Affirmative action, drug-sniffing dogs, maybe gay marriage loom as Supreme Court term begins

McClatchy NewspapersSeptember 28, 2012 

The U.S. Supreme Court in Washington, D.C.

TISH WELLS — McClatchy

— The Supreme Court justices, who had a summer to cool down from their last heated go-round, return Monday for an October 2012 term that’s still taking shape.

This time, the likes of affirmative action, in a case involving the University of Texas, and corporate liability for overseas human rights abuses top the agenda.

Also in question are the rules governing drug-sniffing dogs and protecting Western logging roads. Some death-row inmates in Arizona and Ohio have their lives on the lines, while a repeat felon from Stockton, Calif., hopes to cut years from his sentence.

It’s a list that still doesn’t match last term’s drama, when immigration enforcement and a huge health care law hung in the balance, but that could change. In a term that stretches through June, blockbusters arrive in their own sweet time.

“The court can pretty much do whatever it wants, when it puts its mind to it,” former George W. Bush administration solicitor general Paul Clement said. “The court can move mountains.”

Gay marriage and federal benefits for gay partners, in particular, loom, as do Southern state challenges to the Voting Rights Act. The court could decide in coming weeks whether to add these other high-profile cases to the 2012 calendar. The odds look good that they will.

Led by Chief Justice John Roberts Jr., who authored the 5-4 opinion in June upholding the Obama administration’s Affordable Care Act, the court so far has agreed to hear 39 cases. Typically, the court will hear about 75, so more cases will be added in coming months.

Roberts’ majority opinion in support of what his fellow Republicans derided as Obamacare “was not something people saw coming,” Clement said, and it prompted a spate of back-biting stories from inside the usually tight-lipped court.

The justices subsequently scattered worldwide to teach and attend conferences – Roberts went to distant Malta – and close court watchers predict any hard feelings have probably dispersed as well.

“They have so much interaction,” Clement said. “They have so many areas where they have common ground.”

The most politically prominent case currently on the court’s docket, involving affirmative action at the University of Texas, may also underscore the importance of a changing court

In 2003, Justice Sandra Day O’Connor, now retired, wrote a 5-4 decision upholding the consideration of race in the University of Michigan Law School’s admissions. O’Connor has since been replaced by Justice Samuel Alito, also a Republican appointee, but who is unlikely to follow in his predecessor’s footsteps.

“He has substantially greater skepticism about the role of race in college admissions,” noted attorney and prominent court blogger Tom Goldstein, who has argued 25 cases before the high court.

The admissions system challenged by Abigail Fisher, a Caucasian student rejected in 2008 from the University of Texas, guarantees seats for graduates in the top 10 percent of their Texas high school class. For the remaining spots, race is one of many factors considered.

Reflecting the high profile and potentially high stakes, a remarkable 73 amicus briefs have been filed in support of the University of Texas from allies including the University of North Carolina and the state of California. Seventeen amicus briefs have been filed opposing the school’s affirmative action program from skeptics like Rep. Allen West, R-Fla., an African American lawmaker and former Army officer.

The court, though, does not award more points to the side with more amicus briefs, and O’Connor’s departure seems certain to tilt the final outcome following the Oct. 10 oral argument. The main question may not be whether the University of Texas loses, but rather how broadly the conservative majority writes its opinion.

“Shifts in court personnel sometimes have enormous consequences, and this is one case where I think we’ll see that,” said Pamela Harris, a visiting professor at the Georgetown University Law Center.

Justice Elena Kagan, formerly the Obama administration’s solicitor general, has recused herself from the University of Texas case. But she will be present at 10 a.m. Monday when the term starts with 21st century questions about an 18th century statute. Corporations will be watching closely.

Written in 1789 and largely ignored for decades, the Alien Tort Statute is now used by foreign nationals to sue both individuals and corporations for alleged violations of international law.

Esther Kiobel and other Nigerian natives, notably, sued Royal Dutch Petroleum and other oil companies that allegedly aided the Nigerian government’s brutal suppression of dissent in the 1990s. The court may now decide not only whether corporations can be sued under the 1789 law, but whether the law can be used to justify any lawsuit for actions that take place entirely overseas.

The potent corporate lineup opposing Kiobel ranges from Coca-Cola to Chevron, and close court watchers expect the justices will shrink the use of the Alien Tort Statute.

“It’s going to be a very tough one for the plaintiffs to convince the Supreme Court to bless the idea that this kind of lawsuit belongs in the federal courts,” said Neal Katyal, formerly the Obama administration’s acting solicitor general.

Some cases focus narrowly, like prison inmate Matthew Descamps’ effort to discount a long-ago conviction for a California grocery store burglary in the determination of whether he’s an armed career criminal.

Still others start with a potentially sexy topic, like U.S. spy agencies’ warrantless wiretapping of overseas targets who are communicating with U.S. residents. But they are likely to be settled on an important-but-dry basis, such as standing to sue.

The court will consider how drug-sniffing dogs are used, including a case out of Florida’s Dade County that tests whether a dog sniffing from the front porch amounts to an unconstitutional search of the house.

In a potentially lively environmental case from the West Coast, the court will consider the regulation of stormwater runoff from forest roads.

Clement will be making one of the highest-profile arguments, if the court agrees – as most expect – to hear the challenge to the Defense of Marriage Act. A provision of the 1996 law prohibits same-sex couples from obtaining a host of federal economic and other benefits.

Separately, the court could choose to consider California’s Proposition 8, which declared that “only marriage between a man and a woman is valid or recognized in California.” The Proposition 8 challenge is iffier as a Supreme Court case, because there’s no conflict with other states.

Email:; Twitter: @MichaelDoyle10

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