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Although the Rehnquist Court has come to an end, a new and historic Supreme Court term is about to begin, one already filled with challenges — such as abortions for minors, religion, assisted suicide, and the death penalty and innocence — that have ignited public debate and sharply divided the justices in recent years. The justices await Senate confirmation of a new chief justice, most likely to be John Roberts, a former clerk to the chief he hopes to succeed and currently a judge on the U.S. Circuit Court for the District of Columbia. And they will work through the uncertainty and complications surrounding a second vacancy created by the retirement plans of Justice Sandra Day O’Connor. “In some ways, the term is getting overshadowed by virtue of these [confirmation] hearings,” said Michael Gerhardt of the University of North Carolina School of Law. “It’s likely to be more historic, more monumental, than the last one. It’s also one in which the new justices will make a critical difference. “I think we’re about to see the kind of shift in the direction of the law that the president would like to see.” And if Roberts takes the Court’s center seat in October, he is likely to give an early indication of just what kind of justice he will be, said some court scholars. “With some new justices, you need a little while to figure out where they fit in,” said Michael Greve, director of the Federalism Project at the American Enterprise Institute. But because of the nature of the new cases, he said, “Here you’ll get a lot of signals very early.” Besides the high-stakes issues of abortion, religion and assisted suicide, the Court also has a “number of interesting business cases already — none in the category of a blockbuster, but significant,” said veteran high court litigator Mark Levy, counsel to the Washington office of Atlanta-based Kilpatrick & Lockhart. He noted in particular three antitrust cases, two civil Racketeer Influenced and Corrupt Organizations Act challenges and an arbitration appeal. And waiting in the wings are petitions filed by the government over the remedy of disgorgement of profits in its huge case against the tobacco industry; the first challenge to the Bush administration’s use of military commissions to try terrorism suspects; a campaign finance challenge that could draw the justices into re-examining the landmark Buckley v. Valeo decision on limits on campaign spending and contributions; and a petition involving a state’s obligation to preserve DNA evidence for use in post-conviction proceedings. Before the year’s end, the high court also may see challenges concerning the so-called “partial-birth” abortion issue. Although some of the new term’s cases eventually could be decided on narrow grounds, “I think the term has all the hallmarks of a blockbuster,” said high court litigator Jay Sekulow, general counsel of the American Center for Law & Justice. O’CONNOR WAITS Aside from the new docket and the arrival of a new chief, the role of O’Connor provides another interesting twist in the new term. A successor for O’Connor is highly unlikely to take his or her seat before the term opens, and perhaps not even before the end of the October argument session — one that includes the Oregon assisted-suicide case. O’Connor has said she will stay on the court until her successor is confirmed. “She is in a tough spot,” said David Franklin of DePaul University College of Law, a former clerk to Justice Ruth Bader Ginsburg. “On the one hand, she is a very hard-working, conscientious public servant. She is going to want to pitch in if needed. On the other hand, she seems to sincerely want to spend more time with her ailing husband, and I don’t think she is interested in sitting in October and November, only to be replaced and have no vote in the cases she sat on.” (O’Connor’s vote would count only if the case is decided while she is sitting on the bench.) O’Connor undoubtedly would play a critical role in some of the Court’s new cases had she not chosen to retire. One of those cases is Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, a challenge involving the New Hampshire Parental Notification Prior to Abortion Act. The justices confront two issues in the case. First, what is the correct standard in a facial challenge to a statute regulating abortion — the “undue burden” standard announced in Planned Parenthood of S.E. Pennsylvania v. Casey, 5050 U.S. 833 (1992), or the “no set of circumstances” standard set out in U.S. v. Salerno, 481 U.S. 739 (1987). And second, must a statute regulating abortion contain a health exception to survive constitutional challenge? Requiring litigants making facial challenges to show that the statute is not valid in any set of circumstances is a much tougher standard than Casey‘s “undue burden” test, which has been adopted and applied by most federal circuits. The Bush administration has filed an amicus brief arguing that the Salerno standard, announced in a criminal case, is the “default rule” in abortion cases. The Bush administration also supports the state in arguing that there is no bright-line rule requiring a general health exception in abortion regulations. A 1st Circuit panel found the statute’s judicial bypass provisions inadequate to protect the health of minors seeking abortions. “Even when the courts act as expeditiously as