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What's ahead for the Supreme Court
Scripps Howard News Service


September 26, 2005

WASHINGTON -- John Roberts is headed for Senate confirmation as 17th chief justice of the United States next week in time for the start of the new Supreme Court term Oct. 3.

And the Roberts court will quickly be called to account on such hot-button issues as abortion, right-to-die, religion, the death penalty and innocence that have split the justices and the public for years.

Meantime, the justices get a head start without him Monday when they decide which of 1,500 appeals that came in over the summer to add to the 2005 calendar. Those pending appeals include Salim Ahmad Hamdan's lawsuit challenging President Bush's order that military tribunals try war-on-terror suspects. Roberts, as a member of the U.S. Circuit Court of Appeals for the District of Columbia, was one of three judges to rule against Hamdan and for the president's power to bypass civilian courts.

The Senate Judiciary Committee pressed Roberts unsuccessfully on the war-on-terror and other flashpoint controversies already on the Supreme Court docket or working their way there. But Roberts pointedly cited Justice Ruth Bader Ginsburg's confirmation promise on future cases: "No hints, no forecasts, no previews."

These are key cases the court already agreed to decide in the new term:

ABORTION: Roberts must quickly decide where he stands on abortion because the court will hear its first abortion case in five years Nov. 30.

This one deals with how far states can go when regulating abortion but doesn't directly confront Roe v. Wade, the 1973 decision that legalized abortion nationwide.

Roberts acknowledged in Senate testimony that he believes the Constitution protects privacy rights on which Roe rests. But he wouldn't commit himself to follow Roe or a 1992 case that let states restrict abortion if they don't put an "undue burden" on a woman's decision.

At issue in the 2005 Supreme Court case, Ayotte v. Planned Parenthood, is New Hampshire's parental-notice law and whether its failure to make an exception for the health as well as the life of an underage girl is an undue burden.

RIGHT-TO-DIE: Roberts' refusal to commit to senators on end-of-life issues - other than to promise "to keep an open mind" - is of more than passing interest: A right-to-die case confronts the court Oct. 5, when it hears the Bush administration's bid to prosecute doctors who participate in physician-assisted suicide allowed by Oregon's first-in-the-nation "death with dignity" law.

Then-Attorney General John Ashcroft issued a 2001 directive aimed at gutting Oregon's law and put doctors on notice that physician-assisted suicide violates the federal Controlled Substances Act on grounds that suicide is not a "legitimate medical purpose."

Lower courts sided with terminally ill Oregonians and medical professionals who challenged the directive, holding that Ashcroft overstepped his authority, ignored Congress' intent in enacting the controlled-substance law and intruded on traditional state regulation of medical practice.

RELIGIOUS FREEDOM: The court will decide if the federal government can ban the importation of huasca, a hallucinogenic tea used by the New Mexico branch of a Brazilian church that blends Amazon religion and Christianity. The sect sued to stop the administration from halting sacred tea imports on grounds the ban interferes with religious rites protected by the Religious Freedom Restoration Act.

WAR ON TERROR: Law schools and professors assert a right to bar the Pentagon from recruiting on campuses where its "don't ask, don't tell" policy on gays in the military violates anti-discrimination policies. A federal law enacted in 1994 requires schools receiving federal funds to give access to military recruiters.

DISABILITIES LAW: In his first high-court test of congressional power vs. states' rights, Roberts will confront a case asking if the federal Americans With Disabilities Act lets state prisoners sue for discrimination, or if states are protected from inmate civil-rights suits.

Here, a paralyzed Georgia inmate sued on grounds the cell where he spends 23 of 24 hours a day is too small to maneuver his wheelchair, depriving him of access to the toilet, shower and bed. Lower courts sided with Georgia, saying Congress lacks power to impose disability rules on state prisons, but the Bush administration sides with the inmate, citing federal equal-protection rights to protect his basic physical needs.

CRIMINAL LAW: The court will hear its first case judging DNA's role in raising claims of innocence by convicted prisoners.

The appeal - one of more than 100 such cases pending in U.S. courts - was brought by Paul House of Union County, Tenn., who was convicted of the 1985 murder of a neighbor before DNA testing was developed. New DNA tests showed that semen on her clothing belonged to her husband, and witnesses recently came forward to claim the husband abused and threatened to kill her. But the 6th U.S. Circuit Court of Appeals in Cincinnati called the evidence insufficient to reopen House's case because he didn't claim innocence in earlier appeals.

Roberts, as principal deputy solicitor general in the senior Bush administration, signed onto a Supreme Court brief urging rejection of a confessed Texas cop killer's 11th-hour claim of innocence because he never raised it during five rounds of appeals. The Supreme Court agreed that any claims the confessed killer's now-dead brother was the real murderer should go to Texas' clemency board.

RACKETEERING: The court will decide the reach of a 1970 law, the Racketeer Influenced and Corrupt Organizations Act, or RICO. Enacted by Congress to force mob-style criminal conspiracies to pay for their corrupt enterprises, the Supreme Court has been willing to expand coverage to other activities, but appeals courts repeatedly curb use of the act.

The cases before the high court seek to invoke RICO and its triple-damages provision in abortion-clinic blockades and violence and against an alleged loan conspiracy to bilk the Bank of China.


Contact Mary Deibel at DeibelM(at)

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