Supreme Court justices face important rulings in upcoming term

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WASHINGTON -- The Supreme Court returns to the bench Monday to confront not only a docket studded with momentous issues but also a new dynamic among the justices.

The coming term will probably include major decisions on affirmative action in higher education admissions, same-sex marriage and a challenge to the heart of the Voting Rights Act of 1965. Those rulings could easily rival the last term's as the most consequential in recent memory.

The theme this term is the nature of equality, and it will play out over issues that have bedeviled the nation for decades.

"Last term will be remembered for one case," said Kannon K. Shanmugam, a lawyer with Williams & Connolly. "This term will be remembered for several."

The term will also provide signals about the repercussions of Chief Justice John G. Roberts' surprise decision in June to join the court's four more liberal members and supply the decisive fifth vote in the landmark decision to uphold President Barack Obama's health care law. Every decision of the new term will be scrutinized for signs of whether Justice Roberts, who had been a reliable member of the court's conservative wing, has moved toward the ideological center of the court.

"The salient question is: Is it a little bit, or is it a lot?" said Paul D. Clement, a lawyer for the 26 states on the losing side of the core of the health care decision.

The term could clarify whether the health care ruling will come to be seen as the case that helped Justice Roberts protect the authority of his court against charges of partisanship while accruing a mountain of political capital in the process. He and his fellow conservative justices might then run the table on the causes that engage him more than the limits of federal power ever have: cutting back on racial preferences, on campaign finance restrictions and on procedural protections for people accused of crimes.

It is also possible that the chief justice will become yet another disappointment to conservatives, who are used to them from the Supreme Court, and that he will join Justice Anthony M. Kennedy as a swing vote at the court's center. There is already some early evidence of this trend: In each of the last three terms, only Justices Roberts and Kennedy were in the majority more than 90 percent of the time.

"We all start with the conventional wisdom that Justice Kennedy is going to decide the close cases," said Mr. Clement, who served as U.S. solicitor general under former President George W. Bush. "We've all been reminded that that's not always the case." The texture of the new term will be different. The new issues before the court are concrete and consequential: Who gets to go to college? To get married? To vote?

On Oct. 10, the court will hear Fisher v. University of Texas, No. 11-345, a major challenge to affirmative action in higher education. The case was brought by Abigail Fisher, a white woman who says she was denied admission to the University of Texas based on her race. The university selects part of its class by taking race into account, as one factor among many, in an effort to ensure educational diversity.

The court will probably also take on same-sex marriage.

"I think it's most likely that we will have that issue before the court toward the end of the current term," Justice Ruth Bader Ginsburg said at the University of Colorado on Sept. 19.

She was referring to challenges to an aspect of the federal Defense of Marriage Act, which bars the federal government from providing benefits to same-sex couples married in states that allow such unions. The federal appeals court in Boston struck down that part of the law, and both sides have urged the court to hear the case. More than 1,000 federal laws deny tax breaks, medical coverage and burial services, among other benefits, to spouses in same-sex marriages.

The justices are also quite likely to take another look at the constitutionality of a signature legacy of the civil rights era, the Voting Rights Act of 1965. In 2009, the court signaled that it had reservations about the part of the law that requires federal review of changes in election procedures in parts of the country with a history of discrimination, mostly the South.

"We are now a very different nation" than the one that first enacted the Voting Rights Act, Justice Roberts wrote for himself and seven other justices. "Whether conditions continue to justify such legislation is a difficult constitutional question we do not answer today."

Challenges to the law have arisen in several lawsuits in the current election season, including ones concerning redistricting and voter identification requirements.

"It will be interesting to see if the justices worry half as much about the emerging restrictions on voting as they worried about restrictions on political spending," said Pamela S. Karlan, a law professor at Stanford University.

On Monday, the new term starts with a case of great interest to business groups: Kiobel v. Royal Dutch Petroleum Co., No. 10-1491. The case was brought by 12 Nigerian plaintiffs who said the defendants, foreign oil companies, had been complicit in human rights violations committed against them by the Abacha dictatorship in Nigeria. The question in the case is whether U.S. courts have jurisdiction over such suits, and business groups are hoping the answer is no.

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