The Supreme Court has been in hibernation lately during its long winter recess. The justices have not been on the bench since Jan. 22.
There have been some sightings. Six of the nine justices attended the State of the Union Address on Tuesday night, and they all appeared at President Obama's inauguration. Justice Sonia Sotomayor has been the most visible justice, promoting her intimate memoir, My Beloved World.
But starting on Tuesday, the justices will get back to work, commencing a four-month period of hearings and decision-making that could be among the most momentous in its history. If you thought last term was historic, with its landmark decision upholding the Obama health care reform law, this term might top it.
By the end of the term in late June, the court could well decide whether two longstanding but controversial tools for advancing civil rights have outlived their usefulness. The future of affirmative action hangs in the balance in a case from the University of Texas. And on Feb. 27, the court will hear debate over a section of the Voting Rights Act that requires federal approval of changes in local election procedures. Communities throughout the South assert that such intrusions are no longer needed, while civil rights groups say discriminatory practices persist.
High tech, low tech
Other major cases before the court will involve the implications of new technologies: whether human genes can be patented, and whether police can routinely take DNA samples from arrestees who have not been convicted of a crime. The constitutionality of a more low-tech police technique will also be examined: searches by drug-sniffing dogs.
But the truly historic cases before the court this term deal with same-sex marriage. One asks whether certain federal benefits that go to heterosexual couples can be denied to legally married gay couples. The other, from California, could decide whether states are constitutionally required to permit same-sex marriages -- though the case could also be decided on narrower grounds.
Throughout its history, the high court has played a pivotal role in expanding the rights of minorities, sometimes acting ahead of the times, while in other instances following the lead of public sentiment. Public approval of same-sex marriage has increased dramatically in recent years, but it is not certain that the justices will move that quickly. It is only a decade since the court struck down laws criminalizing homosexual acts.
It is hard to preview the dramatic court session ahead without also making a point we've made before. As history unfolds at the Supreme Court this spring, only a few hundred people will be able to witness it. That is because the justices stubbornly cling to their opposition to allowing cameras inside their chamber to broadcast their proceedings. The justices insist that allowing camera coverage would spoil their processes and somehow damage their legitimacy.
Sotomayor on cameras
During her book tour, Sotomayor was asked more than once for her views about camera access. She made the unfortunate statement that televising oral arguments could be "more misleading than helpful" because most viewers don't understand the issues involved or how the court works. Viewers might not be experts on the workings of other public institutions, either, but is that a reason to keep people from seeing them? As Justice Elena Kagan said during her Senate confirmation hearing in 2010, allowing cameras in the Supreme Court would be "a great thing for the institution, and more important, I think it would be a great thing for the American people."
Sotomayor made similar statements during her confirmation hearing the year before. But now that they are ensconced for life as Supreme Court justices, both Kagan and Sotomayor regrettably appear to have changed their minds. Political scientists say it is not uncommon for once-independent public figures to "go native" and adopt the norms of the institutions they have joined.
But in the digital age, those norms and traditions seem especially antique. In coming weeks and months, it will be frustrating to realize that those outmoded views are keeping the American people from seeing their Supreme Court make history.
Tony Mauro is Supreme Court correspondent for The National Law Journal and the Supreme Court Brief. He is a member of the USA TODAY Board of Contributors.
(c) Copyright 2013 USA TODAY, a division of Gannett Co. Inc.
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