At the 11th annual Legal Times/ National Law Journal Supreme Court roundtable on September 13, panelists looked ahead to a term that could be as important as the last one.
Paul Smith, partner at Jenner & Block, surveyed the multiple petitions before the court that could result in a landmark ruling on same-sex marriage. Smith, who is perhaps best known for his landmark 2003 victory in the gay rights case of Lawrence v. Texas, is closely monitoring these petitions.
Also on the panel were Bert Rein of Wiley Rein and Gregory Garre of Latham & Watkins, who on October 10 will square off in the case of Fisher v. University of Texas, the major affirmative action case of the term.
Later in the term, Garre will also be arguing on behalf of the state of Florida in two Fourth Amendment cases in defense of “dog sniff” drug searches conducted by police and their canine assistants.
Alan Morrison, associate dean of George Washington University Law School, also commented on the major cases pending before the court. He has been a close student of the high court’s work for more than three decades.
Following are excerpts from the discussion, edited for clarity and length.
SMITH AND MORRISON ON SAME-SEX MARRIAGE
Smith: It’s really striking that the issue of gay rights is back at the Supreme Court when, for a long period of time after Lawrence, people advocating for LGBT equality were doing everything they could to avoid federal court and the Supreme Court.
Along about 2009 though, a decision was made to go back in federal court, and there were two different types of cases brought. One was a challenge to Section 3 of the Defense of Marriage Act, which was the provision passed in 1996 that says even if the state marries you, if you’re a same-sex couple, the federal government will not recognize your marriage for any purpose. You can’t have joint tax returns, survivor benefits from Social Security and about one thousand other things.
The other, of course, was a decision in California to go into federal court and claim the right of Californians to marriage equality under the federal Constitution. That happened because all the state avenues had been lost. The state Supreme Court had said there should be marriage equality under the state constitution, but the people in their wisdom had overruled that in 2008 in Prop. 8 by amending the state constitution, so there were only federal remedies left. Obviously you all know Ted Olson and David Boies did a fantastic job litigating that case up to the court, but it happens now that there are petitions pending in all of these cases. So far the federal courts have done very well by all of them.…
On [the Defense of Marriage Act], there has been any number of district court decisions, all of them in the last year or two throwing out the provision as irrational — that it simply doesn’t serve any legitimate federal purpose for the federal government not to recognize actual married couples.
And there’s a kind of aspect of it that it is an invasion as well of the right to the states — not a 10th Amendment thing, but that the federal government really doesn’t have any interest in this area, that this is something in our system that has been given to the states to decide who to marry.…
So the court has a whole menu of cases that they can choose from if they are interested in reviewing the constitutionality of the Defense of Marriage Act and, of course, the Perry [v. Brown Proposition 8] case is sitting there.
The people who were defending Proposition 8 have a cert petition pending as well, and it’ll be very interesting to see how this plays out, which DOMA case the court will take.
I think it’s very, very likely they’ll take one; you have a federal statute that’s been held as unconstitutional, you have both Mr. [Paul] Clement representing the House of Representatives and the solicitor general asking for cert in these cases. Not granting review would create enormous chaos; it will mean the First Circuit decision will take effect and they have to change one thousand federal programs only in the First Circuit and not elsewhere. I think it’s inevitable there will be a DOMA case decided this term.
What they will do with the California case is a much more complicated situation. They have a whole array of options there. They could deny cert and say the Ninth Circuit narrowed it enough that we’re not going to worry about that case, and let things continue to evolve. They could grant cert, of course, or there’s a third option, which is: They could hold the case pending the decision in one of these DOMA cases, and there are overlapping issues there.
Morrison: There’s one other aspect about Perry that creates a potential problem for the court. That is that the responsible officials in the state of California — the governor and the attorney general — have refused to defend the law from the very beginning. The only opponents of Olson and Boies are the proponents of the initiative, who have no governmental function at all. They were held to have standing as a matter of California law but it’s not at all clear. And the opposition that Ted Olson has put in says, “We don’t think they have any federal right to be in court,” and so the court has to get over that problem because it’s a jurisdictional hurdle. So they could decline to review it for that reason as well, waiting for some other state, which there will be plenty of, that will not have the unique California features and will not have the potential jurisdiction problem.
REIN, GARRE AND MORRISON ON AFFIRMATIVE ACTION
Rein: I think both Greg and I would prefer to hold some of our secrets back for the argument on October 10th; I don’t want to give him too much advantage, but just by observation, [there are] a couple things that are interesting about Fisher.
Fisher is a little bit like health care in the sense that the popular view of the case really departs from the legal view of the case. In the popular world it is: Well, is the court for affirmative action or against it? Is it a good thing, is it a bad thing?
The legal situation is somewhat different; this court decides on precedent, they decide on constitutional principle; this is in fact the fourth case involving higher education and the application of equal protection to admission criteria.
The first of those cases was [Regents of the University of California v.]Bakke,which was a test of a set-aside in a medical school. Then the court took on two cases at one time. One was Grutter [v. Bollinger], which involved a law school — again post-grad education — and Gratz [v. Bollinger], which involved admission to the basic University of Michigan.…
This case is different because Texas has a pre-existing law.…Whether you like it or not, that law generates predictably a substantial group of minority admissions, because anybody who is in the top 10 percent of the graduating class in the state in Texas is automatically entitled to admission into [the University of Texas]. So that puts the facts into a different light.
We’ve had this case from the district court onward. It was rough after Ms. Fisher was denied admission. We believe she was a highly qualified student and there was a fundamental constitutional injury arising from the fact that she was not eligible for the race boost that was given to African-Americans who were deemed to be underrepresented minorities. You can argue tons of ways about that, but that’s what started the case and we’ve taken it through the district court through the Fifth Circuit.…It takes a certain degree of courage to stay in the case, but I think this woman feels very strongly that her rights weren’t fully protected and wants to vindicate them.
