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As US Supreme Court opens, all eyes on Chief Justice John Roberts

The US Supreme Court opens its 2012-13 term Monday with Justice Anthony Kennedy again the likely swing vote. But given his vote on the Affordable Care Act, Chief Justice John Roberts may not be predictably conservative either.

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If the high court agrees to hear one or both of these issues, the new term would become a major test of the scope of gay rights in the United States and the Supreme Court would once again become a flash point in the ongoing culture war.

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The justices are also likely to take up at least one of more than five pending appeals raising the same issue the court confronted and dodged in 2009 – whether Section 5 of the Voting Rights Act is an unconstitutional extension of congressional power.

Section 5 requires certain designated states and counties with a past history of discrimination (in the 1960s and '70s) to obtain preapproval in Washington before making any changes to voting procedures that might undercut minority political clout.

Many of the covered jurisdictions complain that they have run discrimination-free elections for decades and should no longer be punished for violations a generation ago.

The internal dynamics on the nine-member court are well known. In general terms, there are four conservative justices, four liberal justices, and conservative-centrist Anthony Kennedy, who often casts a deciding swing vote in close cases.

The conservative-liberal breakdown rarely comes into play in routine cases, but the lineup does emerge in disputes presenting high-stakes, hot-button issues like affirmative action, voting rights, and abortion.

The potential new wrinkle in this equation is whether the chief justice will again attempt to head off a controversial conservative decision that might trigger political attacks on the legitimacy of the Supreme Court or on the justices themselves.

Although analysts will be watching closely, most do not expect such a move. They predict that Justice Kennedy will retain his status as the high court’s most significant swing vote in big cases.

“The chief [justice] is obviously important, but on things like gay rights – on abortion, race, and gays, Kennedy matters,” Washington lawyer and Supreme Court advocate Lisa Blatt told a recent gathering of the American Constitution Society.

The first big test for Kennedy as a potential swing vote this term may come when the high court takes up the Texas affirmative action case.

At issue is whether the University of Texas’ use of race to foster a greater degree of student diversity violates the Constitution’s equal protection clause. Analysts say the dispute could become the most important affirmative action case ever.

“This is an issue the chief justice cares deeply about,” Georgetown Law Professor Pam Harris said in a Supreme Court preview. “I don’t think anyone thinks affirmative action is long for this world.”

Roberts has made clear his distaste for using racial classifications to distribute government benefits. “It is a sordid business, this divvying up by race,” he wrote in an often-quoted passage from a dissent in a 2006 redistricting case.

Among other cases on the court’s docket, the justices have agreed to decide whether foreign corporations doing business in foreign countries can be sued in US courts by foreign citizens alleging human rights abuses overseas.


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