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Law Office Management

Oct. 2, 2012

Blockbuster Cases Ahead for SCOTUS

Cases on the U.S. Supreme Court's upcoming docket look to be as significant as those on last term's.

Erwin Chemerinsky

Dean and Jesse H. Choper Distinguished Professor of Law, UC Berkeley School of Law

Erwin's most recent book is "Closing the Courthouse" (Yale University Press 2017).

This month marks the beginning of the eighth term of the Roberts Court, and it promises to be another year filled with high-profile decisions that have an enormous impact on our legal system and the society it serves. Before the U.S. Supreme Court adjourned in June, it had granted review in 31 cases - less than half of the eventual docket for the October 2012 term. The Court will continue to grant review until mid-January for cases it will decide before the end of the term.

And this will surely be another critical year for the Court: The cases already in the hopper are likely to produce major rulings on affirmative action, criminal procedure, and human rights and civil liberties litigation. What the docket does not include yet is one of the biggest (and most contentious) issues of our time: marriage equality for gays and lesbians. However, that controversy too may soon be added to the list when the Court considers petitions for review in cases from the First and Ninth circuits. In the meantime, here are highlights among the cases in which review already has been granted.

Affirmative Action

The Court has agreed once again to wade into the thicket of race-based admissions policies at the nation's colleges and universities. In Fisher v. University of Texas at Austin (631 F.3d 213 (5th Cir. 2011), cert. granted, 132 S.Ct. 1536 (2012)), the high court will decide whether post-secondary schools can continue to use race as a factor in admissions decisions to favor minorities and enhance diversity. The case involves undergraduate admissions to the University of Texas, which divides applicants into two subgroups. The first group consists of the top 10 percent of in-state high school students, who are automatically admitted to the public university system under state law. The second group consists of the remaining students, who must compete based on their academic and personal achievements, according to policies established by the Texas board of regents. For the latter group, admissions officers are allowed to consider an applicant's race as part of a holistic evaluation process. The Fifth Circuit upheld the Texas program based on the Supreme Court's decision in Grutter v. Bollinger (539 U.S. 306 (2003)). In that case, the Court determined that colleges and universities have a compelling interest in having a diverse student body and may therefore use race as one factor among many in making admissions decisions.

But Grutter was a 5-4 decision; Justice Sandra Day O'Connor, who wrote the majority opinion, was joined by Justices John Paul Stevens, David Souter, Ruth Bader Ginsburg, and Stephen Breyer. Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas dissented. Since then three justices in that majority and Chief Rehnquist have been replaced. Justice Elena Kagan, succeeding Justice Stevens, has recused herself from participating in Fisher. The widespread expectation is that Justice Sonia Sotomayor (who took Souter's seat) and Chief Justice John Roberts (who replaced Rehnquist) will vote the same way as their predecessors.

The big shift likely will come from Justice Samuel Alito, who succeeded Justice O'Connor. Alito has already joined an opinion by Chief Justice Roberts in a school integration case arguing that the Constitution requires color-blindness and rejecting the importance of diversity in education. (Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007).) If Roberts and Alito join dissenters Scalia, Kennedy, and Thomas, one can readily anticipate a decision that will narrow if not overrule Grutter and thereby force dramatic changes in admissions protocols on campuses across the country.

Criminal Procedure

The Court will consider two cases from Florida that involve Fourth Amendment issues posed by the use of drug-sniffing dogs. In one, the justices will consider whether there was probable cause for police to have a dog sniff at the front door of a house where they suspected the inhabitants were growing marijuana. (Florida v. Jardines, 73 So. 3d 34 (Fla. 2011), cert. granted, 132 S.Ct. 995 (2012).) In the other, the issue is whether an alert by a well-trained and certified narcotics-detection dog sufficiently establishes probable cause to search a vehicle. (Florida v. Harris, 71 So. 3d 756 (Fla. 2011), cert. granted, 132 S.Ct. 1796 (2012).)

The Court will also decide a Sixth Amendment question of enormous practical importance: Does Padilla v. Kentucky (130 S.Ct. 1473 (2010)) apply retroactively? In Padilla, the Court ruled that a defense lawyer provided ineffective assistance of counsel when he failed to accurately inform his client about the deportation consequences of a guilty plea. Thousands of cases may be affected if the Court reverses the Seventh Circuit in Chaidez v. United States (655 F.3d 684 (7th Cir. 2011), cert. granted, 132 S.Ct. 2101 (2012)) and concludes that Padilla applies to them as well.

Human Rights and Civil Liberties

In Kiobel v. Royal Dutch Petroleum Co. (621 F.3d 111 (2d Cir. 2010), rehearing ordered, 132 S.Ct. 1738 (2012)), the question is whether American courts have jurisdiction to hear cases involving alleged human rights violations that occur outside of the United States. (In the interest of full disclosure, I am cocounsel for the petitioners in Kiobel.) Last term, the Court had full briefing and oral argument on the issue of whether corporations, not just individuals, can be sued for foreign-based violations of the Alien Tort Statute (28 U.S.C. § 1350), a federal law adopted in 1789 that creates jurisdiction and a cause of action in the federal courts to redress violations of the law of nations.

To the surprise of all, the Court did not decide this issue. Instead, a few days after oral argument, the justices asked for new briefs and further oral argument on the broader question: Can the Alien Tort Statute ever be used for any violations occurring outside the United States? [For more on Kiobel, see "Global Warning," page 18.]

And the so-called war on terror continues to reverberate in the Court's chambers. In Clapper v. Amnesty International U.S.A. (638 F.3d 118 (2d Cir. 2011), cert. granted, 132 S.Ct. 2431 (2012)), the justices will determine whether individuals have standing to challenge a recently enacted provision of the Foreign Intelligence Surveillance Act (50 U.S.C. § 1881a), which expands the federal government's ability to conduct surveillance of communications with non-U.S. citizens who are outside of the country.

Marriage Equality

Two cases at the Court's doorstep raise key constitutional questions related to same-sex marriage. In Massachusetts v. United States Department of Health and Human Services (682 F.3d 1 (1st Cir. 2012)), the First Circuit declared unconstitutional a portion of the Defense of Marriage Act, which provides that for purposes of federal law "the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife." (See 1 U.S.C. § 7.) In Perry v. Brown (671 F.3d 1052 (9th Cir. 2012)), the Ninth Circuit affirmed a San Francisco federal judge's landmark ruling that overturned Proposition 8, which amended the state constitution to declare that "[o]nly marriage between a man and a woman is valid or recognized in California." (Cal. Const., art. I, § 7.5.) Petitions for certiorari have been filed in both of these cases, and it seems very likely that one or both will be heard in the coming term.

It is hard to think of two other consecutive years in which our nation's Supreme Court has confronted so many high-profile cases with the potential to profoundly affect the law and people's lives. Although it may be hard to top last year's term for sheer drama and media attention, the upcoming one is shaping up to be another blockbuster

Erwin Chemerinsky is dean and a professor at the UC Irvine School of Law. Francisco Balderrama and Tina Salvato provided excellent research assistance.


Kari Santos

Daily Journal Staff Writer

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