- 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.

“The modern Supreme Court has been more sympathetic to claims of property rights,” noted SCOTUSblog’s Mr. Goldstein. The property in question, a state-owned forest, has experienced flood damage on more than 23,000 acres over the past six years.

On the labor front, the court may take up a case involving whether mandatory union membership for health care workers who are paid under a Medicaid-waiver program in Illinois violates the workers’ First Amendment rights.

Occasionally, certain issues come up multiple times in a term, Mr. Goldstein said. This year, he has traced a series of cases that involve legal standing in lawsuits.

“The issue that is present in more cases than any other is, when can you bring a lawsuit, when do you have standing, when is a lawsuit moot,” Mr. Goldstein said. “That’s the one question that seems to cut through a lot of different cases.”

Although the high court usually hears about 80 cases over the course of a term, Mr. Goldstein said, the justices are on track to decide about 70 this term.

Late additions?

Some of the most important cases this term aren’t officially on the docket, including the hot-button issue of gay marriage and the constitutionality of the federal Defense of Marriage Act (DOMA). Congressional Republicans are helping defend the law after the Obama administration announced that it no longer would defend the law’s constitutionality in court.

“It’s virtually certain that one or more of the [DOMA] cases will be granted, presenting what is arguably the most far-reaching issue of the term,” said Irv Gornstein, Supreme Court Institute executive director, noting that about 1,000 federal statutes are affected by the federal law’s definition of marriage as only between one man and one woman.

While Massachusetts v. HHS deals directly with the Defense of Marriage Act and is largely expected to come before the court this term, the case dealing with the constitutionality of California’s Proposition 8 blocking gay marriage in the state is uncertain, Mr. Goldstein said.

The Supreme Court also is expected to choose from several cases dealing with the constitutionality of Section 5 of the 1965 Voting Rights Act. This statute bars certain “covered jurisdictions” — primarily in the South — from changing voting procedures until the Justice Department or a three-judge court in the District of Columbia ensures that those changes don’t endanger racial minorities’ right to vote.

Many of the affected jurisdictions argue that the restrictions, adopted in the early days of the civil rights movement and the fight for racial integration, are no longer needed.

Copyright © 2018 The Washington Times, LLC. Click here for reprint permission.

The Washington Times Comment Policy

The Washington Times welcomes your comments on Spot.im, our third-party provider. Please read our Comment Policy before commenting.


Click to Read More and View Comments

Click to Hide