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Supreme Court to revisit some old and incendiary issues
San Francisco Chronicle


October 02, 2006

The U.S. Supreme Court will delve into some old and incendiary issues in its term that started Monday - abortion and the role of race in public school enrollment - and a relatively new one, whether the government must regulate pollutants that cause global warming.

In the process, the justices are likely to provide answers to questions that were largely left unanswered in the debut term of President Bush's two appointees, Chief Justice John Roberts and Justice Samuel Alito.




One question is just how far the court's center of gravity has shifted rightward because of Alito's replacement of retired Justice Sandra Day O'Connor. Another is how Roberts' embrace of judicial modesty and humility at his confirmation hearings will affect his approach to cases in which the Bush administration seeks to overturn court precedents.

The 2006-07 term should also help to define the role of Justice Anthony Kennedy, who has succeeded O'Connor as the swing vote between blocs of conservatives and moderate-to-liberals.

Kennedy cast critical votes last term rejecting the administration's plans for military tribunals and setting boundaries for federal regulation of wetlands, siding in both cases with the more liberal justices. But this term's abortion and race cases present issues on which Kennedy has joined the conservative wing in the past, casting dissenting votes to bar racial considerations in school admissions and to uphold a law that would have banned specific abortion methods.

"This will be much more of a litmus-test term than the last term was," said Edward Lazarus, a former Supreme Court clerk and author of "Closed Chambers," a book about the court. "There are several cases on the docket in the most contentious areas of the law in which the new justices will have to declare themselves, and Justice Kennedy will be put to the test."

The court will also examine judicial limiting of multimillion-dollar punitive jury damage awards against tobacco companies and review a challenge to the criminal sentencing system that California has used for nearly 30 years. Rulings are due by the end of June.

The abortion case, to be argued Nov. 8, involves the first federal law to ban a type of abortion. Known as the Partial-Birth Abortion Ban Act of 2003, it would make it a crime for a doctor to terminate a pregnancy by partially removing a fetus intact from the womb before destroying it.

The court ruled a similar Nebraska law unconstitutional in 2000 - with O'Connor in the majority and Kennedy among the dissenters - because it failed to exempt abortions needed to protect a woman's health. Congress responded by issuing findings in the 2003 law that such abortions are never necessary for a woman's health.

Nonetheless, three federal appeals courts, including one in San Francisco, ruled the federal law was unconstitutional on much the same grounds as the Nebraska statute. The Supreme Court's decision to review the case, despite an absence of conflict in the lower courts, has created widespread expectations that the court will instead uphold the law and that Alito will provide the decisive vote.

The justices' decision to review the law "in all likelihood signals a change of direction," said Pepperdine University law Professor Douglas Kmiec. He said the court was likely to defer to Congress, in keeping with Roberts' pledge of judicial humility.

On the other hand, said Stanford law Professor Kathleen Sullivan, casting aside the Nebraska ruling "does not adhere to the modesty and respect for precedent that both Roberts and Alito talked about at their hearings."

The case on race in schools is potentially broader. It involves a challenge by white parents in Seattle and Louisville, Ky., to plans adopted voluntarily by school districts that take race into account to achieve or preserve integrated schools.

According to the Pacific Legal Foundation, which represents the plaintiff parents, such systems are in effect in as many as 1,000 school districts around the nation. The court's ruling is likely to affect enrollment in every state, with one exception: California, where voters banned racial preferences in public education, employment and contracting by approving Proposition 209 in 1996.

The Seattle plan allows district officials to consider race as one of several factors to determine enrollment at desirable schools. The plan in Jefferson County, Ky., aims for an African American enrollment of between 15 percent and 50 percent at each school.

As in the abortion case, the court is revisiting the subject of one of its recent rulings: a 5-4 decision in 2003, written by O'Connor, that allowed limited use of race-based affirmative action to promote diversity in higher education.

The Bush administration opposed that ruling and is backing the white parents in this case, saying any race-balancing plan is just as unconstitutional as the school segregation that the court outlawed in the famous Brown vs. Board of Education decision in 1954.

The global warming case is potentially the biggest on the docket, a challenge by California, 11 other states and major environmental groups to the Environmental Protection Agency's refusal to limit emissions of carbon dioxide and other so-called greenhouse gases from cars and factories.

The EPA, following Bush administration policy, has disputed the conclusions of mainstream scientists that the gases contribute to global warming. As a result, it has denied that the substances are covered by the Clean Air Act, which requires regulation of air pollutants that could endanger public health.

A court ruling in the federal agency's favor could imperil California's groundbreaking law requiring that greenhouse gas emissions from cars and light trucks be reduced by 25 percent starting in 2009. The law, a model for statutes in 10 other states and the target of a federal court suit by automakers, can take effect only if the EPA grants the state a waiver of national standards. The agency is more likely to grant a waiver if the court finds that air pollution laws apply to greenhouse gases.


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