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Legal terms senators likely will ask Roberts about
Pittsburgh Post-Gazette


September 12, 2005

The confirmation hearings for chief justice nominee John Roberts that began Monday are likely to feature as much legal lingo as a law-school seminar. Here's a viewer's guide to legal terms, federal statutes and court decisions likely to be mentioned during the hearings.

- Abrogation (of sovereign immunity). Under the 11th Amendment, a state may not be sued in federal court by a citizen of another state - a prohibition that the Supreme Court later extended to suits by a citizen against his own state. But Congress may override or "abrogate" that immunity if it amasses evidence convincing to the high court that state governments are violating the 14th Amendment's guarantee of "due process of law" and "equal protection' of the laws."

- Color-blindness. The notion, frequently invoked by opponents of affirmative action, that the Constitution's guarantee of "equal protection of the laws" and the 1964 Civil Rights Act prohibit laws that confer any benefits on the basis of race, even if the beneficiaries are members of groups that were the victims of racial discrimination in the past.

- Comparable worth. A system in which a government agency sets pay scales based on whether jobs done primarily by women (e.g., nursing) are of "comparable worth" to those mostly done by men (e.g., truck driver). As a lawyer in the Reagan administration, Roberts called the concept "pernicious" and "anti-capitalist."

- Commerce clause. Article I, Section 8 of the Constitution, gives Congress authority "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes."

- "Court-stripping." This refers to attempts by Congress to use its constitutional authority to define the jurisdiction of the federal courts to remove controversial subjects - such as busing for school desegregation or prayer in public schools - from judicial scrutiny.

- Gonzales v. Raich. A 2005 decision in which the court ruled 6-3 that Congress had the authority under the commerce clause to outlaw the use of marijuana for medical purposes even if such use were allowed by state law and the marijuana were grown entirely inside state lines.

- Grutter v. Bollinger. A 2003 decision in which the court ruled 5-4 that the University of Michigan Law School did not violate the Constitution when it took race into account in admissions decisions "to further a compelling interest in obtaining the educational benefits that flow from a diverse student body."

- Habeas corpus. Latin for "you must have the body." The "Great Writ" of habeas corpus is filed to obtain the release of a person who claims wrongful imprisonment. In 1996, Congress cut back on the right of prisoners to use the writ to seek release or a new trial in federal court, requiring that they file their petitions within a year of the conclusion of appeals in the state judicial system.

- Hamdan v. Rumsfeld. A July 15, 2005, decision by the U.S. Court of Appeals for the District of Columbia in which Roberts joined the majority opinion upholding the legality of the military tribunals established by the Bush administration to try foreign suspected terrorists at Guantanamo Bay, Cuba.

- Kelo v. New London. A 2005 Supreme Court decision in which the court by a 5-4 vote ruled that a distressed Connecticut city did not violate the Constitution when it seized private property through eminent domain for a redevelopment plan anchored by a private business.

- Lawrence v. Texas. In this 2003 decision, the court by a 6-3 vote struck down a Texas law that made same-sex sodomy a crime.

- Planned Parenthood of Southeastern Pa. v. Casey. In this 1992 decision, the court by a 5-4 vote upheld the "essential holding" of Roe v. Wade.

- National Court of Appeals. In the 1980s, Chief Justice Warren Burger proposed the creation of an appellate court in between the regional U.S. Courts of Appeal and the Supreme Court in order to reduce the Supreme Court's workload. Roberts opposed the idea, suggesting that the high court had only itself to blame for its heavy workload. He said the justices take too many cases and "issue opinions so confusing that they often do not even resolve the question presented."

- Privacy, the right of. Although the Constitution does not explicitly cite a right to privacy, the court has said that several of its provisions - including language in the Fifth and 14th Amendments protecting "liberty" - safeguard such privacy rights as the right of couples to obtain birth control and a woman's right to an abortion.

- Rational-basis test. In reviewing some laws - primarily those dealing with economic regulation - the Supreme Court asks if there is a "rational basis" for the legislation. A much more lenient standard than "strict scrutiny," the rational-basis test usually leads to a ruling that a law is constitutional even if it is incomplete or inconsistent in dealing with a problem.


Distributed by Scripps Howard News Service,

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