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Previewing the Supreme Court Term

The first Monday in October is just around the bend. Among Supreme Court watchers, that means their scopes are up and focused on the first full term of the Roberts Court. For the Chief Justice of the United States, the coming term is unlikely to be as harmonious as his first, says Legal Times correspondent Tony Mauro at

Roberts’ second term as chief justice begins Oct. 2 with a slew of tough curveball cases on the docket. Contentious disputes over abortion rights, race, punitive damages, and the environment loom large, and the Court has only just begun to fill its argument calendar for the term.

The term may also prove a litmus test for the Court's other new justice, Samuel Alito Jr., who replaced centrist Sandra Day O’Connor, and for Justice Anthony Kennedy, who replaced O’Connor as the court's unofficial swing voter, Mauro says:

Nowhere will O’Connor’s departure mean more this term than in a pair of cases set for oral argument Nov. 8, Gonzales v. Carhart and Gonzales v. Planned Parenthood. At issue in both is the federal law banning "partial birth abortion," which Congress passed in the wake of the Court’s 2000 decision Stenberg v. Carhart, which struck down a similar statute in Nebraska because it failed to include an exception that would allow the procedure if needed to protect the health of the mother. The federal law also does not contain such an exception, but Congress cited medical evidence — which abortion rights supporters dispute — to conclude that the procedure is never needed to protect a woman’s health. ...

Kennedy now must grapple with a no-win dilemma that rivals the agonizing he did before Casey, which at the time produced his now-classic musing: "Sometimes you don’t know if you’re Caesar about to cross the Rubicon or Captain Queeg cutting your own towline."

Also on, National Law Journal Supreme Court reporter Marcia Coyle predicts that the term is likely to deliver drama early on. Even though the Court has yet to fill out its docket, she says, just the cases it has so far agreed to hear offer "plenty of potential drama and legal significance." Like Mauro, Coyle reports that the abortion cases are likely to be early tests of Roberts' consensus-building efforts, as are two key affirmative action cases, Parents Involved in Community Schools v. Seattle School District #1 and Meredith v. Jefferson County Board of Education.

Parents in both cases are challenging school integration guidelines that prevented their children from attending their school of choice because of their race or ethnicity. The Bush administration has intervened in the cases on the side of the parents, arguing that the guidelines involve "outright racial balancing" which is "patently unconstitutional."

Elsewhere, Scott Nelson at Consumer Law & Policy Blog discusses two Fair Credit Reporting Act cases the Court accepted yesterday that raise the question of whether a willful violation is established by proof of reckless disregard of the law. At Sentencing Law & Policy, Douglas Berman hopes for the Court to provide post-Booker clarification on sentencing procedures and reasonableness review.

For a more in-depth look at the 2006 term, The Cato Institute's Center for Constitutional Studies presents audio and video from its Sept. 14 full-day program, The Supreme Court: Past and Prologue. Panels of Supreme Court academics and practitioners look ahead to the new term and also discuss the state of federalism, executive power and the First Amendment.

Posted by Robert J. Ambrogi on September 27, 2006 at 02:43 PM | Permalink | Comments (0)


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