Two branches of the federal government – the legislative and executive – have long since checked out and are now working full time to try to save their jobs for the next month or so. But the remaining branch, The Supreme Court, is heading back to work this week, hopefully oblivious to the noise on the election radar. (In theory, at least.) They’ve got a very busy schedule ahead of them, and this summary from Adam Liptak provides some background information on the highlights and lowlights to come. Here are a few that will doubtless provide a ton of controversy and outrage when the decisions finally come down.
Fisher v. University of Texas has the potential, though not the certainty, to mark a drastic change to the policy of race based quotas in college admissions. Ms. Fisher is challenging a system in Texas which left her behind when attempting to gain entry to the state university. But had she not been white, according to the complaint, she would have gotten in. The Supremes might deliver a fairly narrow decision which either upholds the current system for that one state or makes slight modifications to create a more level playing field. But they could also swing for the fences and strike down the entire idea of acceptance based on profiles rather than academic achievement in high school.
Same Sex Marriage
The justices will also decide whether or not to hear two cases affecting the gay marriage debate. One of them is a challenge to portions of DOMA which forbid the granting of certain benefits to partners in same sex marriages. The other, Hollingsworth v Perry, deals with Prop 8 in California and seeks a decision rendering the entire question of the states defining marriage in this fashion unconstitutional. Some of the close observers of the courts I’ve been reading seem to think that they will pass on the latter case, but may well take up the challenge to DOMA, setting the stage for a real firestorm on the political backfield.
International Boundaries of Law
Finally, in one of the very first cases to be considered in this term, the court will look at Kiobel v. Royal Dutch Petroleum. Here’s a brief synapses … or synopsis if you prefer…. (ed)
Kiobel v. Royal Dutch Petroleum Co. is a lawsuit brought against Royal Dutch Petroleum Co., Shell Transport & Trading Co., Plc, and its wholly owned subsidiary Shell Petroleum Development Company of Nigeria Ltd (SPDC). The suit was brought on behalf of the late Dr. Barinem Kiobel – an outspoken Ogoni leader and eleven other Nigerians from the Ogoni area of the Niger Delta. The putative class action sought damages and other relief for crimes against humanity, including torture and extrajudicial executions, and other international law violations committed with defendants’ assistance and complicity between 1992 and 1995 against the Ogoni people.
The real impact of this case is not the fate of the Ogoni people, as tragic as the story appears. We’ll be watching this one to determine if the Supreme Court feels that it is within the bounds of their authority to pass judgement on behalf of people who are not American citizens, living on another continent, against actions which also took place off our shores. Action in this case could open to the doors to a slew of similar actions which could occupy the court’s time for decades to come.
But as Liptak notes, people will be watching other things than just the outcome of specific cases. They’ll be looking for secret signals regarding the disposition of Chief Justice John Roberts after that little… “incident” earlier this year.
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.
I think he may be reading a tad too much into this. I would hope that each and every case is unique and gets its own hearing before the justices. Looking for patterns and pigeonholes doesn’t seem to be particularly predictive in terms of what will happen over the course of the next decades while Roberts rules the court.