Right now is a great time to be a Supreme Court aficionado. There’s a big new book out about the Court, Jeffrey Toobin’s The Oath (affiliate link). And the new SCOTUS Term starts in just a few days, on Monday, October 1.

Given the time of the year, it’s not surprising that SCOTUS preview events are as common as Ninth Circuit reversals pro se cert petitions. I attended one sponsored by the Federalist Society earlier this month, where Kannon Shanmugam of Williams & Connolly offered excellent insights into October Term 2012. Our Supreme Court correspondent here at Above the Law, Matt Kaiser, went to a preview talk sponsored by the American Constitution Society (which he turned into Kaiser’s Guide To Bluffing Your Way Through Knowledge About The Supreme Court’s New Term).

That sounds like more than enough SCOTUS previews. But I couldn’t help myself from attending one more, due to the starpower of the panelists: Paul Clement, the former solicitor general who’s now a partner at Bancroft, and Tom Goldstein, the noted Supreme Court advocate and founder of the invaluable SCOTUSblog.

What did Messrs. Clement and Goldstein have to say about OT 2012?

The event took place yesterday at the Heritage Foundation, the high-powered conservative think tank. It was expertly moderated by Todd Gaziano, director of the Heritage Foundation’s Center for Legal & Judicial Studies and a commissioner on the United States Commission on Civil Rights. As you may recall, Heritage and Gaziano hosted a similar talk last year, featuring Clement and Shanmugam.

Tom Goldstein began by discussing Fisher v. University of Texas at Austin, which is looking like the biggest case of the Term so far. It’s a successor to the Grutter/Gratz cases, the Court’s last major pronouncements on affirmative action in higher education, but the Court’s composition has changed since 2003. Justice O’Connor, who wrote for the majority in Grutter, has been replaced by Justice Alito, who is much more skeptical of racial preferences. Here’s how Matt Kaiser described the facts of Fisher in his prior post:

Texas has a ten percent rule (though, now, I understand it’s an 8 percent rule), where the kids coming out of Texas high schools in the top 10 percent of their class automatically get admitted to the University of Texas.

The legislature in the Lone Star State created the rule, and did so on the assumption that, since high schools are still de facto segregated, this would mean that more minority kids would get into the University of Texas.

When the top ten percent kids are admitted, there aren’t many slots left. For those remaining slots, the school looks at a each kid holistically, including looking at the person’s race.

Abigail Fisher is white. She’s also not in the top 10 percent of her high school class. She thinks she should have been able to get into the University of Texas, but didn’t. She thinks looking at race denied her a spot at the school, and that this was both lousy and violated the Constitution.

The Fifth Circuit, applying Grutter, upheld the UT system. The Supreme Court granted cert. Goldstein noted that there is a possible issue concerning mootness; Fisher is done with college, having graduated from LSU. (Goldstein also pointed out that Justice Kagan is recused, although it probably won’t make a difference given the likely voting in this case.)

How much of Grutter will survive the change in Supreme Court composition? How quickly will the Court move on affirmative action and other hot-button issues? We’ll have to wait and see, but Goldstein predicted that it is “quite likely” that the UT program is in “big trouble.”

Paul Clement took the baton from Goldstein and turned to litigation involving Section 5 of the Voting Rights Act. The VRA, passed back in the 1960s, is an unusual and controversial statute. Section 5 provides that “covered jurisdictions” that seek to change their voting laws must first get either preclearance for the change from the Justice Department or a declaratory judgment from a special three-judge district court in the District of Columbia. It is unusual for a state or local government to require clearance from federal government officials in Washington for making a change to its own laws; some critics see this as an affront to local autonomy. But the statute has been renewed over the years, and the periods of renewal have gotten longer, not shorter. The VRA was last reauthorized in 2006 for a period of 25 years.

The Court has a choice of vehicles in terms of how to review the constitutionality of the VRA. It could access the issue through its certiorari docket, by granting cert in Shelby County v. Holder, or it could tackle the matter through its appellate jurisdiction, by reviewing rulings from a special three-judge district court. If it takes up the case through granting cert, the Court will get a more abstract formulation of the issues; if it waits to review the three-judge district court, it will get a more concrete, “as applied” formulation.

Clement said there are at least two ways to think about this case: (1) as a race case, a bookend of sorts to Fisher, or (2) as a federalism case, considering how the Act requires a state to go to federal officials in Washington before the state’s laws can go into effect. It’s likely that any ruling on constitutionality would be controversial; some see Section 5 as a great achievement of the Civil Rights Act, while others have deep concern with its fairness and its federalism implications. The Court dodged the constitutional issue in the NAMUDNO case back in 2009, but it’s not clear that it would be inclined to do so again.

