Supreme Court Faces Crucial Cases in New Session

[General Mung Beans]

http://www.nytimes.com/2012/09/30/us/su ... d=all&_r=0

Supreme Court Faces Crucial Rulings in Coming Term
By ADAM LIPTAK
Published: September 29, 2012

WASHINGTON — The Supreme Court returns to the bench on Monday to confront not only a docket studded with momentous issues but also a new dynamic among the justices.

The coming term will probably include major decisions on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily rival the last term’s as the most consequential in recent memory.

The theme this term is the nature of equality, and it will play out over issues that have bedeviled the nation for decades. “Last term will be remembered for one case,” said Kannon K. Shanmugam, a lawyer with Williams & Connolly. “This term will be remembered for several.”

The term will also provide signals about the repercussions of Chief Justice John G. Roberts Jr.’s surprise decision in June to join the court’s four more liberal members and supply the decisive fifth vote in the landmark decision to uphold President Obama’s health care law. Every decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court.

“The salient question is: Is it a little bit, or is it a lot?” said Paul D. Clement, a lawyer for the 26 states on the losing side of the core of the health care decision.

The term could clarify whether the health care ruling will come to be seen as the case that helped Chief Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.

It is also possible that the chief justice will become yet another disappointment to conservatives, who are used to them from the Supreme Court, and that he will join Justice Anthony M. Kennedy as a swing vote at the court’s center. There is already some early evidence of this trend: in each of the last three terms, only Chief Justice Roberts and Justice Kennedy were in the majority more than 90 percent of the time.

“We all start with the conventional wisdom that Justice Kennedy is going to decide the close cases,” said Mr. Clement, who served as United States solicitor general under President George W. Bush. “We’ve all been reminded that that’s not always the case.”

The texture of the new term will be different, as the court’s attention shifts from federalism and the economy to questions involving race and sexual orientation. The new issues before the court are concrete and consequential: Who gets to go to college? To get married? To vote?

On Oct. 10, the court will hear Fisher v. University of Texas, No. 11-345, a major challenge to affirmative action in higher education. The case was brought by Abigail Fisher, a white woman who says she was denied admission to the University of Texas based on her race. The university selects part of its class by taking race into account, as one factor among many, in an effort to ensure educational diversity.

Just nine years ago, the Supreme Court endorsed that approach in a 5-to-4 vote. The majority opinion in the case, Grutter v. Bollinger, was written by Justice Sandra Day O’Connor, who said she expected it to last for a quarter of a century.

But Justice O’Connor retired in 2006. She was succeeded by Justice Samuel A. Alito Jr., who was appointed by Mr. Bush and who has consistently voted to limit race-conscious decision making by the government. Chief Justice Roberts, another Bush appointee, has made no secret of his distaste for what he has called “a sordid business, this divvying us up by race.”

Justices Kennedy, Antonin Scalia and Clarence Thomas all dissented in the Grutter case, and simple math suggests that there may now be five votes to limit or overturn it.

The reach of such a decision could be limited by the idiosyncrasies of the admissions system in Texas. The university provides automatic admission to students in Texas who graduate in roughly the top 10 percent of their high school classes. That approach generates substantial diversity, partly because many Texas high schools remain racially homogeneous.

Ms. Fisher narrowly missed the cutoff at a high school whose students have above-average test scores for the state. She was rejected for one of the remaining spots under the part of the admissions program that considers applicants’ race.

The court may uphold the Texas system under Grutter, or it may rule against it on narrow grounds by saying, for instance, that race-conscious admissions are forbidden where a race-neutral method — like the 10 percent program — can be said to be working.

But the court may also follow the health care ruling with a second landmark decision, this one barring racial preferences in admissions decisions altogether. Given persistent achievement gaps, even after controlling for family income, such a ruling would make the student bodies of many colleges less black and Hispanic and more white and Asian.

The court will probably also take on same-sex marriage. “I think it’s most likely that we will have that issue before the court toward the end of the current term,” Justice Ruth Bader Ginsburg said at the University of Colorado on Sept. 19.

She was referring to challenges to an aspect of the federal Defense of Marriage Act, which bars the federal government from providing benefits to same-sex couples married in states that allow such unions. The federal appeals court in Boston struck down that part of the law, and both sides have urged the court to hear the case. More than 1,000 federal laws deny tax breaks, medical coverage and burial services, among other benefits, to spouses in same-sex marriages.

The justices will also soon decide whether to hear a more ambitious marriage case filed in California by Theodore B. Olson and David Boies. It seeks to establish a federal constitutional right to same-sex marriage.

