Supreme Court to Weigh Affirmative Action, Property Rights, and More

The U.S. Supreme Court returned from its summer recess today, kicking off a new term where the justices will once again tackle some of the most politically-charged issues in American life.

The term’s first true blockbuster hits next week, when the justices hears oral argument in Fisher v. University of Texas at Austin, the challenge to that public university’s use of race in determining undergraduate admissions. When the Supreme Court last confronted the issue of affirmative action in higher education, in a pair of cases stemming from the University of Michigan, the Court ultimately let the practice survive. In her majority opinion in Grutter v. Bollinger (2003), Justice Sandra Day O’Connor allowed the University of Michigan Law School’s race-conscious policies to stand since the school “considers race as one factor among many” and, in her view, did not employ quotas or racial classifications.

Among the dissenters in that case was Justice Anthony Kennedy, who agreed that “there is no constitutional objection to the goal of considering race as one modest factor among many others to achieve diversity,” yet nonetheless found Michigan’s approach in violation of the Constitution. “The majority fails to confront the reality of how the Law School’s admissions policy is implemented,” he declared, noting that Michigan did effectively rely on racial classifications.

In the years since that case was decided, Justice O’Connor has retired, and Justice Kennedy now appears likely to command a new majority willing to severely curtail the use of affirmative action on campus. The figure to watch here is Chief Justice John Roberts. While he recently became something of an outcast among conservatives for his vote upholding President Obama’s health care overhaul, Roberts is much less likely to disappoint the right in this case. Even more so than Kennedy, Roberts is an outspoken critic of race-conscious government actions. As he put it in a 2007 ruling on the Seattle school district’s use of race in making school assignments, “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

Before those fireworks start detonating, however, keep an eye this week on Arkansas Game & Fish Commission v. United States, an important case the Court will hear on Wednesday centering on the Takings Clause of the Fifth Amendment, which requires the government to pay just compensation when private property is taken for a public use. As I explained in my recent column on the case, the U.S. Army Corps of Engineers is responsible for causing six consecutive years of flooding in northeast Arkansas that resulted in severe damage to property owned by the Arkansas Game & Fish Commission. A federal trial judge awarded the commission $5.7 million in just compensation, but that award was overturned on appeal under the dubious theory that because the flooding was “temporary,” no property was actually taken.

In other words, if the Supreme Court buys the federal government's central argument, property owners will have no recourse under the Fifth Amendment when government flooding damages their property so long as the flood waters ultimately recede.

Also up for consideration this term is whether the use of drug-sniffing dogs by law enforcement counts as a search under the Fourth Amendment and whether corporations may be held liable in U.S. courts for human rights abuses committed overseas. And of course there’s still the question of gay marriage working its way through the federal courts. That dynamite issue could conceivably end up on the Court’s docket by year’s end.

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  • Fluffy||

    In Game and Fish Commission, wouldn't the fedgov's argument also imply that if the government deliberately set your property on fire, it wouldn't be a taking as long as the fire eventually went out?

  • sarcasmic||

    Ask the Branch Davidians.

  • Whiterun Guard||

    Well that's kind of difficult.

  • LTC(ret) John||

    Not if you can find a competent psychic or medium!

  • Tim||

    Is this hypothetical fire in a crowded theater?

  • Tulpa Doom||

    Or if they fired bullets across your property every day from dawn til dusk.

  • Death Rock and Skull||

    Since the federal government attempts to control floods, any flood that happens is its fault, and anyone that owns property in an naturally flood prone area is from now on owed compensation for floods that happen.

  • Auric Demonocles||

    Justice Sandra Day O’Connor allowed the University of Michigan Law School’s race-conscious policies to stand since the school “considers race as one factor among many”

    So as long as you're only a little racist, it's cool?

  • tarran||

  • Pro Libertate||

    What if they used race as one negative factor among many? For instance, let's say the school discriminated against a racial minority as opposed to, say, white males?

  • Bardas Phocas||

    It's important to limit the number of Asians. They are total buzzkills for a school's party rating and athletics.
    http://www.huffingtonpost.com/.....51045.html

  • Brett L||

    Not the Asians I've partied with. I mean, granted, they do all of their partying in a six hour window on Saturday between 9pm and 3am, but they know how to party. (I assume we mean East Asians, West Asians [Indian] are totally different. There was a documentary filmed in Houston called Where's the Party, yaar that had great fun with ABIs versus immigrant Indians.)

