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.