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.

Abortion regulations and race-based public school enrollment plans are among major national issues at the US Supreme Court this year in a term that offers the first real insight into the constitutional vision of the high court under Chief Justice John Roberts.

Constitutional scholars and other analysts are watching closely to see if respect for legal precedent – the principle of stare decisis – emerges as a defining approach, or whether the Roberts court will seek to build on the conservative agenda of the Rehnquist court, with sweeping rulings that erode or erase liberal precedents.

A major factor in the direction of the court, whose 2006-2007 term begins Monday, is Justice Anthony Kennedy, who is emerging as a primary centrist power on the court following the retirement of Justice Sandra Day O'Connor. Analysts say he may provide the swing vote in several key cases.

"The absence of Justice O'Connor will be one of the most fundamental changes the court has seen," former acting solicitor general and Duke Law School Professor Walter Dellinger told reporters in a recent preterm briefing.

"It is difficult to overstate the significance of that shift," said former solicitor general and Pepperdine Law School Dean Kenneth Starr, in the same briefing. "All eyes will be on Kennedy."

Justice Kennedy's new judicial clout will be on full display in both the race and abortion cases. Similar cases were decided by 5-4 majorities in recent years with Justice O'Connor joining the court's four liberal justices. In contrast, Kennedy dissented in both cases.

Last term was a year of historic transition for the court with the passing of Chief Justice William Rehnquist and the retirement of O'Connor. It marked the arrival of Mr. Roberts as chief justice and Samuel Alito as an associate justice.

The change in the high court's roster is expected to swing the balance of power to the right, possibly overturning legal precedents on a range of hot-button issues, including both the abortion and race cases, analysts say.

Although it is not clear how Roberts and Justice Alito will vote in these cases, many analysts suggest they are likely to align with the court's conservative wing and that Kennedy will be in position to provide the decisive fifth vote.

Partial-birth abortion is key case

At issue in the abortion case is the constitutionality of the federal Partial-Birth Abortion Act of 2003. The law was passed by the Republican-controlled Congress in open defiance of an earlier Supreme Court ruling that so-called partial-birth abortions could not be banned by states unless lawmakers provided an exception in cases where a woman's health might be threatened by the unavailability of the banned procedure.

Congress swept aside the court-imposed requirement by declaring in its law that there were no circumstances when a partial-birth abortion might be medically necessary. If no circumstances exist, lawmakers concluded, there is no need for a health exception. That Congressional finding disregards the testimony of some medical experts who say the procedure can be necessary in certain cases.

One key issue in the case is whether the high court should defer to Congress on what is medically necessary or set the standard itself.

Three district courts and three federal appeals courts have struck down the 2003 statute, ruling that it is unconstitutional because it fails to provide a health exception as required by the Supreme Court.

Despite universal defeat in the lower courts, supporters of the law hope that O'Connor's retirement and Alito's arrival may have tipped the balance of power on the issue.

In 2000, the Supreme Court struck down a Nebraska law nearly identical to the federal law by a 5-4 vote. Justice Kennedy wrote one of the most impassioned dissents of his 18 years on the court. "The majority views the procedures from the perspective of the abortionist, rather than from the perspective of a society shocked when confronted with a new method of ending human life," he wrote. He stressed in his dissent that he opposed "the decision, the reasoning, and the judgment."

Will Kennedy stick to precedent?

With the possibility of the court divided 4-4 on the issue, Kennedy may wield the decisive vote. If he sticks to the analysis in his dissent in the Nebraska case, court watchers say the law will be upheld. If he adheres to his strongly held belief in stare decisis – affirming precedent even when a justice disagrees with it – the federal law will be struck down.

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.

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.

Key issues for the Supreme Court's new term

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?

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