Court to Tackle Tough Cases in New Session

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The U.S. Supreme Court begins its new session next week. Slate legal analyst Dahlia Lithwick talks with Madeleine Brand about the potentially trendsetting cases the court may face in this new judicial term, including controversial cases involving abortion.

MADELEINE BRAND: The Supreme Court begins its new term next week. The headline cases involve abortion, affirmative action, and global warming. Here to give us a preview is Dahlia Lithwick. She's legal analyst for the online magazine Slate and for us here at DAY TO DAY. Hi, Dahlia.

Ms. DAHLIA LITHWICK (Legal Analyst, Hey, Madeleine.

BRAND: Well, let's dive into those big cases. First up, abortion. Tell us about the cases the justices have agreed to hear.

Ms. LITHWICK: What they're going to do is weigh the constitutionality of the so-called partial birth abortion ban. This is a piece of federal law from 2003, and the law is controversial because it does not contain an exception allowing for this procedure, even in the event of a danger to the health of the mother. The reason this is important is that because in 2000, the Supreme Court struck down a Nebraska partial birth abortion ban that similarly had no health exception. O'Connor said bring us back a law with a health exception and maybe we'll find it constitutional. Congress went ahead and passed an act that had no health exception. The court has agreed to hear whether a substantially similar law to the one that they struck down is now going to be constitutional.

BRAND: And so does that indicate that they may reverse themselves?

Ms. LITHWICK: Well, certainly none of the lower courts have upheld this ban. In fact, this ban has never gone into effect. So the very fact that the court agreed to hear it suggests they're at least willing to take a position that might be different from the one in which O'Connor was the key vote in 2000.

BRAND: Okay, another big issue: affirmative action. What are the issues involved here?

Ms. LITHWICK: Again, Madeleine, these are cases that we thought had been settled with O'Connor being the deciding vote only a few years ago. But this involved a pair of affirmative action cases in high school context, not in the college context - one coming out of Seattle, Washington, one coming out of Jefferson City, Kentucky. Race is used as part of the way to determine which schools these kids are being put into in high school, and there's a question about whether or not that violates the constitution. Again, we thought this was settled in the University of Michigan cases that the court only just recently heard. Raises the question yet again, is this about changes in the law or about changes in the composition of the court?

BRAND: And I understand these cases are brought by white students or the parents of white students who object to the local laws?

Ms. LITHWICK: That's right. They say that using race - particularly in a fixed numeric kind of quota program - violates their children's' constitutional rights.

BRAND: Okay, and finally global warming. This is a - the first time I believe the court has heard a case involving global warming. Tell us about this.

Ms. LITHWICK: This is an incredibly interesting case. We had a little bit of a foreshadow of it in the last term when there was an important environmental case that had to do with water regulations. But this has to do with whether the environmental protectioncy(ph) agency has the authority to regulate greenhouse gasses that lead to the so-called greenhouse effect. The EPA said since there's real scientific uncertainty about whether there is a greenhouse affect, they're not going to regulate the carbon emissions. And twelve states have - disagree with that and have sued. So this is a really important test case about whether or not an agency can say, well, because of scientific uncertainty we're just not going to regulate this effect.

BRAND: All right, Dahlia. Let's talk about the make up of the court. This is the first full-term of the new Roberts court, but from what I understand, most of these cases will be decided by a justice who's been around for a while -Justice Anthony Kennedy.

Ms. LITHWICK: That's right, Madeleine. I just don't think you can overstate how critical his vote is going to be on a court that is essentially - on most of these key issues, affirmative action, abortion, and the environment - pretty polarized, four-four, with him in the middle. One wag recently observed that this is Kennedy's world now. We all just live in it.

BRAND: Dahlia Lithwick is legal analyst for and for us here at DAY TO DAY. Thank you, Dahlia

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