Battle Supreme In Washington

Supreme Court Justices Antonin Scalia, left, and Anthony Kennedy, center above, walk out of St. Matthew the Apostle Church after attending the annual Red Mass in Washington Sunday, Oct. 1., 2006. The worship service is traditionally held the Sunday before the Supreme Court's new term. AP

If we rated Supreme Court terms the way we rate television shows, the coming session would already be labeled a "Can't-Miss Blockbuster Hit!" The Justices will tackle between now and June many of the major hot-button themes that keep Americans talking at the water cooler — cases involving abortion rights, the environment, sentencing rules, and affirmative action. And they will do so while two of them still are wet behind the ears, relatively speaking, in the world of high justice. It's so sad, then, that the Justices persist in denying the rest of us the chance to catch their act on television. Just imagine the ratings.

Plot lines like the future of global warming! Drama like the validity of late-term abortion restrictions! Watch action figures like Chief Justice John G. Roberts, Jr. learn how to lead! Get suspense and intrigue from Justice Samuel A. Alito, Jr. — will he or won't he (vote the same way his predecessor, Sandra Day O'Connor did on two of the biggest fights of the term)? The storylines write themselves and one thing is certain. In one way or the other we will think very differently of the Roberts Court as a whole, and several of the Justices individually, when this raucous ritual ends during the last week of June.

The cases that no doubt will get the most media coverage will be the two joined abortion rights cases, scheduled for oral argument next month, involving Congress' latest effort to restrict the late-term abortion procedure that its opponents call "partial-birth" abortion. The Court effectively avoided a substantive abortion ruling last term — this term it won't be able to. The case that ought to get the most media coverage is the challenge by 12 states to the way the Environmental Protection Agency is regulating the emissions of air pollutants that cause global warming. A ruling against the EPA could create the legal impetus to force the Bush administration to actually do something to solve the problem.

The cases that likely will impact the most Americans in the shortest period are the two "affirmative action" disputes the Justices will hear arguments upon on the same day in early December. And the cases that most lawyers and judges will be following will be the ones involving criminal sentencing rules, which could theoretically overturn the sentences of thousands of federal prisoners. Otherwise, the term consists of the typically small assortment of cases — so far Chief Justice Roberts is keeping the docket as lean numbers-wise as his predecessor had made it — that no one cares about until one side or the other loses.

But you don't want to read or hear about those cases. You want to read about the late-term abortion cases. Given the Court's past record, those cases, Gonzales v. Carhart, and Gonzales v. Planned Parenthood, essentially come down to Justices Anthony M. Kennedy and Samuel A. Alito, Jr. No one will be surprised if Justice Alito casts a vote in favor of the federal law that outlaws late-term abortions even where the mother's health is at stake. That "health" exception was ratified in 2000 by the Supreme Court, with Justice O'Connor casting the fifth and deciding vote. She's gone. The big question is whether Justice Anthony Kennedy will take her place.

Justice Kennedy voted for the last Congressional effort to restrict this type of abortion and if he does it again the math adds up to a 5-4 victory for anti-abortion proponents. But he may decide that there is more value and honor in upholding the Court's precedent from that 2000 decision than there is in endorsing Congress' stubborn brand of fact-finding about abortion procedures that led the legislature to find that the aforementioned "health exception" was not medically necessary. Justice Kennedy already is the bane of the right for his rulings last term and his penchant for citing (but not necessarily relying upon) foreign law. Just imagine the grief he'll get if he again stymies his fellow Republicans.

Because O'Connor also provided the critical swing vote in 2003 to uphold affirmative action, Justice Alito's votes this term in two successor cases will be crucial in determining the fate of admissions' policies in two school districts thousands of miles apart — and also shaping the future, if any, of affirmative action policies. Few who saw or heard Justice Alito's Supreme Court confirmation hearing in January believe he supports affirmative action even where, as in the case of school districts in Washington state and Kentucky, race is considered a factor, but not the only factor, in admissions decisions. And few believe that Justice Kennedy will be willing to do anything about that.

Speaking of decisions, the Court this term will hear at least two cases designed, lawyers and judges everywhere hope, to clear up the mass confusion that currently reigns over federal sentencing. In Burton v. Waddington, the Justices will decide whether to apply retroactively its landmark 2004 ruling that required federal jurors to find beyond a reasonable doubt any fact that increased a defendant's sentence. The Court also will determine the fact of California's sentencing guidelines and, in so doing, probably expound a little bit on its ruling a few years ago that made the federal sentencing guidelines less than mandatory.

I saved the best for last. The Court will enter the debate over global warming via a case that has enormous ramifications not just for us but for our grandchildren. It's not just the Bush Administration's environmental policies that will be tested via Massachusetts v. EPA, it's the White House's approach to science, generally, that will come under scrutiny. The Administration, remember, still is reluctant to accept the idea that there is a scientific consensus that we are causing global warming by the emissions we generate, and that we had better do something about it before it is too late. A Supreme Court ruling that forces the administration's hand here could be, as the global warming experts like to say, a "tipping point."

What else? Well, the Justices this term will hear cases involving the following federal statutes: the Organic Act of Guam, the Fair Credit Reporting Act, the Armed Career Criminal Act, the Federal Impact Aid Act, the National Bank Act, the Mineral Leasing Act, the Westfall Act, and the Declaratory Judgment Act, to name a few. There will be a quiz during the last month in June, and by then we should know what the ratings are like for this Season of Star Cases! at the highest court in the land.
Andrew Cohen
  • Alfonso Serrano

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