Abortion regulations and race-based public school enrollment
plans are among major national issues at the US Supreme Court this
year in a term that offers the first real insight into the
constitutional vision of the high court under Chief Justice John
Constitutional scholars and other analysts are watching closely
to see if respect for legal precedent - the principle of stare
decisis - emerges as a defining approach, or whether the Roberts
court will seek to build on the conservative agenda of the Rehnquist
court, with sweeping rulings that erode or erase liberal precedents.
A major factor in the direction of the court, whose 2006-2007
term begins Monday, is Justice Anthony Kennedy, who is emerging as a
primary centrist power on the court following the retirement of
Justice Sandra Day O'Connor. Analysts say he may provide the swing
vote in several key cases.
"The absence of Justice O'Connor will be one of the most
fundamental changes the court has seen," former acting solicitor
general and Duke Law School Professor Walter Dellinger told
reporters in a recent preterm briefing.
"It is difficult to overstate the significance of that shift,"
said former solicitor general and Pepperdine Law School Dean Kenneth
Starr, in the same briefing. "All eyes will be on Kennedy."
Justice Kennedy's new judicial clout will be on full display in
both the race and abortion cases. Similar cases were decided by 5-4
majorities in recent years with Justice O'Connor joining the court's
four liberal justices. In contrast, Kennedy dissented in both cases.
Last term was a year of historic transition for the court with
the passing of Chief Justice William Rehnquist and the retirement of
O'Connor. It marked the arrival of Mr. Roberts as chief justice and
Samuel Alito as an associate justice.
The change in the high court's roster is expected to swing the
balance of power to the right, possibly overturning legal precedents
on a range of hot-button issues, including both the abortion and
race cases, analysts say.
Although it is not clear how Roberts and Justice Alito will vote
in these cases, many analysts suggest they are likely to align with
the court's conservative wing and that Kennedy will be in position
to provide the decisive fifth vote.
Partial-birth abortion is key case
At issue in the abortion case is the constitutionality of the
federal Partial-Birth Abortion Act of 2003. The law was passed by
the Republican-controlled Congress in open defiance of an earlier
Supreme Court ruling that so-called partial-birth abortions could
not be banned by states unless lawmakers provided an exception in
cases where a woman's health might be threatened by the
unavailability of the banned procedure.
Congress swept aside the court-imposed requirement by declaring
in its law that there were no circumstances when a partial-birth
abortion might be medically necessary. If no circumstances exist,
lawmakers concluded, there is no need for a health exception. That
Congressional finding disregards the testimony of some medical
experts who say the procedure can be necessary in certain cases.
One key issue in the case is whether the high court should defer
to Congress on what is medically necessary or set the standard
Three district courts and three federal appeals courts have
struck down the 2003 statute, ruling that it is unconstitutional
because it fails to provide a health exception as required by the
Despite universal defeat in the lower courts, supporters of the
law hope that O'Connor's retirement and Alito's arrival may have
tipped the balance of power on the issue.
In 2000, the Supreme Court struck down a Nebraska law nearly
identical to the federal law by a 5-4 vote. Justice Kennedy wrote
one of the most impassioned dissents of his 18 years on the court.
"The majority views the procedures from the perspective of the
abortionist, rather than from the perspective of a society shocked
when confronted with a new method of ending human life," he wrote. …