Court in New Term Weighs Same-Sex to Race-Related Laws

Photographer: Jin Lee/Bloomberg

Same-sex couples, including Carol Anastasio, center, and Miriam Brown, center right, emerge from the Manhattan City Clerk's office with their marriage licenses in New York, on July 24, 2011. Close

Same-sex couples, including Carol Anastasio, center, and Miriam Brown, center right,... Read More

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Photographer: Jin Lee/Bloomberg

Same-sex couples, including Carol Anastasio, center, and Miriam Brown, center right, emerge from the Manhattan City Clerk's office with their marriage licenses in New York, on July 24, 2011.

The U.S. Supreme Court will confront social issues that have divided the nation for decades in a new term that may produce its first ruling on gay marriage and a rollback of protections for racial minorities.

The justices took the bench today for the first time since June 28, when they upheld President Barack Obama’s sweeping health-care law. That 5-4 ruling, with Chief Justice John Roberts joining the four Democratic-appointed justices in the majority, proved so contentious that it led to rare leaks about the court’s internal deliberations.

The health-care debate now gives way to battles over civil rights, with cases that offer Roberts a chance to reclaim his conservative mantle. The court will consider university affirmative action, almost certainly will take on at least one gay-marriage case, and may determine the fate of the landmark Voting Rights Act. The justices are hearing arguments today on whether corporations can be held liable for human-rights abuses abroad.

As momentous as the last session was, “the 2012-13 term may just rival it in high-stakes cases,” said Caroline Fredrickson, president of the American Constitution Society, a network of progressive lawyers and law students.

In addition, the court will consider cases involving drug- sniffing dogs, employment discrimination, class-action lawsuits and government surveillance of international phone calls and Internet communications. The term runs through the end of June.

Racial Preferences

The affirmative action case, to be argued Oct. 10, gives the court’s Republican-appointed majority a chance to cut back racial preferences. Abigail Fisher, a white woman rejected by the University of Texas, says the school violated her constitutional rights by considering race as an admissions factor to boost black and Hispanic enrollment.

Fisher’s appeal takes aim at the court’s 2003 Grutter v. Bollinger ruling, a 5-4 opinion that let colleges and professional schools use race as part of a “holistic” review of an applicant’s file.

The court’s composition has changed since then, most notably with the retirement of Justice Sandra Day O’Connor, who wrote the Grutter decision. Her successor, Justice Samuel Alito, is skeptical about racial preferences, as is Roberts, a fellow appointee of President George W. Bush.

The court might stop short of overturning Grutter and rule on narrower grounds by saying Texas can achieve sufficient diversity without race-based admissions.

Under Texas law, the university admits most of its freshman class solely on the basis of class rank. Because many Texas high schools are heavily Hispanic or heavily black, the system guarantees admission to thousands of minority applicants.

Roberts’ Moment

The biggest question may be how far Roberts wants to push. The chief justice has made clear he sees race neutrality as a constitutional imperative. In a 2007 ruling that put new limits on efforts to integrate public grade, middle and high schools, he wrote that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

The chief justice angered some conservatives who backed his 2005 nomination when he voted in June to uphold the health-care law. A CBS News report after the ruling said he switched sides during deliberations, after first voting at a private, preliminary meeting of the justices to strike down a core provision that requires individuals to get insurance or pay a penalty.

That decision gives Roberts “legitimacy capital” if he wants to issue a broad ruling on affirmative action, said Pamela Harris, a former Justice Department official in the Obama administration and now a visiting professor at Georgetown University Law Center in Washington.

‘Capital to Spare’

“He’s got some of that capital to spare now in this term,” Harris said. “My hunch would be that where he would want to spend it is in the race cases.”

The court may also determine the fate of the 1965 Voting Rights Act. Appeals from Alabama and North Carolina challenge the law’s requirement that officials in all or part of 16 states get federal clearance before making any changes to their voting rules.

A ruling in a 2009 case indicated that a majority of justices may view that so-called preclearance requirement as no longer necessary.

Roberts wrote that the provision raised “serious constitutional questions” because it applied only to some parts of the country, as determined by a decades-old formula. “We are now a very different nation” than in 1965, he wrote.

