On the docket: race, sex, education and drug-sniffing dogs

Justice Anthony Kennedy is likely to retake his role as the swing vote on cases facing the Supreme Court. The courts starts its term Monday.

 WASHINGTON -- The Supreme Court picks up Monday where it left off three months ago -- squarely in the middle of some of the nation's most politically divisive issues.

Nothing on the court's growing 2012-13 docket has the potential to match its 5-4 decision to uphold President Barack Obama's health-care law last June. But before the term is out, the justices are likely to examine American institutions as fundamental as the right to marry, vote and get an education.

"I think they're going to be back in the headlines again this term," says Paul Clement, the former U.S. solicitor general who argued in the court against the health care law.

In two of those cases, the court's conservatives appear to have the upper hand. That could lead to restraints on the use of race in college admissions and election administration.

The court's liberal wing could win out, however, on the most explosive issue: same-sex marriage. Numerous challenges to the federal Defense of Marriage Act and a lower court's ruling that it's unconstitutional make it likely the justices will accept at least one case next month.

There's even a chance the court will be asked to intervene in the November elections by ruling on state efforts to require photo identification, restrict registration drives or regulate early voting.

Court watchers will be looking to see whether tensions from last year's health-care decision carry over into the new term. Chief Justice John Roberts' fifth vote to uphold Obama's overhaul of the nation's health insurance system created a rift among the court's conservatives.

"Last term was a term of a decade because 'Obamacare' was a case of a decade," says Yale Law School professor Akhil Reed Amar.

The justices have little chance to avoid controversy both because of the volatile issues headed their way and the political attention focused on their ideological divide.

After a term in which Roberts played the swing vote on the Patient Protection and Affordable Care Act, the focus on race and sexual orientation is likely to return Justice Anthony Kennedy to that role. Kennedy, who takes a limited view on preferences but a more expansive view on equality, is sandwiched between Antonin Scalia, Clarence Thomas, Samuel Alito and Roberts on the right, and Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan on the left.

Experts such as Santa Clara University School of Law professor Bradley Joondeph predict Kennedy will join the conservatives against the affirmative-action program but join the liberals in favor of same-sex marriage. The scope of those decisions, however, would be critical in determining their broader applicability.
"On abortion, race and gays, Kennedy matters," says Lisa Blatt, a partner at Arnold & Porter who has argued 30 cases before the Supreme Court. Only abortion is likely to remain off the court's docket.

Race, sex, education

Three issues are getting most of the attention at the start of the term

Affirmative action: In Fisher v. University of Texas, the court will decide whether the school's racial preferences went too far in passing over Abigail Fisher, a white high school student in 2008.

The university applied two rules: It accepted the top 10% of students from all Texas high schools, including those dominated by African Americans and Hispanics. And it included race as a factor in reaching beyond the top 10%, in order to achieve diversity within --as well as among --racial and ethnic groups.

The case has the potential to set a national precedent, just as two cases involving the University of Michigan did in 2006. Then, the court ruled that using race as a factor in admissions was constitutional, but a strict formula was not.

Most experts, such as American University Washington College of Law professor Stephen Wermiel, predict a narrow decision against the university's affirmative-action program, but without national consequence. Still, proponents of racial preferences are nervous; the 2006 decision upholding Michigan's program was written by moderate Justice Sandra Day O'Connor, who since been replaced by conservative Justice Samuel Alito.
--Voting rights: Several challenges to the 1965 Voting Rights Act are moving through district and appellate courts, and the high court is expected to take up one or more.

At issue is Section 5 of the law, a landmark civil rights achievement that prohibits nine states and municipalities in seven others from changing their voting laws without approval from the Justice Department or a special federal court.

Although Congress twice extended the provision, most recently in 2006, opponents contend it is anachronistic. Even if some states and localities remain prone to racial discrimination, they argue, they almost certainly aren't the same ones singled out nearly a half century ago.

The issue pits two laudable goals --civil rights and federalism --against each other.

--Same-sex marriage: The big question as the term begins is whether the justices will accept one or more cases involving the rights of gays and lesbians to marry. If they do, it may offer the best chance for a landmark ruling.

There are two possibilities. The most likely is that the court will accept a challenge to the 1996 Defense of Marriage Act, which has been declared unconstitutional in lower courts and which the Obama administration is refusing to defend.

"The court almost has to take the defense of marriage issue up," says Clement, who is representing House Republicans in backing the law. "The court will want to take this issue and get it resolved one way or another."

The other option is for the court to consider challenges to California's Proposition 8, a 2008 referendum that overturned the state's support for gay marriage. A broadly worded ruling against the referendum could pave the way for legalized gay marriage elsewhere, rather than just in New York, Massachusetts, Connecticut, Vermont, New Hampshire and Iowa. More likely is a narrowly worded decision that affects only California.
Even if the court declines to hear the Proposition 8 challenge, that decision would be important,because a lower court has ruled against the referendum. Without high court review, gays and lesbians soon could marry in the nation's most-populous state.

DNA and drug-sniffing dogs

Among the other cases on the court's docket or likely to be heard, and their oral argument dates:
--Kiobel v. Royal Dutch Petroleum Co.: Can corporations be sued in the United States for human rights violations committed in foreign countries where they invest? The case is the first to be heard on Monday.

--Kirtsaeng v. John Wiley & Sons: Can an individual buy copyrighted material outside the United States at a reduced price, then sell it for profit inside the U.S.? Oct. 29.

--Bailey v. United States: Can police return a defendant to his or her home in order to execute a search warrant? Oct. 30.

--Florida v. Jardines and Florida v. Harris: Can a drug-sniffing dog be used to detect illegal drugs outside a private home or inside a private truck? Oct. 31.

--Missouri v. McNeely: When can police take blood samples from drunken-driving suspects without first getting a warrant? Likely in January.

--Maryland v. Alonzo Jay King Jr.: Can police collect DNA samples from individuals charged with mainly violent crimes, even if they have not been convicted? No date set.