The President and the Court: Shaping the Supreme Court's 2012 Term

Anna-Rose Mathieson

Corporate Counsel

10-11-2012

This is the latest in a series of columns from attorneys at O'Melveny & Myers LLP, examining the intersections of the political and legal worlds in the run-up to Election Day 2012.

No case in the current U.S. Supreme Court term—or even this decade—is likely to be as politically charged as last term’s health care decision, which was billed as a judicial referendum on the key legislative achievement of President Barack Obama.

Nor is any case this term likely to have a direct effect on the November 6 election. The Supreme Court just began hearing oral arguments after returning from its summer recess. The Court may not have time to issue a single opinion before the election, and even if it does the opinion would be on a topic unlikely to register on the political radar—such as whether a plywood structure that floats (barely) but lacks a motor qualifies as a “vessel” for purposes of maritime law. The chances of the Court resolving the merits of a controversial case within a month are virtually nil.

But the relationship between the U.S. political process and the Court will still be evident this term. Unlike last year, when the Court’s effect on the administration was front and center as the solicitor general pleaded with the justices to preserve the results of the president’s hard-fought battle over the Affordable Care Act, the impact of the administration on the Court will be particularly visible this term.

A president has two major ways to shape the Court’s decisions. One is by acting as an advocate; the government serves as one of the most trusted advisors before the Court, and is almost always granted permission to argue as an amicus when it wants to weigh in on a pending case. Like administrations before it, the Obama administration has molded policy through strategic use of amicus positions—occasionally even when those positions require the abandonment of arguments pressed by prior administrations.

The other way a president shapes the Court is through the power to control judicial appointments. The impact of this power is evident in one of the most high-profile cases this term, Fisher v. University of Texas at Austin, which was argued before the Court on Wednesday. In Fisher, the judicial appointments of President George W. Bush could result in the Court limiting or even overruling Grutter v. Bollinger, a major constitutional decision on affirmative action that is less than a decade old.

In 2003’s Grutter, the Court split 5-4 in upholding the affirmative action program used by the University of Michigan Law School. Over the objections of the Bush administration, the Court held that race could be considered as a “plus” factor in admitting students for higher education, as long as each candidate was examined holistically and race was not determinative. Following Grutter, the University of Texas modeled a portion of its admissions program on the Michigan plan approved by the Court. The majority of its students are admitted under a race-neutral “Ten Percent Plan,” which grants automatic acceptance to students graduating in the top 10 percent of any Texas high school. For the remaining group of students, Texas uses a holistic approach to admissions where race is one among many factors.

The Fifth Circuit upheld the plan in 2011, recognizing that it could not be distinguished from the Michigan plan approved in Grutter. But in a Court-baiting concurrence, Judge Emilio Garza urged the Supreme Court to overrule Grutter. Pulling no punches, he decried Gutter’s analysis as “flawed” and “artificial,” and proclaimed “only the Court can rectify the error.”

In what is widely regarded as a bad sign for the University of Texas, the Supreme Court decided to hear the Fisher case. Of course, the grant of certiorari is almost always a bad sign for the prevailing party—over the last five years, the Court has reversed about 70 percent of the cases before it.

Here, though, the situation is even starker. There is no split among the circuit courts and there is recent precedent from the Court in a factually similar case, so the petition did not meet the usual criteria for certiorari set out in Supreme Court Rule 10. But the composition of the Court has shifted since Grutter, when Justice Sandra Day O’Connor was the swing vote in the majority for upholding the Michigan plan. Justice O’Connor retired during the Bush administration and was replaced by Justice Samuel Alito, who has made clear his opposition to affirmative action. Justice Kennedy is now the swing vote on the current Court, and he is generally considered to the right ideologically of Justice O’Connor on most issues—certainly on this one, because he regarded the Michigan plan as unconstitutional and dissented in Grutter.

The shift of the Court is clear to all participants in the case: the brief for the University of Texas cites Justice Kennedy’s Grutter dissent six times in the first two paragraphs. This play for a single justice’s vote would be striking in any context, but is particularly remarkable given that the plan’s supporters effectively recognize there is no way they can win without the vote of a justice who dissented in a closely related case. It is a blunt recognition that the Bush administration, through its appointments to the Court, may ultimately succeed in achieving the victory that eluded it in Grutter. It may be a victory in substance rather than name—Fisher did not ask the Court to completely overrule Grutter, so the justices might simply gut the analysis while leaving the shell of Grutter standing—but the result would be the same.

