Court in Session

by: tmess2

Sun Sep 23, 2012 at 12:54:05 PM EDT

The Supreme Court will be back in Washington this week.  When last we heard from the Supreme Court, they were saying that the individual mandate both was and was not a tax, that states could only act on immigration if authorized by the federal government, and that false speech could only be criminalized if it rose to the level of fraud.

This week, the Supreme Court will hold its annual "long conference" on Monday.  At the long conference, the Supreme Court sorts through three months of petitions to decide which cases will be heard in early 2013.  I'll get back to these pending petitions in a second, but first a look at the fall part of the term.

The Supreme Court has issued its argument calendars for the first three sittings (October, November, December) based on the cases on which review was granted last spring.  Out of 17 days of argument (and 34 potential slots), the Surpreme Court only will hear thirty-one cases.  (Three other cases have been accepted, but will not be heard until next year.)

This year, the Supreme Court starts over with a case held over from last year:  Kiobel v. Royal Dutch.  The case involves the Alien Tort Statute (a law permitting suits against foreigners for human rights violation) for Royal Dutch's alleged involvement/complicity in torture and genocide in Nigeria.  Originally, the case was about whether the statute could be applied to corporations.  But the Supreme Court asked for reargument to address a new issue:  what type of actions occurring outside the US were covered by the statute.  Depending on the outcome of the case, US courts will either be more open (or less open) to law suits alleging human rights violations in other countries.

The big pre-election case in October is Fisher v. University of Texas.  It's a little bit surprising that this case was put on the October rather than December calendar.  The Supreme Court prefers not to be the center of attention during an election campaign, but this case will get some comment.  The issue is the formula used to admit undergraduates at the University of Texas.  Prior to the last examination of this issue by the United States Supreme Court in 2003, Texas used a strict formula based on class standing (which gave some minority students automatic admission for being near the top of de facto segregated high schools in urban areas).  After that case, Texas revised its formula.  Approximately 85% of students are admitted based solely on class rank.  The other 15% are admitted based on a more comprehensive examination of the whole applicant in which race is one of several factors considered.  These racial factor cases are always very fact-specific with the Supreme Court drawing very fine lines, but they are also a political hot potato. 

In November, you have two cases from Florida involving the use of drug dogs:  one involving where they can be deployed and one involving whether an alert is enough to permit a search.  In December, the big case may be a sleeper:  Chafin v. Chafin.  This case involves the ability of federal courts to address appeals of decisions under the international treaty on the return of abducted children.  Some courts hold that if the child is returned to the foreign parent, US courts do not have the ability to consider an appeal by the American parent as the child is no longer within US jurisdicition.   If the Supreme Court adopts this position, the only party that could appeal would be a foreign parent who failed in the effort to get the lower courts to compel the return of the child.

However, the bigger focus of attention this fall will almost certainly be on the cases that the Supreme Court might take to fill the spring argument session. 

The big cases on the docket are the gay marriage cases:  Proposition 8, the constitutionality of some parts of DOMA, and the constitutionality of some state versions of DOMA.   As I discussed earlier in the year when the Ninth Circuit ruled, the Ninth Circuit evaded directly addressing whether there is a constitutional right to gay marriage, and the Supreme Court is likely to use that evasion as a reason to avoid taking the Proposition 8 case itself.

You have five cases involving the constitutionality of Section 3 of DOMA currently pending (one on Monday's conference), the other four not yet set for a conference.  Section 3 denies equal benefits to same-sex couples who are legally married.  The Supreme Court may wait until pleadings are complete on all five cases before deciding which of these cases to take, but it will almost certainly take at least one of these cases.  Whichever case it does take, I am expecting a split decision with some of the Justices wanting to strike down DOMA on equal protection (technically Due Process since the Equal Protection Clause does not apply to the federal government), some wanting to strike it down on Federalism grounds (failure to give Full Faith and Credit to the acts of the states), and some wanting to hold that the Constitution permits the government to give a preference to traditional marriage.

There is a related case from Arizona involving Arizona law which gives certain benefits only to married couples while denying same-sex couples the right to marry.  I would not be surprised to have the Supreme Court hold this case while it considers the DOMA issue and then send the case back to the Ninth Circuit to reconsider in light of whatever the Supreme Court says about DOMA.  (The Ninth Circuit sided with the same sex couples.)

Other potential interesting cases. 

1)  The United States Supreme Court is once again being invited to consider the First Amendment in terms of campaign finances.  This time, the issue (in National Organization for Marriage v. McKee) is whether non-profit organizations (mostly but not entirely corporations organized for the sole purpose of issue-advocacy) can be required to comply with campaign finance laws if they advocate for or against ballot issues.

2)  Two cases (Washington Libertarian Party v. Washington Grange and Washington Democratic Party v. Washington Grange) involving the structure of the ballot in the state of Washington.  Washington (like California and Louisiana) uses a jungle primary to narrow the field down to two candidates.   In filing to be in a jungle primary, the candiate gets to identify their political affiliation.  These cases are filed by the political party saying that this self-identification by candidates violates the free speech rights of the political parties (and the rights of association of their members) by preventing the parties from disavowing or vetoing the claims of the candiates to represent the party.  The parties are also claiming that this forced association is a violation of their trademark rights.

Both the NOM case and the two Washington cases are on Monday's conference.  Later this fall, the Supreme Court will also consider whether totake teh following issues:

3)  In a case out of the Ninth Circuit (Arizona v. Inter-Tribal Council), whether Arizona law requiring proof of eligibility to vote at time of registration conflicts with (and thus is preempted) by federal law, specifically the National Voter Registration Act. 

4)  A question involving the collection of DNA in criminal cases (Maryland v. King).  Maryland law allows the taking of DNA from individuals arrested for certain crimes (as well as from people convicted of certain crimes).  The issue before the Supreme Court will be how similar is the taking of DNA (primarily by a swab of the inside of the mouth) to the taking of fingerprints (which can be taken from any arrestee and kept in the national database).  If the Supreme Court sees this swab as substantially more intrusive than fingerprinting, then states will probably be limited to taking DNA after a person has actually been convicted (or is an actually suspect in the specific crime for which DNA is requested).  If the Supreme Court sees this swab as relatively non-intrusive, then the taking of DNA from arrestees would be upheld creating a larger database for comparison to DNA found in the course of criminal investigations (and a greater likelihood of matching that DNA to the person who committed the offense).

5) Challenges by several covered states and counties to the continued constitutionality of Section 5 of the Voting Rights Act (requiring states and local governments subject to the section to pre-clear changes to their election laws and procedures).  The last time that the Supreme Court looked at this issue, it resolved the case on other grounds, but suggested that Congress might want to look at the list and revise it.  Congress, being Congress, has not done anything in response to this suggestion.  From a legal standpoint, if the Supreme Court decides to look at this issue, I would prefer that they include the challenge by Texas.  Given the recent history of Texas (being found to have violated Section 2 in each of the last three Congressional re-districtings), I would want Texas at the table as the prime exhibit of why Congress continues to insist that the covered states prove that they should no longer be covered in court rather than Congress legislatively removing a jurisdiction from the list.

Aside from these cases, there are the typical mix of cases involving interpretations of federal statutes (both in the cases already scheduled and the major cases under consideration), especially several cases involving the rules governing federal habeas review of state convictions.  As always, expect a handful of summary reversals of the Ninth Circuit for trying to write its own rules on habeas cases.