Order List

December 2, 2002 Supreme Court Update

Hi everyone, and welcome back from a long weekend!
Today, the Supreme Court added a string of new cases to its docket, including three cases that promise to add some excitement to the Court's Term: the University of Michigan affirmative action cases, and a case reviewing Texas' anti-sodomy statute. With these grants, the Court has begun to fill out its March argument calendar, but it still needs several more cases to complete its docket for the Term.
First, and most significantly, the Court granted cert in Grutter v. Bollinger (02-241) and Gratz v. Bollinger (02-516) to consider, for the first time since Bakke, the appropriate role, if any, for affirmative action in university admissions processes. Grutter arose in the context of law school admissions while Gratz presents the issue in the context of undergraduate admissions. (Presumably the Court will consolidate these cases, although it did not do so today.) In Grutter, the en banc Sixth Circuit upheld Michigan's affirmative action policy in a bitterly divided opinion. (The Sixth Circuit opinions in this case include some of the nastiest judicial opinions I've read in a long time.) In the Gratz case, the Sixth Circuit had not yet issued its opinion, and thus, in an unusual move, the Court granted cert before judgment from the Court of Appeals.
The Justices also agreed to consider the constitutionality of a Texas statute that criminalizes homosexual sodomy. The statute at issue in Lawrence v. Texas (02-102) criminalizes certain sexual conduct when engaged in by same-sex couples, but not when engaged in by different-sex couples. In their cert petition, Petitioners contend that this statute violates the equal protection clause, and expressly ask the Court to overrule its 1986 decision in Bowers v. Hardwick.
In other grants, the Court agreed to consider whether a California statute that retroactively created an exception to the statute of limitations in a child molestation case violates the ex post facto clause, Stogner v. California (01-1757), and whether state officials violated tribal sovereign immunity by searching a casino on the tribe's reservation in connection with a welfare fraud investigation, Inyo County v. Paiute-Shoshone Indians (02-281). Finally, the Court granted cert to consider whether certain state regulations governing the visitation of prisoners violate the Due Process Clause or the Eighth Amendment ban on cruel and unusual punishment. Overton v. Bazzetta (02-94).
Today's order list also includes an invitation to the Solicitor General to file briefs in two pending cases: Southern Building Code v. Veeck (02-355), and Yates v. Hendon (02-458). The Veeck case is a copyright case addressing whether the copyright laws protect against the publication of a model code when that code has been enacted by a legislative body. The question presented in Yates, an employee benefits case, is whether the sole shareholder of a medical professional corporation can qualify as a participant in an employee benefit plan and thus, under ERISA, have standing to enforce plan restrictions on the alienation of plan benefits in a bankruptcy proceeding.
Finally, in other Supreme Court news, Justice Stevens issued an opinion on November 29 (the day after Thanksgiving!) vacating a stay entered by the Sixth Circuit. In Chabad of Southern Ohio v. City of Cincinnati, the district court held that Cincinnati cannot bar a Jewish group from displaying a menorah on a downtown plaza, but the Sixth Circuit stayed the order. Justice Stevens vacated the stay, noting that the plaza was a public forum, and thus allowed the menorah display to go forward as originally planned.
That's all for today. As always, feel free to send me your comments, questions, or corrections.
From the Appellate Practice Group at Wiggin & Dana.
For more information, contact Mark Kravitz or Sandy Glover
at 203-498-4400, or visit our website at www.wiggin.com.