Term will test new justices' promises of restraint
Published: Sunday, October 1, 2006 at 6:01 a.m.
Last Modified: Saturday, September 30, 2006 at 11:59 p.m.
WASHINGTON - The Supreme Court returns Monday to a docket that includes important cases on abortion, race and the environment, and by next spring, when the court adjourns, it should be much clearer how new Justices John G. Roberts and Samuel Alito have changed things.
The key cases in particular will test the principles the new justices swore allegiance to during their confirmation hearings: precedent, restraint and judicial modesty. Depending on how they and the other justices rule, the laws in those areas could be altered dramatically.
In the abortion case, the court could make it much more difficult to challenge restrictions on women's ability to terminate pregnancies.
The race cases, which involve whether school districts - like colleges and universities - should be able to consider ethnicity in their quest to foster diversity, could affect the reach of the landmark affirmative action cases from 2003.
The environmental case, which questions whether the Environmental Protection Agency may regulate so-called greenhouse gases, presents issues involving how to interpret congressional intent and the ability of individuals to sue in federal court over environmental issues.
Foretelling the future?
Roberts and Alito gave clues during the last term, their first, as to how they might change the court.
Roberts, the court's 17th chief justice and a former clerk to the late Chief Justice William H. Rehnquist, led the court through a record stretch of unanimous opinions early in the term, reflecting his belief that the justices speak loudest when they speak together. Roberts also wrote several opinions that captured his respect for precedent, the guidepost for court stability, and restraint, the idea that the court shouldn't tread on territory reserved for the government's more democratic branches.
Alito had less time to reveal himself because he wasn't confirmed to the bench until halfway through last term. Once he was there, he had little opportunity to have a big impact, which is typical of first-year justices. But when he did write, he revealed much of what he'd been in 15 years on a federal appellate court: a jurist who favors cautious and guarded opinions to thunderous or flashy ones.
In political terms, though, both men have established themselves as reliable votes for the court's conservative block. Both voted consistently with Justice Antonin Scalia, widely regarded as the court's most ardent conservative.
"I don't think there will be many surprises with either of them," said Nan Aron, president of the Alliance for Justice, a liberal group that focuses on legal issues. The group opposed both Roberts' and Alito's nominations.
"The right has been getting exactly what they need out of their judicial nominees."
Arguments start on Tuesday, after the justices observe Yom Kippur on Monday, with two cases that will decide whether illegal immigrants can be deported for committing certain types of misdemeanors.
The abortion cases, scheduled to be argued in early November, will test how strongly Roberts and Alito feel about preserving recent court precedents. The cases involve a challenge to a federal ban on late-term abortions; the court in 2000 struck down an identical ban by the state of Nebraska because it lacked an exception for cases that threatened the health of pregnant women.
Government lawyers say the federal ban's lack of a health exception doesn't matter because Congress made a "factual finding" that late-term abortion is never medically necessary.
But to uphold the federal ban, the court would need to back away from its stringent requirement of a health exception; that would mean significantly altering or undermining the 2000 ruling.
Justice Sandra Day O'Connor, now retired, was the key fifth vote in the 2000 ruling, but both Roberts and Alito wrote memos while working in the Reagan administration questioning the validity of Roe v. Wade, which recognized a constitutional right to abortion.
If the two hew to their thinking on abortion, they could overturn the previous ruling. But if they stick with precedent, they might be forced to uphold and apply it in the case involving the federal ban.
Late last term, Roberts made it even less likely, according to some observers, that he'd overrule court precedents by joining an opinion by Justice Stephen Breyer that was a virtual paean to the importance of precedent and its effect on court stability.
"Adherence to precedent is the norm; departure from it is exceptional," Breyer wrote, saying that principle is especially true where "circumstances have not changed."
The abortion case also confronts another substantive issue about how restrictions are challenged. Right now, it's easier to challenge abortion laws than it is to question other laws, thanks to the way courts have interpreted a 1992 abortion ruling. But a lower-court judge has crafted an opinion that debunks that interpretation and suggests that abortion laws can be challenged the same way other laws are. If the justices adopt that thinking, it would be harder to overturn laws that place restrictions on abortion.
The race cases involve efforts in Seattle and Louisville, Ky., to create diverse student bodies in public schools. Each district uses some form of racial consideration when assigning students to schools to ensure that each has certain percentages of minority and white children.
The school districts argue that they're no less entitled to this use of race than are colleges and universities, which were told in 2003 by the justices that limited use of racial preferences is fine.
Parent groups in both cities say the school districts are using race to an extent that violates the Constitution. The school districts are treating students as mere members of ethnic groups, rather than as individuals, they say.
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The cases again present tough questions about the value of precedent and its sway over how justices rule. Both Alito and Roberts have expressed serious doubt about the use of racial preferences. Both wrote Reagan-era memos frowning on the practice.
Roberts, in a case last year about racial gerrymandering, lamented, "It is a sordid business, this divvying us up by race."
But to deny that the affirmative action rulings could be extended to public schools would be a bold move that neither might be comfortable making.
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The environmental cases involve whether the Environmental Protection Agency must regulate carbon dioxide emissions from new cars as part of its mandate to address any pollutant that might be "reasonably anticipated to endanger public health or welfare."
The case raises questions about the effects of global warming and whether greenhouse gases contribute. It also questions how broadly an executive agency should be allowed to interpret a law passed by Congress, an issue that at least indirectly invokes the debate over the scope of executive power.
And it raises questions about "standing," or the ability of individuals to sue in federal courts.
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In some of the lower courts, judges have said individuals cannot show enough "particularized" injury from global warming to authorize them to sue in court.
Standing is an issue that Roberts in particular has found compelling. In a key opinion he wrote last term, he laid out a treatise on a relatively narrow interpretation of standing. In that case, he said taxpayers in Ohio and Michigan couldn't sue in federal court to stop legislators from granting tax incentives to businesses in their states.
The outcome of the case could significantly narrow the scope of the EPA's work - and the ability of private citizens to do much about it in court.
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