Supreme Court to weigh affirmative action case in busy new term

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David Demirbilek Contributor
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The Supreme Court marks the beginning of its new term on Monday. Although last year’s judicial fireworks, featuring challenges to the Affordable Care Act and Arizona’s immigration law, aren’t likely to be repeated, the Court will hear several high-profile cases in the month of October.

Affirmative action

Fisher v. University of Texas at Austin, a challenge to Texas’s use of affirmative action in college admissions, is widely hailed as the most important case the Court has agreed to hear thus far.

The case could potentially sound the death knell for affirmative action in the United States.

Texas requires that every student graduating in the top 10 percent of his class be admitted to University of Texas. However, when Abigail Fisher did not graduate in the top 10 percent of her class, she was thrown into the remaining pool of UT applicants where racial preferences are utilized in the selection of students.

Upon being denied admission to UT, Fisher brought suit in federal court, challenging the constitutionality of the affirmative action policy she believed barred her admittance to the school.

The Court last examined racial preferences in 2003, narrowly upholding them in the case Grutter v. Bollinger. However, Sandra Day O’Connor, Grutter’s swing vote, was replaced in 2006 by Samuel Alito, widely believed to be a skeptic of affirmative action.

With four conservatives and Anthony Kennedy — who issued a fierce dissent in Grutter — currently sitting on the Court, many experts believe Fisher stands a good chance of prevailing against Texas’s affirmative action policy.

Argument Date: Oct. 10

Property takings

In Arkansas Game & Fish Commission v. United States, the Court will examine whether intermittent flooding of land by the federal government constitutes a taking of property.

The U.S. Army Corps of engineers periodically flooded thousands of acres of land owned by the Arkansas Game & Fish Commission from 1993 to 2000.

The Commission brought suit against the United States, alleging that the flooding equated to a taking of their land by the government. The government disagreed, asserting that the flooding was only temporary and thus not a taking.

The Heritage Foundation has remarked that under the government’s theory, “the flood in Genesis that wiped out every living creature except the ones aboard Noah’s ark was not a ‘taking’ because the water subsided after 40 days.”

Argument Date: Oct. 3

International law

The Court’s decision in Kiobel v. Royal Dutch Petroleum may present serious implications for international corporations.

The Kiobel case revolves around the Alien Tort Statute, a 1789 law adopted in the last few decades to sue in U.S. courts for violations of international and human rights law abroad.

Two major issues are at stake in Kiobel. First, does the Alien Tort Statute even apply to offenses committed abroad? If so, second, does the Alien Tort Statute apply to corporations?

Esther Kiobel, a Nigerian citizen, filed suit against Royal Dutch Petroleum and other oil companies for their complicity in the death of her husband. She alleged that the companies colluded with the Nigerian government in committing atrocities while putting down resistance to oil drilling, killing her husband in the process.

If the Court rules for Kiobel, it will open a new channel for human rights and international law violations to be litigated in U.S. courts.

Argument Date: Oct. 1

Government surveillance

In Clapper v. Amnesty International, the Court whether the plaintiffs may challenge government surveillance schemes under the Foreign Intelligence Surveillance Act

The obstacle Amnesty International and a bevy of other plaintiff groups face is proving whether the government spied on their own personal communications, injuring them in the process. With few exceptions, a plaintiff must prove injury to bring a case in federal court.

If one of the plaintiffs does prove injury, it of course must tactfully explain in court why the government would have wanted to spy on it in the first place.

Argument Date: Oct. 29

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