For Supreme Court's new term: rise of a new centrist
Key abortion and racial cases could signal whether Justice Kennedy shifts court to the right or maintains precedents.
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But Kennedy's dissent in the Nebraska case suggests another possibility. In 1992, Kennedy helped author a major abortion decision, Planned Parenthood v. Casey, which reaffirmed the central holding in Roe v. Wade that established a woman's right to choose to have an abortion. Part of Kennedy's contribution to the Casey decision was a guarantee that the states could regulate abortion procedures provided the regulations didn't create a substantial obstacle to obtaining an abortion. In his dissent in the Nebraska partial-birth abortion case, Kennedy complained that the five-justice majority swept aside the guarantee he apparently wrote into the Casey opinion.Skip to next paragraph
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Now, six years later, Kennedy could uphold the 2003 federal law under the theory that the same leeway guaranteed to state lawmakers in the 1992 Casey decision also exists for federal lawmakers. In effect, he would be applying stare decisis to his interpretation of Casey – an interpretation that would undercut the Nebraska ruling as being an unfaithful application of the 1992 Casey precedent. One complicating factor to this scenario, however, is Justice Antonin Scalia's insistence that the Casey abortion precedent (and Roe) must be overruled.
That's not the only complication. A federal abortion regulation runs counter to Kennedy's view of states' rights and federalism. Medical care is generally an area left to state regulation, not federal micromanaging. And some analysts question whether Congress has the power under the Commerce Clause to impose a national ban on a medical procedure that many states wish to retain.
The court will hear arguments on the partial-birth abortion issue on Nov. 8.
Kennedy may cast the deciding vote in the other potential megacase of the term. It involves race-based enrollment plans that seek to maintain integrated public schools in Seattle and Louisville.
The programs are aimed at balancing the racial composition of public schools by excluding whites and admitting blacks to white-majority schools and excluding blacks and admitting whites to black-majority schools.
Parents who want their children to attend their neighborhood school sued, claiming the programs violate the equal protection clause of the 14th Amendment by using race to determine who can and who cannot attend certain schools.
The same 5-4 split that some analysts say may decide the partial-birth abortion case could also determine the school race cases. In 2003, the court upheld an affirmative action plan at the University of Michigan Law School. The justices split 4-4 on the issue, with O'Connor casting the deciding fifth vote.
Now Kennedy, who dissented in the Michigan case, could reverse or limit that 2003 holding by casting the deciding vote in the Seattle and Louisville cases.
The court's new term also includes a case examining the scope of government regulation to fight global warming, and a legal issue of keen interest to the business community – whether large punitive damage awards violate the Constitution's due process requirements.
Abortion: Is the federal Partial-Birth Abortion Act of 2003 unconstitutional because it lacks an exception in instances where the procedure is deemed medically necessary to protect a woman's health? Or should the courts defer to Congress's determination that the procedure is never necessary?
Race: Do race-based student enrollment plans in public schools in Seattle and Louisville violate the constitutional requirement of equal protection? Or are they justifiable efforts to achieve a better mix of black and white students in certain schools?
Federal regulation: Can the Environmental Protection Agency be forced by a group of environmentalists and certain states to regulate greenhouse gases emitted from motor vehicles and shown to contribute to global warming?
Punitive damages: Does a jury verdict ordering the Philip Morris tobacco company to pay $79.5 million in punitive damages to the widow of a former chain smoker violate constitutional guarantees of due process?
Free speech: Do unions have a First Amendment right to spend fees collected from nonunion members on partisan political campaigns when the nonmembers have not given their consent?
Criminal law: Should a 2004 landmark Supreme Court decision barring the introduction as evidence of out-of-court "testimonial" statements be applied retroactively in cases where defendants were not given an opportunity to cross-examine those witnesses?
Criminal law: Should another 2004 major Supreme Court decision be applied retroactively in cases where judges used evidence never presented to a jury to enhance a convicted criminal's sentence?
Federalism: Do state governments or the federal government have power to regulate state-chartered companies (like mortgage firms) that are subsidiaries of national banks?