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WASHINGTON-The U.S. Supreme Court’s new term, which already offers controversial challenges involving abortion, affirmative action, punitive damages and global warming, promises to add significantly to the emerging portrait of the newly constituted Roberts court. The justices will open the 2006-2007 term on the traditional first Monday in October-Oct. 2-but in an untraditional way. There will be no oral arguments because of the Jewish holy day, Yom Kippur. But on that day, or as has become more routine in recent years, on the Friday before the first Monday, the court will announce new grants of review-as well as denials-of cases gleaned from the thousands that came into the court throughout the summer. The justices approach the opening day with a relatively spare argument docket, having agreed to hear arguments in 31 cases, fewer than the number granted review at this time a year ago. But there is none of the uncertainty that surrounded them last fall as they awaited the arrival of a new chief justice and dealt with the impending departure of Justice Sandra Day O’Connor. But even if the high court only decided the 31 cases currently on the docket, there is plenty of potential drama and legal significance in that group, say scholars and court watchers. “There are some stand-out cases and each of them will test whether this is a ‘restrained’ court,” said constitutional law scholar Douglas Kmiec of Pepperdine University School of Law, referring to the abortion, affirmative action and punitive damages challenges. Each of those “headline” cases, he added, also reflects the influence of Justice Anthony M. Kennedy, who has played a major role or has cast the decisive vote in the precedents or doctrines underlying those challenges. The balance of the current docket, said Kmiec, is not like those cases but is “wonderfully lawyerly,” many dealing with such issues as retroactivity or administrative law. The early docket also reflects a continuation of a trend from last term, an increase in the number of important business-related issues. Here the headline case for the business community is the punitive damages challenge brought by tobacco giant Philip Morris USA. But the court also has agreed to review important challenges in the antitrust, patent and employment arenas. [See Page 18.]
Cases to Watch Abortion Gonzales v. Carhart, No. 05-380; Gonzales v. Planned Parenthood, No. 05-1382: Is the federal Partial Birth Abortion Ban Act of 2003 invalid because it lacks an exception to protect the health of the woman? Affirmative action Parents Involved in Community Schools v. Seattle School District #1, No. 05-908; Meredith v. Jefferson County Board of Education, No. 05-915: Is racial diversity a compelling state interest that can justify the use of race in selecting students for admission to public schools, K-12? Global warming Massachusetts v. Environmental Protection Agency (EPA), No. 05-1120: Was the EPA wrong in deciding that the federal Clean Air Act does not give the agency authority to regulate greenhouse gas emissions for the purpose of addressing concerns about global climate changes? Sentencing Cunningham v. California, No. 05-6551: Does California’s determinate sentencing system violate the Sixth and 14th amendments?

“One trend from last term which I really hope will continue is that the chief justice seems to be oriented toward trying to find, where he can, an opportunity for consensus resolution of cases,” said high court scholar Mark Rahdert of Temple University James E. Beasley School of Law. One of the weaknesses of the last chief justice, William H. Rehnquist, said Rahdert, was that he made no serious effort to achieve consensus, and that resulted in many splintered decisions and a huge increase in concurrences. “It was really kind of messy,” said Rahdert. “Roberts seems not to like that and to think the court should speak with something more nearly approaching a single voice. That’s not to say he is afraid of dispute.” Facing dispute Roberts’ consensus-building efforts surely will be tested early in the new term in two of the most divisive issues for the high court-abortion and affirmative action. “I think the handwriting is pretty clear in both areas that the law is going to change significantly,” said Rahdert. “If you just line up the votes-replacing O’Connor with [Justice Samuel A.] Alito [Jr.] on both issues. The committed minority in the past that was opposed to affirmative action and any kind of permission for partial-birth abortion is set to become a majority.” The real question in both, added Rahdert, is how dramatically will the law change. “Will the court announce some sort of bold, new set of principles or apply the existing framework in a different fashion and weigh the values in a different way?” In Gonzales v. Carhart, No. 05-380, and Gonzales v. Planned Parenthood, No. 05-1382, the Bush administration seeks to overturn rulings by the 8th and 9th circuits that struck down the federal Partial Birth Abortion Ban Act of 2003. Every court to review the law has found it invalid, generally because it is overbroad and because it lacks an exception to protect the health of the woman-a requirement established by a 5-4 high court decision in 2000 in Stenberg v. Carhart, 530 U.S. 914, which held that Nebraska’s partial-birth abortion law was unconstitutional. O’Connor was the critical fifth vote to invalidate the law. Kennedy wrote a bitter dissent. In enacting the federal ban, Congress explicitly found that a health exception was not necessary for this type of medical procedure. “Rather than enacting a law that conformed to Stenberg, Congress sought to overturn that ruling and made findings in the act that criticized factual findings of numerous federal district courts,” wrote Priscilla J. Smith of the Center for Reproductive Rights, who is high court counsel to Dr. LeRoy Carhart and three other physicians in the 8th Circuit