Supreme Court Faces Affirmative Action and Gay Marriage

WASHINGTON, Sept. 28, 2012 -- For anyone fearing that this Supreme Court term might lack the drama of the last one: fear not.

On Monday, for the first time since delivering the explosive health care decision last spring, the justices will take the bench and officially begin a new term. On the docket is a major case regarding affirmative action to be argued in early October, and later in the fall the justices could also vote to hear cases on gay marriage and voting rights.

The justices have had the summer to recover from the grueling schedule of last spring, and the biting dissent from four of the conservative justices aimed at Chief Justice John Roberts, who voted to uphold the health care law as a tax the government has a constitutional power to levy.

Justices Antonin Scalia, Anthony Kennedy, Samuel Alito and Clarence Thomas did not mince their words, writing that the majority's decision "amounts to vast judicial overreaching."

Over the summer, Scalia and Thomas refuted suggestions that their jurisprudential disagreements would lead to any personal rifts on the court.

"There are legal clashes on legal questions, but not personally," Scalia told CNN. "The press likes to paint us as, you know, nine scorpions in a bottle we're all in. That's just not the case at all."

During a talk at the National Archives, Thomas spoke more generally about the court and praised his colleagues. "I've been there now through a number of members of the court," he said, "and in the years I have been there I honestly come away thinking that every member really wants to make it work."

Here is a look at some of the issues they could decide this term:

Affirmative Action:

On Oct. 10, the court will take on an affirmative action case that could curtail or further restrict race-conscious admission policies at public universities.

It was only in 2003 that the Supreme Court heard a similar case. Justice Sandra Day O'Connor authored the 5-4 decision, known as Grutter, that narrowly upheld the limited use of race as a factor in law school admissions to increase diversity. But O'Connor has since been replaced by Justice Samuel Alito, who is more skeptical of racial classifications and preferences.

Now, in Fisher v. University of Texas, a white student named Abigail Fisher is suing the University of Texas challenging the constitutionality of the school's use of race in undergraduate admissions decisions.

In 1997, the Texas legislature passed the "Top 10 Percent Law," which mandates that Texas high school seniors in the top 10 percent of their classes be automatically admitted to any Texas state university. After the Grutter decision came down, the university added another policy to its admissions program, allowing schools to consider race along with several other factors for admission. Fisher did not have high enough grades to qualify for automatic admission, so she had to compete with other applicants, some of whom were entitled to preference on the basis of race. She was denied admission.

In court papers, her lawyers say in part that that the "Top 10 Percent Law" produced a race-neutral policy that made the University of Texas one of the most diverse public universities in the nation, and that the university should not have combined that policy with one that considers race.

Lawyers for the University of Texas counter that race is only one modest factor among many others that are weighed during the admissions process.

"UT, like many of the Nation's top universities, seeks to assemble a class that is diverse in the innumerable ways -- including race -- that advance its mission of educating students and preparing them to be the leaders of tomorrow," they argue in briefs filed with the court.

Justice Elena Kagan is recused, having dealt with the case in her previous job as Solicitor General.

Gay Marriage

Later in the term the Court will consider two cases dealing with gay marriage. One concerns the Defense of Marriage Act (DOMA), a federal law that defines marriage as between a man and a woman. The second concerns Proposition 8, the controversial California ballot initiative that defined marriage as being between a man and a woman.

Defense of Marriage: There are several parties challenging DOMA. The cases do not concern whether there is a fundamental right to gay marriage, as most of the couples involved are already legally married in their states. Instead, at issue is whether legally married same-sex couples can be denied federal benefits -- such as Social Security survivor benefits and federal health care -- available to opposite-sex married couples.

In 2011 the Obama administration decided it would no longer defend DOMA in court, arguing that it was unconstitutional. In response, Republican Speaker John Boehner moved to intervene and appointed the U.S House of Representatives Bipartisan Legal Advisory Group (BLAG) to do the job. Paul D. Clement, who argued against President Obama's health care law last term, is the lead counsel for BLAG.

