The Norman Transcript

Nation/World

June 30, 2013

Ending with a flourish

(Continued)

WASHINGTON —

When the justices looked at the voting rights law four years ago in a case from Texas, Roberts wrote a consensus opinion that pointedly criticized the law as being focused on past problems, but he sidestepped the larger question that the court now has emphatically answered.

The affirmative action decision ordered lower courts to cast a more skeptical eye on college admissions programs, but did not throw out the University of Texas program that was being challenged. Nor did it make a major pronouncement about affirmative action.

But it may have set the stage for a more consequential ruling in future years, in much the way that the court’s voting rights decision flows from its 2009 case.

In the affirmative action case, seven justices formed the majority, including the unlikely pair of justices who have benefited from affirmative action, Sonia Sotomayor and Clarence Thomas. Sotomayor has spoken positively of affirmative action, while Thomas has been an unyielding critic who has voted to ban all racial preferences.

Their agreement in the Texas case should not mask a deep division on the court about the validity of race-conscious admissions programs.

The court’s business cases predictably took a back seat to the run of high-profile civil rights cases. But the business cases show a court that has steadily made it harder for plaintiffs to band together in class actions that can be more efficient and lucrative for plaintiffs, but much more expensive for companies that most often are the defendants in such claims.

Doug Kendall of the liberal Constitutional Accountability Center said the court’s conservatives “were completely united in the push to protect corporations from being held accountable in federal court.”

Theodore Boutrous Jr., a Los Angeles-based lawyer who often represents business interests at the Supreme Court, pointed out that some of the business cases were unanimous outcomes, not ideological.

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