If there was a central unifying theme in American law in 2013 it was equality—or, more accurately, the ceaseless struggle to define the contours of equal justice in an ever-changing world. Riding the "up" escalator last year on the journey toward equality were gay and lesbian couples and the millions of other Americans who stoutly support the premise of same-sex marriage. For them, 2013 was a year of brilliant progress, of recognition and redemption. Riding the "down" escalator were poor citizens, people of color, the elderly, and the ill, who lost precious voting protections in court and in statehouses all over the nation. For them, 2013 was the worst year in at least half a century.
Last year's big legal stories, its constitutional themes, won't recede as quickly as other big legal stories and themes have seemed to fade over the years. Americans will continue to fight over same-sex marriage, voting rights, affirmative action, and many other issues (like the provision of health care) that involve the essence of equality. The Supreme Court will surprise us not once but a few times in the decisions it renders—and as the justices age (four are older than 75 years old), they may surprise us later this year with a retirement, an illness, or even a death. There will be a few high-profile tabloid cases, the dimensions of which we cannot fathom today. And then there will be these:
As we begin the year, it's clear that legal battles over same-sex marriage will continue to be fought from sea to shining sea. This week, for example, the Supreme Court is awaiting word from Utah about an appeal over that state's teetering same-sex marriage ban. Where else is there pending litigation over same-sex marriage? Just in the states of ... West Virginia, Virginia, Texas, Tennessee, South Carolina, Pennsylvania, Oregon, Oklahoma, Ohio, North Carolina, Nevada, Mississippi, Michigan, Louisiana, Kentucky, Idaho, Colorado, and Arkansas. Those lawsuits will be the marriage story in 2014, whether the justices in Washington take the Utah case or not.
We now are geared up to spend 2014 watching the kabuki dance of federal appellate practice unfold over the legality of the NSA's bulk metadata telephony surveillance program. The D.C. Circuit Court of Appeals will evaluate the work of (Bush nominee) U.S. District Judge Richard Leon, who first declared the government spy program "likely unconstitutional." And the 2nd U.S. Circuit Court of Appeals, in New York, will evaluate the work of (Clinton nominee) U.S. District Judge William Pauley who, with similar gusto, later declared the program both constitutional and necessary. Best guess? The two appeals courts will narrow the vast gulf between the two trial court rulings.
The coming year will bring still more litigation over women's rights. The Supreme Court will hear two abortion-related cases in the next few months—one about a Massachusetts protest law designed to protect people around abortion clinics, and the other about an Oklahoma law designed to limit the use of abortion medicine. The justices also soon will consider accepting for review a more direct challenge to Roe v. Wade in an Arizona case. In Texas, meanwhile, litigation over a new law that requires doctors performing abortions to have visiting privileges at nearby hospitals is now before the 5th U.S. Circuit Court of Appeals. And in Iowa, there is a roiling fight over whether patients can receive abortion pills after consulting with doctors via videoconference.
Any day now, we could get a ruling from the justices in Washington in McCutcheon v. Federal Election Commission, the big campaign finance case that was argued in early October. The best bet you can make all year in the law is that the Court's conservatives will further limit the ability of federal officials to control the flow of money into and out of politics. McCutcheon may or may not end up being as much of a perversion of the first amendment as was the Citizens United decision nearly four years ago. But it will be close. And that will bring a new flood of money into the 2014 mid-term elections, the results of which, in the Senate at least, will impact the pace of President Obama's judicial confirmations.
The Supreme Court's lamentable decision in Shelby County v. Holder last June, the one that struck the "pre-clearance" provision from the Voting Rights Act, launched a new phase in the voting wars. In 2014, we'll begin to get clarity on what this new post-Shelby era looks like as voting advocates (and federal officials) seek to block enforcement of restrictive voting measures in states like Texas, Pennsylvania, North Carolina, Arkansas, and Wisconsin. The September trial for the Texas ID law, in particular, bears watching. It is among the nation's most onerous and it potentially impacts the most voters. Which side wins these battles will help determine who can or cannot vote in the 2014 mid-terms—and beyond.
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