possible, those minors who need an immediate abortion to protect their health are at risk,” wrote the panel, which traced the requirement of a health exception to the landmark Roe v. Wade decision. “Unless the line-up changes, I think O’Connor will not be hearing it — Roberts will — and some unknown draft choice to be named later,” said Douglas Kmiec of Pepperdine University School of Law. “That’s going to make a difference. This one depends on the composition of the court almost entirely. I hate saying that. I spend my life teaching there is law here.” The high court returns to one of the hallmarks of the Rehnquist Court — federalism — in two challenges. In Central Virginia Community College v. Katz, No. 04-0885, the Court will decide whether the bankruptcy clause in the Constitution gives Congress the power to abrogate a state’s 11th Amendment immunity from private suits in a bankruptcy proceeding. Four state colleges in Virginia are challenging a proceeding by the liquidating supervisor of the bankrupt Wallace’s Bookstores to recover preferential transfers made by Wallace’s to the colleges and to collect accounts receivable owed by them. The bankruptcy clause has a requirement that bankruptcy laws have national uniformity, noted Kilpatrick’s Levy. He explained: “The argument is you can’t have national uniformity if states are exempted. This implicitly limits the 11th Amendment, otherwise the clause would be rendered ineffective. It’s a narrow issue because it only affects the bankruptcy clause, but it’s the next federalism case.” 14TH AMENDMENT REVIEW In the second case, the justices will examine whether Congress exceeded its power under Section 5 of the 14th Amendment when it abrogated the states’ sovereign immunity from suit by making Title II of the Americans With Disabilities Act applicable to prisons. U.S. v. Georgia, No. 04-1203, and Goodman v. Georgia, No. 04-1236. The initial suit was brought by Tony Goodman, a wheelchair-bound prisoner, who allegedly suffered terrible neglect and degrading conditions because the prison was unwilling or unable to accommodate his disability. The high court last term upheld the extension of Title II of the ADA to court buildings in a case involving a paraplegic man who had to crawl up the stairs in a courthouse to get to a hearing. Tennessee v. Lane. Goodman relies on the Lane holding. “This case will tell how broadly or narrowly Lane gets read,” said Levy. “This also will tell us something about Roberts’ views on federalism, if he is confirmed.” The court also has a trio of very different First Amendment challenges, involving speech, religion and association. In Garcetti v. Ceballos, No. 04-473, the justices consider whether the First Amendment protects a Los Angeles deputy district attorney who sued, charging job retaliation, after he circulated a memo reporting that a deputy sheriff lied in a search warrant affidavit and in court testimony. And in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, No. 04-1084, a Brazil-based church, with operations in New Mexico, contends that its religious use of a hallucinogenic tea, which contains a drug banned by the federal Controlled Substances Act, is protected by the 2000 Religious Freedom Restoration Act. The Bush administration, which lost in the 10th Circuit, contends that it has a compelling interest in preventing an illegal market for the drug, and that the drug is banned by an international treaty signed by the United States. And in Rumsfeld v. Forum for Academic and Institutional Rights, No. 04-1152, the court will examine the constitutionality of the Solomon Amendment, a budget provision that withholds federal education funds from higher education institutions that do not give military recruiters the same access to students as private employers. “This case is important to law schools [some of which initiated the legal challenge] and, because it is, a lot of people will pay attention,” said Kmiec. “This is a tug of war between Congress and the people who receive its money.” ASSISTING SUICIDE, DRUG ABUSE? The federal Controlled Substances Act figures in a second case on the docket: Gonzales v. Oregon, No. 04-623, a challenge to Oregon’s Death with Dignity Act. The Bush administration is defending an interpretive rule issued by former Attorney General John Ashcroft stating that Oregon’s act violated the CSA because it lacks a “legitimate medical purpose,” and the taking of drugs to commit suicide is drug abuse. Lawyers for Oregon note that in a 1997 decision, Washington v. Glucksberg, the high court, while upholding a state ban on assisted suicide, left the issue to the “laboratories of the states.” The high court also has a number of important criminal cases this term, including: � House v. Bell, No. 04-8990, asking what constitutes a “truly persuasive showing of actual innocence” sufficient to win federal habeas relief. � Georgia v. Randolph, No. 04-1067, asking whether police can search a home when a co-habitant consents and the other co-habitant is present but does not consent. � Oregon v. Guzek, No. 04-928, examining whether capital defendants have a constitutional right to present evidence that would cast doubt-so-called residual doubt-on their conviction during the sentencing phase of their trials, a question that has divided state and lower federal courts for many years.

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