It would be hard to beat last June's cataclysmic, cacophonous end of the Supreme Court term and the decision upholding the Obama health care law. But while all the media focus is on the upcoming elections, the U.S. Supreme Court is about to begin yet another headline-making term, with decisions expected on affirmative action in higher education, same-sex marriage, the Voting Rights Act and a lot of privacy issues.
The court opens the term Monday by taking a look at a case brought by 12 Nigerians granted political asylum in the United States. They sued Shell Oil for allegedly conspiring with the Nigerian government to torture and kill locals in order to stop environmental protests against oil exploration. The suit was brought under the Alien Tort Statute, a federal law enacted in 1789 by the first U.S. Congress and aimed primarily at pirates. The law says that U.S. trial courts can hear civil damage suits brought by a foreign national for "wrongs committed in violation of the law of nations, or a treaty of the United States."
For the past 30 years, victims of human rights violations have used the statute to sue their tormentors in U.S. courts. Eight years ago, the Supreme Court appeared to endorse these suits as long as the claims are based on "universally condemned human rights violations" such as torture and genocide. Now, however, the court seems to be backing away from that decision. Last year the court heard the Nigerians' case to see if the statute allowed suits against corporations. But instead of deciding the case, the court ordered re-argument on a broader question: whether the law permits anyone to sue in U.S. courts over an alleged violation of international law on foreign soil.
"What is at issue now is no less than whether this statute is going to have any continuing significance as a source for addressing human rights violations," says Irv Gornstein, director of the Supreme Court Institute at Georgetown University. The reason is that virtually all human rights cases brought under the statute to date have involved events that took place outside the U.S., even though, in some cases, both parties to the suit were in the U.S.
This is a term about pacing. How far the court is going to go, how fast. ... Will it broadly or narrowly deal with same-sex marriage? Will it invalidate Section Five of the Voting Rights Act, or find some way out of it? Will it get rid of affirmative action or carve back on it?
Indeed, the case is indicative of the term, says Supreme Court advocate Tom Goldstein, publisher of SCOTUSblog, the leading blog about the Supreme Court.
"This is a term about pacing," he says. "How far the court is going to go, how fast. ... Will it broadly or narrowly deal with same-sex marriage? Will it invalidate Section Five of the Voting Rights Act, or find some way out of it? Will it get rid of affirmative action or carve back on it?"
Of all the cases Goldstein mentioned, only one, affirmative action, has actually already been granted review by the court. In that case, from the University of Texas, the court is revisiting an issue it has twice before decided. In 1978 the justices ruled that state colleges and universities could use race as one of many factors in determining school admissions. Quotas, however, were forbidden. In 2003, the court reaffirmed that ruling by a 5-4 vote. But Justice Sandra Day O'Connor, who authored the opinion, has since retired and been replaced by Justice Samuel Alito, a fierce foe of any race considerations in college admissions. Thus, in agreeing to re-examine yet again the issue of affirmative action, a newly energized conservative court majority seems to be signaling that it will either reverse or cut back on its previous rulings.
Several other big cases are waiting in the wings at the court, and will almost certainly be granted full review. One is the Defense of Marriage Act, the federal law defining marriage as between a man and a woman. When the law was enacted in 1996, no state had legalized gay marriage. Now, gay marriage is legal in six states and the District of Columbia, and gay married couples have challenged the federal law as unconstitutional discrimination. Among the challengers: a widow who had to pay hundreds of thousands of dollars more in estate taxes because the federal government did not recognize her state-recognized marriage as legal, and legally married gay couples denied spousal Social Security benefits or federal government employee spousal medical benefits. Seven lower courts have agreed that the federal law is unconstitutional, and now a variety of these cases have been appealed to the Supreme Court.
Georgetown Law professor Louis Michael Seidman notes that the cases are evidence of how much times have changed.
"It is worth remembering that DOMA was signed by Bill Clinton. It was approved by overwhelming majorities of Congress just a few years ago," he says, observing that the whole idea of gay marriage was a "really fringe position held by very, very few people" back then, and now, "quite suddenly, we have half the country, at least, thinking, 'What's wrong with gay marriage?' "
Another gay marriage case, California's Proposition 8, which outlawed such unions, is also awaiting action by the high court. The law was struck down by a federal appeals court based in California but on grounds that are idiosyncratic to that state. The Supreme Court could decide the DOMA case, leave gay marriage to the states for now, and thus dodge the decision as to whether gay couples have a constitutional right to marry.
Still another issue on its way to the court is the Voting Rights Act and its requirement that certain areas with a history of racial discrimination have to seek clearance from the Justice Department or the federal court in Washington when changes are made to voting procedures. Just three years ago, the justices in an 8-1 decision upheld the law. The opinion, however, written by Chief Justice John Roberts, was so critical of the law that more challenges have been brought and are now back at the court.
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