A More Interesting Supreme Court Term Coming Up

By Mike Dorf

The Supreme Court Review Session at the Practicing Law Institute last week was, as anticipated, great fun and very informative.  There was some disagreement among us panelists about whether to characterize the 2010 Term as "boring," but a general consensus emerged that the coming Term promises to be more exciting.  That assessment certainly was not based on the cases already on the Court's docket.  There are a few mildly interesting questions:  whether the police need a warrant to attach a GPS tracking device to a car; the scope of the "ministerial exception" to Title VII; and whether FCC indecency regulation is unconstitutionally vague.  But none of these is a blockbuster.

The anticipation of importance relates to the following issues that will be posed in cases that are likely to come to the Court within the next several months: 1) Whether the individual mandate of the Patient Protection and Affordable Care Act is within Congressional power? 2) Whether the Defense of Marriage Act is valid?  3) Whether there is a constitutional right to same-sex marriage?  and 4) What is the standard for judging race-based affirmative action programs at state universities now that Justice Kennedy, rather than Justice O'Connor, is the median Justice on this issue.

Can and will the Supreme Court duck any of the aforementioned issues?  Let's consider them in turn.

1) So far only one federal appeals court, the 6th Circuit, has ruled on the constitutionality of the PPACA, upholding it.  That, in itself, may be all the SCOTUS needs to justify granting cert, and indeed, political considerations aside, that's what I would counsel.  We have here a major piece of federal legislation.  There have been doubts raised about its validity, and they are sufficiently substantial to have led district judges to invalidate it.  Why wait?  Well, one answer might be that the Justices want to be taken off the hook.  If all of the circuits uphold the mandate, then the Court can tell itself that the doubts have been resolved.  But this seems unlikely, especially if one of the circuits invalidates the mandate, at which point the issue will be unduckable.

2) The validity of DOMA is still pending before the First Circuit, and has been raised in litigation that will eventually go to the Second Circuit.  As currently configured, Congress is extremely unlikely to repeal DOMA, so its validity will not be mooted by legislation.  If a circuit court invalidates DOMA on any ground, I would expect the Supreme Court to grant cert.  I could see the Court taking the case even if DOMA is upheld in the circuit courts, but that seems somewhat less likely.

3) Depending on how the lower courts resolve the issues, a DOMA case could present the question whether there is a constitutional right to same-sex marriage (or it could simply present a federalism/full-faith-and-credit question).  The direct same-sex marriage question could also be presented by the Ninth Circuit litigation over Prop 8.  That case continues to be stalled, and the procedural questions regarding standing could mean no ruling on the merits for another year or more.  If the Ninth Circuit reaches the merits, and finds a right to same-sex marriage, and that ruling survives en banc reconsideration, then I would expect the Court to take the case.  But I think the odds are somewhat against all of that happening in time for the SCOTUS to hear the case in the coming Term.

4) The affirmative action case hasn't gotten much play in the national press, but it's potentially a big one.   Here's Judge Edith Jones, writing for herself and four other conservative 5th Circuit judges, dissenting from the denial of rehearing en banc in Fisher v. Univ of Texas: 
By a narrow margin, this court has voted not to rehear this case en banc. I respectfully dissent. This panel decision essentially abdicates judicial review of a race-conscious admissions program for undergraduate University of Texas students that favors two groups, African–Americans and Hispanics, in one of the most ethnically diverse states in the United States. The panel purports to apply the Supreme Court's decision in Grutter v. Bollinger, which authorized some race conscious admissions to Michigan Law School to foster educational “diversity.” The panel's opinion, however, extends Grutter in three ways. First, it adopts a new “serious good faith consideration” standard of review, watering down Grutter's reliance on strict narrow tailoring. Second, it authorizes the University's race-conscious admissions program although a race-neutral state law (the Top Ten Percent Law) had already fostered increased campus racial diversity. Finally, the panel appears to countenance an unachievable and unrealistic goal of racial diversity at the classroom level to support the University's race-conscious policy. This decision in effect gives a green light to all public higher education institutions in this circuit, and perhaps beyond, to administer racially conscious admissions programs without following the narrow tailoring that Grutter requires.
That's what's known in the trade as a cert petition masquerading as a dissent.  I think the Court will grant.  So, if I had to bet, I'd say that the Court hears the individual mandate and affirmative action cases this Term, but not the DOMA or same-sex marriage case.  I wouldn't bet a lot, though.

Postscript:  Earlier in the week, I promised to take a crack at a stump speech for President Obama.  By the time I finished, it was long for a blog post, so I'm going to run it as a Verdict column next week--along with an accompanying post.