Familiar Battles
The new Supreme Court term will focus on issues that have bitterly divided the nation for many years
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 Educationschool 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 Environmental Protection Agency 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.
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