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.