  • Heroic Mulatto||

    Yes, but no one can beat us West Indians.

  • Brett L||

    Sure, pretty much anyone with a real Carnival is in the Majors.

  • R C Dean||

    The figure to watch here is Chief Justice John Roberts.

    Ruh-roh.

    What if they used race as one negative factor among many?

    Admissions is a zero-sum game. A positive factor for one group is by definition a negative factor for all other groups.

  • Pro Libertate||

    His opinions are too taxing.

  • Paul.||

    Robbed again, Pro L...

  • Night Elf Mohawk||

    Equal protection, as long as you aren't discriminating too much and are benefitting the "right" groups.

    How anyone can believe these fuckers apply the Constitution and not their own desires is just mind boggling.

  • aelhues||

    Apply the constitution? Why that would be silly, when you have mass amounts of past policy decisions, both foreign and domestic, to choose from in implementing your will.

  • Matrix||

    So I guess if the government wanted to use eminent domain and get land cheaply, they could simply just burn down all the houses since that doesn't equate to seizure without due process. Then since the land will be very low in value, give market value on those empty plots and take them.

    I think Krugman would call that a win.

  • T||

    You're a lock for HUD secretary if you keep thinking like this.

  • LTC(ret) John||

    HUD? With that kind of thinking, it would have to be Interior. Matrix could end up seizing whole chunks of states by the "wildfire" method.

  • The Late P Brooks||

    Also up for consideration this term is whether the use of drug-sniffing dogs by law enforcement counts as a search under the Fourth Amendment

    I'm on pins and needles awaiting the outcome of that one.

  • Tulpa Doom||

    If they granted cert it's a good sign.

  • thom||

    My guess is that they find that a dog alerting is probable cause to search anyone or anything within one hundred miles.

  • LTC(ret) John||

    Oh come now, these are judicially restrained people - no more than 50 miles!

  • Paul.||

    when private property is taken for a public use.

    *sigh*

    How many times are going gonna go through this? Public purpose... public purpose.

  • R C Dean||

    Yup, its right there in the Constitution:

    nor shall private property be taken for public use, without just compensation

    My favorite example, in fact, of a de facto amendment of the Constitution by the Court, is the slide from "public use" to the much broader "public purpose".

  • Paul.||

    The Constitution is a different document from the one the Supreme court is interpreting. The current SCOTUS says "Purpose", so it's purpose.

    And dead white men.

    That is all.

  • The Late P Brooks||

    “The majority fails to confront the reality of how the Law School’s admissions policy is implemented,” he declared, noting that Michigan did effectively rely on racial classifications.

    Here's a crazy idea: they could establish a minimum academic performance threshold and then choose from that pool of applicants by lottery.

  • Tulpa Doom||

    They don't want a bunch of eggheads, they want well-rounded and diverse students.

  • T||

    Because racking up student loan debt until he flunks out really makes a disadvantaged yute have a better life.

  • robc||

    Ummm...wouldnt his suggestion lead to that?

    A lottery among all meeting the minimum would lead to well-rounded (fat?) and diverse students having a numerical advantage over the eggheads.

  • mad libertarian guy||

    racist.

  • BarryD||

    Hmmm...

    I wonder what impact that one case might have on AAPL.

  • John||

    I bet Roberts goes conservative this term. I think he was shocked how much people hate him over Obamacare. Now he will tack back right and try to get his old friends back. OF course liberals will go right back to hating him as before. Roberts will be remembered as a justice who tried to please everyone and ended up being liked or respected by no one.

  • Auric Demonocles||

    He has managed to piss me off enough that he'll never be put back on my "Doesn't suck too bad" list.

  • The Late P Brooks||

    they want well-rounded and diverse students.

    Like Sandra Fluke, I reckon.

  • The Late P Brooks||

    If they granted cert it's a good sign.

    Or maybe they just want an opportunity to drive a stake through the heart of the Fourth once and for all.

  • John||

    They like to flex their intellectual muscles every couple of years and beat the dead corpse of the 4th Amendment a little more.

  • BakedPenguin||

    If they declare that what the dogs are looking for effects interstate commerce, that will be a bad sign.

  • John||

    Submitting to the search is just a tax.

  • Brett L||

    Refresh is my friend. You win this one.

  • Brett L||

    Its not a search, its a time-tax!

  • TigTang||

    Now there is a dude that seems to know what he is talking about. Wow.
    www.PrivateData.tk

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