High court nears flash point on several fronts
The battle over a woman's constitutional right to medically end her pregnancy has convulsed the nation for more than a generation. But since the U.S. Supreme Court's 1992 decision to reaffirm Roe v. Wade, at least one thing has remained constant: If pregnancy threatens a woman's life or health, she can't be prevented from seeking a legal abortion.
That assurance is now on shaky ground. When the U.S. Supreme Court reconvenes next week after its summer break, justices will be asked to decide whether health risks alone should guarantee women access to controversial late-term abortions, typically—though rarely—performed when pregnancies have progressed beyond 20 weeks.
That, in and of itself, is significant—"one of the key cases of the term," says Leonard Leo of the conservative Federalist Society. But the court is also set to consider the constitutionality of Congress's Partial-Birth Abortion Ban Act of 2003, which has no exception for a mother's health. These cases will shine a light on the emerging dynamics of the newly formulated and deeply divided panel. And the most closely watched jurist won't be Chief Justice John Roberts or his fellow sophomore, Justice Samuel Alito, but Justice Anthony Kennedy, on whose vote these decisions will most likely turn.
If one person will define this high court term after last year's unprecedented upheaval (Chief Justice William Rehnquist's death, Justice Sandra Day O'Connor's retirement, and the first new justices in more than a decade), it will be Kennedy. With O'Connor gone, he is the lone swing justice, a moderate conservative whose vote is seen as up for grabs by both the liberal and conservative wings of the court.
"We all live here, but this is Justice Kennedy's world," appellate lawyer Carter Phillips said at a recent court preview. How Kennedy reconciles deference to Congress and its partial-birth ban with respect for stare decisis, or settled law, in the area of women's health is key to the outcome. In the 1992 Planned Parenthood v. Casey decision that reaffirmed Roe, he voted to affirm the right to abortion and required a health exception. But he later wrote an impassioned defense of a Nebraska late-term-abortion ban that lacked one.
Kennedy's vote is likely to figure prominently in other consequential cases justices will hear: A challenge to high school affirmative action programs that use race to assign students, and an effort by states, cities, and environmental groups to force the administration to address global warming.
Court watchers are predicting that, with a split court, Roberts will lead with restraint. Lawyer Thomas Goldstein predicts "slow change." Beth Brinkman, who has argued 20 cases before the high court, is watching to see how both Roberts's and Alito's approach to the law will be affected by careers largely spent in the executive branch.
At 51, Roberts has time to shape his court. "The chief is not thinking about one year," says Neal Devins, law professor and director of the Institute of Bill of Rights Law at the College of William and Mary. "This is a court that's ultimately going to be defined by the 2008 [presidential] election. Rather than get a half a loaf today, he's more apt to make the court less visible now and advance his agenda down the road."
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.
U.S. Solicitor General Paul Clement argues on behalf of the administration that using racial classifications to balance enrollment is unconstitutional.
"The United States remains deeply committed" to the objectives of the 1954 landmark Brown v. Board of Education school desegregation decision, he wrote in a brief to the court, "but once the effects of [law-based] segregation have been remedied, the path forward does not involve new instances of [law-based] discrimination."
Critics of the administration's position say that if the court finds in favor of the parents it would spell the end of affirmative action, leading to more segregation. But court-watchers don't expect the justices to throw out the Michigan decision, as the Kentucky case requests.
"I don't think Justice Kennedy is interested in dismantling affirmative action," says law professor Devins.
Robert Lowe, an expert on race and education policy, says those who argue that scuttling the school districts' affirmative action plans would have a "seismic" effect haven't been paying attention to what's been happening over many years. "I honestly don't think these cases make an enormous amount of difference," says Lowe, a Marquette University professor. "For a long time courts have been releasing schools from desegregation orders. What's left are voluntary programs that don't include very many students overall." Combined arguments in Parents Involved in Community Schools v. Seattle School District and Meredith v. Jefferson County Board of Education have not yet been scheduled.
Global warming
The fight over global warming has echoed through Congress and embroiled the White House. Now, the Supreme Court weighs in. With the U.S. rejection of the global Kyoto Protocol to reduce greenhouse gases and the failure of Congress to pass similar legislation, Massachusetts is leading a team of a dozen states, along with environmental groups, in arguing that the epa must regulate greenhouse gas emissions, specifically those from motor vehicles, according to principles defined in the Clean Air Act.
The Bush administration has opted to tackle global warming with a policy that promotes technology development and voluntary measures to reduce greenhouse gases. But the plaintiffs argue that the policy fails to enforce Section 202 of the act, which says the agency must regulate automobile emissions that "cause, or contribute, to air pollution which may reasonably be anticipated to endanger public health or welfare."
The epa has refused to issue a formal judgment on whether carbon dioxide and other warming gases are pollutants. It argues that the act was never intended to regulate greenhouse gases, nor would it provide such regulation even if it could because federal policy is already in place. A ruling for the plaintiffs would very likely include sweeping new regulatory standards for all industries.
The outcome of the case is anybody's guess. Last year, a 2-to-1 vote on the U.S. Court of Appeals for the District of Columbia Circuit favored the epa, although the two judges didn't agree why. One argued the epa had the right to withhold judgment on greenhouse gases, while the other argued that the plaintiffs failed to establish "particularized" injury since global warming affects everyone. In a dissenting opinion, Judge David Tatel found the epa's argument unconvincing, writing that the statute in question clearly gives "epa authority to regulate 'any air pollutant.'" Massachusetts, et al. v. Environmental Protection Agency is expected to be heard before the year's end.
Other cases to watch: The court so far has agreed to hear only 29 cases. If recent practice holds, it is likely to accept an additional 40 or so to fill the term. Closely watched cases already on the docket include Philip Morris USA v. Williams, which challenges as excessive $79.4 million in punitive damages awarded to the widow of a smoker who died of lung cancer; KSR International Co. v. Teleflex Inc., which seeks to better define patentable inventions during a time of exploding patent applications; and Lopez v. Gonzales and Toledo-Flores v. United States, consolidated cases that involve noncitizens facing deportation for state felony convictions involving drug crimes that aren't felonies under federal law.