Garre: Well, let me tell you why Bert’s wrong. Just kidding. I think that it’s important to take a step back, and I think it’s significant that the court took the case at all. Actually I think, to Bert’s credit and the work that they did in the cert petition, that is why the court did take it. And this is the kind of case that is a good reminder that, by and large, the Supreme Court gets to decide which cases it is hearing each term. This case didn’t present the sort of classic red flags that the Supreme Court would look to in whether or not to grant cert — you know, glaring conflict in the circuits. I think Bert’s right that a lot of the focus in this case…is going to be the application of that precedent to the Texas plan. And so in that respect, one could view it as a fairly discrete application of it, but yet the court took the case and you know is going to decide it.
Rein: The only thing that we should add is that an eight-member court will be deciding the case, because Justice [Elena] Kagan as solicitor general filed on behalf of [the University of Texas] in the court of appeals. She has recused herself, so she will not be participating.
Garre: Right, and that’s significant, perhaps, most logically, because with the eight members there could be a 4-4 split. And in that situation the court typically just affirms the result [of the lower court decision] in a one-line decision. But it also could be more significant in terms of the court’s decision-making process. It’s often said, when a new member comes in the court, that one new member changes the whole court. So I think that the fact that the court would decide a case of this potential significance with eight members versus nine members, that is important, and I think both sides will be watching to see how that plays out.
Morrison: Bert didn’t quite say it, but Ms. Fisher graduated from another university — in Louisiana, I believe — and she is no long seeking admission at the University of Texas, and so there is an argument that was made in opposition that the case is now moot. And the court, among other things, may have been struggling with that question; even though it granted cert on the merits, it can decide that the case is moot or for whatever other reason, and dismiss it at this stage.
The principal briefs are, as Bert said, narrowly focused on the Texas plan and whether it satisfies strict scrutiny, but there are other briefs in the case that ask for much broader attacks on any form of affirmative action. As we know from the Citizens United case, the court does not feel limited at all at what it’s prepared to reach out and decide. So, although two advocates are arguing on quite narrow grounds,…the court could simply decide that diversity is no longer a compelling state interest.…
Last, while this case involves a state university and is subject to the 14th Amendment, Title VI of the Civil Rights Act essentially applies the same rules to private institutions, and so if this case comes out one way, [George Washington University] would be subject to whatever rules the court decided, so there’s a lot at stake in this very important and very interesting case.
GARRE ON DRUG-SNIFFING DOGS
Garre: The court has decided to take a couple of cases dealing with the constitutionality of dog sniffs in two different settings here.
The first [Florida v. Harris] involves the use of a dog around a car. And the question in the case is when police officers lawfully stop a suspect and deploy a police dog to do what is sometimes called a “free air sniff” around the vehicle, and the dog alerts to the vehicle, a dog that has been trained to detect drugs, does that alert provide probable cause to search the vehicle itself?
And really the most important fact in the case is that the dog’s name is Aldo and it’s a German shepherd. Beyond that, the legal dispute turns on what do you have to show to show that the dog is reliable so that [you] can rely on that alert as an indication for probable cause. The Florida Supreme Court in this case set a very high standard for reliability in terms of the sorts of things that the police have to introduce to show reliability. And the state has brought that case to the Supreme Court.
The second case [Florida v. Jardines] deals with the use of a dog around a house. When the police have reason to believe that a house may be used for growing marijuana — because in this case they received a tip from a concerned citizen — they go up to the house, and a police officer can go up your front steps and knock on your door. All of that is lawful and doesn’t entail a trespassing in a typical situation, because it is just like the Girl Scout who can go to your front door and knock on it and try to sell you cookies.
So the question in this case is: What happens when a police officer goes up, but he brings the drug-detection dog with him and the drug-detection dog alerts to the odor of drugs? Does that use of the dog itself constitute a search which requires probable cause? Now in this case, what happened is they used the dog, the dog alerted, they then went and got a warrant and searched the house. In this case the dog’s name is Franky and it’s a chocolate Labrador.
I think both these cases are going to be very interesting. The justices like Fourth Amendment cases; they are very accessible, there are a lot of interesting hypotheticals. If you go back to a point that Alan made earlier,…what is controlling the decisions in these cases is the justices’ own perception of what would happen if this happened to them. But then I guess what I would say in closing is that I hope the justices like dogs.…
The court in a number of cases has considered the use of dog sniffs. And one important fact is that they’ve always concluded that dog sniffs aren’t a search themselves, because dogs when they’re trained are simply detecting contraband, and no one has legitimate privacy interest in contraband itself. So the court has held that it’s not a search to use a dog to check your luggage. Then one would think that it’s not a search to use a dog just outside your house.
One of the broader issues it also raises is the reliability of dogs generally. And the court, I think — although there’s been some disagreements expressed by justices — by and large, the court has not as a majority questioned the reliability of detection dogs for explosives or for drugs, and these dogs are used consistently throughout law enforcement at the state and federal level. So the defendants have brought what I think is a fairly far-reaching challenge to both the reliability of these dogs when trained and certified in the processes by which they’re detecting drugs. And so if the defendants were to prevail in these cases I think it could have very significant implications for law enforcement. So the two cases I think are quite important.
Dogs have been used for centuries because of their special sense of smell in finding individuals for law enforcement.
We actually cited cases that talk about examples going back 300 or 400 years in terms of people relying on dogs’ sense of smell to find individuals. So certainly it’s a fascinating case in terms of its contours and everyday implications.