Chief Justice Roberts has not yet voted in a major gay rights case. Justice Kennedy wrote the majority opinions in both Lawrence v. Texas, a 2003 decision that struck down a Texas law making gay sex a crime, and Romer v. Evans, a 1996 decision that struck down a Colorado constitutional amendment that banned the passage of laws protecting gay men and lesbians. Most observers see him as the decisive vote in same-sex marriage cases.

The justices are also quite likely to take another look at the constitutionality of a signature legacy of the civil rights era, the Voting Rights Act of 1965. In 2009, the court signaled that it had reservations about the part of the law that requires the federal review of changes in election procedures in parts of the country with a history of discrimination, mostly the South.

“We are now a very different nation” than the one that first enacted the Voting Rights Act, Chief Justice Roberts wrote for himself and seven other justices. “Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today.”

The chief justice seemed to invite Congress to revise the law, but lawmakers have taken no action.

Challenges to the law have arisen in several lawsuits in the current election season, including ones concerning redistricting and voter identification requirements.

“It will be interesting to see if the justices worry half as much about the emerging restrictions on voting as they worried about restrictions on political spending,” said Pamela S. Karlan, a law professor at Stanford.

On Monday, the new term will start with a case of great interest to business groups, Kiobel v. Royal Dutch Petroleum, No. 10-1491. The case was brought by 12 Nigerian plaintiffs who said the defendants, foreign oil companies, had been complicit in human rights violations committed against them by the Abacha dictatorship in Nigeria. The question in the case is whether American courts have jurisdiction over such suits, and business groups are hoping the answer is no.

In the last term, business groups achieved a series of victories, often by lopsided majorities. In cases with an individual on one side and business interests on the other, the court ruled for the business side 12 out of 14 times, according to calculations by Lauren R. Goldman, a lawyer with the firm Mayer Brown. In the two previous terms, the number of business cases was comparable, but individuals won at least half of the time.

Introducing himself to the nation at his confirmation hearings in 2005, Chief Justice Roberts said that “judges are like umpires” in that they do not make the rules but merely apply them.

“Nobody ever went to a ballgame to see the umpire,” he said.

But the calls Chief Justice Roberts made in the health care case were surprising enough that it will be hard to look away. He voted with the court’s conservatives to say that the law was not authorized by Congress’s power to regulate interstate commerce and then joined the court’s liberals to say it was authorized by Congress’s power to levy taxes. No other justice joined every part of his controlling opinion.

Charles Fried, who served as solicitor general in the Reagan administration and filed a brief in support of the law, said the reasoning in the health care decision was mystifying enough to foreclose predictions about the future of the Roberts court.

“This is a court that under Chief Justice Roberts called a ball a strike, a strike a ball, but got the batter to base where he belonged,” said Professor Fried, who teaches at Harvard Law School. “So who knows what to expect.”

Any predictions on how the cases will go?

[Instant Sunrise]

Prop 8 will get tossed out most likely, it's so specific to California law and the 9th's ruling was on such narrow procedural grounds that they most likely won't bother.

The DOMA cases will probably get lumped together and if Prop 8 doesn't get tossed out, it'll get lumped in with that as well. Most likely the court will rule in favor of marriage equality. But we'll see.

And we'll find out about Prop 8 tomorrow.

[Flagg]

What makes you think marriage equality will win out?

[General Mung Beans]

What makes you think marriage equality will win out?

Kennedy's record on gay rights plus the tentative signs of Roberts's moderation.

[Flagg]

Good to hear. I certainly hope it goes through.

[Alyrium Denryle]

What makes you think marriage equality will win out?

Kennedy's record on gay rights plus the tentative signs of Roberts's moderation.

There is more than that, actually. The supreme court has ruled on similar issues twice.

The first is Loving V. Virginia (a Unanimous decision), the ruling that established marriage as a fundamental right. Even if homosexuals are not a protected class that warrants strict scrutiny, as a fundamental right any restriction of marriage must survive aforementioned strict scrutiny. This sets the bar for denying or restricting marriage--the most important relationship in someone's life with the possible exception of parent and child--very high.

Romer v. Evans is the other (6-3. In the current court, Scalia and the Homunculus dissented). It ruled that a constitutional amendment passed in the state of Colorado that denied homosexuals any legal protection was unconstitutional, because it did not even pass Rational Basis scrutiny, let alone Heightened or Strict. In Justice Kennedy's decision:

"the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint."

