Supreme Court Makes It a Little Interesting

The common refrain this Supreme Court term is that, after several years of blockbuster cases—race-based school assignment, partial-birth abortion, the rights of Guantánamo detainees, the D.C. gun ban, etc., etc.—this year the Court is giving the front pages a break. Indeed, as we celebrated the advent of 2009, the only cases guaranteed to make it into the Cato Supreme Court Review were a drug regulation case (Wyeth v. Levine) and one involving the detention of a civilian in the United States as an enemy combatant (Al-Marri v. Pucciarelli). Almost all the cases garnering media and scholarly attention would have been after-thoughts in previous years.

On Friday, however, as it rounded out its docket for the term (no more than a handful more will be added to the list of cases to be argued and decided before the Court recesses in June), the Court gave us four fascinating cases to chew on:

Northwest Austin Municipal Utility District Number One (“NAMUDNO”) v. Mukasey

This is a challenge to the requirement of section 5 of the Voting Rights Act that certain state and local governments, mostly but not entirely in the South, obtain “preclearance” before making any changes affecting voting. A small (3,500 residents) utility district in Austin, Texas, argues that it has never been accused of voting discrimination or other irregularities and should not have to seek federal permission to, for example, move the location of a polling place or coordinate voting for its board with other county or state elections. You may recall that the latest extension of the VRA, in 2006, did not pass without some controversy. Indeed, in our federal system, should certain jurisdictions still be under the Justice Department’s thumb over 40 years after the demise of Jim Crow (and to this extent of micromanagement)?

Ricci v. DeStefano

A group of firefighters (19 white, 1 Hispanic) allege that New Haven city officials racially discriminated against them when they refused to certify the results of two race-neutral promotional exams that yielded racially disproportionate results (i.e., a much higher percentage of whites and Hispanics qualified for promotion than did blacks). As offensive as the facts of the case are, the way that the Second Circuit—a panel including oft-mentioned Supreme Court contender Sonia Sotomayor—summarily dismissed the petitioners’ appeal is even more disconcerting. When the full court voted 7-6 not to rehear the case en banc, Judge José Cabranes (a Clinton appointee) excoriated his colleagues, concluding that “[t]his perfunctory disposition rests uneasily with the weighty issues presented by this appeal.” I won’t get into the weeds of legal analysis here, but Ed Whelan has two excellent posts discussing the Second Circuit shenanigans over at NRO and Stuart Taylor last month wrote a typically hard-hitting piece on it for the National Journal. But again, however the Supreme Court decides this one, it has already provided a potent line of attack on Judge Sotomayor when the next vacancy arises on the high court.

Republic of Iraq v. Beaty

This case asks the simple question of whether U.S courts have jurisdiction over claims regarding misdeeds committed by the Saddam Hussein regime—or whether today’s Iraqi government can assert sovereign immunity. This simple question actually involves the interplay of a host of legislative and executive action that the Court will have to wade through. Beaty joins the Eurodif (international trade, about which I wrote here) and Elahi (treaty enforcement) cases as this year’s leading contributions to the Court’s international law jurisprudence.

Horne v. Flores

Taking up a complicated conflict between the No Child Left Behind Act and earlier legislation, this is the term’s leading education case. The main issue is whether a state, in this case Arizona, which complies with NCLB on English language instruction can still be violating the funding requirements for such instruction imposed by the Equal Education Opportunity Act of 1974. The Ninth Circuit declined to modify an eight-year-old injunction requiring Arizona to spend millions on this instruction and imposing millions in fines. It’s a highly technical case but one with significant ramifications for a key part of President Bush’s domestic policy legacy.

Despite these four grants, however, it is still safe to say that Court shied away from many, many cases that should interest readers of this blog—not least the patent/abuse of state sovereign immunity case called BPMC v. California, which I had earlier urged the Court to accept for review.  I will be commenting further at least on NAMUDNO and Ricci when the Court hears argument and decides them.