Sunday Open Thread [9.30.12]

Courtesy of Ed Kilgore at Political Animal, here is a preview of the cases the Supreme Court has already decided to hear in the next term, which begins this coming week.

Affirmative Action–October 10, Fisher v. University of Texas at Austin—Revisiting affirmative action in higher education, a decade after Sandra Day O’Connor’s fifth vote upheld it in Grutter v. Bollinger. The conventional wisdom says that the Court, with Alito sitting in O’Connor’s seat, rules the practice unconstitutional.

I agree. 5-4, Affirmative Action in higher education is struck down.

Human Rights–October 3, Kiobel v. Royal Dutch Petroleum—Fascinating case in which Royal Dutch and its Shell subidiaries (the American companies) are accused of helping the Nigerian government torture a dozen people who were protesting against the companies’ oil exploration. What’s being decided is whether a US court can effectively rule on human rights violations a domestic company has committed abroad.

5-4, the Court will hold that American courts have no jurisdiction over what transpires on foreign soil.

Capital Punishment–October 9, Tibbals v. Carter; Ryan v. Gonzalez—Both of these cases deal with a state’s responsibility to halt the appellate review of capital punishment cases while a defendant is mentally ill. For now, this is the only case on the court’s docket that deals with the death penalty.

This case will test whether Chief Justice Roberts and Anthony Kennedy have souls. Roberts gave a hint of one last year. If I had to guess, it will be 5-4 upholding the executions of the mentally ill so that George W. Bush can laugh at the prospect a little more.

Civil Liberties/Surveillance–October 29, Clapper v. Amnesty International—The Court reviews the United State’s ability to wiretap Americans when they’re abroad. In 2008, Congress expanded the Foreign Intelligence Surveillance Act, which previously regulated only domestic surveillance. Since then, we’ve been able to spy on our own wherever they go.

The Conservative Court probably wants to grant the government deference here, but I think this one may surprise us. I can see a strong majority against (6-3 or 7-2) against wiretapping abroad. But then again, I can easily see a 5-4 decision for wiretapping always.

Doggie sniffing–October 31, Florida v. Jardines; Florida v. Harris—The Court decides whether it violates the Fourth Amendment provision against illegal searches for a trained narcotics dog to sniff around a house or car for drugs without a warrant. Dogs in question are Franky and Aldo, respectively.

Another surprise on the civil liberties front, but this one is easier if law school has taught me anything. The Court should, if it is bound by prior precedent, require a warrant for such searches. But you never know with these Conservative Activist Judges.

Same-Sex Marriage–Several Defense of Marriage Act cases are working there way through the courts, most notably the May Massachusetts federal court decision that struck down the law. A lower court in California has also struck down Prop 8, the state’s ban on gay marriage, so that case could get heard too.

I think DOMA will be struck down as unconstitutional this term. But I don’t think the Prop 8 case will make it to the Court, or the Court in the DOMA case will say explicitly that marriage is a state issue thus making any ruling on Prop 8 moot.

Voting Rights Act–Several states (Texas, South Carolina, Florida) have recently had voting laws struck down by the Department of Justice, thanks to the provision of the Voting Rights Act that mandates many of the ex-Confederate states have their voting laws “pre-cleared” by the federal government. If the Court decides to take up any of the resulting state challenges to the VRA, it could rule pre-clearance unconstitutional. Sidenote: I’d argue that pre-clearance isn’t broad enough. Pennsylvania, Indiana, New Hampshire, Rhode Island and other northern states that don’t require pre-clearance have passed Voter ID laws no problem. Welcome to the era of Jim Crow North.

In my mind, this is the big case. I can see the Court, in a 5-4 decision, striking down the VRA as unconstitutional after some 50 years due to the pre-clearance issue.