Alex Witt   |  June 16, 2013

Clues into upcoming Supreme Court decisions

New York Times reporter Adam Liptak and NYU Constitutional Law professor Kenji Yoshino join Mara Schiavocampo to break down the upcoming Supreme Court rulings including DOMA, Prop 8, and affirmative action. 

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>>> the final weeks of what's been a landmark supreme court session. and with the next ruling due out tomorrow, the justices will soon announce their decisions on same-sex marriage, affirmative marriage, and the voting rights act . joining me now is adam liptack, supreme court correspondent for the "new york times," and kenji yoshino , professor of constitutional law at nyu. thank you both for being here.

>> thanks for having us.

>> great to be here.

>> adam , i want to start with you. is there conventional wisdom on what might be the likeliest ruling we'll hear tomorrow and how many days do they have left given they rule on mondays and thursdays?

>> we've got two weeks left. 19 cases to go. the case that's most likely to come next week as opposed to the last week is on affirmative action , a challenge to the university of texas 's affirmative action plan. but you never know. they do it in whatever order they like.

>> and kenji , let's talk about the same-sex marriage cases. some people have said that the court will probably strike down doma but the prop 8 looks like it could be upheld. what do you think?

>> i actually think that what's going to happen is that doma's almost certainly going to get struck down. it's always dangerous to read the tea leaves on these things. i think prop 8 is also going to go but it's going to go because justices kick it on some procedural ground, either by saying the proper parties are not before them or by saying they shouldn't have granted review in the case in the first place.

>> now, adam , you wrote an interesting piece recently in which you looked at the impact of gay supreme court clerks on the justices ' thinking. how often is the atmosphere now compared to the past, how open rather is the atmosphere there now compared to the past?

>> oh, very, very different. in 1986 , when the justices upheld a law making gay sex a crime, there were no out gay clerks at the supreme court . now out gay clerks are commonplace. and the justices , like everyone else, have seen gay people take their place in american society , get married now and coming up on 12 states, and that's got to influence their thinking.

>> kenji , voting rights appears to be a pretty tight one. does this all come down to justice kennedy , do you think?

>> i think it may well do that. i mean, what's astonishing about it is that it's even so controversial given that vast super majorities -- i mean, this is 98-0 in the senate. and the vast supermajority in the house of representatives voting for it. justice scalia made his own views clear, and i think many other people on the right wing of the court made their views clear, saying that you know, when something was this unanimous it just betokened a racial entrenchment. so i think it's going to come down o' justice kennedy and i think it's going to be an incredibly controversial decision if it gets struck down.

>> and adam , what about the u texas case on affirmative action ? what's your early read there?

>> i think as kenji says in the voting rights case, both cases concern race, both of them turn on kennedy, and in both of them there's some reason to think that the court is hesitant to protect the rights of minorities and to think that we've reached an era with a black president , with high voter registration , with different ways to achieve diversity in colleges and universities including race-neutral means that look at class or top 10% of graduation rates out of high school , that the conservative justices on the court are ready to pull back on some of the ways that the courts have in the past tried to help black people come into the mainstream of american society .

>> kenji , have you been able to glean any insight into any of these decisions from what we've already heard from the justices on them?

>> well, there is of course the oral arguments . and i think that we saw in the oral arguments , again, it's dangerous to read too much into them. but what we heard in the oral arguments was basically tracking what we've already said, that the justices seem to be very, very skeptical on both of the race cases but perhaps more receptive on the same-sex marriage cases. and i think the dividing line is really that there's a distinction between kind of formal equality and, you know, substantive equality, i guess i would say, which is that what gay people seem to be asking for is just equal protection under the law. the same rights that everybody else has. whereas there's a sense both in the voting rights act case and particularly in the affirmative action case that racial minorities are asking for something more than equality, for special rights rather than equal rights . so while i personally do not subscribe to this distinction, it's something that we see as a through line. and so i think this really is going to be the term of the supreme court that tells us in the civil rights realm that the supreme court is for formal equality but not for anything more than that.

>> well, we will certainly be waiting eagerly for those rulings. kenji , adam , thank you both for your perspective.