Voter ID Laws

The Voting Rights Act was enacted to combat the discrimination that had kept blacks away from Southern polling places for generations. The Obama administration has used the law this year to challenge Republican-backed voter- identification laws around the country, arguing that they place a discriminatory burden on minorities.

With gay marriage, advocates on both sides -- as well as Justice Ruth Bader Ginsburg -- say they expect the court to address the issue for the first time this term. Six states and the District of Columbia now recognize same-sex marriage and voters in three others will decide in November whether to legalize the practice.

Ginsburg told students at the University of Colorado last month that the court probably will consider a challenge to the Defense of Marriage Act, the federal law that defines marriage to be between one man and one woman, the Associated Press reported.

Unusual Step

A U.S. appeals court and several trial judges have said the law unconstitutionally bars legally married gay couples from getting the same federal benefits as heterosexual spouses.

Obama’s administration has taken the unusual step of urging the court to strike down the provision, leaving its defense to congressional Republicans led by House Speaker John Boehner of Ohio.

The Supreme Court also will have a chance to take up California’s Proposition 8, which outlawed same-sex marriage five months after the state Supreme Court said in 2008 the California constitution guaranteed gay people the right to marry.

A federal appeals court ruled that Proposition 8 violated the U.S. Constitution by singling out same-sex couples for unequal treatment and stripping them of a right that heterosexual couples would continue to enjoy. Gay marriage is on hold in California while the litigation plays out.

Olson, Boies

The Proposition 8 challenge is being pressed by Theodore Olson and David Boies, the two lawyers who faced off against each other at the high court in the Bush v. Gore case that resolved the 2000 presidential election deadlock. They filed the suit with any eye toward winning a Supreme Court ruling establishing same-sex marriage as a constitutional right.

Even so, neither the Proposition 8 case nor the Defense of Marriage Act appeals would require the court to reach that question.

“There’s a lot of room for very small steps,” said Carrie Severino, chief counsel for the Judicial Crisis Network, a Washington-based group that opposed Obama’s two Supreme Court nominees.

Today the court is hearing arguments on the Alien Tort Statute, a 33-word statute that lets foreigners sue in U.S. court for violations of international law. The 1789 law lay dormant for almost two centuries before being revived in the 1970s as a means of pressing lawsuits over human-rights violations abroad.

Exxon, Ford

Since then, multinational companies have faced dozens of suits accusing them of complicity in environmental misconduct, labor abuses and torture. Exxon Mobil Corp. (XOM), Coca-Cola Co. (KO), Pfizer Inc. (PFE), Unocal Corp., Chevron Corp. (CVX) and Ford Motor Co. (F) have all been sued under either the Alien Tort Statute or a related law, known as the Torture Victim Protection Act.

The court in February considered contentions by units of Royal Dutch Shell Plc (RDSA) that the Alien Tort Statute doesn’t permit suits against corporations. The justices then expanded their review, ordering re-argument on a potentially more sweeping question: whether the statute applies beyond the U.S. borders. A decision limiting the law to misconduct on U.S. soil would shield corporate officers as well as the companies.

Lawyers who represent corporations say such a ruling is long overdue. Lawsuits under the Alien Tort Statute have been “sucking up huge resources of lots of companies,” said Andy Pincus, a Washington lawyer who has represented both companies and the U.S. Chamber of Commerce on the issue.

‘Severely Compromised’

Human rights advocates say a victory for Shell would make it harder for atrocity victims to hold their perpetrators accountable. The Shell units are accused of facilitating torture and execution in Nigeria in the 1990s. Shell has denied the accusations.

“If Shell prevails, our ability to bring these cases will be severely compromised,” said Pamela Merchant, executive director of the Center for Justice and Accountability.

That’s the probable outcome if the high court’s call for a second hearing is any indication, said Nicholas Quinn Rosenkranz, a Georgetown law professor who once clerked for Justice Anthony Kennedy.

“The sheer fact that the court did that strongly suggests that the court is nervous about the statute and wants to cut back on its scope,” Rosenkranz said.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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