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Monday, October 01, 2012


October Term, 2012

On Monday, the Supreme Court opens a new term with a menu of important cases that deal with affirmative action, criminal justice, the right of defendants to effective counsel and more. The court may soon choose to hear a controversial case that could redefine voting-rights law, and, later in the term, one or more cases involving same-sex marriage.

AFFIRMATIVE ACTION 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 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. The question now is whether the court will uphold that consensus — as we hope — or will further limit affirmative action.

UNREASONABLE SEARCHES Two important cases involve the Fourth Amendment prohibition against unreasonable searches and seizures. 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.

RIGHT TO COUNSEL Two cases involve the right of defendants to have effective counsel. 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. The answer, in our view, is yes. Chaidez v. United States asks whether a 2010 ruling 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. Again, the answer is yes.

The court has not yet considered whether to take a highly contested case about the Voting Rights Act, but it may. A section of the act requires states and other jurisdictions with a history of racial discrimination to obtain clearance from the Justice Department or a court before changing voting procedures. Chief Justice John Roberts Jr. has already expressed his distaste for this provision. That provision is an essential safeguard against unfair voting procedures and enforces the core purpose of the 15th Amendment, and should be upheld.

The justices may also decide to review a ruling by the United States Court of Appeals for the First Circuit striking down the Defense of Marriage Act, on grounds it discriminates against married same-sex couples in denying them the same benefits as heterosexual couples. Justice Ruth Bader Ginsburg has said that the court will most likely consider the law “toward the end of the current term.”

On Monday, a major case about corporate accountability for extreme violations of human rights, Kiobel v. Royal Dutch Petroleum, is scheduled to be reargued. The case is an unusual reconsideration of one heard on much narrower grounds but not decided last term

The question here is whether the court will build on case law developed since 1980, and allow lawsuits in federal courts against foreign corporations that have dealings in this country for violations of international law committed abroad. Or will it say American law cannot decide cases brought by foreigners in disputes occurring outside the United States? We think that case law should be sustained and that American courts should remain open to remedy major human rights abuses abroad.

The conservatives, including Mr. Roberts, have regularly, if narrowly, held sway in recent years. Where they come down on this important question of corporate accountability will say something significant about their respect for established international and American law — or their inclination to shape law as they see fit.



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