STEVE INSKEEP, HOST:
OK. The presidential election is grabbing all the attention right now, but the U.S. Supreme Court is quietly preparing to begin what may be another momentous term. Sitting in the courtroom today, as always, will be NPR legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: It would be hard to beat the cataclysmic, cacophonous end of the last term, and the court's historic decision upholding the Obama health care overhaul. But this term, too, will make headlines with decisions expected on affirmative action in higher education, same-sex marriage, the Voting Rights Act and a lot of privacy issues.
Today, the court opens the term taking a second look at a case brought by 12 Nigerians granted political asylum in the U.S. They sued Shell Oil for allegedly conspiring with the Nigerian government to stop environmental protesters by torturing and killing them. For the last 30 years, victims of human rights violations have been using a 1789 statute to sue their tormentors, and eight years ago, the Supreme Court appeared to endorse such suits, if the claims were based on universally condemned human rights violations like torture and genocide.
But now the court appears to be backing away from that. The case is indicative of the term, according to Supreme Court advocate Tom Goldstein, publisher of SCOTUSblog, the leading blog covering the Supreme Court.
TOM GOLDSTEIN: This is a term about pacing, how far the court's going to go, how fast. So will it broadly or narrowly deal with same-sex marriage? Will it invalidate Section Five of the Voting Rights Act, or find some way out of it? Will it get rid of affirmative action, or carve back on it? That tends to be the kind of issue that the chief justice has the greatest influence on.
TOTENBERG: Of all the cases Goldstein mentioned, only one, affirmative action, has actually already been granted review by the court. In that case, from the University of Texas, the court is revisiting an issue it has twice before decided.
In 1978, the justices ruled that state colleges and universities could use race as one of many factors in determining school admissions. But quotas were forbidden. In 2003, the court reaffirmed that ruling by a five-to-four vote. But Justice Sandra Day O'Connor, the author of the opinion, has now retired and been replaced by Justice Samuel Alito, a fierce foe of any consideration of race in college admissions.
So, in agreeing to re-examine the issue yet again, a newly energized conservative court majority seems to be signaling that it will either reverse or cut back on its previous rulings. Several other big cases are waiting in the wings at the court, and almost certain be granted full review.
One is DOMA, the Defense of Marriage Act, the federal law defining marriage as between a man and a woman. When the law was enacted in 1996, no state had legalized gay marriage. But now it's legal in six states and the District of Columbia, and gay married couples have challenged the federal law as unconstitutional discrimination.
Among the challengers: a widow who had to pay hundreds of thousands of dollars more in federal estate taxes because the federal government didn't recognize her state-recognized marriage as legal, and legally married gay couples denied spousal Social Security benefits or government employee spousal medical benefits. Seven lower courts have agreed that the federal law is unconstitutional, and now a variety of these cases have been appealed to the Supreme Court.
Georgetown law Professor Michael Seidman notes that the cases are evidence of how times have changed.
MICHAEL SEIDMAN: It is worth remembering that DOMA was signed by Bill Clinton. It was approved by overwhelming majorities of Congress just a few years ago. The notion that there should be gay marriage, much less denying it was unconstitutional was a really fringe position, held by very, very few people. And now, quite suddenly, we have half the country, at least, thinking: What's wrong with gay marriage?
TOTENBERG: Another gay marriage case, California Proposition 8, which outlawed such unions, is also awaiting high court action. It was struck down by a federal appeals court based in California, but on grounds that are idiosyncratic to that state. So the Supreme Court could decide the DOMA case, leave gay marriage to the states for now, and dodge deciding whether gay couples have a constitutional right to marry.
Still another issue on its way to the court is the Voting Rights Act and its requirement that certain areas with a history of racial discrimination clear any challenges in voting procedures with the Justice Department or the federal court in Washington. Just three years ago, the justices, by an eight-to-one vote, upheld the voting rights law. But the opinion, written by Chief Justice John Roberts, was so critical of the law that more challenges have been brought and are now back at the court. Nina Totenberg, NPR News, Washington.
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