The only way for the Supreme Court to say that DOMA or Prop 8 are legal, is to, in effect, overturn one or both of these decisions. Doing so would in actuality invalidate the entire 14th amendment, as it would make it legal for states to deny Fundamental Rights to classes of citizens, or to restrict legal protections on the basis of animus toward classes of people.

Sure, there are at least two people on the court who will vote that way--Scalia and Thomas. The rest? I dont think the Bush Appointees will go that far. Roberts for example may be conservative, but unlike Scalia and Thomas, actually uses legal reasoning.

[Instant Sunrise]

And the circuit court justices who've been ruling against DOMA? Almost all of them are George W. Bush appointees.

[Haruko]

Loving V. Virginia is my favorite. Turns out difference in melanin between partners is not sufficient reason to deny licenses.

Also, I have been getting the impression that Roberts wants to appear more moderate now.

Looking forward to hearing more about affirmative action. Ever since that reverse racism movement shot up its future has been looking tentative.

[Alyrium Denryle]

Loving V. Virginia is my favorite. Turns out difference in melanin between partners is not sufficient reason to deny licenses.

Also, I have been getting the impression that Roberts wants to appear more moderate now.

Looking forward to hearing more about affirmative action. Ever since that reverse racism movement shot up its future has been looking tentative.

Well, with the affirmative action thing, there is at least legal reasoning that makes sense to be applied to restrict it. Race is a class that falls under Strict Scrutiny. So, there has to be a really really good reason for state agencies to discriminate on its basis and whatever they do must be narrowly tailored so as to minimize the impact. Race includes white people. So affirmative action as it is right now may violate the 14th amendment (or at least, the argument can be made without it necessarily entailing that the person making it is a racist twat).

There are, of course, other ways of achieving the same goal. If it is cryptoracism you want to deal with (for example, having an "african american name" makes someone less likely to get a job than someone with a "white name" even if the person doing the evaluating is scores low on various indices of racial prejudice), the law can mandate that college applications be blind to race. Send in the forms, a computer program kicks out a number, the modified form gets printed and sent to admissions, the decisions get matched to the number in the computer etc.

Achievement gaps have more to do with our educational system, how it is funded, geography, and poverty than they do with race per se. Some application-weighting can be done on that basis. For example, a slight preference can be afforded to an applicant coming from an under-performing school. Discrimination on this basis only has to meet rational basis scrutiny, which it handily does.

[Haruko]

Achievement gaps have more to do with our educational system, how it is funded, geography, and poverty than they do with race per se. Some application-weighting can be done on that basis. For example, a slight preference can be afforded to an applicant coming from an under-performing school. Discrimination on this basis only has to meet rational basis scrutiny, which it handily does.

Relatedly, there is the issue of something called legacy admits, or the preferential treatment of children of alumni. According to historian Rodolfo Acuna,

The debate over preferential treatment of minorities continues even today. For many, the use of race as a criterion is a bogus argument, so the controversy will remain. On the other hand, Chicanos point out that other groups, such as veterans, the children of alumni, the children of donors to the university, or those over 65 years of age, receive preferential treatment. Today society has ramps for the handicapped, which some people would call preferential treatment. According to Alex Liebman, for Princeton's class of 2001 the overall acceptance rate was 13 percent; the statistic for "legacy admits" (children of alumni) was 41 percent; and that for minorities (which includes Asians) was 26 percent. The assumption was that Latinos and African Americans were not qualified and that the legacy admits were qualified, which was not always the case. At Harvard University during the 1990s, the children of alumni were almost four times more likely to be accepted than other prospective students. Harvard University admitted about 40 percent of its entering class using the criterion that the student was the son or daughter of an alumnus or donor. In the same period, 66 percent of children-of-alumni applicants were accepted by the University of Pennsylvania whereas the overall acceptance percentage was 11. Admissions officers saved 25 percent of Notre Dame's first-year class openings for the children of alumni. The preferential treatment given to legacy admits highlights the hypocrisy and racial bias of those who challenged affirmative action.

p. 269 of Occupied America: A History of Chicanos, 7e Pearson Custom Library. San Bernardino Valley College. History 140. 2012.

[Instant Sunrise]

Welp, neither prop 8 or DOMA were on the list of cases the court will not consider today. The full list of cases is due to be released next Monday, or else they might be waiting until after the election.

[Pint0 Xtreme]

Welp, neither prop 8 or DOMA were on the list of cases the court will not consider today. The full list of cases is due to be released next Monday, or else they might be waiting until after the election.

AFER's email today suggests that they won't be expecting any calls on the Prop 8 case at least until after Thanksgiving.

[Darth Yan]

i just hope that retarded bill is struck down.