Reuters: U.S.: Affirmative action, rights cases await U.S. Supreme Court

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Affirmative action, rights cases await U.S. Supreme Court Sep 28th 2012, 05:31 By Jonathan Stempel Fri Sep 28, 2012 1:13am EDT (Reuters) - Affirmative action for minorities, human rights abuses and the constitutional authority for dogs to sniff out crime will top the U.S. Supreme Court's agenda when it returns to the bench on Monday. An even bigger issue, same-sex marriage, lurks on the horizon. The new term marks the full court's first return to the public eye since June when Chief Justice John Roberts surprised many by joining four more liberal justices in a 5-4 decision that upheld nearly all of President Barack Obama's healthcare law. The court will start with one of its most anticipated cases, Kiobel v. Royal Dutch Petroleum, and address for the second time the extent to which American judges are empowered to hear lawsuits over human rights atrocities abroad. On October 10, it will hear perhaps the biggest case on the docket so far, Fisher v. University of Texas at Austin, and weigh whether using race in undergraduate admissions to increase diversity is still acceptable under the U.S. Constitution. "When you look at Kiobel and Fisher, and the possibility the court will visit the issues of gay marriage and voting rights, it's already shaping up to be a momentous term," said Ted Shaw, a professor at Columbia Law School and former director-counsel of the NAACP Legal Defense Fund. Some justices said over the summer break that the court would, as it normally does, move past the divisions that end a term, including this year over a tough Arizona immigration law. Dissenting justices in that and the healthcare cases read parts of their opinions from the bench, signaling profound disagreement with the majorities. The court often finds common ground, and last term it ruled unanimously nearly as often as not. But many closely watched cases still produce 5-4 ideological splits. The five more conservative justices were appointed by Republican presidents, and the four more liberal justices by Democratic presidents. While Justice Anthony Kennedy is at the ideological center, Roberts' vote to uphold most of the Affordable Care Act was a forceful reminder of his capacity to put his own cast on the law. At age 57, he could do so for another quarter century. "John Roberts enormously strengthened his administrative hand and legal influence in ruling as he did," said Douglas Kmiec, a constitutional law professor at Pepperdine University in Malibu, California. "Now both sides probably believe they need to work for his support, and that's an enviable position for the chief justice." The court already has accepted close to 40 cases for the new term, filling roughly half of its usual docket. RACE AS A FACTOR In Kiobel, the court will again review the Alien Tort Statute, a long-obscure 1789 law that lawyers have used in the last three decades to challenge corporations' alleged aiding or acquiescing in foreign governments' abuse of their own people. After hearing arguments in February, the court decided to hold a new hearing to address whether judges could hear such claims brought against anyone, not just corporations. The case has drawn dozens of briefs from other interested parties. The Obama administration has argued that the law could be used, case-by-case, for claims of abuse that might interfere with U.S. foreign relations or respect for human rights. In the affirmative action case, Texas' flagship university has for several years filled about three-quarters of its undergraduate class by granting automatic admission to students in the top 10 percent of their high-school classes. While this "race-neutral" approach has boosted the number of black and Hispanic students because of the homogeneity of many high schools, Texas uses race as one factor to fill the rest of each class, with a goal of improving the educational experience. This has been challenged, and changes in the Supreme Court's makeup may imperil the 2003 decision, Grutter v. Bollinger, that let universities take race into account to improve diversity. Justice Sandra Day O'Connor, who in that case endorsed race-based admissions at the University of Michigan law school, retired in 2006 and was replaced by the more conservative Justice Samuel Alito. In addition, Justice Elena Kagan, who was U.S. solicitor general before joining the court in 2010, has recused herself. This could make it hard for Texas to win more than four votes. A decision voiding the program would likely apply, under a different law, to private universities. Also on the docket are two "dog sniff" cases from Florida that test the boundary of Fourth Amendment protection against illegal searches, and which the court will take up on October 31. One, Florida v. Jardines, concerns whether a homeowner's privacy was violated when a trained narcotics dog named Franky was allowed to walk near a home, and appeared to correctly detect a marijuana odor from inside. Another, Florida v. Harris, concerns an "alert" given by another dog named Aldo while being led around a truck that contained methamphetamine ingredients. SAME-SEX MARRIAGE All of these cases could well be dwarfed in public attention should the Supreme Court review any or all of a half-dozen cases concerning same-sex marriages. Several address the constitutionality of the Defense of Marriage Act, which requires the government to deny benefits such as Social Security payments to gay and lesbian couples. even if they live in states that allow same-sex marriage. A federal appeals court in Boston said that requirement should not stand. Paul Clement, a former U.S. solicitor general who last term argued against the healthcare law, represents defenders of DOMA while his opponent in the healthcare case, Solicitor General Donald Verrilli, wants DOMA to be invalidated. Also awaiting review is a lower-court decision striking down California's ban on same-sex marriage, known as Proposition 8. The Supreme Court is expected to announce this fall whether it will accept any of these cases. Decisions would likely come by the end of June, before the court's usual summer recess. Meanwhile, the court may also weigh the constitutionality of a provision of the 1965 Voting Rights Act that requires states with histories of discrimination to get U.S. Department of Justice permission before changing election procedures. "We're seeing an increase in voting suppression," said Scot Powe, a professor at the University of Texas at Austin and former clerk for Justice William O. Douglas. "If they take a Voting Rights Act case, the betting money is that they will invalidate the preclearance provision. That's a big deal." (Additional reporting by Terry Baynes; Editing by Howard Goller and Eric Walsh) Link this Share this Digg this Email Reprints

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