First Monday in October

(2 pm. – promoted by ek hornbeck)

The 2012 term of the US Supreme Court traditionally begins on the first Monday in October. If the 2011 session is any indication, this term should be even more interesting as the court considers some of the most controversial issues facing this country from affirmative action to civil and voting rights.

When last we saw the chief justice of the United States on the bench, John Roberts was joining with the Supreme Court’s liberals in an unlikely lineup that upheld President Barack Obama’s health care overhaul.

Progressives applauded Roberts’ statesmanship. Conservatives uttered cries of betrayal. [..]

Many people on both the left and right expect Roberts to return to the fold and side with the conservative justices in the new term’s big cases. If they’re right, the spotlight will be back on Justice Anthony Kennedy, whose vote typically is decisive in cases that otherwise split the court’s liberals and conservatives. But Roberts will be watched closely, following his health care vote, for fresh signs that he’s becoming less ideologically predictable. [..]

Cases involving voting rights and marriage equality are expected to eventually land before the court, the former most likely sooner than the latter:

Voting rights: Several challenges to the 1965 Voting Rights Act are moving through district and appellate courts, and the high court is expected to take up one or more.

At issue is Section 5 of the law, a landmark civil rights achievement that prohibits nine states and municipalities in seven others from changing their voting laws without approval from the Justice Department or a special federal court. [..]

Same-sex marriage: The big question as the term begins is whether the justices will accept one or more cases involving the rights of gays and lesbians to marry. If they do, it may offer the best chance for a landmark ruling.

There are two possibilities. The most likely is that the court will accept a challenge to the 1996 Defense of Marriage Act, which has been declared unconstitutional in lower courts and which the Obama administration is refusing to defend. [..]

The other option is for the court to consider challenges to California’s Proposition 8, a 2008 referendum that overturned the state’s support for gay marriage. A broadly worded ruling against the referendum could pave the way for legalized gay marriage elsewhere, rather than just in New York, Massachusetts, Connecticut, Vermont, New Hampshire and Iowa. More likely is a narrowly worded decision that affects only California.

Even if the court declines to hear the Proposition 8 challenge, that decision would be important, because a lower court has ruled against the referendum. Without high court review, gays and lesbians soon could marry in the nation’s most-populous state.

The SCOTUS calendar begins with Kiobel v. Royal Dutch Petroleum a major case about corporate accountability for extreme violations of human rights. The case was argued last term on narrow grounds but not decided.

At issue in the Kiobel case is the proper interpretation of the Alien Tort Statute (ATS), which provides, in relevant part, that foreign citizens may bring civil suits in U.S. district courts for actions “committed in violation of the law of nations or a treaty of the United States.”  Enacted as part of the Judiciary Act of 1789, the ATS lay almost forgotten

for nearly two hundred years.  But in 1980, in Filartiga v. Pena-Irala, the U.S. Court of Appeals for the Second Circuit breathed life into the statute, holding that the ATS conferred jurisdiction over a lawsuit brought by one Paraguayan national against another Paraguayan national (residing in the United States) for torture that occurred in Paraguay.  Since then, victims of human rights violations that occurred overseas have sought to rely on the ATS to press their own claims in U.S. courts.

An affirmative action case that wound its way from Texas will be heard. Under consideration is the court’s previous decisions interpreting the Equal Protection Clause of the Fourteenth Amendment

In Fisher v. University of Texas at Austin, the court will address how and perhaps whether the university can take race into account as a factor in student admissions. In a way, the case is a rehearing of a 2003 case (pdf) in which it ruled that the University of Michigan Law School could do so as part of assessing the whole of a candidate’s application. That decision seemed to reflect a national consensus that race, narrowly applied, could be used to ensure a diverse student body.

Two cases involving the Fourth Amendment involving unreasonable search ans seizure will also be heard:

In Florida v. Jardines, the issue is whether the police violated the Constitution by using a dog trained to smell for drugs to sniff at the door of a house where they suspected marijuana was being grown. Was the sniff test unreasonably intrusive because there was no hard information that illegal activity was probably occurring, as the Florida Supreme Court properly found, or was it not a search because it occurred outside the house?

Similarly, in Missouri v. McNeely, the issue is whether the police could order a blood test on a man suspected of drunken driving without obtaining a warrant because the delay in doing so would result in loss of evidence. The Missouri Supreme Court sensibly ruled otherwise: that the test constituted an unreasonable search because there was no accident to investigate and because there was plenty of time to get a warrant and test the driver’s blood before the alcohol in it dissipated.

Also, two cases that will rule on the right of the defendant to council

Ryan v. Gonzales raises the question of whether the defendant himself needs to be mentally capable of assisting his own attorney in challenging a death penalty conviction. [..]

Chaidez v. United States asks whether a 2010 ruling (pdf) of the court – that criminal defense lawyers must advise their noncitizen clients that a guilty plea carries the risk of deportation – applies to someone whose conviction became final before that ruling was announced.