in choosing their new freshman classes, and they will decide whether history’s most successful voting rights law–the Voting Rights Act of 1965–has outlived its constitutional justification.   Both college affirmative action plans and minority voting rights appear to be at some risk.

The court will get its first close look at recent efforts to make voting more difficult, especially for the poor, when it examines whether states can demand documentary proof of U.S. citizenship before a voter may register.  Moreover, the court will probably be examining anew the constitutionality of requiring photo IDs for voters at the polling place.

On affirmative action, the court is likely to decide whether a states’ voters have the power to direct a complete end to college affirmative action plans, even if those survive the year’s basic constitutional test before the court.

The justices will be making a historic foray into the newest cultural clash in America, over whether gay and lesbian couples will be allowed to marry, and whether they will qualify for federal marital benefits. The court has taken on two cases that potentially could result in either a sweeping decision on same-sex marriage, or a narrower ruling that puts off the ultimate constitutional reckoning on such unions.

There very likely will be a review of the constitutionality of at least a part of the new federal health care law that was not examined at the court’s last term: the Affordable Care Act’s mandate that employers provide for their workers, free of charge, health insurance coverage for the leading forms of birth-control drugs and methods. That mandate has been challenged by a wide array of religious schools, colleges, and hospitals, and by profit-making businesses run by religious families or executives whose faith counsels against medical methods that may lead to abortion. They argue that the contraceptives mandate violates their right to religious freedom.

A spate of new anti-abortion laws passed by state legislatures over the past year may also begin to put that issue back before the justices in 2013.

It is almost a certainty that there will be attempts to induce the court to spell out further the scope of gun-bearing rights under the Second Amendment. The most important single issue is whether those rights extend beyond the home, and beyond self-defense at home–the only site and activity so far recognized by the justices for the exercise of the right to “keep and bear arms.” Other gun rights issues may arise if the federal government takes new steps to deal with mass shootings like that earlier this month in Newtown, Connecticut, but test cases over any such initiatives may take some time to reach the justices.

In the field of international human rights, the court is expected to decide whether multinational corporations may be sued in U.S. courts for their role in atrocities committed in foreign lands.

The court also may be drawn into new constitutional controversy over the government’s use of military courts at Guantanamo Bay, Cuba, to try those suspected of acts of terrorism. Among the key issues is whether foreign nationals held at the Navy prison on the island of Cuba have constitutional rights during their war crimes trials.

All of this array of rights issues is expected to be faced by the same nine justices. At this point, there is no sign that any of the justices is considering retirement, and all appear to be in good health. Openings, or at least one, may be more likely later in President Obama’s second term in the White House.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy. He has reported on the Supreme Court for 54 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court’s work.

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