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New Supreme Court Justice Samuel Alito Jr.‘s first day on the bench Tuesday was an unusually busy one. The Court heard arguments in key environmental cases, issued a ruling involving freedom of religion, and granted review in a new case that will put the justices back in the center of the national abortion rights debate. The Court said it would hear arguments this fall in Gonzales v. Carhart, a challenge to the 2003 federal Partial-Birth Abortion Act brought by Leroy Carhart, the same Nebraska doctor who successfully brought down a similar state law in the 2000 case Stenberg v. Carhart. Abortion rights supporters immediately sounded the alarm about the Court’s decision to review the case with its two new conservative members. “We fear the new Court is ready to further undermine a woman’s access to legal abortion,” said Jennifer Brown, vice president of Legal Momentum. In addition to all the news, the Court chamber was packed with spectators for other reasons: to see Alito’s debut and, for the first time in more than 11 years, a new seating arrangement for associate justices. By Court tradition, the chief justice occupies the middle chair, flanked by the associate justices alternating right, then left, and so on, down the order of seniority. Until Tuesday that arrangement put junior Justice Stephen Breyer on the far right of the bench. But now Alito occupies that seat, bumping Breyer to the far left — the least desirable seat, according to some justices, because it puts him closest to the leering press corps. The rest of the justices also changed seats except for Justice John Paul Stevens, whose seniority did not change with the departure of Justice Sandra Day O’Connor. The justices seemed to be getting accustomed to their new vantage point, and to their new colleague, whose arrival went unheralded and unannounced when the Court began its session at 10 a.m. After the Court released the orders list, including the grant of the abortion case, Justice Antonin Scalia announced the Court’s 7-1 decision in Buckeye Check Cashing Inc. v. Cardegna, a victory for businesses seeking to resolve consumer disputes in arbitration rather than in state courts. Then came Chief Justice John Roberts Jr.’s announcement of his second unanimous ruling since joining the Court last September: Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, an important First Amendment test of the federal Religious Freedom Restoration Act. The Court ruled that the Bush administration failed to make a strong enough case that U.S. members of a Brazil-based religious sect should be prohibited from importing hoasca tea for their ceremonies. The tea contains a Schedule I hallucinogen, and the government argued that no exceptions should be made to the Controlled Substances Act. Roberts noted that the act already exempts and allows the use of peyote by the Native American Church, thereby undercutting the government’s argument. By tradition, Alito did not participate in the decision of the cases, which were argued before he joined the Court. But he took part in the oral arguments that began after the morning’s decisions were announced. First up were the consolidated Clean Water Act cases of Rapanos v. United States and Carabell v. United States Army Corps of Engineers. Both cases, involving Michigan developers, test the limits of the reach of the act to waters that have an attenuated connection to navigable waters. Most of the 80 minutes were taken up defining tributaries and how much of a “hydrological connection” is needed between a seemingly isolated body of water and a navigable water to trigger protection under the act. Justices were especially tough on Solicitor General Paul Clement, who was defending a broad interpretation of the act that would cover any “channelized body of water,” including a ditch that feeds into a tributary of a navigable water. He noted that the Erie Canal is a ditch. “I do not see how a storm drain is a water of the United States,” countered Scalia. Alito asked only one question during the first argument but was more active during the second, S.D. Warren Co. v. Maine Board of Environmental Protection. In that case, the question is whether the flow of a river through a hydroelectric dam creates the kind of “discharge” that triggers the Clean Water Act’s requirement that a state license be obtained. Alito seemed skeptical of the argument by Maine Attorney General G. Steven Rowe that the operation of the dam triggers state licensing requirements. Alito asked whether Maine could ban hydroelectric dams altogether. Rowe said yes, and Alito responded, “You think this is something Congress intended?” Also on Tuesday, the Court: — Granted review in a patent case, Medimmune v. Genentech, involving what is needed to trigger a patent violation lawsuit. — Agreed to review Cunningham v. Carter, a California case that will clarify how the Court’s recent decisions on sentencing guidelines affect California’s sentencing system. — Declined to review Hosty v. Carter, a closely watched First Amendment case involving censorship of student publications at state universities. The action lets stand a ruling of the U.S. Court of Appeals for the 7th Circuit that said the high court’s 1988 decision Hazelwood v. Kuhlmeier, which gave public school officials broad power to censor high school newspapers, also governed colleges.
Tony Mauro can be contacted at [email protected].

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