- The Washington Times - Thursday, September 27, 2012

It would be hard to top the historic significance of the term that just ended, but Supreme Court watchers say the justices will confront some momentous questions once again when their next term officially begins Monday.

Among the cases confirmed on the docket: a closely watched test of racial preferences in college admissions, whether a single sniff by a police dog constitutes a “home search” and a major business case testing whether corporations can be penalized in U.S. courts for human rights violations committed abroad.

After tackling immigration and the constitutionality of President Obama’s health care law in the final days of its past term, the high court also is likely to take up the charged issues of gay marriage and voter rights before adjourning next summer, legal analysts say.

“If we weren’t just coming off of health care, we’d be calling this the term of the decade,” Tom Goldstein, veteran Supreme Court lawyer and co-founder of SCOTUSblog, said in a telephone interview. While the cases the court has agreed to hear are impressive, the lineup in time could rate as one of the court’s most significant legally and politically.

Arguably the most controversial case on the docket deals with affirmative action in college-admissions programs, in the case of Fisher v. University of Texas at Austin, brought by a rejected white applicant to the Texas school who says she was a victim of racial discrimination. The court last took up the question of such preferences in college admissions nine years ago, and both sides say the more conservative court could use the case this year to rewrite the principles for admission at selective colleges and universities across the country.

In the arguments set for Oct. 10, the court will decide whether considering race in school admissions violates equal protection.

“There’s really no question that [these] Supreme Court justices are the most conservative in our lifetime,” Louis Michael Seidman, constitutional law professor at Georgetown University Law Center, said at a recent news briefing hosted by the Supreme Court Institute. “There is a question as to what kind of conservatives they are. Are they the kind of conservatives who want to tear up everything and start over again or conserve where we are, but not extend where we are? This case really poses that question.”

Business caseload

The court will hear a number of cases that affect the business community. The first oral argument, Kiobel v. Royal Dutch Petroleum scheduled for Monday, will explore whether victims of human rights violations abroad can file suit in U.S. courts under the 1789 Alien Tort Statute.

This statute was barely invoked until about 1980, when a number of lawyers began suing U.S. corporations for “aiding and abetting” human rights violations in countries where they invest or operate, said George W. Bush administration Solicitor General Paul Clement, speaking at a Heritage Foundation preview of the Supreme Court term this week.

The court also will hear cases dealing with criminal procedure. Bailey v. United States challenges whether police officers may detain people who are not at home while their homes are being searched. Two other cases deal with drug-sniffing dogs, asking whether an “alert” from a drug-sniffing dog establishes probable cause for law enforcement action, and whether a police dog sniffing outside a home constitutes a “search” under the Fourth Amendment.

David Cole, American law professor at Georgetown University Law Center, said the cases highlight a “real conflict between two really bright-line rules.”

“One, the court has always tried to protect the sanctity of the home, and the other is that they’ve said that you have no privacy interest in contraband,” he said during the Supreme Court Institute panel discussion. “Those come into sharp conflict in this case, and I think it’s difficult to predict how it will come out.”

In a case with implications for the war on terrorism, the court will weigh the constitutionality of the Foreign Intelligence Surveillance Act in the case of Clapper v. Amnesty International.

A particular concern of conservative legal scholars — property rights — will be covered in the case of Arkansas Game & Fish Commission v. United States. The question before the Supreme Court is whether the U.S. Army Corps of Engineers’ periodic flooding of a property constitutes a government “taking” in violation of Fifth Amendment rights.

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