DC at Night

DC at Night

Monday, October 1, 2012

A Supreme Preview

Last year, the Supreme Court had what could be termed a blockbuster year, ruling on the Obama health-care law and controversial immigration restrictions. But according to UCLA Professor of Law Adam Winkler, who has served as an attorney for such noted figures as Michael Jordan and O.J. Simpson, this year's docket could rival last year's in high stakes cases.

The court is definitely scheduled to decide a Civil Rights affirmative action case which asks if special accommodations and protections for minorities have reached their limit. The 9 justices are also expected to be asked to decide on same-sex marriage issues and voter ID laws.

With Winkler as moderator, a panel of 5 high-profile attorneys discussed the court's new term which began as part of an annual Supreme Court preview program sponsored by the American Constitution Society for Law and Policy. The panel included:
  • Lisa Blatt, who holds the record for a female with 30 cases argued before the Supreme Court
  • Elise Boddie, acting director of litigation for the NAACP Legal Defense and Educational Fund
  • Thomas Goldstein, the founder of  SCOTUSblog who has argued 23 cases before the court
  • Ilya Shapiro, legal commentator and editor-in-chief of Cato Supreme Court Review
  • Kenji Yoshino, New York University law professor and a specialist in anti-discrimination law
Legal scholars agree that the most important case currently scheduled is Fisher v. University of Texas. The case, brought by white undergraduate Abigail Fisher in 2008, asks that the court either declare the admissions policy of the University of Texas inconsistent with, or entirely overrule Grutter v. Bollinger,  a 2003 case in which the Supreme Court ruled that race could play a limited role in the admissions policies of universities. An overruling of Grutter could end affirmative action at American universities.

"We do have a view that the University of Texas is right," Boddie said. "Numbers matter to alleviate the sense of tokenism and racial isolation. Will the doors close to racial minorities?"

Yoshino said that while no same-sex cases are yet on the docket, such cases could be argued this term. "In 32 states, traditional defense of  marriage has prevailed. The question is which sexual orientation will get heightened scrutiny. Sooner or later, the Supreme Court will have to grant reviews of same sex cases," he said.

Many cases seek to guarantee federal benefits for legally married same-sex couples. A provision of the 1996 Defense of Marriage Act deprives same-sex couples of a range of federal benefits available to heterosexual couples. Several cases seek to guarantee federal benefits for legally married same-sex couples. Several federal courts have agreed that the provision of the law is unconstitutional, a situation that practically ensures that the high court will step in.

A separate appeal asks the justices to sustain California's Proposition 8, the amendment to the state constitution that outlawed gay marriage in the nations largest state. Federal courts in California have struck down the amendment.  The court itself has largely been absent as an issue on the campaign trail. But the justices could become enmeshed in election disputes, even before the ballots are counted. Suits in Ohio over early voting and provisional ballots appear the most likely to find their way to the justices before the Nov. 6 election.

Although there are no groundbreaking Miranda warning type cases scheduled for this session, Goldstein said 1 of the more interesting criminal cases the Court will hear involves drug-sniffing dogs. "It's the doggie Mensa case," Goldstein said. "It asks what does it take to be a drug-sniffing dog? Fittingly, the case is scheduled for Halloween."

Goldstein prompted much laughter from the standing-roon only crowd at the National Press Club as he described the reasoning in one pending case by saying "the flaw in that analysis is that it's crazy" and another as "pathologically insane."

Tales, Tidbits, and Tips
Although many legal commentators were shocked when Chief Justice John Roberts joined the courts liberals in sustaining the health care law, drawing liberals' praise and conservatives' anger, the panel agreed that lone decision did not represent any major shift in the Chief Justice's conservative leanings. This term's big cases seem likely to have Roberts in his more accustomed role of voting with his fellow conservatives and leave Justice Anthony Kennedy with his typically decisive vote in cases that otherwise split the court's liberals and conservatives. However, Roberts will be watched closely for additional signs that he is becoming less ideologically predictable.

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