The Obama administration has had no similar opportunity to work an ideological shift in the Court’s composition. As a result, it will rely on the solicitor general’s advocacy role to guide the justices in cases of importance to the president. The current administration’s amicus brief in the Texas case, for example, turns 180 degrees from the government’s filings in Grutter, focusing heavily on the need for affirmative action to ensure a diverse office corps for the military—an argument that the Bush administration explicitly rejected before the Court in 2003.

Another case where the current administration’s advocacy may prove influential is Kiobel v. Royal Dutch Petroleum Co., which concerns the meaning and operation of the Alien Tort Statute (ATS). While further removed from public consciousness than affirmative action, the case is significant for both its potential political and diplomatic implications, and its impact on companies. The ATS was enacted in 1789 to provide federal jurisdiction over suits by aliens involving certain violations of international law: crimes against ambassadors, violations of safe conduct, and piracy. The law lay dormant for nearly two centuries, piracy having gone out of fashion. In 1980, though, the statute was effectively resurrected by a federal appellate decision and repurposed as a tool for bringing claims based on a new set of violations of international norms, including genocide, extrajudicial killings, and torture.

While most companies might assume they have little to fear from these horrific charges, the ATS has been used to bring claims against a wide array of respected companies. Lawsuits typically attribute the primary wrongdoing to a foreign government and allege that a company provided products or funds used in that wrongdoing. Recent ATS claims range from charges against Caterpillar Inc. for selling bulldozers to the Israeli army (which allegedly used them to demolish homes, killing protesters in the process) to cases against major oil companies for doing business with certain foreign nations (which allegedly tortured and killed their own citizens).

The Court originally granted certiorari in Kiobel to determine whether corporations could be liable under the ATS. After argument last term, the Court took the unusual step of ordering reargument on an even broader question—whether the ATS could ever be applied to events that occurred outside of the United States. Because this issue is so closely intertwined with presidential diplomatic and policy judgments, the administration’s view is likely to be given particular deference in this case. Yet the government took a curiously hedged position: the administration’s brief argued that some extraterritorial application of the ATS should be allowed, noting that the U.S. State Department believes it critical that a forum remain for certain violations of international law. At the same time, the government urged the Court to restrict the scope of the ATS, arguing that the Kiobel case and many like it should not be allowed to proceed. The Court struggled at oral argument with how to properly define the limits of the ATS; it remains to be seen whether the administration’s proposal will prove successful.

The Obama administration’s views may also prove pivotal this term if the Court decides to review one or more cases involving issues of gay rights. While the relevant petitions are still pending, challenges to the 1996 Defense of Marriage Act (DOMA) are the most likely candidates for review. Several federal courts have recently held unconstitutional a significant provision of DOMA, which defines marriage for federal purposes as between one man and one woman. While no case is a sure bet for certiorari, a case striking down a major federal statute is about as close as it gets.

DOMA was passed nearly two decades ago, and in the intervening years the public perception of gay rights has begun to shift. Notably, after defending DOMA for many years, the administration announced it could no longer support the law. Because DOMA is a federal statute, the fact that the president declines to defend the constitutionality of the law will likely have a significant impact on the Court. Adding to the political stakes, Congress has taken the place of the administration in defending DOMA. This case thus could be one of the rare instances where all three branches of the federal government are involved, with representatives of the two political branches trying to convince the Court that public perception and policy supports their view. It remains to be seen whether the Court will take the case. But whether it does or not, the backdrop of the 2012 presidential election during this term will highlight how the choices the administration makes—and the voters’ choice of an administration—ffect the decisions of the Supreme Court.

Anna-Rose Mathieson is a counsel in O'Melveny & Myers LLP’s San Francisco office and a member of the firm’s Appellate Practice. The opinions expressed in this article do not necessarily reflect the views of O'Melveny or its clients, and should not be relied upon as legal advice.