Affirmative Action, American Constitution Society (ACS), Constitutional Law, Gay, Gay Marriage, Minority Issues, SCOTUS, Supreme Court, Texas

Kaiser’s Guide To Bluffing Your Way Through Knowledge About The Supreme Court’s New Term to Non-Lawyers

October first is the start of the new Supreme Court term!

If, like many readers, you’re a few years out of law school, this may strike you with a mild sense of dread. You remember the heady days of law school when you followed every argument, opinion, and cert grant from One First Street Northeast with an excitement rivaled only by your enthusiasm for the starting salaries for first-year associates.

Alas, the years since law school haven’t been kind to your pants size or your level of engagement with the Supreme Court.

Now, I suspect, you worry that soon — at a family dinner, dropping off your kids at preschool, or anywhere else you interact with non-lawyers — someone will recognize that you are a lawyer, and ask you what to make of the new Supreme Court term.

You have three options for how to deal with this, now, before the media frenzy over the new Supreme Court term starts.

First, you can admit to yourself that you’re no longer the gunner you used to be. You can tell people that just don’t follow the Supreme Court anymore, since you’ve gotten really interested in your exciting new life doing document review for a municipal bond arbitration.

But you’re not going to do that. If you were that good at being honest with yourself, you aren’t likely to be the kind of person who went to law school in the first place.

Second, perhaps, you can wade through the volume of information out there about the new term. Go through SCOTUSblog with the same passion you now spend tracking whether your friends from law school have better careers than you do. Maybe go to one of the OT 2012 preview events that clog every convention hall and small town library starting in mid-September.

That takes time and energy. Tom Goldstein sometimes uses really long paragraphs, and you really wanted to spend more time Googling for topless pictures of Kate Middleton.

Instead, you could let me to one of those events for you. For the truly efficient, follow the jump, sit back, and enjoy Kaiser’s Guide To Bluffing Your Way Through Knowledge About the Supreme Court’s New Term to Non-Lawyers….

To help write this guide, I went to a panel about what to expect from the new Supreme Court term put on by the American Constitution Society (either “The Lawyers for the 47%” or “The Lawyers Who Used To Want To Be For the 47% Before They Realized Starting Salaries For Being A Lawyer For The 1% Are $160,000 $145,000 A Year, But Who Still Listen To Ice Cube And Value ‘The People’”).

Here are the points you can make to non-lawyers:

1. This Will Probably Be The Term For Gay Marriage.

Even though the term is about to start, it’s early yet in the schedule of cert grants. The Court’s docket isn’t full, and there are many more cert grants to come (unless the Justices want an exceptionally early jump on being stalked by Lat at book events next summer).

So, point one to tell non-lawyers about the new Supreme Court term — it’s too early to tell what kind of a term it will be, but gay marriage will likely be the biggest issue this term (where “biggest” = “the one my non-lawyer dad calls to talk about the most”).

Gay marriage is percolating its way to the Supreme Court. The Court hasn’t yet decided how it will tee up the Defense of Marriage Act challenges and the Prop. 8 case.

It’s unlikely that the Court will dodge gay marriage this term, and gay marriage will likely be the biggest issue when the Court is issuing opinions next June.

If you spread in some information about the cert grant process, you’ll look like the knowledgeable follower of the Court you used to be.

Play your cards right, and one of your kid’s friend’s moms may even ask you to help with her will. Good luck getting that through your firm’s new client committee.

2. Affirmative Action Is Back.

The Court is considering a challenge to the way the University of Texas admits students.

Texas has a ten percent rule (though, now, I understand it’s an 8% rule), where the kids coming out of Texas high schools in the top 10% 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% 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.

When talking to non-lawyers, feel free to talk about how hard affirmative action cases are — this should give you a chance to call up everything you remember about equal protection (it’s the one with the different levels of scrutiny).

You may also want to mention that after the Health Care opinion, perhaps the Chief Justice will write a very narrow opinion to dodge this hot button social issue.

Pull this off well and you could be called when your uncle’s buddy at work gets pulled over in a DWI.

3. Maybe You Can’t Sue Corporations Here For Stuff They Do In Foreign Countries.

On the first day of argument, the Court will consider whether the Alien Tort Statute lets folks sue a corporation in the United States for things that the corporation did in another country.

The case dealt with allegations that a corporation helped the Nigerian government do really bad things to a number of Nigerians. Human rights lawyers would prefer to have corporations not help countries when they violate their citizens’ human rights.

Suing in an American court is a way to make it harder for a corporation to do that.

That said, it’s a little odd to have a lawsuit in a U.S. Court where everything that happened and everyone who did anything is in Nigeria. It seems a bit odd to think that’s what Congress thought of when it passed the Alien Tort Statute.

Why would you talk about this with your friends? Because it lets you comment on how international everything is becoming in U.S. law.

Also the facts are kind of interesting, and everyone is impressed by international human rights law — that’s why Mark Darcy was a human rights lawyer in Bridget Jones’s Diary.

4. This May Be A Term Only A Lawyer Can Love.

The last point you can make is that this term will be a little dull to non-lawyers. After the epic popularity of the Health Care decision — where my car mechanic expressed surprise over the Court’s use of the taxing power — this term will have more to do with narrow distinctions that matter only to lawyers.

When is a temporary flooding of land a taking? How good does a dog have to be for a dog sniff to be valid? What has to be proven for class certification in a securities fraud case? Is it okay to import textbooks to make a profit based on how cheap textbooks are abroad?

My car mechanic won’t be talking about any of these. And, likely, neither will your aunt. You can safely ignore them and return to mocking Brian Tannebaum in the comments to his posts.

For better or worse, though, I will be here during OT 2012. Stay tuned.

Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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