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A Preview of The 2012 Supreme Court Term

By Dan Schweitzer, NAAG Supreme Court Counsel

Dan Schweitzer, Supreme Court Counsel

It’s that time of year again. No, not football season – Supreme Court season! Next week, the Court will begin another Term. The Court has agreed to hear 33 cases so far, filling up its October, November, and December argument sessions. As always, many of the cases will be of great interest to the Attorneys General. Here is a brief description of some of them.

The Blockbusters: gay marriage, affirmative action, and The Voting Rights Act. Each will be in the Justices’ cross-hairs this Term. The Court is being asked to review two major lower court rulings relating to gay marriage. One is the Ninth Circuit decision holding that California’s Proposition 8 violated the Fourteenth Amendment by withdrawing from homosexuals the right to marry persons of the same sex. The other is the First Circuit decision holding that the provision of the Defense of Marriage Act (DOMA) denying federal benefits to same-sex couples who are legally married under the laws of their state violates the Fifth Amendment’s guarantee of equal protection. The First Circuit struck down the provision after applying a heightened version of rational basis scrutiny: rather than asking whether “any plausible factual basis” for the law can be shown “without regard to Congress’ actual motives,” the court found that it must “undertake[] a more careful assessment of the justifications,” looking at the “nature of the discrepant treatment, the burden imposed, and the . . . justifications offered.”

The Court will take up the California Proposition 8 cert petition, Hollingsworth v. Perry, at its first conference of the Term; the cert petition in the DOMA case, Bipartisan Legal Advisory Group of the House of Representatives v. Gill, isn’t scheduled for conference until a few weeks later. It will be interesting to see whether the Court “holds” the Prop 8 case for a short while so that it can assess the cert petitions in the two cases at the same time. Some advocates of same-sex marriage have suggested that it would be preferable for the Court to take up the DOMA case first, because a ruling in favor of the same-sex marriage side of that case would be “narrower” than a ruling in favor of same-sex marriage in the California case. The conventional wisdom, however, is that the Court will agree to hear both cases.

Affirmative action in higher education is the issue in Fisher v. University of Texas at Austin, which will be argued on Oct. 10. In Grutter v. Bollinger (2003), the Court upheld the limited use of “race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.” Since the late 1990s, the University of Texas at Austin (UT) has obtained some amount of racial diversity through its top-10 percent program, under which the school admits all Texas high school seniors ranking in the top 10 percent of their classes. After the Court decided Grutter, UT concluded that it still lacked the critical mass of minority students necessary for a truly diverse campus, both across the student body and within the classroom. UT therefore amended its admission policies to permit individualized consideration of race as part of the “Personal Achievement Index” that it uses to assess applicants. This case will test the continuing vitality of Grutter ─ a case in which Justice O’Connor provided the decisive fifth vote to uphold the University of Michigan’s affirmative action program. Many observers believe Justice Alito does not share Justice O’Connor’s views on affirmative action, and will likely be a fifth vote to narrow the extent to which institutions of higher education may take race into account in the admissions process.

Finally, the Court is being asked to review, once again, whether Congress exceeded its enforcement power under the Fifteenth Amendment when it reauthorized Section 5 of the Voting Rights Act in 2006. Section 5 requires “covered jurisdictions” to obtain “preclearance” from the Department of Justice or a three-judge federal district court in the District of Columbia before they may implement changes to their election procedures. Various state and local governments, and candidates for state and local office, have argued that this imposition on state sovereignty can no longer be justified, as it was in 1965, by a pattern of discrimination based on race. And, they argue, by not updating the formula for determining which jurisdictions are subject to Section 5 ─ instead using a formula based on state practices and election turnouts in 1972 ─ Congress is irrationally selecting which states to cover.

The Court took up this issue in 2009 in Northwest Austin Municipal Utility District No. 1 v. Holder, stating that Section 5’s “preclearance requirements and . . . coverage formulas raise serious constitutional questions.” The Court did not reach the constitutional issue, however, because it ruled for the plaintiff on statutory grounds. Pending cert petitions in Shelby County v. Holder and Nix v. Holder will give the Court another opportunity, which it is likely to accept in late October or early November.

Criminal Law

Most of the Court’s cases that will directly affect the states involve criminal matters. The Fourth Amendment is on the docket via two cases out of Florida, both addressing law enforcement’s use of drug-detection dogs. Police officers often walk a drug- detection dog around a lawfully stopped car, even though they lack a warrant or even reasonable suspicion that the owner of the car had violated any drug laws. If the dog alerts to the presence of drugs in the car, that establishes probable cause which enables a search of the car. In Illinois v. Caballes (2005), the Court held that such a dog sniff is not a search within the meaning of the Fourth Amendment because the sniff “discloses only the presence or absence of narcotics, a contraband item,” which “compromises no legitimate privacy interest.”

In Florida v. Jardines, the Court will decide whether police officers also acted lawfully when, without a warrant or probable cause, they brought a drug-detection dog to the front porch of a house to sniff for drugs within the house. The logic of Caballes supports the police’s action there; but the Court has often said that the home is more protected under the Fourth Amendment than cars are. In Florida v. Harris, the Court will determine whether an alert by a well-trained drug-detection dog always establishes probable cause to search. The Florida Supreme Court held that the drug-detection dog’s alert in that case did not establish probable cause because the prosecution failed to prove the dog’s reliability by, for example, showing that the dog had not been making “false alerts” in the field.

A pair of cases, one from Arizona and one from Ohio, address whether death row inmates may obtain indefinite stays of their federal habeas cases if they are found incompetent to assist their habeas counsel. In Ryan v. Gonzales, the Court is reviewing a Ninth Circuit decision holding that 18 U.S.C. §3599 ─ which provides that an indigent state inmate pursuing federal habeas relief in a capital case “shall be entitled to the appointment of one or more counsel” ─ entitles a death row inmate to such a stay. In Tibbals v. Carter, the Court is reviewing a Sixth Circuit decision holding that the Supreme Court in Rees v. Peyton (1966) construed a different federal statute as authorizing such a stay. The states argue that neither statute creates a right to be competent to assist habeas counsel; that capital inmates have every incentive to try to delay their federal habeas cases (indeed, an indefinite delay is as good as a win); and that communication between the inmates and counsel serves little purpose because both of the habeas cases are being reviewed on a closed record (the record that was before the state court). Neither inmate is seriously defending the reasoning of the lower courts. Their principal argument, instead, is that federal district courts have the inherent authority to issue stays, and that issuing them in these cases would not be an abuse of discretion.

Finally, in Chaidez v. United States, the Court will determine whether its opinion in Padilla v. Kentucky (2010) applies retroactively to cases on collateral review. In Padilla, the Court held that criminal defendants receive ineffective assistance of counsel under the Sixth Amendment when their attorneys fail to advise them that pleading guilty to an offense will subject them to deportation. Specifically, the Court held that “[w]hen the deportation consequence is truly clear,” the attorney has a Sixth Amendment duty “to give correct advice”; “[w]hen the law is not succinct and straightforward,” the attorney need only warn “that pending criminal charges may carry a risk of adverse immigration consequences.” At issue now is whether that ruling applies not only to cases going forward and to cases that were not yet final when Padilla was announced, but will also apply to the many thousands of non-citizens who pleaded guilty and whose appeals were final before Padilla was announced. The answer to that question depends on whether the rule established in Padilla is considered a new rule under Teague v. Lane, or is instead viewed merely as a simple application of Strickland v. Washington.

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