First Monday in October

Posted by AzBlueMeanie:

The U.S. Supreme Court opens its new term on the first Monday in October. Last week the Court held its pre-term conference. One decision was reached at conference. The Court — by an apparent unanimous vote — told lower-court judges not to insist on close-to-zero differences in the population of each of a state’s districts for choosing members of the U.S. House of Representatives. Lyle Denniston reports, Opinion recap: Hedging on “one person, one vote” : SCOTUSblog:

Zero variance” in population is not the new constitutional norm for redistricting, the Court made clear.  Just because computers can produce almost exactly equal-sized districts, the Constitution does not require it, the decision said.

After sitting on the case from West Virginia all summer long, the Court produced an eight-page, unsigned ruling that largely deferred to the wishes of that state’s legislature on how to craft the three districts for choosing its House delegation.  The opinion can be found here.  

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Tuesday’s ruling gave state legislators constitutional permission to have some variation in size between congressional districts, if the lawmakers do so to protect incumbents from having to run against each other, to avoid splitting up counties, and to avoid moving many people into a new district from the one where they had previously cast their votes.   In what appeared to be a novel new declaration, the Court stressed that lower courts should not demand that a state prove specifically how each of those goals would be satisfied by moving away from equally populated districts.    And, in another legal innovation, the Court said that a variation that is not really very big does not become a constitutionally suspect one just because a sophisticated computer program could be used to avoid nearly all such variations.

If the difference between a state’s largest House district and its smallest one is small — such as the 0.79% deviation in the West Virginia plan — that does not become unconstitutionally large just because it could be avoided by “technological advances in redistricting and mapping software.”

The Court also granted certioriari in six new cases, Gabelli v. Securities and Exchange Commission (11-1274), Levin v. United States (11-1351), Missouri v. McNeely (11-1425), Maracich v. Spears (12-25),  and Delia v. E.M.A. (12-98).  In the sixth case, Millbrook v. United States (11-10362), the Court wrote a new question that it will decide on the immunity of the federal government from a lawsuit claiming negligence by officials of the Lewisburg, Pa., prison over a sexual assault on an inmate by three guards. 

The Court is expected to issue grants from its Conference at 9:30 a.m. and will report on the grants (as well as any other actions taken on the order list). [Two cases from the state of Washington challenging that state's top-two primary system were previously scheduled to be considered at conference last week.]

The October Term 2012 officially begins on Monday, October 1, at 10:00 a.m. when the Court will hear oral arguments in Kiobel v. Royal Dutch Petroleum Co. and Lozman v. City of Riviera Beach, Florida.

Mark Walsh of the ABA Journal has a preview of this term, which will likely include challenges from Texas and Alabama to Section 5 of the Voting Rights Act, an early term challenge to affirmative action in admissions to universities, and possibly review of the Defense of Marriage Act (DOMA). Eyes of US Are Upon Texas: Affirmative Action Case Kicks Off the Supreme Court’s 2012 Term – ABA Journal:

There is the major test of affirmative action in higher education in Fisher v. University of Texas at Austin. There is a case that will interpret whether a 1789 act of Congress allows U.S. courts to weigh legal violations on foreign soil. And a pair of cases examine whether sniffs by drug-detection dogs are searches under the Fourth Amendment. Meanwhile, the justices could yet add major cases on gay marriage and the Voting Rights Act.

The new term “really has the potential to be a worthy sequel to the blockbuster term we had” in 2011-12, says John P. Elwood, a partner at Vinson & Elkins in Washington, D.C., and a frequent contributor to SCOTUSblog. “There is a lot of good stuff that is either on the docket or on the horizon.”

Here are some of the top cases (in addition to Fisher) already granted review:

Alien Tort Statute—Kiobel v. Royal Dutch Petroleum Co.—The court heard arguments last spring on whether a corporation may be held liable under the 18th century law for its alleged complicity in a foreign government’s torture of its own citizens. The justices ordered the case reargued with the additional question of whether the statute allowed U.S. courts to hear suits about violations of international law when the violations occurred on foreign soil.

Dog searches—Florida v. Jardines and Florida v. Harris—In two cases, the court will examine whether an alert by a narcotics-detection dog at the front door of a suspected drug “grow house” is a search under the Fourth Amendment, and whether an alert outside a vehicle is sufficient to establish probable cause.

Class actions—Comcast Corp. v. Behrend—In a follow-up to its 2011 ruling in Wal-Mart Stores Inc. v. Dukes, which made it more difficult to certify class actions, the court will take up a case in which the cable-TV provider Comcast is challenging whether a federal district court considered enough evidence before certifying a class of customers allegedly harmed by cable-market swaps.

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Among the big cases that could join that list are these:

Gay marriage—U.S. Department of Health and Human Services v. Massachusetts and other cases—The hot-button issue has reached the high court this term in several appeals, including one by supporters of California’s Proposition 8, which prohibited gay marriage but was struck down on narrow grounds by the 9th U.S. Circuit Court of Appeals at San Francisco, and several involving the federal Defense of Marriage Act. One good bet for a grant is a case in which both President Barack Obama’s administration and the Bipartisan Legal Advisory Group, made up of House members who defend the law, are urging the court to review a decision by the 1st Circuit at Boston that struck down the law’s definition of marriage (as barring same-sex marriages) as a violation of the equal protection clause.

Voting Rights Act—Nix v. Holder and Shelby County v. Holder—In 2009, the court stepped to the brink of overturning a key provision of the Voting Rights Act of 1965, but stopped short by ruling narrowly on a Texas municipal agency’s challenge to federal “pre-clearance” requirements for jurisdictions with a history of discriminatory voting procedures. Pending appeals from North Carolina and Alabama ask the justices to confront whether the 2006 renewal of the Voting Rights Act violated the Constitution by maintaining the preclearance procedures.

It isn’t always easy to know at the beginning just how big a Supreme Court term will be. At this time last year, it wasn’t even a certainty that the justices would hear the Affordable Care Act cases last term.