MULS Federalist Society

US News and World Report has a great article about the upcoming term of the Supreme Court. We are days away from the beginning of the 2006 term. The article makes the point that there are a lot of familiar battles on the horizon. Up first is the always contentious abortion issue...

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 when the court considers the constitutionality of Congress's Partial-Birth Abortion Ban Act of 2003-which has no exception for a mother's health-it will also 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 G. Roberts or his fellow sophomore, Justice Samuel Alito, but Justice Anthony Kennedy, on whose vote these decisions will most likely turn.

I disagree with the authors on this point. I will be closely watching all three men. Justice Kennedy should be watched because he made his views on partial birth abortion known in his vigorous dissent in Stenberg v Carhart. Will Kennedy stick to his guns (and his dissent) or will he honor the precedent of the 5-4 majority opinion? I think he's going to stick with his dissent. Justice Kennedy, like all of the Justices, has strong views on the Constitution and law. Stenberg was a recent case and a 5-4 decision. He will not bow to a precedent that young and divided, especially when he feels this strongly.

Chief Justice Roberts and Justice Alito should be watched for similar reasons. While they do not have recorded views on partial birth abortion, they do have the same precedent issue that Justice Kennedy has. Will they follow Stenberg? My best guess is no. I think that there are five votes here to uphold the PBA bans. Of course, this case and its subsequent decision will be big news items.

Another important reason to watch Roberts is how he assigns the opinion (assuming that he is in the majority). Will he take the opinion himself, giving us a more in depth view on the new Chief's abortion jurisprudence? Will he give the opinion to Scalia or Thomas to get a "flamethrower" opinion? Will he give it to Kennedy, if he thinks it's necessary to hold Kennedy's vote? Will he give it to Alito, Justice O'Connor's replacement? The language of the opinion may give us special insight into Alito's or Roberts' views on the abortion issue.

Up next is another divisive topic, affirmative action and race issues in schools...

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.

It hasn't been long since the Court tackled this issue in higher education in Grutter v Bollinger and Gratz v Bollinger. With Justice O'Connor gone, the new Roberts Court gets a chance to put Grutter to the test. Remember, this is another area where Justice Kennedy joined Rehnquist, Scalia, and Thomas in dissent. This is also another area where Roberts' and Alito's views on stare decisis are material. They have the ability to form a five vote majority here. This could severely limit Grutter or even overturn it.

Rounding out the controversy trifecta is global warming...

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 article makes reference to the very splintered DC Circuit opinion. It's possible that all of the excitement over this case will be for nothing. The Court may decide this on a standing issue. Under Lujan v Defenders of Wildlife, the plaintiffs have to establish injury and redressability requirements. It is unsure if they can. The DC Circuit judges tackled this issue, divided as ever. Judge Sentelle said that the plaintiffs failed to establish standing. Judge Randolph assumed that they had standing. Judge Tatel found that Massachusetts itself had standing. All of the discussion about Sections 202 and 302(g) of the Clean Air Act might be premature. This case could end in a whimper.

So far, these are the cases to watch. The Phillip Morris punitive damages case will be interesting too. This is an issue that isn't conservative/liberal. Roberts and Alito have the power to make a huge impact here. We'll just have to wait and see what happens.

Posted by Steve on Tuesday, September 26, 2006 at 5:06 AM | Permalink