By Andrew Cohen
Professor Jesse Choper has scrutinized U.S. Supreme Court cases since at least 1960, when he clerked for Chief Justice Earl Warren ’14. While discussing the court’s recent landmark rulings during packed presentations in San Francisco, Los Angeles, and Costa Mesa, California, Choper marveled at their collective impact.
“These decisions all hold great interest for the public and real significance for some of our major institutions,” he said. “Gay marriage, voting rights, DNA, affirmative action—this was quite a term.”
On July 10 in San Francisco, nearly 100 alumni and friends came to hear Choper at Orrick, Herrington & Sutcliffe. Waiting lists were also needed for his talks at Jeffer Mangels Butler & Mitchell in Los Angeles on July 16, and at Rutan & Tucker in Costa Mesa the following day.
Choper offered well-honed constitutional insights earned during an impressive career of teaching and scholarship. He was one of three major lecturers at U.S. Law Week’s annual Constitutional Law Conference from 1979 to 1998, and his Constitutional Law casebook—a staple among U.S. law schools—is now in its 11th edition.
“When I clerked at the court, it was a very similar lineup to what we see now with five conservative-leaning justices and four liberal-leaning justices,” Choper said. “The task for the minority of four was to somehow get to five. Sound familiar? There was a swing vote back then with Potter Stewart, though he wasn’t quite as identifiable a swing vote as Justice (Anthony) Kennedy is today. Kennedy clearly rules today’s court, not Chief Justice (John) Roberts.”
On June 25, the Supreme Court invalidated a key provision of the Voting Rights Act—enacted to protect minority voters—that determined which states required federal pre-clearance to alter their voting procedures. Now, no state needs to seek such federal approval.
On June 26, the court overturned the federal Defense of Marriage Act, which defined marriage as between one man and one woman, as unconstitutional under the Fifth Amendment’s due process clause. Although the court held that those defending California’s Proposition 8—the voter-approved, court-rejected initiative that sought to ban same-sex marriage—had no standing, it left intact the federal district court’s ruling that Prop 8 was unconstitutional. As a result, same-sex marriage is now legal in California.
While the voting rights and same-sex marriage decisions may seem politically incongruous, they were legally consistent in that both upheld states’ rights.
“Striking down the Voting Rights Act provision plainly limited federal power,” Choper said. “Now, Congress must take action to address any problems that arise from the ruling and, to put it mildly, this Congress is not famous for taking action. On same-sex marriage, the ruling was unprecedented in that the court combined the question of state rights and the question of individual rights. I don’t think I’ve ever seen those bundled like that before.”
Choper noted that uncertainty remains about the future of same-sex marriage because “states can now decide for themselves.” Although it may seem clear what certain states will do, he warns that states—and the justices themselves—can be unpredictable.
“The ideological positions of the justices are not always black and white, which surprises people,” Choper said. He cited staunch conservative Justice Antonin Scalia’s withering dissent in Maryland v. King, which upheld that police can collect DNA from people arrested, but not yet convicted, of serious crimes. “Scalia blasted the decision as a violation of individual rights. It shows that none of the justices are always on one side ideologically.”
Justice Samuel Alito described Maryland v. King, as “the most important criminal procedure case that this court has heard in decades.” The case also marked another example of technology’s growing clash between security benefits and privacy rights.
“On the one hand, the DNA case may become a major contributor to solving crimes,” Choper said. “On the other hand, it has the potential to present significant concerns about privacy. This is a conflict the court will grapple with in different ways for quite some time.”