Two of the four major cases that SCOTUS announces this week have now been decided.  We have to wait till tomorrow to hear the decisions on DOMA and Prop 8.  Neither of the two decisions we've had so far was quite what observers expected.

The first hint that the affirmative action case was going to decided in a somewhat surprising way was how long it took CNN to analyze the vote.  Now, CNN has jumped to some premature, and inaccurate, analyses before, so caution was understandable.  Still, when most people were expecting a 5-3 decision striking down affirmative action, a 7-1 vote with Scalia and Sotomayor and Breyer and Alito on the same side must have been initially confusing.  Both sides are claiming victory in the case: for supporters of affirmative action, there is consolation in the fact that the Court did not do what had been widely anticipated: use the occasion to strike down affirmative action entirely.  For opponents of affirmative action, the argument is that the Court said that the standards the University of Texas used were inadequate and the case must be returned to the lower court so that it can apply the appropriate standard of strict scrutiny.  Once upon a time, the notion that race was inherently a "suspect" category and its use always entailed strict scrutiny was meant to protect racial minorities.  Now, however, it works the other way around.  If universities want to use geographical or economic criteria for admission, they just have to show that these promote a worthwhile goal.  Ditto for legacies or athletic abilities.  But if they want to include race as one factor among many, a higher standard is automatically invoked. 

In Texas, roughly three quarters of university admissions go to those in the top 10% of their graduating class.  Ostensibly, this is a race-blind standard, but in reality, as was admitted in the arguments from both sides, because schools remain rather severely segregated (de facto though of course not de jure) taking those top 10% achieves a degree of racial diversity--and that was always part of the intent.  For the other 25%, the university must now prove that there is no other way, no race-neutral way, of achieving diversity.  Although those of us who support affirmative action have a temporary victory, it seems clear that step-by-step affirmative action is being and will be dismantled by imposing increasingly stricter standards.

Today's decision on the Voting Rights Act also was a bit surprising in its approach, though not so much in what its final effects will be.  Everyone assumed that the Court would focus on section V of the Act, the enforcement of "pre-clearance" for redistricting and voting requirements in certain states.  Instead, the Court struck down section IV, which is the list of states and counties subject to the process, and, as Chief Justice Roberts said explicitly in his majority opinion is silent about section V.  The listed areas were rational in 1966, Roberts wrote, but are so no longer.  If Congress wants to rewrite section four, it has the power to do so.

For a supposedly conservative court that disdains "judicial activism," this Court has consistently showed a contempt of Congress and an eagerness to overrule its decisions.  The Voting Rights Act was reauthorized in 2006 with the vote 98-0 in the Senate.  But both Roberts and Justice Scalia sneered at that vote during the oral arguments, Scalia most famously in his comment about "entitlements" (here, he meant voting) and how legislators don't have the courage to take away entitlements once given.  This decision is like a dare to Congress: you still have the power thanks to section five to demand pre-clearance, so go ahead and rewrite the list of states and counties that are subject to the process.  That's hardly a likely scenario, as Roberts and the other four who voted with him know.  So while supposedly making no holding about section five, the Court found another way of putting an end to it.   

In his one paragraph concurring opinion in the affirmative action case, Justice Scalia advises that he wishes the petitioners had asked directly for the end to affirmative action so that he could have voted clearly to put an end to it once and for all.  Justice Thomas writes a twenty-page concurring opinion reiterating at great length how repugnant he finds affirmative action.  In the second case, Thomas writes another concurring opinion bemoaning the fact that the majority didn't strike down both sections four and five.  Slowly but surely, though, the conservative faction is rewriting American history--the most pronounced judicial activism in many decades.