Experts Discuss New Court Term at Supreme Court Institute Press Briefing

September 19, 2012 — As far as blockbuster Supreme Court cases go, last year’s challenge to the Affordable Care Act is a tough act to follow. But the Court is tackling important issues this term, too, according to Supreme Court Institute (SCI) Executive Director Irv Gornstein and four Georgetown Law professors at the SCI’s annual Supreme Court Press Briefing on September 18.

First up was Fisher v. University of Texas, which considers the extent to which a public university may constitutionally consider race as a factor in admissions decisions. The case could potentially overturn the Court’s landmark 2003 affirmative action decision, Grutter v. Bollinger, which holds that a university may consider race as part of an individualized, holistic admissions process that is narrowly tailored to achieve a diverse student body.  

“In Grutter itself, Justice O’Connor’s opinion said that in 25 years we might want to reevaluate this, [and] here we are nine years later,” said Professor Neal Katyal. Still, the factual differences between the two cases may preclude the Court from reaching the Grutter question, he noted.

The court may grant certiorari on challenges to the constitutionality of the federal Defense of Marriage Act (DOMA) and the Voting Rights Act. “If anybody thinks that the outcome of [the DOMA challenge] is driven by the level of scrutiny that the court selects, I have a bridge to sell you,” joked Professor Louis Michael Seidman, who noted the vast changes in attitudes towards same-sex marriage since the 1996 signing of the DOMA statute, which defines marriage as between one man and one woman. 

Professor David Cole, though, offered to “buy the bridge” — meaning he thought the Court could easily strike down the DOMA statute under a rational basis test. “I have yet to see a rational argument against recognizing gay marriage,” he said.

This term may also decide the fate of the 1789 Alien Tort Statute, now used by plaintiffs seeking redress for human rights violations occurring outside the United States. The Court heard oral argument last term in Kiobel v. Royal Dutch Petroleum on whether a corporation may be held liable under the statute, yet ordered a rehearing to determine whether it applies outside the United States.

Visiting Professor Pamela Harris, formerly executive director of the Supreme Court Institute, rounded out the panel.