High court nears flash point on several fronts
Even so, there's plenty for Roberts and his court to deal with this time around. The issues on the fall docket have divided the nation for years.
Late-term abortion
As part of the ongoing abortion wars, the U.S. Supreme Court in 2000 struck down Nebraska's late-term-abortion ban for failing to provide an exemption for women whose health is threatened by pregnancy. And the court did require the health exemption in its 1992 Casey decision.
But the political wheels kept turning, and in 2003, President Bush signed Congress's Partial-Birth Abortion Ban Act. It replicated the nullified Nebraska law, which makes late-term abortion a crime unless a woman's life is actually at stake, but with one difference: Congress held "fact finding" hearings that it says gives its decision more weight. Doctors in four states, including Nebraska's Leroy Carhart, the plaintiff who successfully challenged his state's ban, sued the administration to halt the new federal prohibition as unconstitutional, as did Planned Parenthood. Appeals courts agreed and blocked the ban, finding that Congress had contravened the high court's finding in the Nebraska case and overstepped its authority by banning a procedure about which there is substantial disagreement in the medical community.
"These cases do not involve the right of privacy; they involve a woman's right to preserve her health," says Randy Barnett, a Georgetown University law professor.
Though there was no lower court split on the issue, justices agreed to hear the administration's claim that the courts had failed to show deference to Congress's fact finding and had improperly overturned a "landmark" congressional act. Litigators predict the case will most likely turn on the issue of deference to another branch of government—something the administration argues the high court has not shown enough of in recent years. But Duke University's Walter Dellinger, a former solicitor general, says he wonders how much deference justices will be willing to show in the wake of Congress's controversial intervention in the Terry Schiavo end-of-life saga last year. Gonzales v. Planned Parenthood and Gonzales v. Carhart will be argued November 8.
Affirmative action
The court will very likely be deeply divided over challenges to the use of race in assigning students to secondary schools in Seattle and Jefferson County, Ky., which includes Louisville. Parents in both cases, joined by lawyers for the Bush administration, claim that their children's constitutional right to equal protection was violated—in Seattle, when their children were denied enrollment in schools of their choice because race was used as a tiebreaker in an open-enrollment system, and in Jefferson County, when their children were bused long distances for a race-conscious school assignment plan.
Three years ago, in the last affirmative action challenge, involving the University of Michigan and its law school, justices approved the use of race in college admissions—but only as part of a "holistic" evaluation of applicants and with no quotas or points system attached to the policy. The Seattle plan, which takes into consideration a student's race if any individual school is oversubscribed or does not reflect the district's student racial breakdown of 60 percent minority and 4o percent white, was upheld by the reliably liberal Ninth Circuit. The Sixth Circuit endorsed the Kentucky plan, which mandates that each school have a black enrollment of between 15 and 50 percent.
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