SCOTUS: The Road Ahead

While the last Supreme Court term had its fair share of important and memorable cases, with rulings on Arizona’s SB 1070 immigration law and President Obama’s signature Patient Protection and Affordable Care Act healthcare legislation coming in the same week, the upcoming 2012-2013 term promises to have its own cases with far-reaching implications. Although a few of the most hotly anticipated potential upcoming cases have not yet been granted certiorari by the Supreme Court (in particular, cases challenging key provisions of the 1965 Voting Rights Act or a quartet of cases challenging Proposition 8 and the Defense of Marriage Act), here are previews of three potentially significant cases that the Court has already agreed to review.

Kiobel v. Royal Dutch Petroleum revolves around the Alien Tort Statute, passed by the first Congress in 1789. Under this statute, aliens (non-American citizens) can sue in U.S. federal courts for various forms of misconduct that violate international law or U.S.-signed treaties. Although the law was widely ignored for almost 200 years, since the 1980s, it has been fairly regularly used by non-citizens to sue individuals for wrongdoing abroad.  In this case, Esther Kiobel, a Nigerian citizen, is suing Royal Dutch Petroleum, claiming that the company backed Nigerian government troops that committed a variety of crimes against humanity in Nigeria (to suppress anti-oil demonstrators in the country). Original arguments in this case were held in February, but the Court has decided to hold new arguments in this upcoming term. Currently, there are two separate questions that the Court must decide. First, during the prior arguments, some justices questioned whether the Alien Tort Statute even allowed American courts to hear lawsuits for violations of international law that were committed entirely on foreign soil. Second, if the Court decides that the law does allow such suits, it must then decide whether corporations, and not just individuals, may be sued. The Court’s ultimate decision on both issues could have wide-ranging effects, as the Alien Tort Statute is currently the only real avenue for foreign nationals to sue in American courts, and it is actually utilized relatively often. In fact, in the last decade, both Yahoo!, which allegedly abetted the torture of Chinese dissidents and Coca-Cola, which allegedly working with Colombian forces to murder and torture have been sued under the ATS. As a result, a court ruling that lawsuits cannot be brought either for crimes committed outside the U.S. or against corporations could severely restrict foreign citizens’ ability to sue entities or individuals who commit crimes against them.

Fisher v. University of Texas deals with the use of race in public school admissions. Under a 2003 Supreme Court ruling, Grutter v. Bollinger, public universities may use race-conscious admissions policies that take into account race as one factor among many and that evaluate each applicant on an individual basis. Currently, the University of Texas admits some students under a race-conscious admissions policy that works much like the acceptable policies spelled out in the 2003 case, except UT looks at distribution of race inside various programs and classrooms as well as in the school as a whole. In 2008, Rebecca Fisher, a white Texan student, was denied admission to the University of Texas, and she filed suit, claiming that UT’s admissions policies violated her Equal Protection Rights. Now, her lawyers are asking the Court to either rule that UT’s admissions policy is not acceptable under the 2003 ruling, because of the attention paid to specific programs and classrooms, or that the 2003 ruling was a mistake, a decision that could have wide-ranging national effects. In particular, the latter ruling would substantially change public university admissions, as the result could be a court decision that using race in any capacity in admissions policies is unconstitutional.

Kirtsaeng v. John wiley & Sons INC. is about the emerging American “gray market” for goods manufactured abroad, a market in which many college students unknowingly participate. At issue here is the way that textbook publishers produce and sell textbooks very cheaply in non-American markets that are often identical or nearly identical to textbooks sold for much more money in the U.S. As a result, some individuals buy textbooks while abroad or have family or friends buy them abroad, ship them to the U.S., and then sell them at a price somewhere between what they paid and what that same book retails for in the U.S. In this case, Supap Kirtsaeng, a native of Thailand, imported textbooks from Thailand and then sold them in the US. The textbook publisher, John Wiley & Sons, Inc., then sued Kirtsaeng for violating their copyright and won a $600,000 judgment. If the Supreme Court rules that such actions do actually violate copyright laws, the effects on the ability of college students to cheaply purchase textbooks online could be significant.