case. “There are two aspects to the case that are intriguing: the extent to which Congress has found the facts, and [that Congress is] owed deference under Section 5 of the 14th Amendment,” said Pepperdine’s Kmiec. That has implications that extend beyond abortion, he said. “And the particular issue of the health exception, which has been, for conservatives, one of the more duplicitous aspects of the entire body of abortion jurisprudence.” Kmiec concedes that it is “very difficult at first blush” to see why a conservative, restrained court would take the abortion challenges, since there is no circuit split and there is a recent precedent. “Maybe the answer is: It’s not a fully restrained court, especially in this case where Justice Kennedy has been waiting to prevail, and justices [Clarence] Thomas and [Antonin] Scalia have not fully signed on yet to the Roberts-Alito method of decision-making,” said Kmiec. The replacement of O’Connor with Alito may also be determinative in the court’s two key affirmative action cases: Parents Involved in Community Schools v. Seattle School District #1, No. 05-908, and Meredith v. Jefferson County Board of Education, No. 05-915. Parents in both cases are challenging school integration guidelines that prevented their children from attending their school of choice because of their race or ethnicity. The Bush administration has intervened in the cases on the side of the parents, arguing that the guidelines involve “outright racial balancing” which is “patently unconstitutional.” The high court last visited the issue of affirmative action in 2003 when it upheld the affirmative-action admissions policy at the University of Michigan Law School, but struck down a differently constituted admissions policy at the undergraduate school. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003). O’Connor was the key vote and voice in the law school ruling; Kennedy was in dissent. If the school districts here lose, “It would really, in the context it is before the court, signal the end of the Brown v. Board of Educationdesegregation era,” said Temple’s Rahdert. “What’s left of school desegregation are these voluntary plans that try, at the margins, to combat the tendency of having patterns of one-race schools.” Regulating warming The high court takes up one of the most hotly debated environmental issues of the time-global warming-in a challenge to the Environmental Protection Agency’s interpretation of the Clean Air Act. Massachusetts v. EPA, No. 05-1120. The case involves whether greenhouse gas emissions from cars and light trucks should be regulated by the EPA under the Clean Air Act because of their contribution to global warming. The agency in 2003 concluded that it had no authority to regulate air pollutants associated with climate change, regardless of the state of the scientific evidence. It also concluded that the four substances covered by a petition seeking regulatory standards were not “air pollutants” within the meaning of the Clean Air Act. Thirty parties, including 16 states, unsuccessfully appealed the agency’s decision to the U.S. Circuit Court of Appeals for the District of Columbia. In the high court, Massachusetts Attorney General Thomas Reilly argues, “The ruling in this case is an extreme departure from this Court’s precedents on statutory interpretation. To allow this decision to stand would be to sanction an enormous shift of power to administrative agencies, effectively letting them dismantle statutory regimes they simply do not like.” The Bush administration argues that petitioners have no standing and that the agency identified “a variety of sensible and appropriate reasons-including the complex and highly uncertain nature of the scientific record” for its conclusion that even if it had authority to regulate greenhouse gas emissions from motor vehicles, “an endangerment finding would be inappropriate at this time.” While global warming is a “first” for the Supreme Court, a key sentencing challenge in the new term is continuation of fallout from the justices’ sentencing revolution begun with Apprendi v. New Jersey, 540 U.S. 446 (2000). In Apprendi, the court held that the Sixth Amendment prohibits judges from enhancing sentences beyond statutory maximums based on facts not found by a jury. In Cunningham v. California, No. 05-6551, the justices will examine California’s three-tiered, determinate sentencing system for compliance with the Sixth Amendment and Apprendiand its progeny. Cunninghamis significant for at least two reasons, said sentencing scholar Michael O’Hear of Marquette University Law School. “We’re talking here about potentially devastating results for the largest state criminal justice system in the country,” he said. “If the state loses, it’s going to result in chaos in this enormous system.” A decision, he added, also may result in the court saying important things about the federal system, in which, because of U.S. v. Booker, 543 U.S. 220 (2005), sentencing guidelines are no longer mandatory. “The state in its brief is trying to analogize its system to the federal system,” said O’Hear. “If the court declares the state system unconstitutional, then there is a question about what has been happening in the federal system since Bookerwas decided and the court may feel obliged to talk about that.” Other cases to watch include: Burton v. Waddington, No. 05-9222: Is the sentencing decision, Blakely v. Washington, 542 U.S. 296 (2004), retroactive? Lopez v. Gonzales, No. 05-547; Toldeo-Flores v. U.S., No. 05-7664: Is the commission of a controlled substance offense that is a felony under state law, but a misdemeanor under federal law, is an “aggravated felony” under the Immigration and Nationality Act and thus a deportable offense? Carey v. Muladin, No. 05-785: Is a defendant’s right to a fair trial violated when family of the dead victim wore buttons bearing his picture during trial?

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