The next cases discussed by the panelists could be grouped under bigger topics. Tom Goldstein noted a collection of Fourth Amendment cases already on the docket. One of the is Florida v. Jardines, which presents this question: “Whether a dog sniff at the front door of a suspected grow house by a trained narcotics detection dog is a Fourth Amendment search requiring probable cause?”

A second case involves, essentially, what it takes to be a drug-sniffing dog. As Goldstein joked, “Do you have to spend a certain amount of time in doggie day care? Do you have to be a member of Doggie Mensa?”

A third case involves the rule that if the police have a warrant to search your home, they can detain individuals found inside, even without warrants as to those individuals. The rationale for that rule is largely to protect the safety of the officers conducting the search. But in this case, the police watched a person leave a home being searched, followed this person for a mile, brought the person back to the home, and then detained him there. Goldstein expressed skepticism as to whether the Court will allow this practice.

In his SCOTUS preview post, Matt Kaiser predicted that “This Will Probably Be The Term For Gay Marriage.” Paul Clement, who looked at the same-sex marriage cases that could wind up before the Court, would probably agree. There are nearly a dozen certiorari petitions currently before the Court that raise the constitutionality of the Defense of Marriage Act (DOMA). Clement, of course, represents the House of Representatives in defending the constitutionality of DOMA (after the Obama Administration decided to abandon the defense).

As in the Section 5 litigation, the Court has a wide choice of vehicles here. The First Circuit case, Gill v. Office of Personnel Management, is the farthest along — it’s the only one in which a circuit court has ruled — but one issue with Gill is that Justice Kagan will probably recuse, based on work she did on the case as Solicitor General. Clement suggested that the Court would want to have all nine members involved for a case like this. (Kannon Shanmugam made the same observation at his SCOTUS preview event as well.)

So the Court may look to some of the cert petitions coming out of district court rulings. It’s rare for the Court to grant cert before an appeals court has ruled, but it is possible, pursuant to the “cert before judgment” procedure. The Court has gone down this route “in only a handful of cases over the past seventy-five years,” as noted by Kevin Russell of SCOTUSblog, but it might be the best option here.

Clement expressed the view that, regardless of its choice of vehicle, the Supreme Court will have to take up the constitutionality of DOMA at some point. First, courts have struck down an act of Congress, and out of respect for the other branches, the Supreme Court almost always weighs in when a federal statute has been struck down (in this case, part of a federal statute — Section 3 of DOMA).

Second, because the federal government is no longer defending DOMA but continuing to enforce it, cases challenging DOMA will continue to pop up all over the place, requiring the House to intervene and defend them — which is not how things are supposed to work. As one of Clement’s clients in the House told him, “I’m built for legislation, not litigation.”

A much tougher question to answer: Will the Supreme Court grant cert in the Perry case, regarding the constitutionality of California’s Proposition 8 ban on gay marriage? The question here is whether the Court will want to tackle the federal statutory issue of DOMA first or whether it will want to resolve gay marriage-related issues once and for all. Which way the Court will go is hard to say.

Those are just some highlights from the discussion, which also covered such subjects as the Alien Tort Claims Act (see Matt Kaiser’s earlier post for more on this), the Fair Housing Act, standing to challenge surveillance programs, and what constitutes a “taking” for Fifth Amendment purposes. You can view the full discussion once it’s posted on the Heritage Foundation website.

Todd Gaziano closed by asking the panelists: Why are we seeing two big terms in a row? The usual rhythm seems to be one blockbuster term followed by a sleepier term.

Goldstein noted that these things are hard to control, insofar as the justices have specific criteria for granting cert. If a federal statute is struck down, for example, the Supreme Court almost always grants. The Voting Rights Act issue is major, and it may be hard for them to dodge the constitutional issue yet again (as they did in NAMUDNO). The difference may lie in a collection of “middle cases,” which the Court could hear but doesn’t have to hear — e.g., the Prop 8 case.

(Goldstein suggested that if the Court didn’t already have DOMA possibly coming on to the docket, it would probably take Prop 8. But with DOMA on the docket, plus the relatively narrow ruling of the Ninth Circuit in Perry, it might pass. Goldstein predicted that the Court will grant in Perry, given California’s importance, “but I’m probably in the minority.”)

Clement agreed that, in the abstract, the Court probably wouldn’t mind “taking a breather” after last year’s big, Obamacare-dominated Term. The terms do tend to alternate in excitement levels. But, agreeing with Goldstein, he noted that the Court can’t duck cases that otherwise meet the criteria for cert grants.

As alluring as a Term filled with ERISA preemption cases might look, it won’t be happening in OT 2012. Said Clement: “Whether or not they’d prefer to be back in the bowels of ERISA, they’re going to be back in the headlines.”

Supreme Court Preview: 2012 Term [Heritage Foundation]

Earlier: Kaiser’s Guide To Bluffing Your Way Through Knowledge About The Supreme Court’s New Term
A Preview of the Upcoming Supreme Court Term


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