Supreme Court Cases of Interest to States

E-newsletter Issue #103 | October 25, 2012

Last year, it was health care and immigration reform. This year, the big state issues before the U.S. Supreme Court generally fall into two broad categories—environmental and searches cases.

The court also will hear a couple of cases of interest to states that don’t fall into those broad categories, Lisa Soronen, executive director of the State and Local Legal Center, said during a preview of state-related cases expected in the 2013 Supreme Court term during a webinar last week.

One case—Fisher v. University of Texas—involves a state law, but the law is not at issue, Soronen said.

This case is a challenge to the university’s admissions process. Abigail Fisher, a white Texan who sued after she was not admitted to the University of Texas, challenged the university’s use of race in the admissions process.

“Some have speculated the court might take an opportunity here to overturn the University of Michigan cases and say race can’t be used at all in college admissions,” said Soronen.

In 2003, the Supreme Court considered affirmative action in college admissions in Grutter v. Bollinger, in which the U.S. Supreme Court upheld an affirmative action admissions policy at the University of Michigan Law School. The court ruled that while racial quotas could not be used in admissions, a student’s race could be considered in the application review process.

Soronen believes the decision will come down to what side Justice Anthony Kennedy picks. Justice Elena Kagen has recused herself from the case based on work at the Solicitor General’s office.

“Kennedy could join the liberals, who have indicated they will likely support the plan and then the decision would be 4-4, in which the UT policy would be held up,” she said. “Or Kennedy could join the conservatives and they would have a choice: Do they want to strike down just UT’s plan or do they want strike down the use of race in college admissions?”

Soronen said the court also might consider a same-sex marriage case. A possible case for consideration, she said, is one in which the First Circuit in May struck down the federal Defense of Marriage Act as unconstitutional.

“It’s very unlikely the Supreme Court will let any decision stand where a federal law is struck down as unconstitutional,” she said. “That’s just an invitation for Supreme Court review.”

But, Soronen said, Kagen has recused herself from this case, again because of work on it for the Solicitor General’s office, which would make the case less attractive for the court to consider.

Another possibility is a case involving California’s Proposition 8. The Ninth Circuit Court of Appeals ruled that it’s not OK for a state to give a right, as it did in legalizing same-sex marriage, and then take it away, as it did after voters expressed their opinions at the polls.

“The California case, in theory, possibly raises questions as to whether there’s a constitutional right nationally to same-sex marriage,” Soronen said.

She said most court watchers believe Kennedy, again, will be the deciding factor. That has some gay marriage proponents hopeful. In the most recent cases involving homosexuality, Kennedy has written sympathetic and favorable opinions.

Other cases of interest to states that the court will consider include:

  • Arkansas Fish & Game Commission v. United States. This case raises the question of whether the government must pay for downstream flooding due to water releases from a dam. The Arkansas commission sued the U.S. government because of damage done to trees following the release of water from the Clearwater Dam in Missouri, Soronen said. The government had offered a $13 million settlement with the state. “The trees are worth less than $6 million dollars, leading me to conclude that the U.S. is worried about the outcome of this case,” she said.

  • Two Florida cases—Florida v. Jardines and Florida v. Harris—involve search cases involving dogs. The Jardines case raises the question of whether a dog search outside a person’s home is a Fourth Amendment search. The Florida Supreme Court said this would be an intrusion, “saying a man’s home is his castle,” Soronen said. The Harris case raises the question of what it takes to be a drug-sniffing dog. The dog, Aldo, alerted his handler of the scene on the driver’s side door handle, but no drugs were found in the vehicle. The driver admitted to the officer that he was a meth user, and the officer testified the odor could be residual.

  • State v. McNeely. This case raises the question of whether police can conduct warrantless nonconsensual blood alcohol tests at traffic stops if there is no accident. In 1966, the Court ruled these tests could be conducted in cases of accidents. “The implication is if there was no accident, just a routine DUI pullover, the person would have to consent to a blood alcohol test,” Soronen said. Three states—Minnesota, Oregon and Wisconsin—allow warrantless nonconsensual blood alcohol tests at traffic stops in all cases, but other states do not, Soronen said.

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