WASHINGTON The Supreme Court justices, who had a summer to cool down from their last heated go-round, return Monday for an October 2012 term that’s still taking shape.
This time, the likes of affirmative action, in a case involving the University of Texas, and corporate liability for overseas human rights abuses top the agenda.
Also in question are the rules governing drug-sniffing dogs and protecting Western logging roads. Some death-row inmates in Arizona and Ohio have their lives on the line, while a repeat felon from Stockton, Calif., hopes to cut years from his sentence.
It’s a list that still doesn’t match last term’s drama, when immigration enforcement and a huge health care law hung in the balance, but that could change. In a term that stretches through June, blockbusters arrive in their own sweet time.
“The court can pretty much do whatever it wants, when it puts its mind to it,” said Paul Clement, former George W. Bush administration solicitor general. “The court can move mountains.”
Gay marriage and federal benefits for gay partners, in particular, loom, as do Southern state challenges to the Voting Rights Act. The court could decide in coming weeks whether to add these other high-profile cases to the 2012 calendar. The odds look good that they will.
Led by Chief Justice John Roberts Jr., who authored the 5-4 opinion in June upholding the Obama administration’s Affordable Care Act, the court so far has agreed to hear 39 cases. Typically, the court will hear about 75, so more cases will be added in coming months.
Roberts’ majority opinion in support of what his fellow Republicans derided as Obamacare “was not something people saw coming,” Clement said, and it prompted a spate of back-biting stories from inside the usually tight-lipped court.
The justices subsequently scattered worldwide to teach and attend conferences – Roberts went to distant Malta – and close court watchers predict any hard feelings have probably dispersed as well.
“They have so much interaction,” Clement said. “They have so many areas where they have common ground.”
The most politically prominent case currently on the court’s docket, involving affirmative action at the University of Texas, may also underscore the importance of a changing court
In 2003, Justice Sandra Day O’Connor, now retired, wrote a 5-4 decision upholding the consideration of race in the University of Michigan Law School’s admissions. O’Connor has since been replaced by Justice Samuel Alito, also a Republican appointee, but who is unlikely to follow in his predecessor’s footsteps.
“He has substantially greater skepticism about the role of race in college admissions,” noted attorney and prominent court blogger Tom Goldstein, who has argued 25 cases before the high court.
The admissions system challenged by Abigail Fisher, a Caucasian student rejected in 2008 from the University of Texas, guarantees seats for graduates in the top 10 percent of their Texas high school class. For the remaining spots, race is one of many factors considered.
Reflecting the high profile and potentially high stakes, a remarkable 73 amicus briefs have been filed in support of the University of Texas from allies including the University of North Carolina and the state of California. Seventeen amicus briefs have been filed opposing the school’s affirmative action program from skeptics like Rep. Allen West, R-Fla., an African-American lawmaker and former Army officer.
The court, though, does not award more points to the side with more amicus briefs, and O’Connor’s departure seems certain to tilt the final outcome following the Oct. 10 oral argument. The main question may not be whether the University of Texas loses, but rather how broadly the conservative majority writes its opinion.
“Shifts in court personnel sometimes have enormous consequences, and this is one case where I think we’ll see that,” said Pamela Harris, a visiting professor at the Georgetown University Law Center.