TOPICS > Politics

New Session of Supreme Court Expects Cases on Voting Rights, Same-Sex Marriage

October 1, 2012 at 12:00 AM EDT
The U.S. Supreme Court begins its fall session and is expected to review cases on hot issues including same-sex marriage, voting rights and affirmative action. Jeffrey Brown talks to The National Law Journal's Marcia Coyle for more on the important cases and the impact of the Supreme Court's potential rulings.
LISTEN SEE PODCASTS

TRANSCRIPT

JEFFREY BROWN: The first Monday in October, three months after upholding President Obama’s health care law, the Supreme Court was back with a docket that may even rival last year’s term for drama.

The justices will decide a case on affirmative action in higher education, and are expected to take up disputes on same-sex marriage, civil rights law, and more.

The term opened today with arguments in another controversial case: whether businesses can be sued in U.S. courts for human rights violations that occur in foreign countries.

Marcia Coyle of “The National Law Journal” was in the courtroom this morning and is back with us tonight.

And welcome back after three months.

MARCIA COYLE, “The National Law Journal”: Thank you, Jeff. Nice to be back.

JEFFREY BROWN: Now, let us stipulate, as the lawyers say, that last year was a blockbuster.

(LAUGHTER)

MARCIA COYLE: Absolutely.

JEFFREY BROWN: And now this term has some potential itself as well, right? Affirmative action.

MARCIA COYLE: Yes, it does, Jeff.

And it would be a different kind of blockbuster term. Last term was really a lot about the structure of government under the Constitution. Did Congress exceed its lawmaking powers under the Constitution when it enacted the health care law? What role do state governments have in enforcing immigration laws?

This term, a lot of the questions, either on the docket or pending, whether the court will take them, really involve equality issues, issues arising under the Equal Protection Act.

JEFFREY BROWN: So, affirmative action is on the docket.

MARCIA COYLE: It is. It’s going to be argued next week.

It involves the University of Texas and whether it can use race as a factor in its admissions policy in order to increase diversity within its student body.

JEFFREY BROWN: All right, we’re definitely going to look at that next week.

MARCIA COYLE: Yes.

JEFFREY BROWN: But pending, as you say, use the word, same-sex marriage.

MARCIA COYLE: Yes.

There are seven petitions that have been filed in the court, but they really break down into two cases, first, challenges involving the federal Defense of Marriage Act. A key provision defines marriage for all federal purposes as between a man and a woman.

And then the second set involves California’s Proposition 8. And that proposition banned same-sex marriage in California.

JEFFREY BROWN: Right, so wading into an area where states are voting all the time on this.

MARCIA COYLE: Absolutely. There are referendums on a number of state ballots involving same-sex marriage.

JEFFREY BROWN: And just a couple of other cases we might see, civil rights, the Voting Rights Act of 1965?

MARCIA COYLE: Yes. Yes.

There are challenges to what is considered the crown jewel of the civil rights movement.

Section 5 of the 1965 Voting Rights Act requires jurisdictions that have a history of past discrimination in voting to get pre-approval from the Justice Department or a federal court in Washington whenever they make changes in their voting practices.

That section is being challenged in two cases already at the court, although the court hasn’t said it will review them. And, also, we may see Section 5 being challenged in cases involving voter I.D. laws.

As you know, the Justice Department has filed a number of suits in states that have enacted voter identification laws.

JEFFREY BROWN: All right.

Now, when we last talked…

MARCIA COYLE: Yes.

JEFFREY BROWN: … things ended with tension, with questions about the role of the chief justice, whether somehow he had switched to becoming, you know, somehow closer to the center, whether he might be the deciding vote on a lot of different cases.

How much of that you — you were able to talk to a couple of justices over the summer.

MARCIA COYLE: Yes. Yes.

JEFFREY BROWN: Some of them have been appearing on television occasionally.

 

MARCIA COYLE: They have, yes.

JEFFREY BROWN: How much of that seems to linger on? What can you tell?

MARCIA COYLE: Well, I can tell you from at least opening day today that there didn’t appear to be any lingering tensions. This was a court that was business as usual.

But also I can tell you just from personal experience, I remember Bush v. Gore and the aftermath. That decision, there was a lot of bitterness and anger. And yet the court moved very quickly into doing business.

Under the Roberts court, the high point I think for the emotion and anger was the last day of the 2006-’07 term, when they issued a ruling again on race involving whether school districts could use race to assign students to public schools.

But over the summer, that dissipated as well. And as one of the justices said, we move on.

And this court does. It actually has almost two decades now of being perhaps the most collegial court in modern times.

JEFFREY BROWN: Of course, that won’t stop us from watching every vote, especially by Chief Justice Roberts.

MARCIA COYLE: No, that’s right.

Chief Justice Roberts is a very conservative justice. And I don’t think his rule — ruling in the health care law changes that one bit.

JEFFREY BROWN: All right, now, the case that they did argue today, it’s about using U.S. courts to bring international human rights law into effect against — in multinational corporations.

MARCIA COYLE: Right.

JEFFREY BROWN: Trying to spit it out.

MARCIA COYLE: I know.

JEFFREY BROWN: Multinational corporations is what I’m trying to say.

MARCIA COYLE: Right.

It involves a 1789 law, the Alien Tort Statute, very simple, straightforward law that says federal courts have jurisdiction over actions brought by aliens who have been basically injured by violations of international law or violations of treaties of the United States.

This is old business. The court heard arguments last term on whether corporations could be held liable under that statute. Then it later ordered re-argument on a broader question.

And that is whether these cases can be brought in U.S. courts against any defendant who committed a violation in a foreign country. And, today, the court heard arguments on that.

And it’s hard to tell. They weren’t — it seemed a number of justices were not happy with business’ approach, which is to say there is no extraterritorial application of this law, period.

And yet also we’re not too crazy about the human rights groups’ argument that federal courts should be open when — to cases where there’s absolutely no connection to the United States.

JEFFREY BROWN: So what are the stakes? You have got the stakes for business, clearly, doing business abroad, and stakes for human rights law application.

MARCIA COYLE: Right. Right.

Business looks at these cases as very costly to defend. They don’t like to be labeled, either correctly or not correctly, as human rights violators. They want to see them ended in terms of events occurring in foreign countries.

Human rights organizations have used this law as a very effective tool, even if they don’t win these cases. And many times, it has the effect of changing the behavior of corporations that are operating in countries with repressive regimes.

JEFFREY BROWN: All right, one more quick question about the term…

MARCIA COYLE: OK.

JEFFREY BROWN: … because, of course, it comes against the backdrop of the presidential campaign…

MARCIA COYLE: Ah, yes.

JEFFREY BROWN: … that might impact the future of the court.

MARCIA COYLE: Right. Right.

JEFFREY BROWN: There are several older jurists, although they still seem to be quite vigorous, I guess, right?

MARCIA COYLE: I believe they are.

We have four justices who in their mid to late 70s.

And there is the potential for either candidate, President Obama or Mitt Romney, to change the direction of the court if — depending on who may retire in the next four years. There’s no indication that any one of them wants to retire. But you never know.

JEFFREY BROWN: And I wonder if that keeps everybody watching these cases even more carefully against that backdrop.

MARCIA COYLE: It always does. It will be very interesting, the next four years.

JEFFREY BROWN: All right, Marcia Coyle of “The National Law Journal,” welcome back. Thanks, as always.

MARCIA COYLE: My pleasure, Jeff.