Prop 8 Challenge: Separately, supporters of Prop 8 -- who are opposed to gay marriage -- are asking the court to reverse a federal appeals court ruling last February that struck down the ballot initiative on narrow grounds.

If the Supreme Court "denies cert" or declines to take up the Prop 8 case, gay marriages in California would almost immediately be allowed to go forward.

It is almost certain that the Court will take up one of the DOMA challenges, not only because one appeals court has struck down an act of Congress, but also because of the extraordinary circumstances. It is rare for an administration to decide not defend a law that it is also obliged to enforce.

Some legal experts believe the court may be less likely to take up the Prop 8 case because the lower court's decision was narrowly drawn around facts specific to California.

Voting Rights

The court could also take on a case dealing with a key provision of the Voting Rights Act of 1965. The disputed portion, called Section 5, says that certain states with a history of voter discrimination must clear any change to their election laws with federal officials in Washington.

There are nine states covered by the law, mostly in the South, and parts of seven more.

Lawyers for Shelby County, Alabama have filed one challenge arguing that "things have changed in the South" and Congress was wrong in 2006 to extend Section 5 for 25 more years. They say they are being unfairly blocked from passing some laws similar to those in other states not covered by the law.

Should the justices vote to take up the case and reexamine the Voting Rights Act, they would most likely do so after the election.

Liability for Human Rights Violations

The first argument the court hears on Monday morning concerns a case keenly watched by human rights groups, and corporations with subsidiaries abroad.

Last term the court heard arguments in Kiobel v. Royal Dutch Petroleum on the question of whether corporations could be held liable in U.S. courts for human rights violations allegedly committed abroad.

The case was brought by 12 Nigerian plaintiffs against a subsidiary of Shell Oil. The Nigerians are seeking to sue Shell for allegedly aiding and abetting human rights violations in Nigeria between 1992 and 1995.

But after arguments, the court took the unusual step of ordering re-arguments and adding an additional question: Whether a federal law called the Alien Tort Statute allows U.S. courts to hear cases of alleged human rights violations that occurred abroad.

Electronic Surveillance

Several human rights groups want to challenge the constitutionality of a 2008 federal statute that expanded the authority of federal officials to conduct secret electronic surveillance of foreign citizens who are in other countries.

The groups say their work requires them to engage in sensitive telephone and email communications with people outside the U.S. and they fear that their communications will be monitored. They say that they have had to take costly precautions to change the way they communicate with those who might be under government surveillance.

The federal government has responded that the human rights groups to do not have the "standing," or legal right, to bring the case. The government says that the 2008 amendments to the Foreign Intelligence Surveillance Act do not allow the groups to be targeted by the government, and that the groups can't come to court and speculate about the possibility of some potential future injury. In court briefs, Solicitor General Donald B. Verrilli says the groups have not established that communications involving them have been or will ever be "incidentally collected."

Dog Sniff Case

Someday the court will be asked about the privacy implications of high-tech law enforcement surveillance. Not in this case. Instead, the justices will consider whether the sniff of a police dog on the front porch of a person's home constitutes a search and requires a warrant.

In December 2006, a Miami-Dade police detective brought Franky, a trained drug detection dog, to a suspected drug house. As the dog approached the door of the house, he began alerting his handler to the presence of drugs. Another detective knocked on the front door and smelled the scent of marijuana. The owner of the home, Joelis Jardines, was eventually arrested and charged with trafficking marijuana.

In court, Jardines moved to suppress the evidence seized, arguing that the dog sniff outside his house constituted an unreasonable search under the Fourth Amendment. While it is settled law that a dog sniff in a public place -- an airport or the street, for instance -- would not require a warrant, this case has to do with the proximity of the dog to Jardines' home.

Lawyers for Jardines say there is a greater expectation of privacy when it comes to the home and that "the use of a narcotics detection dog at the front door of a home reveals details inside a home" and constitutes a Fourth Amendment search.