Roberts Court Will Face Big Choices Early ; the Supreme Court He Now Leads Begins Its Term Monday

Article excerpt

The lineup of cases to be argued at the US Supreme Court this fall offers the first good opportunity to assess the jurisprudence of its rookie chief justice, John Roberts.

In its new term, which begins Monday, the high court is set to examine an assisted- suicide law, the religious use of hallucinogenic tea, an abortion statue concerning parental notification, and a ban on federal money to universities that restrict military recruiting on campus. The balance of power between states and the federal government is on the docket again, as are campaign-finance laws, aspects of capital punishment, and police procedures.

How Mr. Roberts handles these and other cases will provide court watchers with solid evidence of his behavior as a justice. And it could offer important clues about how he views his leadership role on the bench.

"It will be very interesting to hear his questions and the kinds of things that concern him," says Tom Goldstein, a Washington lawyer who specializes in Supreme Court cases and closely studies the workings of the court. "Is he more concerned about the facts [in a particular case], or the broader legal principles?"

But part of that assessment may have to await yet another significant development - the replacement of retiring Justice Sandra Day O'Connor. The prospect of a change of a justice in mid-term injects an element of uncertainty into the court's work, legal analysts say.

Announcement of a White House nomination could come as early as Monday. But even under expedited confirmation procedures, a new justice is not likely to arrive at the court before December, analysts say.

The O'Connor factor

That means there is a potential that any cases in which Justice O'Connor provides the decisive fifth vote will be reargued at a later date after her replacement is on the court.

Mr. Goldstein says three to five of the 31 cases set to be heard during the next three months could end up being reargued.

"If all goes smoothly, O'Connor will be leaving the court sometime in December so [for] every case that isn't decided by that point, her vote doesn't count. And if she's the deciding vote then the case can't be decided and it will have to be reargued," Goldstein says.

O'Connor has agreed to continue serving on the court pending confirmation of her replacement. But as a lame duck justice, her presence may make it difficult to resolve the toughest cases until after her departure. The situation is further clouded by the possibility of a Senate filibuster that could stall a Bush nominee to replace O'Connor.

"We are in a little bit of a litigation pickle," says Georgetown University Law School professor Viet Dinh. While it is unlikely that litigants will attempt to manipulate the system by taking advantage of O'Connor's imminent departure, Professor Dinh says, "It does raise a question of strategic gaming by the justices."

Dinh, a former law clerk to O'Connor, made his remarks during a recent Supreme Court preview conducted at Georgetown University Law School. "If there is, for example, a 5-4 decision with Justice O'Connor in the majority, then of course the dissenters would have a fairly strong and reasonable incentive to delay the announcement of that decision by not circulating their dissent," he says.

The case most likely to result in a 4-4 deadlock with O'Connor breaking the tie involves a challenge to a 2003 New Hampshire law that requires teens seeking an abortion to notify a parent. …