Supreme Court Revisits Race, Abortion this Session

The Supreme Court's fall session begins Monday. University of Colorado law professor Mimi Wesson offers Andrea Seabrook her insights on the justices' likely agenda.

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ANDREA SEABROOK, host:

This is WEEKEND EDITION. From NPR News I'm Andrea Seabrook.

The Supreme Court opens its new term this week with several controversial issues on the docket: abortion, affirmative action, global warming, and others. There's also plenty of focus on the justices themselves. It's the first full term for this new group of nine. All eyes will be on Justice Samuel Alito and Chief Justice John Roberts. And now that Sandra Day O'Connor has retired, Justice Anthony Kennedy is likely to be the court's swing vote. Joining us for a preview is WEEKEND EDITION'S legal commentator, Mimi Wesson, professor of law at the University of Colorado. She joins us from member station KMWU in St. Louis. Good morning, Mimi.

MIMI WESSON: Morning, Andrea.

SEABROOK: Let's start with one of those controversial issues. The court will hear two cases involving the procedure some call partial birth abortion. Tell us about this case.

WESSON: That's right. The case raises the question of the constitutionality of a federal statute passed by Congress prohibiting so-called partial birth abortions. Now, the court struck down a similar Nebraska statute in 2000 and two lower federal courts have invalidated this federal statute as well. But some things are different from the last time the court took up this question. For one thing, the process of enactment of this statute in Congress was somewhat different and somewhat more careful than the process used in passing the Nebraska statute in the earlier case. But most important, as you pointed out, the membership of the court has changed. Justice O'Connor voted to strike down the statute in 2000 in a close vote, 5-4. But now she and former Chief Justice Rehnquist have been replaced by the new chief justice and Justice Samuel Alito.

So what's at stake here are two things at least: the continued constitutional significance of the court's past requirement that late term abortion restrictions have to have an exception to preserve a woman's health...

SEABROOK: That's sort of the central key point of this case, isn't it?

WESSON: That is the central key point. And in its hearings, Congress found that it's never necessary to preserve a woman patient's health to perform a partial birth abortion. This, however, is contrary to some other scientific opinions. So one question is how deferential the court will be to this finding that Congress made before it passed the prohibition.

And the second issue is the extent that we can expect the new justices on the court to be respectful of the court's recent precedents in this area.

SEABROOK: I see. Sort of with O'Connor gone, whether or not the current court will respect the old court on this ruling. Is that the right way to look at it?

WESSON: Yes, that's one way to look at it. In other words, some might argue, well, no matter how you feel about this question as an original proposition, it was only six years ago that the court struck down a very similar statute. A respect for precedent suggests that the outcome should be the same here.

SEABROOK: What about some of the other cases on the court's docket? I know two of them center around affirmative action and schools.

WESSON: That's right. They are two school districts involved. One in Seattle, one in Kentucky. And both of them have used race as a factor in allocating seats in highly popular public schools. Often these are magnet or some kind of specialized school. Now Justice O'Connor, who was in that past this sort of exquisitely fact-sensitive and nuanced justice, who provided the swing vote in numerous affirmative action cases in the past, is of course no longer on the court. So at stake here may be not only the use of this practice in primary and secondary schools, but if the opinion should be written in a categorically way to prohibit the use of race as a consideration in educational decisions in any school, then the court's recent precedents upholding affirmative action and admission to the University of Michigan Law School may also be threatened.

SEABROOK: Okay. Any other big issues we should watch for this term?

WESSON: Well, yes, there a big environmental law case before the court that raises the question of whether the Environmental Protection Agency has the authority and the obligation under the Clean Air Act to regulate mobile sources of greenhouse gases - vehicles chiefly. In the Bush administration the EPA has claimed that it doesn't have the authority to regulate such emissions. But Massachusetts and several other states, cities and organizations have sued the EPA, and they argue that it not only has the power but the obligation to regulate these emissions.

So these are huge issues of environmental law in this case. But the outcome may in the end turn on the somewhat arcane question of what lawyers call standing; that is, whether those who brought the case really suffered enough injury to give them a right to sue. There's some conflicting recent past decisions on this question and they make this case both an important one and a hard one to call.

SEABROOK: Fascinating. But you know, these cases we're talking about, they're really just a small part of the upcoming session, aren't they?

WESSON: That's right. The court decided 75 cases after argument last term. And that was actually a much smaller number than they used to decide back in the '80s, when they would sometimes decide twice that many. So it's easy to focus on hot-button cases, high-profile cases. But of course there are many, many others, some quite important, others more routine, that the court will take up before its term ends at the end of the spring.

SEABROOK: And of course serious court-watchers really have their eyes on the justices, don't they? Justice Alito and Chief Justice Roberts.

WESSON: Yeah, absolutely. Everyone's watching to see how they vote in these high-profile cases. So far court watchers have looked back at the last term to see what the voting affinities of the two new justices might have been, and they've discovered that the new chief justice, Roberts, has voted most often with Justice Scalia. Justice Alito has voted most often with Chief Justice Roberts. But Alito only voted in 36 cases last term, so that's probably not a large enough sample to make possible any confident predictions. And each of the two men voted in a way that was somewhat surprising in at least one or two cases.

There's really a potential here for Justice Kennedy to emerge as the new swing justice, somewhat as Justice O'Connor was during her tenure, and his vote will be especially critical in the abortion and the affirmative action cases that we mentioned.

SEABROOK: I understand that Chief Justice Roberts, at his partial term last term, he tried really hard to forge consensus among the justices, something that hadn't been happening much in the last few years.

WESSON: That's right, and in the somewhat brief period of his presiding over the court last term, he had a great deal of success. The court decided nearly half of the cases that it decided after argument without dissent, and that's a much higher percentage of cases without dissent than the court had had in the past. So he has shown an inclination to use his power to assign opinions to a justice for writing. He can do that when he's in the majority, to try to forge consensus. He's said that he would like the justices to write decisions on narrower rather than broader grounds, to aid the achievement of consensus.

SEABROOK: And Mimi, let me ask you. There's been a lot in the news recently about issues of military tribunals, interrogation of terrorism suspects, access to the courts, habeas corpus for those held in detention. Are any of these issues likely to come up before the court this term?

WESSON: Not likely, but they are almost certain to come up before the court again, and it might be sooner than you would think. It might be next term, for example, the term that begins about a year from now, because Mr. Hamdan, who was the named party in the court's important decision last term, Hamdan v. Rumsfeld, his case was sent back down to the court of appeals below, and because of some features of his situation, he might be perfectly situated to mount a challenge to the new rules that Congress just enacted concerning the treatment of detainees, the rules governing military commissions, the availability of habeas corpus to test one's detention.

So I do expect these issues to come back to the court before too long, but probably not in this term.

SEABROOK: Mimi Wesson is a professor at the University of Colorado School of Law in Boulder. She writes legal thrillers in her spare time. Her latest novel is called Chilling Effect. Thank you, Mimi.

WESSON: Thank you, Andrea.

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