Oyez! Supreme Court Preview

The Supreme Court kicked off the October Term yesterday – the first Monday of October.  Here’s a quick roundup of the big issues up before the Court.

Affirmative action:The court will revisit its 2003 ruling (Grutter v. Bollinger) which upheld certain affirmative-action programs at universities.  In the new case, Fisher v. University of Texas, the Court will consider a white student’s challenge to the admissions policy at the UT Austin which allows race to trump other merit-based factors.  As our own John Yoo recently advocated, the Court should overturn Grutter as a “blemish” on our constitutional law.

Gay Marriage: It’s considered likely that the Court will address gay marriage, although the Justices have not made an announcement yet.  Actually, there are two distinct issues: (1) can Congress define “marriage” for federal law purposes; and (2) can states define marriage as the union of one man and one woman?  The first issue relates to the Defense of Marriage Act (DOMA). There is at least a decent Tenth Amendment argument that DOMA is unconstitutional. If the federal government wants to make certain benefits contingent on being married, so be it, but the feds have to defer to the states to supply the definition of marriage.   Issue (2), which relates to California Prop 8, presents a much greater threat to our constitutional order.  The liberal argument is that the Constitution requires state recognition of same-sex marriage and, therefore, divests states of their historic power over the definition of marriage.  According to the liberal spin, as the Washington Post’s Robert Barnes reports in typically unbiased fashion, the question is “whether society’s growing acceptance of same-sex unions warrants constitutional protection.”  I guess society’s “growing acceptance” is somehow reflected by the 37 states have passed laws defining marriage as limited to a union between one man and one woman.  As I have said before, the liberal argument here is pure judicial activism.

ObamaCare, Part II?  There is at least a possibility that the Affordable Care Act will come back to the Court this term.  The Court is considering a petition by Liberty University to reconsider the University’s challenge to ACA’semployermandate on religious freedom grounds but also as exceeding Congress’s power.  Although the Court often summarily rejects such petitions, it has kept this one under advisement all summer, and now has asked the Obama administration to respond – raising the likelihood that the Court will agree to revisit this law.

Takings.  The case is Arkansas Game and Fish Comm. v. United States.  I described this in an earlier post: the issue is whether government regulations that impose recurring flood invasions constitute a “taking” within the meaning of the Takings Clause, even if the flooding isn’t permanent.

Voting rights.Overlapping with the recent Voter ID controversies are a series of cases challenging Section 5 of the civil rights act, which requires states and localities with a history of discrimination to get federal approval of any changes in their voting laws. The Supreme Court, in a 2009 ruling expressed concern about “serious constitutional questions raised by Section 5’s intrusion on state sovereignty.”  Clearly this is the case for state and local elections.  But even for federal elections, the Constitution gives states the power to define “the times, places, and manner” of choosing congressmen.  Granted Congress has the power to amend such regulations, but that’s very different from forcing states to ask Congress’s permission before changing their voting laws.

Alien Torts.  On Monday, the Court heard argument on the scope of the Alien Tort Statute (ATS), a venerable 1798 law that allows aliens to bring lawsuits in federal court for violations “of the law of nations or a treaty of the United States.”  As far as we know it was enacted to cover very minor gaps in the law, like the assault of a diplomat in the US, or piracy committed by Americans in international waters.  The law was virtually unused until the 1980s when it was revived as a nifty way to use American courts to pursue alleged human rights abusers.  In the new frontier, the international rights bar is arguing that the ATS gives courts jurisdiction over suits that have no connection to the US; that is, cases in which foreign plaintiffs sue foreign defendants over conduct that occurred outside of the US. The case is Kiobel v. Royal Dutch Petroleum, recently discussed on Law Talk.  In Monday’s argument, the Justices showed skepticism of the expansion of the ATS and their questions sought some principle to limit ATS.  Justice Sotomayor seemed inclined to endorse an interpretation put forth by the European Union in an amicus brief.  Fair enough: why shouldn’t the EU guide us on the proper interpretation of a 223 American law?

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