Human Rights, the Death Penalty, and Affirmative Action

What will the Supreme Court decide in this term’s first big cases?

Human rights activists with black masks and hangman's nooses around their neck demonstrated in memory of Ken Saro-Wiwa and eight other Nigerian activists who were executed.
Activists demonstrated in memory of the 12 Nigerians who were executed by the Nigerian military rulers when protesting the environmental and human rights violations perpetrated by Royal Dutch Petroleum Company

Photograph by Sebastian D’Souza/AFP/Getty Images.

Next Monday, the Supreme Court will begin what promises to be an action-packed fall. As I get ready to step into the inimitable heels of Dahlia Lithwick—she is on book leave for the year, and yes, you should pity me for covering for her—I’m looking forward to three cases in the first half of October. Here they are, in the order they’ll be argued. I’ll preview more cases as they come up, and I’ll also keep an eye out for new additions to the court’s docket—gay marriage, anyone?

Kiobel v. Royal Dutch Petroleum Company, Monday, Oct. 1: The term opens with a case held over from last year—in a way that doesn’t bode well for Esther Kiobel. She sued Royal Dutch Shell in 2002 on behalf of her late husband and 11 other Nigerians, saying that the company colluded with the Nigerian military in the 1990s to silence protesters—going so far as torturing and killing them—who were trying to halt oil exploration. Last term, when the court first heard the case, the question was whether corporations could be sued for human rights abuses. Cue lots of bitterness on the left about how the court could treat companies as people for the purposes of campaign donations, but not when it comes to accusations of murder.

Now the case is back to resolve a more basic question: Can Esther Kiobel sue in the United States over this alleged breach of international law on foreign soil? The law at issue is the Alien Tort Statute, passed in 1789 to combat piracy, among other things. No one much used it until the 1980s, when it became a weapon for fighting human rights abuses. In 2004, in a case out of Mexico, the court said it was OK to use the statute for claims based in “universally condemned human rights violations,” as the plaintiffs put it. Genocide, torture, and human trafficking should count along with piracy. Will a majority of justices now retreat from that position, foreclosing the American courts to people like Esther Kiobel? Or will conservative justices like Antonin Scalia prefer to read the law based on its historical roots, thus keeping this 1789 statute alive? Update, Sept. 25, 2012, 3:15 p.m.: I should add that the Obama administration has taken a new position in this case, arguing that most cases involving allegations against foreign companies, including Kiobel’s, should not go forward. When it’s a human rights crime involving a foreign government and a foreign corporation that’s at issue, “the United States cannot be thought responsible in the eyes of the international community for affording a remedy,” the government’s brief states.

Ryan v. Gonzales and Tibbals v. Carter, Tuesday, Oct. 9: We are not supposed to execute mentally insane people in this country. The Supreme Court said so in 1986. At the time, no state allowed such an execution; as Justice Thurgood Marshall pointed out, British judges back in the 17th century worried about the “miserable spectacle” of “extreme inhumanity and cruelty” presented by executing a “mad man.” That’s still the law, though it’s worth worrying over the low standard of competence courts use. Apart from that, what exactly is supposed to happen if a defendant is sentenced to death and then found to be incompetent, because of mental illness, to help his lawyer press his appeals?

Two federal appeals courts, the 6th Circuit and the 9th Circuit, have essentially found that defendants have a right to be competent during the federal court proceeding called habeas corpus—basically, a defendant’s last-ditch chance to get off death row. The 9th Circuit stayed proceedings indefinitely in the case of Ernest Valencia Gonzales, who is psychotic, and who killed a man in the course of a burglary. In Ohio, a district court similarly ordered an indefinite stay for Sean Carter, sentenced to die for killing his adoptive grandmother, and then found to be delusional with schizophrenia. The state of Ohio, which wants to execute Carter, imagines courts handing out lots more delays under “extraordinarily loose standards,”  bringing the death penalty to a halt in the state. This is not a crazy concern: The backdrop here is the case of Melvin Davis Rees, who got a competency hearing and a stay courtesy of the Supreme Court in the mid-1960s—and died in prison in 1995, as Lyle Denniston points out on Scotusblog.

The Obama administration has weighed in against a rule that favors indefinite stays for death row inmates whose mental illness makes them incompetent. It’s too much to ask to stop all these cases, the government says. The American Psychiatric Association is on the other side, arguing that, for the sake of fairness, people who can’t help their lawyers shouldn’t be marched through their appeals. The American Bar Association wants a flexible standard for granting a stay, depending on the level of the defendant’s impairment and the circumstances of the case. It’s hard for me to imagine a lot of defendants who are deemed incompetent who could possibly work well with their lawyers—most of them are probably hallucinatory and delusional. That may not move a majority on the Supreme Court, though.

Fisher v. University of Texas at Austin, Wednesday, Oct. 10: The Supreme Court famously battled its way to a détente over affirmative action in 2003. In a pair of split-the-baby decisions, two different majorities struck down the use of quotas that favored historically disadvantaged racial minorities in public college admissions, but allowed schools to use race as one unquantified factor among many. Writing that second ruling, Justice Sandra Day O’Connor proclaimed her expectation that “25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.” O’Connor is gone from the court and so is her timeline. She has been replaced by Justice Samuel Alito, a dedicated foe of race-conscious policies, and that can only be good for Abigail Fisher, who is white, and who was denied admission to the University of Texas at Austin in 2008. UT, abiding by a 1997 state law, fills most of its class—more than 85 percent, the year Fisher applied—with the top 10 percent of the state’s high school graduates. For the remaining spots, the university takes race into account. Fisher wasn’t among the top 10 percent in her high school, so her argument is that she should have gotten one of the remaining spots—and did not because of affirmative action.

The last rationale that the Supreme Court accepted for maintaining some degree of affirmative action was diversity. Here’s Justice Lewis Powell speaking, in the other huge ruling in this arena, in 1978: “The atmosphere of ‘speculation, experiment, and creation’—so essential to the quality of higher education—is widely believed to be promoted by a diverse student body.” In 2003, O’Connor noted the premium that “major American businesses” and “high-ranking retired officers and civilian military leaders” placed on exposure to people of different backgrounds in developing future employees and leaders. The retired military leaders and the Fortune 100 companies are back this time around, with briefs that include captions like “Invalidating UT’s Modest Race-Conscious Admissions Policy Would Seriously Dispute the Military’s Efforts to Maintain Military Cohesion and Effectiveness.” We’ll see whether their continuing support for affirmative action matters. Justice Elena Kagan will sit this case out—she presumably worked on it during her time in the Obama Justice Department. If the court splits 4 to 4, Abigail Fisher will lose. But for that to happen, Justice Anthony Kennedy would have to join the liberal-moderate side. He didn’t go that way in 2003, or in the two major cases about race-conscious government policies since. Maybe his vote isn’t a foregone conclusion, though? We’ll know more soon enough.