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
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
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,
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,"
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. …