Drama! Intrigue! Habeas! On October 1, the Supreme Court Returns

By Andrew Cohen

Fresh off their most partisan ruling since Bush v. Gore, the justices face a docket and a vibe that are still taking shape.

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Reuters

When we last left our merry little band of renown, the justices of the United States Supreme Court were scrambling to get out of Washington, scrambling to make their speaking and teaching arrangements overseas, having just dumped upon a frantic nation 193 pages of fur and teeth called National Federation of Independent Business v. Sebelius, otherwise known as the federal health care ruling. The Affordable Care Act, we now know, will stand as law, at least for now. What becomes of the Roberts Court from here, however, is anyone's guess.

As the 2012-2013 term begins, the justices for the first time in a long time will labor under the unmistakeable impression that all is not rosy in their midst. Sure, they have said all the right things in their public appearances over the summer. Those justices who have cared to comment on reports of recriminations at the Court have declared that they all get over their most contested cases far sooner than the rest of us do. "If you take this stuff personally," Justice Kagan told folks at the University of Michigan earlier this month,"this is going to be a long life tenure."

Indeed it will be. For centuries now, we've heard how Court collegiality has kept the institution inured from the political passions it stirs with its decisions. The problem for the justices this time around is that their proclamations of good cheer are directly contradicted by reporting from two of the Court's most closest chroniclers. And not just the kind of reporting most of us do when we report on the Court -- from the outside looking in -- but rather the kind of reporting that only a few journalists ever get the chance to do; an inside job, you could say.

From the right, CBS News Chief Legal Correspondent Jan Crawford wrote in early July about how Chief Justice John Roberts alienated his conservative colleagues when he saved the Care Act. From the left, Jeffrey Toobin, the CNN analyst and New Yorker writer, confirmed the essence of Crawford's account in his new book. Toobin reported that Justice Antonin Scalia was "furious" and "enraged" at his conservative colleague. Crawford's report indicated that the chief justice's fellow conservatives were so disgusted with his opinion in the health care case that they refused even to join him in those parts of the opinion with which they agreed.

The Court's conservatives are poised to finish off once and for all the concept of affirmative action in academia.

So when the justices emerge Monday morning into open court, when they start off another term with a case about corporate liability under the Alien Tort Statute, they surely understand that their public demeanor will be scrutinized more than ever. We all have read the reports which suggested that the chief justice winced last term when Justice Scalia went off on an unscheduled rant about an Obama immigration initiative which had nothing to do with the case before him. Now, we'll all be watching to see whether we can discern more.

Hey, kids, this is how Western observers used to try to figure out what was happening within the Kremlin! Journalists and diplomats would watch the facial expressions of the men in overcoats as they watched the troops and tanks roll by. Now that same sort of scrutiny will be applied to the justices. Whether they are self-conscious about this, and whether it ultimately impacts their public or private interactions with one another, is something we'll be better able to gauge next June, when they put another term behind them.

THE CASES

But you don't want to read about inside baseball. You want to know what's on the docket. Alas, what's on the docket today, even after the Court accepted six new cases this past Wednesday, is only about half of what the justices will decide between now and June. So previewing the Court term this year is a little like previewing a play that is only half written. Will this be a term like last term, one for the ages? It depends. It depends on how aggressive the justices are in reaching out to take big-ticket social cases.

We don't yet know, for example, whether the justices will take the Proposition 8 case out of California to finally put to rest that state's uncertainty with same-sex marriage. Nor do we yet know if the Court is going to take another look at the Voting Rights Act after a season marked by partisan discrimination over voter identification laws. And there is a possibility, with voting rights cases brewing in South Carolina, Pennsylvania, Ohio and elsewhere, that the Court may be dragged into an election case before the November election.

As I write today, there is only one transcendent case on the Court's docket this term, and it comes up early, on October 10. In Fisher v. University of Texas at Austin, the Court's conservatives are poised to finish off once and for all the concept of affirmative action in academia. The Court started the job in 1978 in Regents of University of California v. Bakke. It continued it 25 years later in 2003 in Gratz v. Bollinger, when it struck down the University of Michigan's undergraduate admissions policy.

At the time, in 2003, in Grutter v. Bollinger, Justice Sandra Day O'Connor was able to cobble together a majority that saved the University of Michigan's law school admissions policy. But she is long gone from the Court, and her successor, Justice Samuel Alito, has displayed formidable hostility to the concept of affirmative action. In Ricci v. DeStefano, a 2009 case about firefighters in Connecticut, Justice Alito wrote a stinging concurrence that made clear where he stands -- and what's about to happen to the University of Texas.

There are no death penalty cases yet on the docket, although the justices will look in October at two cases involving mentally ill capital prisoners who have been judged to be incompetent and thus unable to assist their lawyers or otherwise participate in their federal habeas review. In Tibbals v. Carter and Ryan v. Gonzales, cases out of Ohio and Arizona, respectively, the justices must confront the question of whether states must essentially halt appellate review of capital cases for the duration of a prisoner's mental incompetence.

The justices again show no interest in resolving the terrible turmoil they have created in the legal war on terror with their 2008 ruling in Boumedienne v. Bush, a dastardly decision which at once gave the Guantanamo Bay detainees a constitutional right to have their cases heard in federal court and an evidentiary burden making it nearly impossible for them to succeed in doing so. Over the past year, the justices rejected appeal after appeal seeking to clarify and refine the rules that the D.C. Circuit Court of Appeals must apply in handling these sensitive cases.

But, for the first time in a few years, the Court is going to tackle a terror law case with significant ramifications for regular Americans -- and, indeed, for people all over the world. In Clapper v. Amnesty International, the justices will determine the constitutionality of recent amendments to the Foreign Surveillance Intelligence Act, changes to the federal law which greatly expanded the government's authority to conduct electronic surveillance on terror suspects (and their contacts) overseas.

What kind of term will it be? Ask again in January, when we know the scope of the Court's docket. And ask anew at the end of next June, when the justices have digested what they have chewed on between now and then. It doesn't look like 2012-2013 is going to be a rock-em, sock-em term like its predecessor. But throw the same-sex marriage case and a voting rights challenge into the mix here, and it will certainly be anything but dull.

This article available online at:

http://www.theatlantic.com/national/archive/2012/09/drama-intrigue-habeas-on-october-1-the-supreme-court-returns/262804/